UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5787

THOMAS WAITKUS WILLIAMSON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5877
KATHY JOANN BOLES, a/k/a Melissa
Lauren Cales,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., District Judge.
(CR-94-268)

Submitted: January 28, 1997

Decided: March 27, 1997

Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Car-
olina; Thomas N. Cochran, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellants. Walter C. Holton, Jr.,
United States Attorney, Paul A. Weinman, Assistant United States
Attorney, Greensboro, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Kathy Joann Boles was convicted by a jury of possession of crack
cocaine with intent to distribute, 21 U.S.C. § 841 (1994). In a separate
trial, Thomas Waitkus Williamson was convicted of the same offense
as well as conspiracy to distribute crack, 21 U.S.C.§ 846 (1994).
Boles appeals her 60-month sentence, alleging that the district court
misunderstood its authority to depart on the ground of duress and
erred in finding that she obstructed justice and did not accept respon-
sibility. USSG §§ 5K2.12, p.s., 3C1.1, 3E1.1.* Williamson appeals
his conviction, arguing that the court abused its discretion by refusing
to permit him to call the prosecutor and Boles' attorney as defense
witnesses. We affirm.

Boles and Williamson were questioned by drug interdiction offi-
cers after they got off a flight from New York City to Greensboro,
North Carolina. Williamson was not carrying any drugs and left the
airport after denying that he knew Boles. Boles was carrying two
packages of crack. She was arrested and implicated Williamson. She
said he forced her to go to New York with him, gave her money for
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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the plane ticket, and made her carry the crack. Boles used a false
name, birth date, and social security number in her initial interview
with a pre-trial services officer, signed a financial affidavit with the
false name, and maintained her false identity in her initial appearance
before a magistrate. Boles' real identity was discovered a week later,
one day before her detention hearing.

Both Boles and Williamson entered not guilty pleas. Boles agreed
to testify against Williamson. Their trials were severed but scheduled
for the same day, with Boles' case being tried first. Boles testified that
she had gone to New York under duress and did not know what the
packages she was carrying contained. She said she complied with
Williamson's directions because he threatened to hurt her if she did
not.

While Boles' jury was out and after Williamson's trial had begun,
Boles' attorney asked the government prosecutor whether he would
recommend a substantial assistance departure for Boles in return for
her testimony against Williamson. The prosecutor said he would rec-
ommend a departure to the United States Attorney. Williamson's
attorney was present during the conversation.

During Williamson's trial, the district court denied defense
requests to call the prosecutor and Boles' attorney to testify about the
offer Boles had received. Boles initially testified that she did not
expect to gain anything from her testimony. Under cross-examination,
she admitted that she had been told there was a possibility her sen-
tence might be reduced, but stated that she had agreed to testify
before the jury returned a verdict. The court permitted Williamson's
attorney to question Boles concerning the fact of her conviction, but
did not allow him to bring out her plea of not guilty or the jury's
apparent rejection of her testimony at her own trial.

We first find that the district court did not abuse its discretion in
refusing to permit Williamson to call the prosecutor and Boles' attor-
ney to testify. The attorney's conversation with his client was pro-
tected by the attorney-client privilege, which Boles had not waived.
A prosecutor may be called as a defense witness if the defendant has
a compelling need for his testimony. United States v. Prantil, 764
F.2d 548, 554 (9th Cir. 1985). Williamson contends that, in order to

                     3
impeach Boles' credibility, he needed the prosecutor's testimony for
"full disclosure of the deal" which was promised to Boles in return
for her testimony. The argument is not persuasive because Boles
agreed to testify long before her attorney broached the subject of a
substantial assistance departure with the prosecutor. Moreover, Wil-
liamson's attorney was able to bring out through Boles' testimony her
knowledge that her testimony might result in her sentence being
reduced. Consequently, Williamson did not show a compelling need
for further testimony about the details of the offer.

Williamson also contends that his right of confrontation was preju-
dicially limited when the court refused to allow him to ask Boles
about her not guilty plea and subsequent conviction. He argues that
Boles' credibility would have been severely damaged by evidence
that a jury had disbelieved her testimony and that she "then struck a
deal for substantial assistance." Because Boles was scheduled to tes-
tify against Williamson before she was convicted, this argument has
no basis in fact. We find that the district court did not abuse its discre-
tion in limiting Williamson to inquiring whether Boles had previously
been convicted of a felony.

At her sentencing hearing, Boles requested a downward departure
for coercion or duress pursuant to USSG § 5K2.12. The court
declined to depart, explaining that:

          [I]t was unreasonable for the defendant to fail to notify per-
          sons in authority of her alleged claim of duress prior to the
          pretrial interview. It does not serve the defendant well that
          this information was not provided long after Mr. Williamson
          had been taken -- or had removed himself from the inci-
          dent. The Court will not give the defendant any departure.

Generally, a court's decision not to depart is not reviewable, United
States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S.
819 (1990), but such a decision based on a perceived lack of legal
authority to depart is reviewed de novo. United States v. Hall, 977
F.2d 861, 863 (4th Cir. 1992). Boles argues that the district court
applied too high a standard for a departure, requiring her to meet the
"immediate notification" standard necessary to prevail on a defense of
coercion to an escape charge under 18 U.S.C. § 751(a) (1994), and

                     4
thus misperceived its authority to depart on a lesser showing of
duress. However, the record discloses that the court did not accept
Boles' claim of duress in any degree. Consequently, this portion of
Boles' appeal will be dismissed.

Boles also objected unsuccessfully to the probation officer's rec-
ommendation that she receive an adjustment for obstruction of justice
based on her use of a false identity. Boles contends that de novo
review of the court's determination is necessary because the facts are
not disputed. See United States v. Daughtrey, 874 F.2d 213, 217 (4th
Cir. 1989) (factual sentencing issues reviewed for clear error; legal
issues reviewed de novo). However, her objection to the probation
officer's recommendation and her argument at sentencing focused on
her motive for giving false information to the pretrial services officer
and the magistrate, a factual question, rather than the materiality of
the false information, which would be a legal issue. Therefore, we
review the district court's decision for clear error.

Boles argues that she was motivated by fear of Williamson rather
than a desire to impede the investigation, and points out that she
cooperated immediately after her arrest by describing the trip to New
York. While this conduct demonstrated Boles' willingness to cooper-
ate in the investigation and prosecution of Williamson, it did not pre-
clude a simultaneous attempt to derail the investigation and
prosecution of herself. The district court agreed with the probation
officer's estimation that Boles willfully provided false material infor-
mation to the court and thus attempted to obstruct justice in her own
case. USSG § 3C1.1, comment. (n.3(f)). This finding was not clearly
erroneous. Boles also claims that the court failed to make specific
findings. However, the court adopted the reasoning in the probation
officer's response to Boles' objection to the presentence report, and
adequately resolved the issue in this manner.

Last, Boles asserts that she was entitled to an adjustment for accep-
tance of responsibility because she never disputed her factual guilt
and went to trial solely to preserve her coercion defense, an issue
which she characterizes as unrelated to factual guilt. In fact, at trial
Boles not only said she went to New York under duress, but also dis-
claimed any knowledge of, or involvement in, the offense and put the
government to its burden of proof. The district court did not clearly

                     5
err in denying the acceptance of responsibility adjustment on this
basis as well as because of the obstruction of justice adjustment. See
USSG § 3E1.1, comment. (n.4).

Accordingly, we affirm Williamson's conviction and Boles' sen-
tence. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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