                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4297


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BRUCE WAYNE MILLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00001-H-2)


Argued:   May 12, 2011                          Decided:   June 14, 2011


Before MOTZ and    DIAZ,    Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Thomas Reston Wilson, GREENE & WILSON, PA, New Bern,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Kelly L. Greene, GREENE & WILSON, PA, New Bern, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Thomas B. Murphy, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Following a jury trial, Bruce Wayne Miller was found guilty

of: (1) interference with commerce by robbery, and aiding and

abetting the same, 18 U.S.C. §§ 1951 and 2; and (2) aiding and

abetting    the       use    and   carriage         of    a    firearm      during        and    in

relation    to    a    crime    of    violence,          id.   §§       924(c)    and    2.      On

appeal,     Miller      contends       that     his      Sixth       Amendment       right      to

compulsory       process     was     abridged       by    the       district      court.         We

affirm.



                                                I

     This     case      involves       a    robbery       at     Tobacco         House    #3,    a

convenience      store      located        in   Lumberton,          North    Carolina.           At

approximately 10:45 p.m., on October 28, 2008, George William

Blackwell     entered        the     store,      purchased          a    drink,     and       left.

Approximately five minutes later, he reentered the store, this

time accompanied by Miller.                     As the pair entered the store,

Blackwell pointed a gun at one of the store’s employees, Yosef

Gazali,    who    was       standing       behind     the      counter      near        the    cash

register.        The pair repeatedly instructed Gazali to give them

all of the money in the cash register.                         Initially, Gazali turned

over only the $20 bills in the cash register.                                    In response,

Miller told Gazali to hand over all of the “f***ing money.”

After Gazali delivered all of the money (approximately $800.00)

                                            - 2 -
from   the    cash     register,     Blackwell      went   behind       the    counter

looking for the cash drawer that contained the state lottery

receipts.      As he moved toward the drawer, Blackwell passed a

loaded shotgun that was stored behind the counter.                            From the

drawer,    Blackwell      retrieved       approximately    $70.00.        Meanwhile,

Miller walked to a cooler in the store and grabbed a twelve-pack

of beer.     As the pair was leaving the store, Gazali grabbed the

shotgun,     pointed     it   at   Miller    and    Blackwell,    and    pulled    the

trigger,     but   the   safety     was    on,    preventing    the   shotgun     from

discharging.

       After Miller and Blackwell left the store, Gazali followed

them, shotgun in hand, with the safety off.                    Gazali pursued the

pair to the side of the store, where a red Mustang was parked.

A shot was fired at Gazali, so he retreated, positioning himself

near one of the doors to the store.                 Gazali then approached the

Mustang and fired a shot at the car.                    As the car sped off,

another shot was fired at Gazali, so he returned fire, hitting

the back of the Mustang.

       Shortly after the robbery, Detective Timothy Wilkins of the

Lumberton     Police       Department       was    dispatched    to     the     scene.

Detective Wilkins interviewed Gazali and another store employee,

Nasr   Alnagger,     and      collected     evidence   outside    of     the    store,

including a shotgun shell casing and the twelve-pack of beer



                                          - 3 -
that    Miller    had    taken        from   the     store,       but   had    left     in    the

parking lot.

       Within     a     day     of    the     Tobacco       House       #3    robbery,        law

enforcement officers began to suspect that Blackwell and his

friend and associate, Dixie Lynn Oxendine, were involved in the

robbery, because Blackwell was a suspect in two October 2008

bank     robberies       and     Dixie       Oxendine’s       red       Mustang       fit     the

description of the car described by Gazali as leaving the scene

of the robbery at Tobacco House #3.                           By this time, a state

warrant had been issued for the arrest of Blackwell in one of

those    bank     robberies.           Suspecting       that       Blackwell      and       Dixie

Oxendine     might      be    staying    together,         law     enforcement        officers

investigated          their     whereabouts          and     discovered         that        Dixie

Oxendine was staying at a Howard Johnson’s hotel in Lumberton.

       On   the       morning    of     October       31,     2008,      law     enforcement

officers arrived at the Howard Johnson’s.                           The law enforcement

officers received information that Dixie Oxendine was sharing a

room     registered      in     her     name    with        two    adult       males,       later

identified as Miller and Blackwell, and an adult female, later

identified       as    Dawn     Oxendine.          Because        of    the    threat       of   a

shootout, the arrest plan involved getting one of the room’s

occupants to answer the door.                  Two detectives from the Lumberton

Police      Department         and     FBI     Special        Agent       Frank       Brostrom

approached the room.                 After knocking on the door a couple of

                                             - 4 -
times, Blackwell answered the door and was promptly arrested.

      Following    Blackwell’s        arrest,   a   protective   sweep     of   the

room was conducted.       During the sweep, law enforcement officers

recovered an AMT Automag II .22 Caliber Rimfire gun.                    A hat and

jacket worn by Blackwell during the Tobacco House #3 robbery

were also recovered.

      Miller,     Blackwell,    and     Dixie   Oxendine    were    interviewed

later that morning at the Lumberton Police Department.                      During

her interview, Dixie Oxendine admitted that, on the night of the

Tobacco House #3 robbery, she drove Blackwell and Miller in her

red Mustang to the store to get cigarettes and beer.                    After they

arrived, Blackwell “suddenly exited the car[,] . . . pulled out

a gun . . . and walked towards the gas station with Mr. Miller.”

A short time later, Blackwell ran back to the car yelling: “Go,

Dixie, go.”     Dixie Oxendine also recalled the exchange of shots

between Blackwell and Gazali, leaving Miller at the scene, and

picking him up later on while he was walking along a local

highway.

      During his interview, Miller initially denied knowing that

Blackwell had robbed a bank.            He also indicated that he neither

saw   Blackwell    with   a    gun,    nor   knew   he   owned   one.      As   his

interview progressed, Miller’s story changed.                He admitted that

he had lied about Blackwell because he did not want to tell on

him; that he knew Blackwell owned a gun, having seen it about a

                                       - 5 -
month before in Blackwell’s back pocket; that he knew Blackwell

had robbed a bank because the two had discussed it; and that he

knew that Blackwell was wanted for bank robbery.

       When       asked   about     the    Tobacco      House    #3    robbery,   Miller

initially said that he went into the store with Blackwell to buy

beer       and    cigarettes,      and,    once      inside   the     store,   Blackwell

suddenly pulled out a gun and “does this robbery.”                         Miller said

he then dropped his beer and ran out of the store, catching up

later with Blackwell.             However, after Miller was shown the video

of the robbery, “he shut down,” refusing to answer any further

questions.

       On January 8, 2009, Miller, Blackwell, and Dixie Oxendine

were charged in an eight-count indictment.                        Counts One and Two

charged      Blackwell      with    bank       robbery,   id.    § 2113(a),     stemming

from two October 2008 bank robberies, one on October 9, 2008,

the    other      on   October      21,   2008.        Counts    Three    through   Five

related      to    the    robbery    of    a    BP   Sun-Do     convenience    store   in

Lumberton on October 13, 2008. 1                 Counts Six through Eight related

to the Tobacco House #3 robbery.                       Count Six charged Miller,

       1
       Count Three charged Blackwell and Dixie Oxendine with
interference with commerce by robbery, and aiding and abetting
the same, 18 U.S.C. §§ 1951 and 2. Count Four charged Blackwell
with using and carrying a firearm during and in relation to a
crime of violence, id. § 924(c), and Count Five charged
Blackwell with possession of a firearm by a convicted felon, id.
§ 922(g)(1).



                                           - 6 -
Blackwell, and Dixie Oxendine with interference with commerce by

robbery, and aiding and abetting the same, id. §§ 1951 and 2,

and Count Seven charged Miller, Blackwell, and Dixie Oxendine

with using and carrying a firearm during and in relation to a

crime of violence, and aiding and abetting the same, id. §§

924(c) and 2.        Count Eight charged Blackwell with possession of

a firearm by a convicted felon, id. § 922(g)(1).

      Prior to Miller’s trial, Blackwell pled guilty to Counts

One, Six, and Seven pursuant to a plea agreement, and Dixie

Oxendine pled guilty to Counts Six and Seven, also pursuant to a

plea agreement. 2       On December 1, 2009, Miller and the government

each filed their respective proposed witness list, and each list

included Blackwell as a possible witness.                    On the same day,

Miller’s two-day jury trial began.

      The   government         presented   six   witnesses   in    its    case-in-

chief, and none in rebuttal.               The government’s case rested on,

among other things, statements made to law enforcement officers

by   Miller    and   his   co-defendants,        the   testimony    of    the   six

witnesses      called     by     the   government,     and   certain      physical

evidence      recovered    at    the   scene,    including    a   video    of   the

robbery, the twelve-pack of beer left at the scene by Miller,

      2
       On October 13, 2009, Dixie Oxendine was sentenced to a
total of eighty-four months’ imprisonment. On February 9, 2010,
Blackwell was sentenced to a total of 155 months’ imprisonment.



                                       - 7 -
and the shotgun shell casing fired from the shotgun used by

Gazali.

      At the beginning of the second day of trial, just before

the   government        called     its    last     witness,       Blackwell’s         counsel

notified    the       district      court    that        Miller    intended          to        call

Blackwell as a witness and that he instructed Blackwell not to

testify.         In     response,     the    district          court       engaged        in     an

extensive colloquy with Blackwell’s counsel, Miller’s counsel,

and the Assistant United States Attorney.                         Blackwell’s counsel

was   concerned       that,   by    testifying,          Blackwell         would     place       in

jeopardy    the       application     of    an     acceptance         of    responsibility

downward adjustment at his sentencing, and, far worse, would

result     in     the     application       of     an     obstruction           of    justice

enhancement.            Blackwell’s       counsel       also    was    concerned           about

Blackwell’s recollection of the events, considering “some of the

things that were in his system at that time,” namely, alcohol

and Xanaxes.          Miller’s counsel stressed that all the defense

wanted was for Blackwell to testify truthfully, reasoning that

truthful        testimony     would        have     no     impact          on   Blackwell’s

sentencing.        Although Miller’s counsel was not exactly clear

about how that truthful testimony would be favorable to Miller,

the   record       suggests        that     Miller’s       counsel          believed           that

Blackwell would testify that it was his idea to rob the Tobacco

House #3 and not Miller’s, and that Blackwell would say that

                                           - 8 -
Miller had no idea that a gun would be used in the robbery.                  At

the conclusion of its colloquy with counsel, the district court

decided that Blackwell would testify outside the presence of the

jury with his attorney by his side, thus, allowing the district

court to decide which questions Miller’s counsel later could ask

Blackwell in the presence of the jury.

     At the beginning of the voir dire examination by Miller’s

counsel, Blackwell answered a series of questions concerning the

contents of his plea agreement and the clothing he wore on the

night of the Tobacco House #3 robbery.                  At this point, the

district court remarked that, “so far . . . there is no basis

for the Fifth Amendment by the testifying witness.”                   Blackwell

also identified the AMT Automag II .22 Caliber Rimfire gun and a

clip for the gun, and admitted the gun was used during the

robbery.     He answered questions concerning the red Mustang and

who was, and who was not, present in the car leaving the scene

of   the    robbery.       The   district   court    did,      however,   allow

Blackwell, with the assistance of his counsel, to assert the

Fifth      Amendment   privilege        against     self-incrimination       to

questions     concerning     Miller’s     involvement     in    the   robbery,

including whether it was Miller’s idea to rob the store, whether

Miller was with Blackwell when the store was robbed, whether

Miller touched the gun, and whether Miller was in the car as it

left the store.

                                    - 9 -
      At the conclusion of Blackwell’s testimony, the district

court recessed court to allow it and counsel to further research

the Fifth/Sixth Amendment issue.                 The district court discussed

the issue with counsel in chambers, and, later, in open court,

but outside the presence of the jury, ruled that: (1) Miller

could call Blackwell to testify; (2) Blackwell could testify

with his attorney at his side; and (3) it would listen to the

“questions and make rulings if [it] believe[d] there is a basis

for a Fifth Amendment issue.”

      Blackwell    was    the    only    witness        called    by    the    defense.

Consistent with the district court’s ruling, he testified with

his   attorney    at    his    side.         During    his    testimony,      Blackwell

acknowledged     his    plea    agreement       and     identified      the    hat   and

jacket he wore during the Tobacco House #3 robbery.                          As allowed

by the district court, Blackwell asserted the Fifth Amendment

privilege   against      self-incrimination            in    response   to    only   one

question, whether he was “carrying or using [the] gun when [he]

entered the store on October 29.”                Blackwell did acknowledge, in

response to Miller’s counsel’s next question, that he pleaded

guilty to brandishing a firearm during the robbery.                              He also

acknowledged     that    the    hat    and    gun     recovered   from     the    Howard

Johnson’s   hotel       were    used    during        the    robbery.         Blackwell

identified the red Mustang and acknowledged that Miller was not

in the car as it sped away from the scene.                      In response to the

                                       - 10 -
question of whether Miller knew that he was going to rob the

store, Blackwell replied: “I don’t remember nothing much about

that night that would hardly help anybody.”                  In response to a

similar question, “you didn’t tell [Miller] that you were going

to rob the store before you robbed it,” Blackwell replied: “I

might have did.      I don’t – I can’t remember.”

     Following      closing    arguments     by   counsel    and     the    district

court’s jury instructions, the case went to the jury.                       The jury

convicted Miller on both counts.             He was sentenced to a total of

324 months’ imprisonment, and this timely appeal followed.



                                        II

     Miller       contends     that    his     Sixth     Amendment         right   to

compulsory    process    was     violated    by   the   district      court.       In

particular, he contends that the district court did not conduct

a sufficient inquiry into the validity of Blackwell’s assertion

of his Fifth Amendment privilege against self-incrimination and

thus violated his Sixth Amendment right to compulsory process.

Alternatively,      Miller     suggests      that,      to   avoid     the     Sixth

Amendment violation, the district court was required to order

the government to grant Blackwell immunity.                   We reject these

contentions.

     The Supreme Court has “broadly construed” the protection

afforded     by    the   Fifth     Amendment      privilege     against        self-

                                      - 11 -
incrimination.         Maness v. Meyers, 419 U.S. 449, 461                   (1975); see

also       Hoffman    v.     United    States,        341     U.S.   479,    486    (1951)

(instructing         lower    courts    to    give     the     privilege     a     “liberal

construction”). 3            Thus,    the    privilege        “not   only    extends    to

answers that would in themselves support a conviction under a

federal criminal statute but likewise embraces those which would

furnish a link in the chain of evidence needed to prosecute the

claimant for a federal crime.”                   Hoffman, 341 U.S. at 486.               A

defense witness’s invocation of the privilege is proper unless

it is “perfectly clear, from a careful consideration of all the

circumstances         in     the   case,”      that     the     defense     witness    “is

mistaken” and his answers could not “possibly have” a “tendency

to incriminate.”           Id. at 488 (internal quotation marks omitted);

see also United States v. Allen, 491 F.3d 178, 191 (4th Cir.

2007) (“Because requiring a witness to prove the necessity of

the privilege would often vitiate the privilege itself, ‘it need

only be evident from the implications of the question, in the


       3
       The Fifth Amendment to the United States Constitution
provides in relevant part: “No person . . . shall be compelled
in any Criminal Case to be a witness against himself.”      U.S.
Const. amend. V.   Like other provisions of the Bill of Rights,
this guarantee “‘was added to the original Constitution in the
conviction that too high a price may be paid even for the
unhampered enforcement of the criminal law and that, in its
attainment, other social objects of a free society should not be
sacrificed.’”   Hoffman, 341 U.S. at 486 (quoting Feldman v.
United States, 322 U.S. 487, 489 (1944)).



                                            - 12 -
setting in which it is asked, that a responsive answer to the

question or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result.’”) (quoting

Hoffman,     341   U.S.     at    486-87).        Moreover,    a    defense      witness

retains      the   privilege        even     after      pleading    guilty,       and   a

sentencing court may not draw adverse inferences from a pleading

defendant’s silence.             Mitchell v. United States, 526 U.S. 314,

329-30    (1999);     see    also      id.   at   326     (noting   that    the    Fifth

Amendment privilege against self-incrimination generally remains

available, absent a valid waiver, until a defendant’s “sentence

has   been    fixed    and       the   judgment      of    conviction      has    become

final”).      And it is the responsibility of the district court to

determine whether the privilege should be invoked.                      Hoffman, 341

U.S. at 486.

      A    witness’s        Fifth      Amendment        privilege    against       self-

incrimination often can rub up against a defendant’s right under

the Sixth Amendment to compulsory process. 4                   Thus, if a defense

witness refuses to testify on the basis of the privilege, the

district court “must make a proper and particularized inquiry

into the legitimacy and scope of the witness’[s] assertion of

      4
       The Constitution guarantees a criminal defendant’s right
to present a complete defense.     United States v. Lighty, 616
F.3d 321, 358 (2010).     This right is grounded either in the
Sixth Amendment’s guarantee of compulsory process or in the more
general Fifth Amendment guarantee of due process. Id.



                                         - 13 -
the privilege.”           Gaskins v. McKellar, 916 F.2d 941, 950 (4th

Cir. 1990).          The privilege operates on a question-by-question

basis, United States v. Castro, 129 F.3d 226, 229 (1st Cir.

1997), but a “witness may be totally excused . . . if the court

finds that he could legitimately refuse to answer any and all

relevant questions.”          Gaskins, 916 F.2d at 950.

       In this case, the district court proceeded with commendable

caution.        It    prohibited       Blackwell     from    invoking          the    Fifth

Amendment     privilege       against    self-incrimination          on    a    wholesale

basis.     In an attempt to narrow the assertion of the privilege,

the district court conducted a thorough voir dire hearing to

ascertain the questions Miller’s counsel sought to pose and the

scope    of   the    privilege      sought    by   Blackwell.         When      Blackwell

eventually testified before the jury, the district court allowed

Blackwell’s counsel to stand by his client to confer, and the

procedure       correctly      allowed       Blackwell,     as     opposed       to    his

attorney,     to     assert   the    privilege,     and     allowed       the    district

court to rule on a question-by-question basis.                       Understandably,

Blackwell’s        counsel    sought    to    prevent      Miller’s       counsel      from

eliciting       testimony      concerning      Miller’s      involvement         in     the

crime, considering Blackwell’s inability to recall specifics and

the    effect      such   vague     testimony      would    have     on    Blackwell’s

ability to receive favorable treatment at sentencing.                            Clearly,

when    one   considers       the   video     evidence      before    the       jury   and

                                        - 14 -
Miller’s knowledge of the gun, testimony from Blackwell tending

to exculpate Miller would have subjected Blackwell to the charge

of   perjury.           Moreover,    testimony       from     Blackwell      exculpating

Miller would have jeopardized Blackwell’s ability to receive an

acceptance      of       responsibility          downward      adjustment       at    his

sentencing,        and     perhaps       resulted      in     an      enhancement     for

obstruction        of    justice    as     well.      Thus,     Blackwell’s     counsel

prudently sought to protect Blackwell from further charges and

increased penalties.             Accordingly, we reject Miller’s argument

that the district court did not conduct a sufficient inquiry

into the validity of Blackwell’s assertion of the privilege.

       We   also    find    no     merit    to     Miller’s    contention      that   the

district court was required to order the government to grant

Blackwell immunity.              It is well-settled that a district court

does not have the authority to grant immunity, even where the

grant of immunity would allow a defendant to present material,

favorable evidence.           United States v. Moussaoui, 382 F.3d 453,

467 (4th Cir. 2004); United States v. Abbas, 74 F.3d 506, 511-12

(4th   Cir.   1996).         However,       a    district     court    can   compel   the

government to “grant immunity when (1) the defendant makes a

decisive showing of prosecutorial misconduct or overreaching and

(2) the proffered evidence would be material, exculpatory and

unavailable from all other sources.”                  Id. at 512.



                                           - 15 -
       In    this     case,      there           is     no    evidence           of    misconduct          or

overreaching by the government.                          Indeed, there is no suggestion

that the government delayed Blackwell’s sentencing to preserve

his Fifth Amendment privilege against self-incrimination or did

anything to gain an unfair tactical advantage.

       We also note that, assuming there was a Sixth Amendment

error in this case, such assumed error would be harmless.                                                 See

United      States    v.    Sayles,             296    F.3d    219,        223    (4th       Cir.    2002)

(noting      that    a     Sixth       Amendment             compulsory          process       claim      is

subject      to     harmless        error             analysis).            A     Sixth        Amendment

compulsory process error is “harmless if it is ‘clear beyond a

reasonable         doubt    that       a    rational          jury    would           have   found        the

defendant      guilty       absent         the    error.’”            Id.       (quoting          Neder    v.

United States, 527 U.S. 1, 18 (1999)).

       In    this        case,      the          evidence        of        Miller’s          guilt        was

overwhelming.              Gazali          testified          that    Miller           and     Blackwell

entered the Tobacco House #3, with Blackwell pointing a gun at

him.        Both    Miller       and       Blackwell          approached          the    counter          and

demanded money.            Gazali confirmed his testimony with the video

of   the     robbery,       which          showed       Miller       and     Blackwell            together

entering      the    store       with       a    gun     drawn       and    pointed          at    Gazali,

repeatedly         threatening         Gazali,          and     demanding             money.         Dixie

Oxendine admitted to driving Miller and Blackwell to the store

where Blackwell pulled out a gun, and, together with Miller,

                                                 - 16 -
went into the store.     In his statement, Miller admitted that he

knew Blackwell owned a gun, having seen it a month prior to the

robbery, and that he knew Blackwell had robbed a bank.       Miller

also lied concerning his knowledge of, and participation in, the

robbery.   Moreover, any testimony from Blackwell was suspect,

because he testified that he could not “remember . . . much

about that night that would hardly help anybody.”        Given the

evidence at trial, the result would not have been any different

had Blackwell been willing to testify favorably (albeit falsely)

for the defense.     Unquestionably, a rational jury presented with

such testimony would have found beyond a reasonable doubt that

Miller was guilty of the charges contained in Counts Six and

Seven of the indictment.



                                 III

     For the reasons stated herein, the judgment of the district

court is affirmed.

                                                           AFFIRMED




                               - 17 -
