                           File Name: 08a0311n.06
                             Filed: May 30, 2008
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 06-4265

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE NORTHERN
               v.                                        )        DISTRICT OF OHIO
                                                         )
ERIC BALLARD,                                            )
                                                         )
       Defendant-Appellant.                              )
                                                         )
                                                         )


BEFORE: COLE and GRIFFIN, Circuit Judges; and FORESTER, Senior District Judge.*

       PER CURIAM.

       Defendant Eric Ballard appeals his conviction of felon in possession of a firearm (18 U.S.C.

§ 922(g)(1)), arguing that the district court erred in prohibiting him from calling his cousin Edward

Sadler as a witness after Sadler indicated that he would invoke his Fifth Amendment privilege

against self-incrimination. Ballard further argues the district court erred by refusing to advise the

jury that Sadler had invoked his privilege. Because we conclude that the district court did not abuse

its discretion in denying defendant’s motions, we affirm the judgment of the district court.


       *
        The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 06-4265
United States v. Ballard


                                                   I.

        In the early morning hours of February 22, 2006, Officer Michael Anderson of the

Youngstown, Ohio Police Department observed a blue Chevy Lumina run two red lights at a high

rate of speed. Officer Anderson activated his patrol vehicle’s lights and pulled the vehicle over in

front of a home at 162 West Warren Avenue. After the vehicle stopped, the driver, later identified

as defendant Ballard, exited the vehicle without being instructed to do so. Ballard walked around

the rear of his vehicle and towards the sidewalk area in front of the house with his back to the officer.

An individual in the front passenger seat of the vehicle, later identified as Edward Sadler, also exited

the vehicle, raised his arms, and walked towards Officer Anderson. As Sadler was advancing

towards him, Officer Anderson instructed Sadler to place his hands on the hood of the police cruiser.

During his interaction with Sadler, Officer Anderson momentarily lost sight of Ballard who was in

front of the 162 West Warren house. Officer Anderson instructed Ballard to approach and place his

hands on the police cruiser, which he did.

        After backup officers arrived, and Ballard and Sadler were secured, Officer Anderson

searched the front yard of 162 West Warren. Based on Ballard’s demeanor and actions, Officer

Anderson believed that Ballard had hid something in the front yard area. Officer Anderson

approached the area where he observed Ballard standing and noticed a nine-millimeter handgun lying

in the grass eight feet away from him. Officer Anderson later testified that the gun was warm to the

touch, even though it was a cold winter night. Noticing that the passenger window was rolled up,



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United States v. Ballard


and based on Ballard’s prior actions, Officer Anderson concluded that the gun has been in Ballard’s

possession and arrested him for carrying a concealed firearm.

        At trial, defendant called as witnesses Steve Gambetta, an investigator for the Federal Public

Defender Service, and Al Palombaro, defendant’s former counsel. Both witnesses testified, over the

government’s hearsay objection, that Sadler admitted to owning and possessing the weapon

recovered on the evening of February 22, 2006. According to defendant’s witnesses, Sadler stated

that he threw the weapon from the window of the vehicle. Sadler’s alleged admission contradicted

his March 6, 2006, statements to ATF agents in which he denied possessing the handgun.

        Defense counsel also attempted to call Sadler as a witness. However, upon discovering that

Sadler intended to invoke his Fifth Amendment privilege against self-incrimination, the district court

questioned Sadler outside the presence of the jury. Upon learning that Sadler would invoke his Fifth

Amendment privilege, the district court refused to allow Ballard to call Sadler to testify. The district

court also denied defendant’s motion that the jury be advised of Sadler’s assertion of his Fifth

Amendment privilege. In accordance with the government’s motion, the district court instructed the

jury that “[t]o the extent that individuals other than the defendant did not testify, you should not infer

anything at all for or against either the government or the defendant because the individual did not

testify.” Ballard was ultimately convicted and sentenced to a term of 105 months imprisonment.

This timely appeal followed.

                                                   II.



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No. 06-4265
United States v. Ballard


        A district court’s decision to allow a jury to hear a witness invoke his Fifth Amendment right

“is within the sound discretion of the trial court and will not be reversed absent evidence of an

abuse.” United States v. Clark, 988 F.2d 1459, 1464 (6th Cir. 1993) (citing United States v.

Vandetti, 623 F.2d 1144, 1149 (6th Cir. 1980)). “A district court has abused its discretion when a

reviewing court is firmly convinced a mistake has been made.” Id. (citing In re Bendectin Litigation,

857 F.2d 290, 307 (6th Cir. 1988)). This discretion is borne out of the fact that a jury is “not entitled

to draw any inferences from the decision of a witness to exercise his constitutional privilege whether

those inferences be favorable to the prosecution or the defense.” Bowles v. United States, 439 F.2d

536, 541 (D.C. Cir. 1970). See also Vandetti, 623 F.2d at 1147 (stating that allowing a privilege-

asserting witness to take the stand is “so imbued with the ‘potential for unfair prejudice’ that a trial

judge should closely scrutinize any such request.”) (quoting United States v. Maffei, 450 F.2d 928,

929 (6th Cir. 1971)); United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973) (“If it appears

that a witness intends to claim the [Fifth Amendment] privilege as to essentially all questions, the

court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit

from any inferences the jury may draw simply from the witness’ assertion of the privilege either

alone or in conjunction with questions that have been put to him.”) (citing Namet v. United States,

373 U.S. 179, 186 (1963)).

        Defendant argues that the prohibition against the jury drawing inferences from a privilege-

invoking witness exists solely to protect the rights of the accused. He contends that when the

privilege against self-incrimination is not applicable, silence in the face of accusation becomes

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No. 06-4265
United States v. Ballard


relevant. Ballard asserts that because the present situation does not implicate his privilege against

self-incrimination, Sadler’s invocation of the Fifth Amendment privilege is admissible evidence

from which the jury should be able to draw negative inferences.

        With regard to Ballard’s first point, we are not persuaded that a defendant should be

permitted to call a privilege-asserting witness to the stand for the sole purpose of allowing a jury to

draw negative inferences of culpable conduct, while simultaneously maintaining that the same

maneuver by the prosecutor would constitute a constitutional violation. Under defendant’s

reasoning, inferences of guilt derived from the invocation of a witness’s Fifth Amendment privilege

are permissible only insofar as they lead to a defendant’s acquittal. Such a lopsided rule would

contravene the well-settled principle that both the government, as well as the defendant, are entitled

to a fair trial. United States v. Ford, 830 F.2d 596, 603 (6th Cir. 1987) (Krupansky, J., concurring)

(observing that “existing legal precedent defines the Sixth Amendment right to a fair and impartial

trial as a right that inures not only to the sole benefit of a defendant, but rather one that inures equally

to the state as the representative of the people.”); see also United States v. Tijerina, 412 F.2d 661,

666 (10th Cir. 1969) (noting “the concept of a fair trial applies both to the prosecution and the

defense”).

        Moreover, allowing a privilege-invoking witness to testify requires a balancing of potential

prejudice. When a defendant calls a witness to the stand with the understanding that the witness will

assert his Fifth Amendment privilege, it becomes impossible to determine whether the privilege is

asserted to obfuscate the factfinder or whether it is invoked out of a genuine desire to avoid self-

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No. 06-4265
United States v. Ballard


incrimination. Although witnesses can only invoke their Fifth Amendment privilege “where it is

‘grounded on a reasonable fear of danger of prosecution,’” United States v. Gibbs, 182 F.3d 408, 431

(6th Cir. 1999) (quoting United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir. 1998)), and

a witness “cannot meet the reasonable fear-of-prosecution prong by simply making a blanket

assertion of the privilege,” id., because such a witness cannot be examined or cross-examined, the

jury proceeds through inferences and therefore there exists no explicit statements from which the

witness may be held accountable. This, coupled with the fact that the jury may draw an improper

inference of guilt from the witnesses’s invocation of silence, creates potential for collusion between

the witness and defendant. It is particularly problematic when the defendant and witness have a

personal or familial relationship, such as the relationship shared by Ballard and Sadler here. This

potential for prejudice against the government warrants the district court’s discretionary role in

allowing or disallowing privilege-asserting witnesses from taking the stand.

       Also unconvincing is defendant’s second argument that he should be able to call Sadler to

the stand to dispel the jury’s inference of guilt that would result if Sadler were not called. This

argument first assumes that the jury has made such an inference; there is, however, no evidence in

the record to support this assumption. Furthermore, the district court properly informed the jury that

they were to draw no inferences, either for or against the defendant, on the basis of Sadler’s failure

to testify. Defendant contends that the government is “routinely” permitted to call privilege-

invoking witnesses to the stand. Although we recognize that “[t]his court has permitted the practice

of calling a witness who will assert his fifth amendment privilege where ‘the prosecutor’s case would

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United States v. Ballard


be seriously prejudiced by a failure to offer him as a witness,’” Vandetti, 623 F.2d at 1144 (quoting

United States v. Kilpatrick, 477 F.2d 357 (6th Cir. 1973)), we are not firmly convinced that the

district court made a mistake in balancing the prejudice to Ballard against the prejudice to the

government.

        We hold that the district court did not abuse its discretion in denying Ballard the opportunity

to call Sadler to the stand and denying defendant’s proposed jury instruction that Sadler invoked his

Fifth Amendment privilege.1

                                                  III.

        For the reasons set forth above, we affirm the judgment of the district court.




        1
          Federal Rule of Appellate Procedure 28(a)(5) requires the appellant’s brief to contain “a
statement of the issues presented for review . . . .” Issues that are not presented in accordance with
this rule are not preserved. See United States v. Baylor, 517 F.3d 899, 903 (6th Cir. 2008). In a
footnote of his brief, defendant improperly attempts to raise an additional issue, specifically, that the
district court erred in instructing the jury on a theory of constructive possession when there was no
evidence to support such a theory. Defendant, however, admits that our holding in United States v.
Mari, 47 F.3d 782, 786 (6th Cir. 1995), renders this alleged error harmless as a matter of law.
Ballard states that he has raised this argument solely for the purposes of preservation. As the issue
was not presented in accordance with Rule 28(a), we hold the argument is not preserved.

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