
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 97-1684                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CHRISTIAN CASTRO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Dana A. Curhan on brief for appellant.               ______________               Jay  P.  McCloskey,  United  States  Attorney,  Margaret  D.               __________________                              ____________          McGaughey  and  George  T.  Dilworth,   Assistant  United  States          _________       ____________________          Attorneys, on brief for appellee.                              _________________________                                  November 18, 1997                              _________________________                    SELYA,  Circuit   Judge.    In  this  criminal  appeal,                    SELYA,  Circuit   Judge.                            _______________          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.                                          __                                      Background                                      Background                                      __________                    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                          ___          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                                                                 ___ ______          States v. Maraj, 947 F.2d  520, 522 (1st Cir. 1991), showed  that          ______    _____          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                                        ____________________               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.                                          4          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.                                         ___                                      Discussion                                      Discussion                                      __________                                          A.                                          A.                                          __                                  Standard of Review                                  Standard of Review                                  __________________                    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.                                                       ___ _____________          Gary, 74 F.3d  304, 310 (1st Cir. 1996); United  States v. Pratt,          ____                                     ______________    _____          913 F.2d  982, 990 (1st  Cir. 1990); see  also Hoffman  v. United                                               ___  ____ _______     ______          States, 341  U.S. 479, 488  (1951) (explaining that the  court of          ______          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                                          5          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.                                             ___   ____   _____________          Perry, 116 F.3d 952, 977 (1st Cir. 1997), whereas material errors          _____          of  law  constitute per  se abuses  of judicial  discretion, see,                              ___  __                                  ___          e.g., Koon  v. United States, 116 S. Ct.  2035, 2047 (1996).  Put          ____  ____     _____________          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.                                          __                                 The Fifth Amendment                                 The Fifth Amendment                                 ___________________                    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                               ___ ________     ______          (1974).  The privilege must  not be given a crabbed construction.          See In Re  Kave, 760  F.2d 343, 354  (1st Cir. 1985)  (collecting          ___ ___________          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                          ___ _______                       _____          at 990; In Re Brogna, 589  F.2d 24, 27 (1st Cir. 1978).   This is                  ____________                                          6          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.                           ___ __________                    The privilege  cannot be  invoked on  a blanket  basis.          See In  re Grand  Jury Matters,  751 F.2d  13, 17  n.4 (1st  Cir.          ___ __________________________          1984).   It operates  question by question.   Thus,  the district          court must conduct  a "particularized inquiry."   Pratt, 913 F.2d                                                            _____          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;                                            ___ _______          United States  v. Johnson, 488  F.2d 1206, 1209 (1st  Cir. 1973).          _____________     _______          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.                                                           ___   ______          Waterfront Comm'n, 378  U.S. 52,  79 (1964).   To like effect,  a          _________________          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.                   ___ ____                    In the last analysis, the nisi  prius court should make          a particularized finding  as to the applicability vel  non of the                                                            ___  ___          privilege  and should  elucidate its  rationale.   In reaching  a                                          7          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          ___ _______                   ______________    _______          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.                                          __                            Manuel Enr que "Ricky" Castro                            Manuel Enr que "Ricky" Castro                            _____________________________                    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                                                          ___  ____   _____          Kave,  760 F.2d at 354; Johnson,  488 F.2d at 1209; see generally          ____                    _______                     ___ _________          Hoffman, 341  U.S. at  487-88 (emphasizing  the district  court's          _______          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                                          9          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-                                               ___ _____________    _______          Londo o, 946 F.2d  158, 161 (1st Cir. 1991);  Turner v. Fair, 617          _______                                       ______    ____          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                                          10          bar the  witness's testimony  altogether.  See  Gary, 74  F.3d at                                                     ___  ____          310; Zirpolo, 704 F.2d at 25-26.               _______                    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                                                        ___ _____    ______          States, 373 U.S.  179, 186 (1963); Johnson, 488 F.2d at 1211.  We          ______                             _______          fail to see any hint of  discretion abused in Judge Hornby's  use          of standard procedure in this wise.                                          D.                                          D.                                          __                                Melvin "Bubba" Lagasse                                Melvin "Bubba" Lagasse                                ______________________                    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                                          11          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                                     ___ ______________    _____          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.                                               ___   ____  _____________          Principe, 482  F.2d 60,  63 (1st Cir.  1973); Ottomano  v. United          ________                                      ________     ______          States, 468 F.2d 269, 271  (1st Cir. 1972).  Nor do the  terms of          ______          Lagasse's plea bargain mandate a different result; while the plea          bargain may have  precluded federal prosecution for some of these                                      _______                                        ____________________               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.                                          12          substantive  acts, Lagasse  nonetheless was  wide  open to  state                                                                      _____          prosecution on that account.  See United States  v. Perez-Franco,                                        ___ _____________     ____________          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.                                          __                                 The Remaining Claims                                 The Remaining Claims                                 ____________________                    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                                                          ___ _____________          v. Angiulo,  897 F.2d 1169,  1190-93 (1st Cir.  1990) (describing             _______                                          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          ___ ________________________________    _____          (3d Cir.  1980).   Recognizing that the  power to  direct witness          immunity customarily is reserved to  the Executive Branch, see 18                                                                     ___          U.S.C.    6003(b),  we recently  interred  the effective  defense          theory.  See  Curtis v.  Duval, 124  F.3d 1, 9  (1st Cir.  1997);                   ___  ______     _____          United States v. Mackey, 117 F.3d 24,  28 (1st Cir. 1997).  It is          _____________    ______          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                                                                ______          F.3d  at 10 (quoting Angiulo,  897 F.2d at  1191).  However, this                               _______          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.                                                                    ___ ___          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                                          14          exculpatory evidence from  the jury.  See id.;  Angiulo, 897 F.2d                                                ___ ___   _______          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                                           ___          sole purpose of keeping exculpatory  evidence from the jury.  See                                                                        ___                                          15          Angiulo, 897 F.2d at 1193.          _______                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    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.          ________                                          16
