UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5303

WILLIAM ALSTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-94-269-A)

Argued: May 8, 1996

Decided: October 7, 1996

Before WIDENER and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Claude David Convisser, Alexandria, Virginia, for Appel-
lant. Gerard Joseph Sexton, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Randy I. Bellows, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The defendant, William Alston, appeals his conviction for armed
robbery of a federal credit union in violation of 18 U.S.C. § 2113(a)
and (d) on the grounds of insufficient evidence and prosecutorial mis-
conduct. He also claims the district court erred in denying his motion
for a new trial based on newly discovered evidence. We affirm.

Alston's first trial resulted in a mistrial because the jury was unable
to reach a unanimous verdict. Following a second trial the jury
returned a verdict of guilty.

Alston first claims that the evidence identifying him as the perpe-
trator was insufficient to support the conviction and that he did not
have time to commit the robbery and reach his workplace at about
3:00 p.m. Along with other evidence, the record shows that the police
officer who first spotted the robbers' getaway car picked Alston out
of a police lineup the night of the robbery and identified Alston at
trial as the man who exited the back seat of the car and shot at him
(the officer). The officer testified that he returned fire and Alston fled.
The fugitive's weapon was later found in a yard about 50 yards down
the street in the path of Alston's flight. The other occupants of the
Alston car, codefendants William Johnson and Janeen Jackson,
escaped and were arrested shortly thereafter by other officers. A fin-
gerprint on one of the credit union's metal cash boxes found in the
trunk of the car was positively identified as belonging to Alston. The
parties stipulated that it took 39 minutes to go from the place Alston
exited the getaway car and shot at the police officer to Alston's work-
place by Metrorail or by driving. The evidence showed that the rob-
bery occurred around 1:45 to 1:50 p.m. in Falls Church, Virginia. A
credit union employee followed the getaway car for about four or five
minutes and recorded the license number of the car before it turned
to enter a shopping center. The employee straightaway reported the

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license number to a police officer a couple of blocks away. The Als-
ton car was picked up on the Fourteenth Street Bridge at around 2:08
p.m. by a police officer who followed the car approximately five min-
utes before it stopped and the man whom the officer identified as Als-
ton exited the car, shot at him, and fled. Thus Alston would have had
at least 45 minutes to reach his workplace by car or by Metrorail.
Based on this evidence, viewed in the light most favorable to the gov-
ernment, we conclude that there is substantial evidence to support the
verdict of guilty. Glasser v. United States, 351 U.S. 60, 80 (1942).

Alston next claims that his right to present witnesses on his behalf
was violated because the prosecutor's threat of perjury charges intimi-
dated a critical witness from testifying. The record indicates that the
prosecutor requested the court to appoint counsel for codefendant Jan-
een Jackson because the government had evidence that Jackson had
perjured herself in Alston's previous trial when she testified that she
did not know Alston. The jail's visitor log showed that Miss Jackson
had visited Alston on two occasions, one time with codefendant John-
son's girlfriend, Diane Cooper, and another time with Alston's sister,
Sabrina Alston. Miss Jackson's dilemma was that if she testified at
Alston's second trial that she did know Alston, she could be said to
admit that she had perjured herself at the earlier trial. If she testified
a second time that she did not know Alston, she could be subject to
a second perjury count. On the advice of her appointed counsel, Miss
Jackson invoked the Fifth Amendment and did not testify at Alston's
trial. Her testimony at the prior trial was read into the record, she
being unavailable under Fed. R. Evid. 804(a)(1).

A defendant's right to present witnesses in his defense is a funda-
mental element of due process. Washington v. Texas, 388 U.S. 14, 19
(1967). Improper intimidation of a witness may violate a defendant's
due process if it amounts to "`substantial government interference
with a defense witness' free and unhampered choice to testify.'"
United States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991), cert.
denied, 502 U.S. 1105 (1992) (citations omitted). Reversible prosecu-
torial misconduct occurs when the prosecutor's conduct is improper
and such conduct deprives the defendant of a fair trial. See United
States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994), cert. denied,
115 S. Ct. 950 (1995).

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Alston depends on United States v. MacCloskey , 682 F.2d 468 (4th
Cir. 1982), and United States v. Teague, 737 F.2d 378 (4th Cir. 1984).
The district court held both of those cases to be distinguishable, and
we agree. MacCloskey was a case under circumstances remarkably
similar to those present here, in which a witness had declined to tes-
tify under at least an implied threat of perjury if she lied, her sought-
for testimony being inconsistent with that at a previous voir dire hear-
ing in the case. The district court was reversed because it did not hold
the witness unavailable and permit the reading of the voir dire testi-
mony on behalf of the defendant. In the case at hand, the testimony
of Miss Jackson at the previous trial was read to the jury, so
MacCloskey has no application. Teague was a similar case in which
the attorney for a witness was advised that if the witness perjured
himself he would be hearing from the U. S. Attorney's office and his
pretrial diversion agreement would be revoked. We held that the
action of the U. S. Attorney was harmless, and also reasoned that the
district court was satisfied that the witness had not been threatened by
any federal agent or attorney under a warning similar to that given
here. Therefore, Teague has no application.

We note in passing that it may be doubted that MacCloskey has
survived Bank of Nova Scotia v. United States , 487 U.S. 250 (1988),
in which the Court held that the government had not attempted to
manipulate a witness's testimony when the U. S. Attorney had told
the witness's attorney that if the witness "testified for Mr. Kilpatrick
all bets were off." The defendant's attorney had construed the state-
ment that his client would be validly subject to prosecution for per-
jury rather than having immunity withdrawn, the same condition
which appertains here.

We should also remark that the district court considered it quite
proper to ask for the appointment of an attorney instead of letting the
witness unwarily walk into a perjury trap, and we agree.

The government impeached Miss Jackson's testimony given at Als-
ton's first trial with evidence indicating that she had visited Alston
when he was in jail. Alston claims that because Miss Jackson refused
to testify in person, he could not call upon her to explain or rebut the
state's evidence. In his motion for a new trial, Alston proffered that
Miss Jackson would have testified that on October 4, 1994, she did

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not visit Alston, but rather Johnson who happened to be in the same
cellblock with Alston. Alston claims Miss Jackson would have testi-
fied that her only visit to him was on November 11, 1994 when she
accompanied Alston's sister, Sabrina Alston, a Washington D.C.
police officer, for the purpose of identifying whether he was the per-
son with herself and Johnson in the getaway car. Alston asserts that
this and the testimony of Johnson's brother that he left Miss Jackson
at the jail, and two jail employees that the policy of the jail is to allow
one set of visitors per night is newly discovered evidence which enti-
tles him to a new trial.

We disagree. The proffered evidence from these three witnesses
was available to Alston at the time of trial.

The judgment of conviction is accordingly

AFFIRMED.

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