Docket: Nos. 79-1831, 79-1836, 79-1895 and 79-1896
Court: Court of Appeals for the D.C. Circuit; August 11, 1980; Federal Appellate Court
On February 1, 1979, six defendants were indicted on two counts: unlawful possession with intent to distribute a controlled substance (Count I) and unlawful possession of a narcotic drug (Count II). Clifford Corbett's charges were dropped in exchange for a guilty plea on other indictments, while the remaining five defendants were found guilty after a four-day jury trial. Goodwin, Tate, Mendoza, and Pardo appealed their convictions, raising three issues:
1. They argued that the trial judge erred by allowing Corbett to refuse to testify based on the Fifth Amendment.
2. They contended that if Corbett's refusal was valid, the trial court should have granted him immunity to facilitate their prosecution.
3. Mendoza and Pardo claimed the trial judge improperly denied their motions for judgment of acquittal.
The court ruled that Corbett did not possess an absolute Fifth Amendment right to refuse to testify, leading to the reversal of Goodwin and Tate's convictions with a new trial ordered. However, this decision did not benefit the other appellants since they did not seek Corbett's testimony at trial. The court did not address the Sixth Amendment rights concerning immunity. Mendoza's conviction was affirmed, as his motion for acquittal was denied, while Pardo's conviction was reversed due to insufficient evidence, resulting in the dismissal of charges against him.
The facts of the case, viewed in favor of the Government, included undercover DEA agent John W. Lee purchasing cocaine from Corbett on multiple occasions, culminating in a planned transaction that led to the indictments.
Corbett informed Lee that a source was willing to sell a pound of cocaine for $26,500, but Lee countered with an offer of $22,000. After confirming that this price was acceptable, Corbett directed Lee to wait in the car while he, along with Paul Goodwin and a woman, left the apartment and drove to a warehouse in Washington, D.C. Upon arrival, they were granted entry by Melvin Bell, where Lee met other defendants, including Cecil Tate and Sixto Mendoza. During the visit, Tate expressed concern about the number of people present but ultimately reassured everyone. Lee was led to a mezzanine area where he was shown a paper bag containing two plastic bags of cocaine. After questioning whether the substance had been tested and not finding any clorox, Lee asked Bell to retrieve some from his car. While Bell was gone, Lee inspected the substance and signaled surveillance agents outside. Lee then arrested Corbett, Goodwin, Tate, Mendoza, and Pardo, while Bell was arrested separately. The defendants were indicted on charges of unlawful possession with intent to distribute a controlled substance and unlawful possession of a narcotic drug. Corbett later pleaded guilty to related charges, leading to the dismissal of the indictment against him in this case. A trial for the remaining defendants began on June 26, 1979, resulting in a guilty verdict on both counts. Goodwin, Tate, Mendoza, and Pardo appealed, arguing that the trial judge erred in allowing Corbett to invoke the Fifth Amendment and refuse to testify against them.
Appellants argue that if Corbett had a Fifth Amendment right against self-incrimination, they possessed a Sixth Amendment right to obtain his testimony through a grant of immunity. Corbett faced multiple narcotics-related indictments, ultimately pleading guilty to charges in one case, which led to the dismissal of other counts. Before the trial, appellant Goodwin filed a motion for compulsory process to present Corbett's testimony, seeking ex parte questioning about his anticipated statements. Appellant Tate also made a pre-trial motion, supported by an affidavit claiming Corbett disputed Agent Lee's accusations against him. Appellants Mendoza and Pardo did not file similar motions.
Prior to trial, Judge Robinson addressed these motions, with counsel for Tate and Goodwin proffering Corbett's expected testimony, which would exonerate them. However, counsel for Corbett indicated he would invoke the Fifth Amendment if called to testify, fearing that cross-examination could expose him to further prosecution. The Government supported Corbett's position, and the trial court upheld his invocation of the Fifth Amendment, denying the motions from Tate and Goodwin. Judge Robinson emphasized that Corbett could assert his privilege based on any reasonable prospect of prosecution. All four appellants subsequently appealed this ruling, with Mendoza and Pardo's circumstances considered separately from those of Tate and Goodwin.
Mendoza and Pardo are barred from raising the issue of Clifford Corbett’s testimony on appeal because they never requested it during the trial. Despite having the opportunity to do so when the trial judge asked who would call Corbett as a witness, both remained silent and did not indicate they wanted his testimony or what it would entail. The court emphasized that appellants cannot now seek to benefit from motions made by other defendants after failing to act at trial, as the error they claim is not considered "plain error." Since they made no effort to compel Corbett's testimony when given the chance, they forfeited any right to complain about this oversight.
In contrast, Goodwin and Tate challenged the trial court's decision to uphold Corbett’s privilege against self-incrimination. The court recognized the tension between a defendant's Sixth Amendment right to secure testimony and a witness's Fifth Amendment right against self-incrimination. However, the court concluded that this case did not present a severe conflict, as the privilege only protects against self-incrimination when a witness is asked to provide testimony that could expose them to criminal charges. Once a witness has been convicted of the related offense, the privilege no longer applies. The court clarified that the applicability of the Fifth Amendment privilege is not automatic and must serve its protective purpose.
In United States v. Romero, it is established that a witness who has been convicted or has pled guilty to relevant offenses cannot invoke the Fifth Amendment privilege against self-incrimination and can be compelled to testify. This applies equally to charges dismissed as part of a plea agreement, as such agreements bind the government. Consequently, Corbett, having pled guilty to offenses on November 21 and 27, 1978, and with all charges related to the December 29, 1978, incident dismissed, faced no risk of further prosecution regarding those events and could testify without fear. However, he retains the Fifth Amendment privilege regarding any other transactions not covered by his plea, as guilty pleas only waive the privilege concerning the specific crimes admitted. During the trial, while defense counsel for Tate and Goodwin assured they would not question Corbett about unrelated matters, the Government claimed the right to cross-examine him on those topics for impeachment purposes. This situation presents a conflict between a defendant's Sixth Amendment right to obtain testimony and the Government's right to cross-examine witnesses. It necessitates balancing the defendant's need for evidence against the Government's interest in effective cross-examination to ensure the accuracy of testimony.
The defendant's constitutional right to procure testimony in his favor takes precedence when reconciling the rights of the defendant and the Government. In this case, Clifford Corbett should have been compelled to testify about the events at the warehouse on December 29, 1978, due to the defendants' material need for his testimony, as the Government's sole witness lacked corroboration. Corbett's potential exculpatory testimony could be crucial, given the presence of multiple individuals at the sale.
The Government has sufficient opportunity to cross-examine Corbett, and his lack of a Fifth Amendment right to refuse testimony regarding the specified events ensures that the defendants' right to present a defense is upheld. The Government will have unlimited access to cross-examine Corbett and can impeach his credibility, especially regarding potential motivations to testify falsely to protect himself or co-defendants. The Government can also explore Corbett's prior guilty pleas and dropped charges without risk of self-incrimination.
There is no substantial evidence indicating that significant matters would remain unexplored during cross-examination due to Corbett's privilege against self-incrimination. The Government's vague references to possible unrelated drug prosecutions do not demonstrate any considerable prejudice that would arise from Corbett's testimony. Thus, the court concludes that the Government's interest in cross-examination is adequately safeguarded, affirming the defendants' right to a fair defense.
Denying a Sixth Amendment right based on unfounded speculation undermines the constitutional guarantee. The trial court erred in not compelling Clifford Corbett's testimony regarding events from December 29, as he holds no Fifth Amendment privilege concerning these matters. While Corbett retains Fifth Amendment rights on unrelated issues, the Government can adequately cross-examine him. Appellants Tate and Goodwin are entitled to present Corbett’s testimony to the jury, which must consider his testimony and any potential impeachment. Consequently, the convictions of Tate and Goodwin are reversed, and the case is remanded for a new trial.
Regarding appellants Mendoza and Pardo, the denial of motions for acquittal was reviewed by evaluating the evidence favorably for the Government. A judgment of acquittal is warranted only when no reasonable juror could find guilt beyond a reasonable doubt. In Mendoza's case, testimony from Agent Lee established sufficient evidence to submit his case to the jury, affirming his conviction. Conversely, the evidence against Pardo was insufficient for a reasonable juror to find guilt, leading to the reversal of his conviction and dismissal of charges. A defendant cannot be found guilty of drug possession unless proven to be in actual possession of the narcotics involved.
In this case, numerous individuals were found near a significant quantity of drugs, suggesting intent to distribute. However, the key legal question is whether each defendant had 'possession' of the narcotics, which can be 'actual' or 'constructive.' Constructive possession requires evidence that the defendant had the ability to exercise control over the drugs, along with a knowing possession. It is noted that actual possession is rare, leading to a focus on circumstantial evidence to establish constructive possession.
Appellant Mendoza's case involved sufficient circumstantial evidence for jury consideration. He was present in a small room where drugs were being sold and indicated awareness of the bag's contents by stating it had not been tested. This response suggested potential control and involvement in the transaction, allowing a reasonable jury to conclude his guilt.
Conversely, Appellant Pardo's case lacked similar evidence, as his sole connection was his presence in the area of the drug transaction. Legal precedent emphasizes that mere presence or proximity is insufficient to establish guilt; additional evidence of action or conduct linking an individual to the narcotics is necessary. Thus, Pardo's case did not meet the evidentiary threshold required for guilt.
Proof of active involvement beyond mere presence is required to establish charges against an individual. Standing by or associating with individuals committing a crime is insufficient for establishing liability. In *United States v. Watkins*, the court reversed a drug conviction because the evidence did not demonstrate possession beyond reasonable doubt, despite the defendant's presence in a bedroom with drugs and personal items. Similarly, in *United States v. Bethea*, the court reversed a conviction where the appellant was merely a passenger in a car where drugs were found, emphasizing that proximity alone does not imply possession.
In the current case, the Government only demonstrated Pardo's proximity to the narcotics and his association with others, which is inadequate for establishing constructive possession. The evidence presented does not allow a reasonable juror to find guilt beyond a reasonable doubt, warranting the reversal of Pardo's conviction and dismissal of charges against him. Convictions for appellants Tate and Goodwin are also reversed, leading to a remand for a new trial at the Government's discretion. The conviction of appellant Mendoza is affirmed. Additionally, during the trial, Agent Lee was the primary witness, providing limited testimony regarding the events and relationships among the defendants.
Lee testified that a paper bag was already on the desk when he arrived at the mezzanine and admitted that the plastic bags within were never removed from the paper bag. The indictment against all defendants was numbered 79-73, while Corbett faced multiple counts in Crim. No. 79-72, including a sale of cocaine to Lee on November 27, 1978, and narcotics seized from his apartment on December 29, 1978. In Crim. No. 79-74, Corbett and co-defendant Lawrence Williams were charged with selling narcotics to Lee on November 21, 1978; the second count for possession of cocaine was dismissed.
As part of a plea arrangement, Corbett agreed not to testify for the defense in the current case, 79-73. During the plea hearing, the trial judge confirmed Corbett's understanding that his plea would prevent him from testifying for any remaining defendants. Although the Government later indicated it would not enforce this part of the plea agreement, it supported Corbett's right to refuse to testify based on his Fifth Amendment rights.
Mendoza and Pardo claimed they needed Corbett's testimony to challenge Lee's credibility, but their brief offered little support for this assertion. The document references the potential for acknowledging plain errors affecting substantial rights, citing relevant case law. Additionally, it discusses a precedent where a defendant's right to compel testimony was examined, highlighting the complexities surrounding witness testimony and self-incrimination.
The trial court's failure to require witness Morgan to personally assert his Fifth Amendment privilege against self-incrimination was deemed not to be plain error by Chief Judge Bazelon. The court noted that Morgan’s brief appearance did not distinguish him from other prospective witnesses who might refuse to testify due to self-incrimination fears. Appellant could only challenge the privilege invocation if he insisted on having such witnesses testify after asserting their privilege, which he did not do. Thus, the trial judge's ruling regarding appellants Mendoza and Pardo could not be classified as plain error.
Moreover, the Government holds no constitutional right to cross-examine defense witnesses, and this case does not delve into the complexities of conflicting constitutional rights. The charges against Corbett were dropped during his sentencing on March 20, 1979, related to events from December 29, 1978, including dismissed counts involving narcotics seized at his apartment. Corbett's counsel only argued that cross-examination might reveal information linking him to other cases, and the Government acknowledged that Corbett's decision not to testify stemmed from concerns about potential incrimination regarding unrelated drug matters. The Government maintained that Corbett’s privilege not to testify was valid, as he could be questioned about matters beyond the current case or other cases where he had already pleaded guilty.
The Government has not suggested that Corbett could self-incriminate on other charges related to the December 29, 1978 events, which means this possibility does not need to be analyzed. If such a claim were made, it would necessitate that the Government provide Corbett with limited immunity for his statements regarding any potential conspiracy charges or dismiss the current charges against other defendants. The Government acknowledges this in its brief. Dismissing charges against Corbett alone might invalidate any privilege he claims concerning self-incrimination related to the current case. However, if Corbett could incriminate himself with other offenses, he could still invoke his privilege against self-incrimination.
Counsel for appellants Tate and Goodwin focused their requests for Corbett’s testimony solely on events leading to the warehouse, avoiding broader background issues. The right to present witness testimony in a criminal trial is rooted in the Sixth Amendment’s compulsory process clause, which underscores the defendant's right to present a defense and challenge prosecution witnesses. The Supreme Court has established that this right is fundamental to due process. Notably, the courts have ruled that a witness cannot broadly testify and then claim privilege over specific details. The Supreme Court previously invalidated a Texas statute preventing accomplices from testifying for each other's defense, emphasizing the importance of the right to present witness testimony. A guilty plea holds the same weight as a conviction for impeachment purposes.
A guilty plea is admissible for impeachment under Rule 609 of the Federal Rules of Evidence, allowing the Government to cross-examine the witness, Corbett, though it does not imply his testimony will be discredited. The Government's investigation of Corbett began on November 15, 1978, and he was indicted for sales on November 21, 27, and December 29, 1978. While it is possible other transactions occurred, the record lacks details on them. The ruling aligns with a precedent from *Ellis v. United States*, where the court determined a witness who testified before a grand jury could be compelled to repeat that testimony at trial, maintaining Fifth Amendment protections for untested matters. In this case, the defendant seeks to present testimony with a constitutional right, while the Government seeks cross-examination without a guarantee. The defendant’s right to present testimony is not absolute and is balanced against the Government's cross-examination rights. Historical cases demonstrate that the defendant's right to cross-examine may be limited if the witness invokes the Fifth Amendment or if impeachment is deemed sufficient. The court does not address the appellants' claim regarding immunity for Corbett’s testimony, nor the merits of prior grand jury testimonies referenced. Lastly, the court references a recent decision regarding firearm possession, clarifying the criteria for constructive possession.
