PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4281

JERRY WAYNE GOLDING,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-188)

Argued: October 30, 1998

Decided: February 17, 1999

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and WILSON, Chief United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Widener wrote
the opinion, in which Chief Judge Wilkinson and Chief Judge Wilson
concurred.

_________________________________________________________________

COUNSEL

ARGUED: F. Lee Bailey, West Palm Beach, Florida, for Appellant.
Cameron Sue Heaps, Special Assistant United States Attorney, Rich-
mond, Virginia, for Appellee. ON BRIEF: Margherita Downey, West
Palm Beach, Florida, for Appellant. Helen F. Fahey, United States
Attorney, Richmond, Virginia, for Appellee.
OPINION

WIDENER, Circuit Judge:

A federal grand jury indicted Jerry Wayne Golding in July 1996,
charging him in Count One with possession of a firearm by a con-
victed felon in violation of 18 U.S.C. § 922(g)(1) and in Count Two
with possession of ammunition by a convicted felon in violation of
the same code section. At trial, the jury found Golding guilty of pos-
session of the gun but not guilty of the ammunition. Golding appeals
from both the judgment of conviction and the district court's subse-
quent denial of his motion for downward departure at sentencing. We
agree that the actions of the prosecutor were improper and prejudicial.
Accordingly, we vacate Golding's conviction and remand this case
for a new trial.

I.

On June 17, 1996, Jeri Baker, Golding's then fiancee, and now
wife, called 911 from the couple's home in Goochland County, Vir-
ginia. She was agitated and threatening suicide. Golding also spoke
with the dispatcher and assured her that there were no weapons in the
house with which Mrs. Golding might hurt herself or, for that matter,
Golding.

Shortly thereafter, Corporal James Mann of the Goochland County
Sheriff's department arrived on the scene, and Golding also told him
that there were no weapons in the house. Golding had a prior felony
conviction and maintains that he had complied with the law by getting
rid of all of the weapons that he once owned.

According to Golding, it was not until Mrs. Golding ran upstairs
that morning and mentioned something about a gun that he recalled
that the weapon had been among the things that she had had delivered
from her previous residence. At that time, he warned Mann about the
presence of the firearm.

Mrs. Golding did proceed to pull the shotgun out from under a mat-
tress, but Mann defused the situation, leaving the shotgun, and left the

                    2
premises. Mann returned to the Goldings' home that afternoon with
a search warrant, at which time he found the shotgun, a box of .22
ammunition, and a small amount of marijuana.

Mrs. Golding claimed ownership of the shotgun. Following a con-
versation between the prosecutor and Golding's attorney, however,
Mrs. Golding was advised to retain her own counsel and eventually
not to testify on her husband's behalf (the couple had married in the
interim), for fear that she, herself, would be prosecuted. Indeed, Mrs.
Golding did not testify, and Golding was convicted.

Golding raises three issues on appeal. He challenges his conviction,
first, on the ground that the prosecutor violated his constitutional
rights by threatening to prosecute Mrs. Golding if she testified, which
was exacerbated by calling the absence of Mrs. Golding's testimony
to the attention of the jury, and, second, on the ground that the district
court erred by instructing the jury on constructive possession when
the government had presented insufficient evidence to support such
a theory. Additionally, Golding argues that the district court erred by
failing to grant him a downward departure at sentencing.

II.

Golding asserts that the actions of the Special Assistant United
States Attorney in this case amount to reversible prosecutorial mis-
conduct, and we agree. The "test for reversible prosecutorial miscon-
duct generally has two components: that `(1) the prosecutor's remarks
and conduct must in fact have been improper, and (2) such remarks
or conduct must have prejudicially affected the defendant's substan-
tial rights so as to deprive the defendant of a fair trial.'" United States
v. Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (quoting United States
v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988)), quoted in United
States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). We hold that the
effect of the prosecutrix's communications with defense attorneys,
initially Golding's and eventually Mrs. Golding's, compounded by
her closing argument, satisfy both the impropriety and prejudice
requirements.

There was no fact finding by the district court with respect to the
substance of the communications of the government's attorney with

                     3
defense attorneys regarding Mrs. Golding's proposed testimony at her
husband's trial. In an affidavit attached to Golding's motion for new
trial, Mrs. Golding asserted that she owned the shotgun, that she kept
it between the mattress and the box spring on her side of the king-size
bed for her own protection, and that she originally intended to testify
to those facts at trial. She then stated that,

          [a]bout a week prior to the commencement of the trial,
          Attorney Janus who was defending my husband, told us that
          he had been approached by the young woman who was
          prosecuting the case; she told him, he said, that if I were to
          take the witness stand I would be prosecuted federally for
          possession of marijuana despite the fact that a state judge
          had dismissed the same charge against me . . . .

Mrs. Golding indicated that while she still wished to testify on her
husband's behalf, she felt, as a result of this exchange, that she had
been "forced in this manner" not to appear.

The government did request an evidentiary hearing to resolve the
allegations in Mrs. Golding's affidavit. Instead, the district court
directed the government to make a proffer regarding the evidence that
it would present at such a hearing. In that proffer, the government,
represented at that time by Jim Comey, stated that the Special Assis-
tant United States Attorney who prosecuted Golding, broached the
subject of Mrs. Golding's potential testimony with Mr. Janus, her
husband's attorney. The government went on to represent that she
expressed surprise to learn that Mrs. Golding might testify because
"she potentially is going to be admitting to a crime" and to note that
§ 922(g)(3) criminalizes possession of a firearm by a marijuana user.
The district court denied both the government's motion for an eviden-
tiary hearing and the defendant's motion for new trial without making
any factual findings regarding the nature of the exchange that took
place between the prosecutrix and Mr. Janus. In the absence of such
findings of fact, this court will conduct a plenary review of allegations
of prosecutorial misconduct. See United States v. Ellis, 121 F.3d 908,
927 (4th Cir. 1997) (citing United States v. McDonald, 61 F.3d 248,
253 (4th Cir. 1995)).

Without more, it might be difficult for this court to evaluate the
uncertain evidence regarding both the context and the content of the

                     4
conversation between the prosecutrix and Mr. Janus. The defendant,
supported by Mrs. Golding's affidavit, paints a picture of a sinister
threat, while the government maintains, via its own proffer, that the
prosecutrix merely offered a friendly warning to Mrs. Golding. Other
circumstances, however, shed some light on the issue.

At oral argument, the following exchange took place between the
prosecutrix and the court:

          Q: He said that you admitted that you told this lady through
          her lawyer or lawyers that she was going to be prosecuted
          if she testified, is that correct?

          A: No sir.

          Q: You do not admit that?

          A: What we admit

          Q: Did you tell Mr. Janus that?

          A: Yes sir, I did.

          Q: You said you were going to prosecute her if she testi-
          fied?

          A: That's correct, your Honor.

Contrary to the government's proffer, this was not a gentle recogni-
tion of Mrs. Golding's "potential exposure" to criminal charges.

While it is a matter of concern that the Special United States Attor-
ney threatened a defense witness with prosecution simply to prevent
testimony which would have been damaging to her own case, that is
not all that demonstrates that the threat rose to the level of intimida-
tion necessary to constitute an abuse of process. See United States v.
LaFuente, 54 F.3d 457, 462 (8th Cir. 1995). The government did not
stop with the threat. Instead, the prosecutrix further abused her power
by using the very situation she had created against the defendant in
closing argument.

                       5
Throughout the course of the government's closing argument and
rebuttal, the prosecutrix repeatedly called Mrs. Golding's failure to
testify to the jury's attention and proceeded to argue that it was indic-
ative of the falsity of the defendant's story. She commented:

          If his story were true, wouldn't the best evidence that this
          stuff belonged to this lady be for her to come in and tell you
          all that it was --. . . .

The district court overruled Golding's objection to this line of argu-
ment. Bolstered by that ruling, the prosecutrix became even more
expansive:

          She didn't ever come up here and testify, and we don't
          know why." [J.A. 95]

****

          What wife in the world wouldn't just come right on in and
          tell you the truth, if that was the truth, to prevent her hus-
          band from going to prison? You can infer from the fact that
          she didn't come in, why not? Why wouldn't she come in if
          it were the truth? It would be that simple. You can infer that
          it is not the truth. [J.A.95]

****

          And if his story were true, I think that any wife in the world
          would come in and tell the truth. [J.A. 96]

****

          If that is true, there is nothing wrong with her possessing a
          weapon and ammunition, and she is the one who possessed
          them, why didn't she just walk right up here and tell you?
          [J.A. 105]

Not only was the argument in violation of the testimonial privilege
of the wife, the suggestion that the prosecutrix did not know the rea-

                     6
son for the absence of Mrs. Golding as a witness was at least highly
improper.

The authorities are uniform that threatening a witness with prose-
cution and comment about the absence of a witness who has a privi-
lege not to testify are a violation of the Sixth Amendment right of a
defendant to obtain witnesses in his favor. The same rule applies for
the testimonial privilege of a wife, except not on Constitutional
grounds. At least two cases in this circuit, in circumstances less
aggravating than those present here, have so held, as have other cir-
cuits.

In United States v. Morris, 988 F.2d 1335 (4th Cir. 1993), the gov-
ernment had called the defendant's wife, who was also the defen-
dant's secretary, as a witness before the grand jury, in which grand
jury proceeding she had invoked her marital privilege against giving
adverse testimony against her husband, the defendant. The witness
was not only the defendant's wife, she had been his secretary for 26
years and was familiar with the affairs in the defendant's office upon
which the case turned. The district court recognized that the case
involved credibility. Despite that, when the wife testified before the
petit jury at trial, the district court allowed the government to prove
that the wife had claimed her marital privilege and not testified before
the grand jury. It allowed that proof as going to the credibility of the
wife. We held that permitting the proof of the invocation of the mari-
tal privilege by the wife was error and that it was not harmless
because the wife was an important corroborative witness, the case
depending, to a considerable extent, on credibility. We also held that
there was grave doubt as to whether or not the error had substantial
influence on the outcome of the case under Kotteakos v. United
States, 328 U.S. 750 (1946). We vacated the conviction and remanded
for a new trial.

In United States v MacCloskey, 682 F.2d 468, 475 (4th Cir. 1982),
the government's attorney suggested to a prospective witness's attor-
ney that "he would be well advised to remind his client [the witness]
that, if she testified at MacCloskey's trial, she could be reindicted [for
conspiracy to murder] if she incriminated herself during that testi-
mony [for MacCloskey]." We held that the government's suggestion
to the attorney for the witness, as just related,"destroyed the choice

                     7
. . . [of the witness] to testify freely." 682 F.2d at 479. We held that
the error was not harmless and that it "independently warrants the
grant of a new trial." 682 F.2d at 479.

In United States v. Viera, 819 F.2d 498 (5th Cir. 1987), the defen-
dant's father was sworn in as a defense witness. Just prior to the trial,
the government's attorney disclosed that another witness had impli-
cated the father in several drug transactions and that "should the elder
Viera choose to testify, he would likely be forced either to incriminate
himself by admitting involvement in these crimes or to commit per-
jury by denying the involvement. Either way, the prosecutor said he
would seek an indictment of Gaspar Viera [the father] before a grand
jury convening the next week." The father did not testify, of course,
and in his closing argument, as here, the prosecutor compounded the
error by this argument:

          We never heard from Dad, did we?

The court held that this conduct of the prosecutor violated the defen-
dant's Sixth Amendment right to present witnesses in his behalf and
was reversible error under Webb v. Texas, 409 U.S. 95 (1972), with-
out proof of prejudice.

In United States v. Morrison, 535 F.2d 223 (3rd Cir. 1976), the
defendant's attorney had planned his defense around the testimony of
one Sally Bell, who was prepared to testify that it was she and not the
defendant who had conspired to sell the hashish involved in that case.
The government's attorney "sent messages to her through defense
counsel, warning that she was liable to be prosecuted on drug charges;
that if she testified the testimony would be used as evidence against
her and, further, that as she was now 18 it would be possible to bring
federal perjury charges against her." 535 F.2d at 225. The govern-
ment's attorney repeated these threats in a personal interview with
Sally Bell. The court held that the conduct of the government's attor-
ney toward the witness was not to be condoned and that it was error
requiring a new trial. At the commencement of that proceeding,
immunity had been requested for Sally Bell which had not been
granted because the government would not request it. The court fur-
ther held that at a new trial, in the event that the defendant called
Sally Bell as a witness, if she invoked her Fifth Amendment right not

                     8
to testify, a judgment of acquittal should be entered unless the govern-
ment requested use immunity for her testimony. United States v.
Smith, 591 F.2d 1105 (5th Cir. 1979), is a case factually on all fours
with the case at hand except on facts less aggravating. Smith was a
case involving possession of a firearm by a convicted felon in which
it was claimed that the wife owned the guns involved, and not the
husband, who was the defendant. There was no threat of prosecution
involved in that case as here, only the argument to the jury. The gov-
ernment argued:

          You would have to believe that [the wife] Barbara Smith is
          a pistol-packing mama to believe that all those guns were
          hers . . . . And why haven't we heard from Barbara? . . . .

****

          After all, they have access to that witness. She was here the
          whole time. You have a right to infer that had she taken the
          stand she would have testified that those were her husband's
          guns.

The court held that the argument of the prosecutor, without ques-
tion, constituted error, for the failure to produce a favorable witness
does not apply to the spouse of a defendant. The court further held
that the error was not harmless, that the instruction the district court
gave with respect to not calling a favorable witness only compounded
the error instead of curing it and that the defense that the guns
belonged to the defendant's wife was the heart of his defense. A new
trial was awarded.

It follows that the conviction of the defendant must be vacated and
the case remanded for a new trial. We have not considered any objec-
tion to sentencing nor to the claim that the evidence does not support
the verdict.*

VACATED AND REMANDED
_________________________________________________________________
*We cannot say what the evidence will show upon retrial, and conse-
quently, we need not express any opinion as to the sufficiency of the evi-
dence. United States v. Swaim, 642 F.2d 726, 729 (4th Cir. 1981); see 15
B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3918.7 (2d ed. 1992); cf. Burks v. United States, 437 U.S.
1, 15 (1977).

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