UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4297
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE WAYNE MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (7:09-cr-00001-H-2)
Argued: May 12, 2011 Decided: June 14, 2011
Before MOTZ and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Thomas Reston Wilson, GREENE & WILSON, PA, New Bern,
North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: Kelly L. Greene, GREENE & WILSON, PA, New Bern, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Thomas B. Murphy, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Bruce Wayne Miller was found guilty
of: (1) interference with commerce by robbery, and aiding and
abetting the same, 18 U.S.C. §§ 1951 and 2; and (2) aiding and
abetting the use and carriage of a firearm during and in
relation to a crime of violence, id. §§ 924(c) and 2. On
appeal, Miller contends that his Sixth Amendment right to
compulsory process was abridged by the district court. We
affirm.
I
This case involves a robbery at Tobacco House #3, a
convenience store located in Lumberton, North Carolina. At
approximately 10:45 p.m., on October 28, 2008, George William
Blackwell entered the store, purchased a drink, and left.
Approximately five minutes later, he reentered the store, this
time accompanied by Miller. As the pair entered the store,
Blackwell pointed a gun at one of the store’s employees, Yosef
Gazali, who was standing behind the counter near the cash
register. The pair repeatedly instructed Gazali to give them
all of the money in the cash register. Initially, Gazali turned
over only the $20 bills in the cash register. In response,
Miller told Gazali to hand over all of the “f***ing money.”
After Gazali delivered all of the money (approximately $800.00)
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from the cash register, Blackwell went behind the counter
looking for the cash drawer that contained the state lottery
receipts. As he moved toward the drawer, Blackwell passed a
loaded shotgun that was stored behind the counter. From the
drawer, Blackwell retrieved approximately $70.00. Meanwhile,
Miller walked to a cooler in the store and grabbed a twelve-pack
of beer. As the pair was leaving the store, Gazali grabbed the
shotgun, pointed it at Miller and Blackwell, and pulled the
trigger, but the safety was on, preventing the shotgun from
discharging.
After Miller and Blackwell left the store, Gazali followed
them, shotgun in hand, with the safety off. Gazali pursued the
pair to the side of the store, where a red Mustang was parked.
A shot was fired at Gazali, so he retreated, positioning himself
near one of the doors to the store. Gazali then approached the
Mustang and fired a shot at the car. As the car sped off,
another shot was fired at Gazali, so he returned fire, hitting
the back of the Mustang.
Shortly after the robbery, Detective Timothy Wilkins of the
Lumberton Police Department was dispatched to the scene.
Detective Wilkins interviewed Gazali and another store employee,
Nasr Alnagger, and collected evidence outside of the store,
including a shotgun shell casing and the twelve-pack of beer
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that Miller had taken from the store, but had left in the
parking lot.
Within a day of the Tobacco House #3 robbery, law
enforcement officers began to suspect that Blackwell and his
friend and associate, Dixie Lynn Oxendine, were involved in the
robbery, because Blackwell was a suspect in two October 2008
bank robberies and Dixie Oxendine’s red Mustang fit the
description of the car described by Gazali as leaving the scene
of the robbery at Tobacco House #3. By this time, a state
warrant had been issued for the arrest of Blackwell in one of
those bank robberies. Suspecting that Blackwell and Dixie
Oxendine might be staying together, law enforcement officers
investigated their whereabouts and discovered that Dixie
Oxendine was staying at a Howard Johnson’s hotel in Lumberton.
On the morning of October 31, 2008, law enforcement
officers arrived at the Howard Johnson’s. The law enforcement
officers received information that Dixie Oxendine was sharing a
room registered in her name with two adult males, later
identified as Miller and Blackwell, and an adult female, later
identified as Dawn Oxendine. Because of the threat of a
shootout, the arrest plan involved getting one of the room’s
occupants to answer the door. Two detectives from the Lumberton
Police Department and FBI Special Agent Frank Brostrom
approached the room. After knocking on the door a couple of
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times, Blackwell answered the door and was promptly arrested.
Following Blackwell’s arrest, a protective sweep of the
room was conducted. During the sweep, law enforcement officers
recovered an AMT Automag II .22 Caliber Rimfire gun. A hat and
jacket worn by Blackwell during the Tobacco House #3 robbery
were also recovered.
Miller, Blackwell, and Dixie Oxendine were interviewed
later that morning at the Lumberton Police Department. During
her interview, Dixie Oxendine admitted that, on the night of the
Tobacco House #3 robbery, she drove Blackwell and Miller in her
red Mustang to the store to get cigarettes and beer. After they
arrived, Blackwell “suddenly exited the car[,] . . . pulled out
a gun . . . and walked towards the gas station with Mr. Miller.”
A short time later, Blackwell ran back to the car yelling: “Go,
Dixie, go.” Dixie Oxendine also recalled the exchange of shots
between Blackwell and Gazali, leaving Miller at the scene, and
picking him up later on while he was walking along a local
highway.
During his interview, Miller initially denied knowing that
Blackwell had robbed a bank. He also indicated that he neither
saw Blackwell with a gun, nor knew he owned one. As his
interview progressed, Miller’s story changed. He admitted that
he had lied about Blackwell because he did not want to tell on
him; that he knew Blackwell owned a gun, having seen it about a
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month before in Blackwell’s back pocket; that he knew Blackwell
had robbed a bank because the two had discussed it; and that he
knew that Blackwell was wanted for bank robbery.
When asked about the Tobacco House #3 robbery, Miller
initially said that he went into the store with Blackwell to buy
beer and cigarettes, and, once inside the store, Blackwell
suddenly pulled out a gun and “does this robbery.” Miller said
he then dropped his beer and ran out of the store, catching up
later with Blackwell. However, after Miller was shown the video
of the robbery, “he shut down,” refusing to answer any further
questions.
On January 8, 2009, Miller, Blackwell, and Dixie Oxendine
were charged in an eight-count indictment. Counts One and Two
charged Blackwell with bank robbery, id. § 2113(a), stemming
from two October 2008 bank robberies, one on October 9, 2008,
the other on October 21, 2008. Counts Three through Five
related to the robbery of a BP Sun-Do convenience store in
Lumberton on October 13, 2008. 1 Counts Six through Eight related
to the Tobacco House #3 robbery. Count Six charged Miller,
1
Count Three charged Blackwell and Dixie Oxendine with
interference with commerce by robbery, and aiding and abetting
the same, 18 U.S.C. §§ 1951 and 2. Count Four charged Blackwell
with using and carrying a firearm during and in relation to a
crime of violence, id. § 924(c), and Count Five charged
Blackwell with possession of a firearm by a convicted felon, id.
§ 922(g)(1).
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Blackwell, and Dixie Oxendine with interference with commerce by
robbery, and aiding and abetting the same, id. §§ 1951 and 2,
and Count Seven charged Miller, Blackwell, and Dixie Oxendine
with using and carrying a firearm during and in relation to a
crime of violence, and aiding and abetting the same, id. §§
924(c) and 2. Count Eight charged Blackwell with possession of
a firearm by a convicted felon, id. § 922(g)(1).
Prior to Miller’s trial, Blackwell pled guilty to Counts
One, Six, and Seven pursuant to a plea agreement, and Dixie
Oxendine pled guilty to Counts Six and Seven, also pursuant to a
plea agreement. 2 On December 1, 2009, Miller and the government
each filed their respective proposed witness list, and each list
included Blackwell as a possible witness. On the same day,
Miller’s two-day jury trial began.
The government presented six witnesses in its case-in-
chief, and none in rebuttal. The government’s case rested on,
among other things, statements made to law enforcement officers
by Miller and his co-defendants, the testimony of the six
witnesses called by the government, and certain physical
evidence recovered at the scene, including a video of the
robbery, the twelve-pack of beer left at the scene by Miller,
2
On October 13, 2009, Dixie Oxendine was sentenced to a
total of eighty-four months’ imprisonment. On February 9, 2010,
Blackwell was sentenced to a total of 155 months’ imprisonment.
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and the shotgun shell casing fired from the shotgun used by
Gazali.
At the beginning of the second day of trial, just before
the government called its last witness, Blackwell’s counsel
notified the district court that Miller intended to call
Blackwell as a witness and that he instructed Blackwell not to
testify. In response, the district court engaged in an
extensive colloquy with Blackwell’s counsel, Miller’s counsel,
and the Assistant United States Attorney. Blackwell’s counsel
was concerned that, by testifying, Blackwell would place in
jeopardy the application of an acceptance of responsibility
downward adjustment at his sentencing, and, far worse, would
result in the application of an obstruction of justice
enhancement. Blackwell’s counsel also was concerned about
Blackwell’s recollection of the events, considering “some of the
things that were in his system at that time,” namely, alcohol
and Xanaxes. Miller’s counsel stressed that all the defense
wanted was for Blackwell to testify truthfully, reasoning that
truthful testimony would have no impact on Blackwell’s
sentencing. Although Miller’s counsel was not exactly clear
about how that truthful testimony would be favorable to Miller,
the record suggests that Miller’s counsel believed that
Blackwell would testify that it was his idea to rob the Tobacco
House #3 and not Miller’s, and that Blackwell would say that
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Miller had no idea that a gun would be used in the robbery. At
the conclusion of its colloquy with counsel, the district court
decided that Blackwell would testify outside the presence of the
jury with his attorney by his side, thus, allowing the district
court to decide which questions Miller’s counsel later could ask
Blackwell in the presence of the jury.
At the beginning of the voir dire examination by Miller’s
counsel, Blackwell answered a series of questions concerning the
contents of his plea agreement and the clothing he wore on the
night of the Tobacco House #3 robbery. At this point, the
district court remarked that, “so far . . . there is no basis
for the Fifth Amendment by the testifying witness.” Blackwell
also identified the AMT Automag II .22 Caliber Rimfire gun and a
clip for the gun, and admitted the gun was used during the
robbery. He answered questions concerning the red Mustang and
who was, and who was not, present in the car leaving the scene
of the robbery. The district court did, however, allow
Blackwell, with the assistance of his counsel, to assert the
Fifth Amendment privilege against self-incrimination to
questions concerning Miller’s involvement in the robbery,
including whether it was Miller’s idea to rob the store, whether
Miller was with Blackwell when the store was robbed, whether
Miller touched the gun, and whether Miller was in the car as it
left the store.
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At the conclusion of Blackwell’s testimony, the district
court recessed court to allow it and counsel to further research
the Fifth/Sixth Amendment issue. The district court discussed
the issue with counsel in chambers, and, later, in open court,
but outside the presence of the jury, ruled that: (1) Miller
could call Blackwell to testify; (2) Blackwell could testify
with his attorney at his side; and (3) it would listen to the
“questions and make rulings if [it] believe[d] there is a basis
for a Fifth Amendment issue.”
Blackwell was the only witness called by the defense.
Consistent with the district court’s ruling, he testified with
his attorney at his side. During his testimony, Blackwell
acknowledged his plea agreement and identified the hat and
jacket he wore during the Tobacco House #3 robbery. As allowed
by the district court, Blackwell asserted the Fifth Amendment
privilege against self-incrimination in response to only one
question, whether he was “carrying or using [the] gun when [he]
entered the store on October 29.” Blackwell did acknowledge, in
response to Miller’s counsel’s next question, that he pleaded
guilty to brandishing a firearm during the robbery. He also
acknowledged that the hat and gun recovered from the Howard
Johnson’s hotel were used during the robbery. Blackwell
identified the red Mustang and acknowledged that Miller was not
in the car as it sped away from the scene. In response to the
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question of whether Miller knew that he was going to rob the
store, Blackwell replied: “I don’t remember nothing much about
that night that would hardly help anybody.” In response to a
similar question, “you didn’t tell [Miller] that you were going
to rob the store before you robbed it,” Blackwell replied: “I
might have did. I don’t – I can’t remember.”
Following closing arguments by counsel and the district
court’s jury instructions, the case went to the jury. The jury
convicted Miller on both counts. He was sentenced to a total of
324 months’ imprisonment, and this timely appeal followed.
II
Miller contends that his Sixth Amendment right to
compulsory process was violated by the district court. In
particular, he contends that the district court did not conduct
a sufficient inquiry into the validity of Blackwell’s assertion
of his Fifth Amendment privilege against self-incrimination and
thus violated his Sixth Amendment right to compulsory process.
Alternatively, Miller suggests that, to avoid the Sixth
Amendment violation, the district court was required to order
the government to grant Blackwell immunity. We reject these
contentions.
The Supreme Court has “broadly construed” the protection
afforded by the Fifth Amendment privilege against self-
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incrimination. Maness v. Meyers, 419 U.S. 449, 461 (1975); see
also Hoffman v. United States, 341 U.S. 479, 486 (1951)
(instructing lower courts to give the privilege a “liberal
construction”). 3 Thus, the privilege “not only extends to
answers that would in themselves support a conviction under a
federal criminal statute but likewise embraces those which would
furnish a link in the chain of evidence needed to prosecute the
claimant for a federal crime.” Hoffman, 341 U.S. at 486. A
defense witness’s invocation of the privilege is proper unless
it is “perfectly clear, from a careful consideration of all the
circumstances in the case,” that the defense witness “is
mistaken” and his answers could not “possibly have” a “tendency
to incriminate.” Id. at 488 (internal quotation marks omitted);
see also United States v. Allen, 491 F.3d 178, 191 (4th Cir.
2007) (“Because requiring a witness to prove the necessity of
the privilege would often vitiate the privilege itself, ‘it need
only be evident from the implications of the question, in the
3
The Fifth Amendment to the United States Constitution
provides in relevant part: “No person . . . shall be compelled
in any Criminal Case to be a witness against himself.” U.S.
Const. amend. V. Like other provisions of the Bill of Rights,
this guarantee “‘was added to the original Constitution in the
conviction that too high a price may be paid even for the
unhampered enforcement of the criminal law and that, in its
attainment, other social objects of a free society should not be
sacrificed.’” Hoffman, 341 U.S. at 486 (quoting Feldman v.
United States, 322 U.S. 487, 489 (1944)).
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setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.’”) (quoting
Hoffman, 341 U.S. at 486-87). Moreover, a defense witness
retains the privilege even after pleading guilty, and a
sentencing court may not draw adverse inferences from a pleading
defendant’s silence. Mitchell v. United States, 526 U.S. 314,
329-30 (1999); see also id. at 326 (noting that the Fifth
Amendment privilege against self-incrimination generally remains
available, absent a valid waiver, until a defendant’s “sentence
has been fixed and the judgment of conviction has become
final”). And it is the responsibility of the district court to
determine whether the privilege should be invoked. Hoffman, 341
U.S. at 486.
A witness’s Fifth Amendment privilege against self-
incrimination often can rub up against a defendant’s right under
the Sixth Amendment to compulsory process. 4 Thus, if a defense
witness refuses to testify on the basis of the privilege, the
district court “must make a proper and particularized inquiry
into the legitimacy and scope of the witness’[s] assertion of
4
The Constitution guarantees a criminal defendant’s right
to present a complete defense. United States v. Lighty, 616
F.3d 321, 358 (2010). This right is grounded either in the
Sixth Amendment’s guarantee of compulsory process or in the more
general Fifth Amendment guarantee of due process. Id.
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the privilege.” Gaskins v. McKellar, 916 F.2d 941, 950 (4th
Cir. 1990). The privilege operates on a question-by-question
basis, United States v. Castro, 129 F.3d 226, 229 (1st Cir.
1997), but a “witness may be totally excused . . . if the court
finds that he could legitimately refuse to answer any and all
relevant questions.” Gaskins, 916 F.2d at 950.
In this case, the district court proceeded with commendable
caution. It prohibited Blackwell from invoking the Fifth
Amendment privilege against self-incrimination on a wholesale
basis. In an attempt to narrow the assertion of the privilege,
the district court conducted a thorough voir dire hearing to
ascertain the questions Miller’s counsel sought to pose and the
scope of the privilege sought by Blackwell. When Blackwell
eventually testified before the jury, the district court allowed
Blackwell’s counsel to stand by his client to confer, and the
procedure correctly allowed Blackwell, as opposed to his
attorney, to assert the privilege, and allowed the district
court to rule on a question-by-question basis. Understandably,
Blackwell’s counsel sought to prevent Miller’s counsel from
eliciting testimony concerning Miller’s involvement in the
crime, considering Blackwell’s inability to recall specifics and
the effect such vague testimony would have on Blackwell’s
ability to receive favorable treatment at sentencing. Clearly,
when one considers the video evidence before the jury and
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Miller’s knowledge of the gun, testimony from Blackwell tending
to exculpate Miller would have subjected Blackwell to the charge
of perjury. Moreover, testimony from Blackwell exculpating
Miller would have jeopardized Blackwell’s ability to receive an
acceptance of responsibility downward adjustment at his
sentencing, and perhaps resulted in an enhancement for
obstruction of justice as well. Thus, Blackwell’s counsel
prudently sought to protect Blackwell from further charges and
increased penalties. Accordingly, we reject Miller’s argument
that the district court did not conduct a sufficient inquiry
into the validity of Blackwell’s assertion of the privilege.
We also find no merit to Miller’s contention that the
district court was required to order the government to grant
Blackwell immunity. It is well-settled that a district court
does not have the authority to grant immunity, even where the
grant of immunity would allow a defendant to present material,
favorable evidence. United States v. Moussaoui, 382 F.3d 453,
467 (4th Cir. 2004); United States v. Abbas, 74 F.3d 506, 511-12
(4th Cir. 1996). However, a district court can compel the
government to “grant immunity when (1) the defendant makes a
decisive showing of prosecutorial misconduct or overreaching and
(2) the proffered evidence would be material, exculpatory and
unavailable from all other sources.” Id. at 512.
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In this case, there is no evidence of misconduct or
overreaching by the government. Indeed, there is no suggestion
that the government delayed Blackwell’s sentencing to preserve
his Fifth Amendment privilege against self-incrimination or did
anything to gain an unfair tactical advantage.
We also note that, assuming there was a Sixth Amendment
error in this case, such assumed error would be harmless. See
United States v. Sayles, 296 F.3d 219, 223 (4th Cir. 2002)
(noting that a Sixth Amendment compulsory process claim is
subject to harmless error analysis). A Sixth Amendment
compulsory process error is “harmless if it is ‘clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’” Id. (quoting Neder v.
United States, 527 U.S. 1, 18 (1999)).
In this case, the evidence of Miller’s guilt was
overwhelming. Gazali testified that Miller and Blackwell
entered the Tobacco House #3, with Blackwell pointing a gun at
him. Both Miller and Blackwell approached the counter and
demanded money. Gazali confirmed his testimony with the video
of the robbery, which showed Miller and Blackwell together
entering the store with a gun drawn and pointed at Gazali,
repeatedly threatening Gazali, and demanding money. Dixie
Oxendine admitted to driving Miller and Blackwell to the store
where Blackwell pulled out a gun, and, together with Miller,
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went into the store. In his statement, Miller admitted that he
knew Blackwell owned a gun, having seen it a month prior to the
robbery, and that he knew Blackwell had robbed a bank. Miller
also lied concerning his knowledge of, and participation in, the
robbery. Moreover, any testimony from Blackwell was suspect,
because he testified that he could not “remember . . . much
about that night that would hardly help anybody.” Given the
evidence at trial, the result would not have been any different
had Blackwell been willing to testify favorably (albeit falsely)
for the defense. Unquestionably, a rational jury presented with
such testimony would have found beyond a reasonable doubt that
Miller was guilty of the charges contained in Counts Six and
Seven of the indictment.
III
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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