                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 FEB 18, 2010
                               No. 09-14059                       JOHN LEY
                           Non-Argument Calendar                    CLERK
                         ________________________

                      D. C. Docket No. 09-60059-CR-JIC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MICHAEL HARLEY,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (February 18, 2010)

Before DUBINA, Chief Judge, TJOFLAT and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Michael Harley appeals his sentences after his convictions for
selling and conspiring to sell United States Treasury checks, in violation of 18

U.S.C. §§ 371 and 510(b). Harley contends that, at his sentencing hearing, the

district court improperly permitted Michael Gabriel, his co-defendant who had

already pleaded guilty, to exercise his Fifth Amendment privilege. Harley asserts

that Gabriel’s testimony would have exonerated him.

      We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). Even if an

evidentiary ruling is erroneous, it will warrant reversal “only if the error was not

harmless.” Id. (internal quotation marks omitted). An error is harmless unless

there is a reasonable likelihood that it affected the defendant’s substantial rights.

Id. (internal quotation marks omitted).

      The Fifth Amendment provides, in relevant part: “No person shall be . . .

compelled in any criminal case to be a witness against himself.” U.S. Const.

Amend. V, cl. 2. “[A] witness’s answers are not compelled within the meaning of

the Fifth Amendment unless the witness is required to answer over his valid claim

of privilege.” United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002)

(internal quotation marks omitted). “[T]he Fifth Amendment permits a witness to

refuse to answer any question put to him unless and until he is protected at least

against the use of his compelled answers and evidence derived therefrom in any



                                            2
subsequent criminal case in which he is a defendant.” Id. (internal quotation marks

omitted). That protection extends to any “proceeding, civil or criminal, formal or

informal, where the answers might incriminate him in future criminal

proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 104 S. Ct. 1136, 1141

(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 94 S. Ct. 316, 322 (1973)).

      To assert the privilege against self-incrimination, the threat of a future

prosecution and possible conviction must be “reasonable, real, and appreciable.”

United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (en banc). As a

general rule, where there can be no further incrimination, there is no basis for

asserting the privilege. Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct.

1307, 1314, (1999). A witness may not invoke the Fifth Amendment concerning a

charge to which he has already pleaded guilty and “in which the sentence has been

fixed and the judgment has become final . . . . If no adverse consequences can be

visited upon the convicted person by reason of further testimony, then there is no

further incrimination to be feared.” Id.

      We conclude from the record that the district court did not abuse its

discretion by declining to compel Gabriel’s testimony over his invocation of his

Fifth Amendment privilege. It was not unreasonable to conclude that, by testifying

in Harley’s favor, Gabriel possibly would be contradicting his earlier statements



                                           3
made as part of a guilty plea, exposing himself to a potential charge of perjury.

      Moreover, we conclude that Harley has failed to demonstrate that any

alleged error caused him prejudice. Harley has offered no reason for the

introduction of Gabriel’s testimony, other than a blanket assertion that Gabriel’s

testimony would have exonerated him. This is inappropriate at a sentencing

hearing, as Harley’s guilt had already been determined by a jury beyond a

reasonable doubt. Additionally, as Gabriel’s counsel made clear in his response to

Harley’s request that Gabriel testify, Gabriel would not provide any testimony that

was favorable to Harley, even if compelled. In sum, Harley has not identified how

his substantial rights were affected by the district court’s decision to permit Gabriel

to invoke the Fifth Amendment.

      Accordingly, the district court’s ruling was not an abuse of its discretion,

and we affirm Harley’s sentences.

      AFFIRMED.




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