USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 97-1684
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN CASTRO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Dana A. Curhan on brief for appellant.
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Jay P. McCloskey, United States Attorney, Margaret D.
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McGaughey and George T. Dilworth, Assistant United States
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Attorneys, on brief for appellee.
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November 18, 1997
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SELYA, Circuit Judge. In this criminal appeal,
SELYA, Circuit Judge.
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defendant-appellant Christian Castro argues that the district
court erred when it excluded the testimony of two prospective
defense witnesses on the ground that each of them, if called to
the witness stand, could and would invoke his Fifth Amendment
privilege against self-incrimination. In addition, Castro
asseverates that the prosecution's role in keeping one of these
witnesses from testifying distorted the factfinding process and
denied him a fair trial. Discerning no error, we affirm the
judgment of conviction.
I.
I.
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Background
Background
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A federal grand jury indicted the appellant on a charge
of conspiring to possess cocaine base (crack cocaine) with intent
to distribute. See 21 U.S.C. 841(a)(1) & (b)(1)(B), 846. The
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charge arose out of the appellant's supposed involvement in a
multi-faceted drug trafficking ring. The evidence at trial,
viewed in the light most favorable to the government, see United
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States v. Maraj, 947 F.2d 520, 522 (1st Cir. 1991), showed that
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the conspiracy flourished in mid-1994. The appellant's role was
to deliver crack cocaine between Lawrence, Massachusetts and
Lewiston, Maine. Upon arriving in Lewiston, the appellant would
stay at one of several dwellings in which other coconspirators
resided and would supervise the ensuing "retail" sales. The
coconspirators were geographically dispersed and communicated
largely by telephone. Many of the telephone numbers that they
2
used were listed under false names.
At trial, the government presented a very strong case
against the appellant. Among other things, several self-styled
members of the conspiracy testified for the prosecution and
inculpated the appellant. Faced with this array of turncoat
witnesses, the appellant sought to call his brother, Manuel
Enr que "Ricky" Castro, and a previously convicted coconspirator,
Melvin "Bubba" Lagasse, as defense witnesses. Both men informed
the district court that they intended to invoke the Fifth
Amendment privilege against self-incrimination.
After the government rested, the court convened a voir
dire hearing out of the presence of the jury. The court
prudently required the parties to proceed in a question-and-
answer format. Each witness was represented by an attorney.
Defense counsel's questions to Ricky Castro focused on Ricky's
knowledge anent (1) the appellant's relationship to numerous
addresses, and his involvement with a particular dwelling (which
the government contended was a "crack house"), and (2) various
telephone numbers that other witnesses had said they used in the
course of the conspiracy.
Ricky Castro invoked his Fifth Amendment privilege
against self-incrimination and refused to testify concerning
these matters. Defense counsel objected and asked the district
court to compel responsive answers. Counsel argued that Ricky
Castro's testimony would help establish salient points (e.g.,
that the appellant did not reside at the specified addresses;
3
that he allowed friends to install a telephone under his name
which he, himself, did not use; and that he had a different
telephone number not associated with the felonious activities
which he did use) without in any way incriminating the witness.
Ricky's lawyer took a different view.
The trial judge upheld the claim of privilege. He
found, first, that the requested information might tend to
incriminate the witness, and second, that the government's cross-
examination would likely delve into the scope and degree of the
witness's knowledge of his brother's activities and could thus
lead to inculpatory information.1
From Lagasse, defense counsel attempted to elicit a
statement that the appellant was not involved in the drug
trafficking operation. Counsel also sought to ask Lagasse about
divers coconspirators' reputations for truthfulness. Lagasse
invoked his Fifth Amendment privilege as to these questions. The
district court rebuffed the appellant's argument that Lagasse did
not face any real threat of incrimination because he already had
been convicted on the conspiracy charge, finding that Lagasse had
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1In this regard, Judge Hornby stated:
Certainly, there are plenty of innocent
explanations why somebody might know the
residence of a family member, but by the same
token, if you don't know their residence,
that might afford you a defense under certain
criminal charges. And I take it, [counsel's]
argument therefore is by admitting to
knowledge, he has thereby lost that potential
defense of lack of knowledge concerning the
circumstances.
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valid Fifth Amendment concerns in two respects: (1) his exposure
to prosecution for one or more robberies which may have occurred
in the same time frame as, and in relation to, the drug
conspiracy, and (2) his exposure to prosecution for substantive
drug offenses committed during and in the course of the
conspiracy.
The trial concluded without testimony from either Ricky
Castro or Bubba Lagasse. The jury found the appellant guilty as
charged and Judge Hornby imposed sentence. This appeal followed.
II.
II.
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Discussion
Discussion
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A.
A.
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Standard of Review
Standard of Review
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In challenging the district court's determination that
these witnesses invoked the Fifth Amendment privilege
appropriately and in good faith, the appellant invites us to
subject that determination to plenary review. We decline the
invitation. The proper standard for appellate review of a trial
court's determination that a witness validly invoked his Fifth
Amendment privilege is abuse of discretion. See United States v.
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Gary, 74 F.3d 304, 310 (1st Cir. 1996); United States v. Pratt,
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913 F.2d 982, 990 (1st Cir. 1990); see also Hoffman v. United
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States, 341 U.S. 479, 488 (1951) (explaining that the court of
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appeals should reverse such a determination only when it is
"perfectly clear from a careful consideration of all the
circumstances in the case" that the witness's testimony "cannot
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possibly have such tendency to incriminate").
Of course, abuse of discretion itself breaks down into
different components. Within it, factual findings are often
subjected to clear-error review, see, e.g., United States v.
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Perry, 116 F.3d 952, 977 (1st Cir. 1997), whereas material errors
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of law constitute per se abuses of judicial discretion, see,
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e.g., Koon v. United States, 116 S. Ct. 2035, 2047 (1996). Put
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another way, it is never within a trial court's discretion to
make a determination that is premised on an incorrect legal
standard.
B.
B.
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The Fifth Amendment
The Fifth Amendment
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The Fifth Amendment privilege against self-
incrimination is an essential constitutional protection that is
widely regarded as a cornerstone of our adversarial system of
criminal justice. See Michigan v. Tucker, 417 U.S. 433, 439
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(1974). The privilege must not be given a crabbed construction.
See In Re Kave, 760 F.2d 343, 354 (1st Cir. 1985) (collecting
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cases).
Withal, the Fifth Amendment's prophylaxis is not
available to all comers in all circumstances merely because they
have the presence of mind to chant the accepted constitutional
liturgy. To the contrary, the prospective witness must show at
the very least that he is faced with some authentic danger of
incrimination. See Hoffman, 341 U.S. at 486-87; Pratt, 913 F.2d
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at 990; In Re Brogna, 589 F.2d 24, 27 (1st Cir. 1978). This is
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not a particularly onerous burden. While chimerical fears will
not suffice, the prospective witness need only limn some
reasonable possibility that, by testifying, he may open himself
to prosecution. See In Re Kave, 760 F.2d at 354.
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The privilege cannot be invoked on a blanket basis.
See In re Grand Jury Matters, 751 F.2d 13, 17 n.4 (1st Cir.
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1984). It operates question by question. Thus, the district
court must conduct a "particularized inquiry." Pratt, 913 F.2d
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at 990. For the privilege to attach, the questions and answers
need not be directly incriminating. If a reply to a seemingly
innocuous question reasonably will tend to sculpt a rung in the
ladder of evidence leading to prosecution, the privilege
appropriately may be invoked. See Hoffman, 341 U.S. at 486;
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United States v. Johnson, 488 F.2d 1206, 1209 (1st Cir. 1973).
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In other words, testimony which might lead indirectly to evidence
that then could be used in a future criminal prosecution is
eligible for Fifth Amendment protection. See Murphy v.
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Waterfront Comm'n, 378 U.S. 52, 79 (1964). To like effect, a
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court ordinarily should not permit a witness to testify on direct
if the court has adequate reason to believe that the witness
validly will invoke the Fifth Amendment on cross-examination with
regard to matters which are bound up with those discussed on
direct. See Gary, 74 F.3d at 309.
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In the last analysis, the nisi prius court should make
a particularized finding as to the applicability vel non of the
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privilege and should elucidate its rationale. In reaching a
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decision as to whether a witness's testimony might tend to
incriminate him, the court may of course take into consideration
any personal perceptions gleaned from its observation of the
prospective witness or from its hands-on involvement in the case.
See Hoffman, 341 U.S. at 487; United States v. Zirpolo, 704 F.2d
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23, 25 (1st Cir. 1983).
With this backdrop in place, we now consider the lower
court's rulings in respect to each of the proffered witnesses.
C.
C.
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Manuel Enr que "Ricky" Castro
Manuel Enr que "Ricky" Castro
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The appellant argues that his brother should have been
compelled to testify because answering questions that concerned
the appellant's places of residence and telephone numbers "[b]y
no stretch of the imagination" would have tended to incriminate
Ricky. Relatedly, the appellant posits that the trial court had
the power indeed, the duty to preclude the government from
cross-examining the witness as to other, more sensitive matters
(such as the basis for the witness's knowledge). The court could
have used this power, he maintains, thereby cabining the
government and restricting it to a "very narrow cross."
We reject this line of reasoning. Here, the trial
court proceeded with commendable caution. It prohibited the
witness from invoking the Fifth Amendment on a wholesale scale.
Then, in an attempt to narrow the assertion of the privilege, the
court compelled the witness during the voir dire hearing to
answer some preliminary questions which it deemed non-
8
incriminating.
As to the queries involving knowledge of the
appellant's addresses, the court's finding that the witness faced
potential incrimination by admitting to such knowledge is fully
supportable. After all, any knowledge that Ricky Castro might
have had of the activities at the supposed crack house or of his
brother's comings and goings at other places frequented by the
coconspirators might well have furnished important clues
necessary to convict Ricky, were he to be accused of
participation in the drug trafficking ring. See, e.g., In re
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Kave, 760 F.2d at 354; Johnson, 488 F.2d at 1209; see generally
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Hoffman, 341 U.S. at 487-88 (emphasizing the district court's
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superior ability to judge whether information would have been
inculpatory in light of the "peculiarities of the case").
So, too, the court's finding anent the sundry telephone
numbers: since the telephone numbers that the coconspirators
used to contact each other in connection with the drug enterprise
were not associated with the appellant's apparent place of
residence, Ricky's knowledge of those numbers could have
implicated him in the conspiracy. Requiring him to answer
questions concerning the telephone number at the appellant's
actual place of residence and his knowledge as to whether the
appellant had ever had a telephone listing in Massachusetts would
similarly have jeopardized his rights. In the idiocratic
circumstances of this trial in which evidence of telephone
numbers was central to the government's case we cannot say that
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the district court abused its discretion in allowing Ricky Castro
to invoke his Fifth Amendment privilege.
We give short shrift to the appellant's contention that
the district court had an obligation to compel answers and then
to forestall self-incrimination by severely limiting the scope of
the government's inquiry on cross-examination. We recognize, as
the appellant asserts, that the Sixth Amendment assures a
criminal defendant of the right to mount a defense but that
right must coexist with the government's right to test the truth
of testimony proffered by the defense through the medium of
cross-examination.
This is not to say that the right to cross-examination,
any more than the right to present a defense, is absolute and
unfettered. A trial court sometimes may avoid Fifth Amendment
problems by stopping the cross-examiner from launching a fishing
expedition into collateral matters. See United States v. Berr o-
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Londo o, 946 F.2d 158, 161 (1st Cir. 1991); Turner v. Fair, 617
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F.2d 7, 10 (1st Cir. 1980). Still, if a jury is to hear a
witness's evidence, it normally should not be told only a part of
the core story. Thus, when honoring the Fifth Amendment
privilege will preclude or unfairly circumscribe cross-
examination as to non-collateral matters and by "non-
collateral matters" we mean matters that are both within the
scope of the direct examination and of consequence to the
resolution of the issues in the case it is fully within the
trial court's discretion to sustain the claim of privilege and
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bar the witness's testimony altogether. See Gary, 74 F.3d at
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310; Zirpolo, 704 F.2d at 25-26.
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The appellant has one more shot in his sling. He
asseverates that even if the court properly excluded the
testimony, it should have permitted his counsel to pose specific
questions to the witness in front of the jury so that the jury
could see and hear the witness claim his Fifth Amendment
privilege in living color. This is whistling past the graveyard.
At least in the absence of exceptional circumstances and none
are present here trial courts should not permit witnesses who
have indicated that they will refuse to answer questions on
legitimate Fifth Amendment grounds to take the witness stand and
assert the privilege in front of the jury. See Namet v. United
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States, 373 U.S. 179, 186 (1963); Johnson, 488 F.2d at 1211. We
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fail to see any hint of discretion abused in Judge Hornby's use
of standard procedure in this wise.
D.
D.
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Melvin "Bubba" Lagasse
Melvin "Bubba" Lagasse
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The appellant strives to persuade us that the district
court erred in allowing Lagasse to assert his Fifth Amendment
privilege because any questions posed to him either would not
have incriminated him or would have been wholly peripheral to the
issues before the court. We are not convinced.
The inquiry that the appellant wished to undertake vis-
-vis Lagasse was aimed at securing an admission that he (the
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appellant) was not involved in the drug ring.2 Because Lagasse
already had been convicted and sentenced for his participation in
the same drug trafficking conspiracy, the appellant reasons that
this testimony was safe in that no further possibility of self-
incrimination remained. See United States v. Pardo, 636 F.2d
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535, 543 (D.C. Cir. 1980).
This reasoning is overly simplistic. It ignores the
fact that, on cross-examination, the government most assuredly
would have explored the extent to which Lagasse himself was
involved in the conspiracy in order to test his level of
familiarity with the players. Such cross-examination would have
required Lagasse to testify about any and all narcotics
transactions that occurred in or about the same time frame.
Though Lagasse could not be prosecuted again for the conspiracy,
he was not shielded from criminal liability for any substantive
crimes which may have been the object of, or which were committed
in the course of, that conspiracy. See, e.g., United States v.
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Principe, 482 F.2d 60, 63 (1st Cir. 1973); Ottomano v. United
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States, 468 F.2d 269, 271 (1st Cir. 1972). Nor do the terms of
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Lagasse's plea bargain mandate a different result; while the plea
bargain may have precluded federal prosecution for some of these
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2Here again, the district court did not permit the witness
to invoke the Fifth Amendment in a blanket fashion, but required
him to respond on voir dire to specific questions. Moreover,
after Lagasse claimed his Fifth Amendment privilege in respect to
a question, the court, if the basis for the assertion was not
transparently clear, made due inquiry of Lagasse's counsel. This
salutary procedure enabled the court to define the extent of the
witness's legitimate Fifth Amendment interests.
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substantive acts, Lagasse nonetheless was wide open to state
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prosecution on that account. See United States v. Perez-Franco,
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873 F.2d 455, 460-61 (1st Cir. 1989).
Of course, the appellant also wanted to ask Lagasse
about his coconspirators' reputations for truthfulness. This
line of questioning is subject to much the same vice. On cross-
examination, the government certainly would have explored the
degree to which Lagasse was involved in the drug business with
the persons on whose veracity he was presuming to pass judgment.
Moreover, because neither Lagasse's conviction nor his plea
agreement shielded him from criminal liability for crimes of
violence, the interrogation that the appellant sought to
undertake would likely have gotten into at least one incident in
which Lagasse allegedly had robbed a coconspirator (and for which
he never had been prosecuted).
E.
E.
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The Remaining Claims
The Remaining Claims
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The appellant's two final claims boil down to a
suggestion that the government's role in keeping Lagasse from
testifying distorted the factfinding process and denied the
appellant a fair trial. In mounting this offensive, the
appellant in effect merges two loosely related theories the
"effective defense" theory (which derives from the right to
compulsory process) and the "prosecutorial misconduct" theory
(which derives from the right to due process). See United States
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v. Angiulo, 897 F.2d 1169, 1190-93 (1st Cir. 1990) (describing
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13
both theories). Whether viewed singly or in combination, neither
theory calls the district court's rulings into doubt.
We need not dwell on the late, unlamented effective
defense theory. That theory purports to hold that if a witness
can offer clearly exculpatory testimony indispensable to the
defense and the government has no convincing reason to withhold
immunity, the trial court may bestow use immunity on the witness.
See Government of the Virgin Islands v. Smith, 615 F.2d 964, 974
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(3d Cir. 1980). Recognizing that the power to direct witness
immunity customarily is reserved to the Executive Branch, see 18
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U.S.C. 6003(b), we recently interred the effective defense
theory. See Curtis v. Duval, 124 F.3d 1, 9 (1st Cir. 1997);
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United States v. Mackey, 117 F.3d 24, 28 (1st Cir. 1997). It is
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not good law in this circuit and the appellant cannot profit by
it.
In contrast, the appellant's due process claim stands
on sound legal footing. It is common ground that "the due
process clause [constrains] the prosecutor to a certain extent in
her decision to grant or not to grant immunity." Curtis, 124
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F.3d at 10 (quoting Angiulo, 897 F.2d at 1191). However, this
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constraint operates at the margins of the prosecutor's discretion
and takes on practical significance only when the prosecutor
deliberately aspires to distort the factfinding process. See id.
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This type of deliberate distortion can occur in two ways: if the
government attempts to intimidate or harass a potential witness,
or if the prosecutor purposefully withholds use immunity to hide
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exculpatory evidence from the jury. See id.; Angiulo, 897 F.2d
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at 1192. Fortunately, such cases are rare and the record does
not indicate that this case is of that genre.
In the first place, there is absolutely no evidence to
validate the (entirely conclusory) assertion that the government
attempted to harass or intimidate Lagasse. The mere fact that
Lagasse was a federal prisoner at the time of Castro's trial does
not prove the assertion. We likewise are unpersuaded by the
appellant's suggestion that the prosecutor's avowed intention to
cross-examine Lagasse vigorously about the alleged robbery and
other non-collateral points relevant to his proffered testimony
amounted to intimidation. Effective cross-examination is an
essential tool that tests the reliability of a witness's
testimony, and a prosecutor's stated intention to proceed down
that road is no more than an acknowledgment of the obvious.
In the same vein, the record contains no indication
that the prosecutor deliberately withheld immunity from Lagasse
in order to keep exculpatory testimony from the jury. In answer
to the trial court's inquiry, the prosecutor pointed out the
federal government's desire not to hinder "state or federal
charges of possession of controlled drugs and trafficking [that]
could still be brought" against Lagasse, notwithstanding the
federal conspiracy conviction. This perfectly plausible
statement adequately deflects any insinuation that the
government's handling of Lagasse qua witness was motivated by the
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sole purpose of keeping exculpatory evidence from the jury. See
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15
Angiulo, 897 F.2d at 1193.
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III.
III.
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Conclusion
Conclusion
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We need go no further. From aught that appears, the
appellant was fairly tried and justly convicted. The judgment
below must therefore be
Affirmed.
Affirmed.
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