United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 18, 1998 Decided March 20, 1998
No. 96-3115
United States of America,
Appellee
v.
Derrin A. Perkins,
Appellant
No. 96-3116
United States of America,
Appellee
v.
Andre P. Williams,
Appellant
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No. 96-3117
United States of America,
Appellee
v.
McKinley L. Board,
Appellant
No. 96-3149
United States of America,
Appellee
v.
Gregory M. Thomas,
Appellant
Appeals from the United States District Court
for the District of Columbia
(No. 91cr00559-09)
(No. 91cr00559-11)
(No. 91cr00559-13)
(No. 91cr00559-16)
(No. 91cr00559-22)
Andrew Grosso, appointed by the court, argued the cause
for the appellants. James Maloney, Paul Kay, Mary E.
Davis and Marian Flynn, appointed by the court, were on
the joint brief.
Michael A. Fitzpatrick, Assistant United States Attorney,
argued the cause for the appellee. Mary Lou Leary, United
States Attorney at the time the brief was filed, and John R.
Fisher, Thomas C. Black and Carmen R. Kelley, Assistant
United States Attorneys, were on brief.
Before: Edwards, Chief Judge; Williams and Henderson,
Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The appellants,
McKinley Board, Gregory Thomas, Donnell Williams, Andre
Williams and Derrin Perkins, were all convicted of drug
conspiracy charges. They challenge the district court's denial
of their motion for new trial based on a letter allegedly
written after trial by government witness Stepfoun Hartwell
that purported to recant Hartwell's trial testimony and to
describe witness tampering by prosecutors. At the new trial
hearings Hartwell refused to testify invoking his right against
self-incrimination under the Fifth Amendment to the United
States Constitution. The appellants contend that the district
judge erred in failing to secure Hartwell's testimony either by
granting him use immunity from prosecution or by finding he
had waived his Fifth Amendment privilege. We hold that the
district judge lacked authority to grant immunity without a
request from the United States Attorney and that neither the
letter nor Hartwell's trial testimony constituted waiver of his
Fifth Amendment privilege.
I.
The appellants were defendants in the second of four trials
of members of the "R Street Crew," so called because they
sold narcotics near the intersection of R Street and Lincoln
Road in Northeast Washington, D.C. Among the govern-
ment's trial witnesses were Hartwell, Frankie Pelham, Ken-
neth Sparrow and William O. Mayo, each of whom testified
about his dealings with members of the R Street Crew. On
February 11, 1993 the jury convicted all but one of the
defendants of conspiracy to distribute and to possess with
intent to distribute narcotics, in violation of 21 U.S.C. ss 841
and 846, and of conspiracy to participate in a racketeer
influenced corrupt organization, in violation of 18 U.S.C.
s 1962(d).1 The district judge sentenced each convicted de-
fendant to life imprisonment.
On January 28, 1995 Lawrence E. Freedman, a Fairfax,
Virginia lawyer, sent the district judge a handwritten letter
purportedly signed by Hartwell. The letter recited that
prosecutors had rehearsed the author's testimony with him
before trial and that the "majority" of his testimony had been
false and had been induced by prosecutors through bribery
and threats. The letter also claimed that prosecutors allowed
Hartwell, who was incarcerated at the time, to engage in
sexual activity and to use alcohol and marihuana in return for
his testimony. In a cover letter Freedman stated that Hart-
well had sworn to him that the letter's contents were true.
On February 10, 1995 the appellants filed a motion pursu-
ant to Federal Rule of Criminal Procedure 33 for a new trial
based on newly discovered evidence, namely Hartwell's letter.
They later supplemented the motion with written statements
from Pelham, Sparrow and Mayo recanting their trial testi-
mony and alleging similar prosecutorial misconduct. On Sep-
tember 12, 1995 the district judge conducted a hearing to
determine whether Hartwell was willing or could be com-
pelled to testify in the new trial proceedings. At the hearing
Hartwell invoked his Fifth Amendment privilege against self-
incrimination. In an order and memorandum opinion dated
September 14, 1995 the judge held that Hartwell had claimed
a valid privilege and that he had not waived it.
The government subsequently filed proffers of testimony
from Pelham, Sparrow and Mayo asserting that their trial
testimony had been truthful and that they had neither been
coerced nor received special favors or bribes from prosecu-
tors. In addition, Sparrow's proffer asserted that Hartwell
had signed his recantation "under duress" from appellant
Board. At hearings conducted on November 3, 1995 and
January 4, 1996 Sparrow, Mayo and Pelham each testified
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1 Defendant Steve Williams was acquitted of all charges against
him. Of the other defendants all but Andre Williams were convict-
ed of other related offenses as well.
that his trial testimony had been truthful and had not been
influenced by prosecutorial misconduct. The district judge
issued a memorandum opinion on September 6, 1996, denying
the motion for new trial and again concluding that Hartwell's
Fifth Amendment privilege protected him from testifying.
II.
The appellants challenge the denial of their motion for new
trial on the grounds that (1) the district judge should have
granted Hartwell use immunity and (2) Hartwell waived his
Fifth Amendment privilege.
Immunity
The appellants first assert the district judge erred in not
granting Hartwell use immunity from prosecution for his
testimony at the new trial hearings, thereby averting the
possibility of self-incrimination and the need to invoke the
Fifth Amendment. We disagree.
It is true that a district judge is authorized by statute to
immunize a witness claiming a Fifth Amendment privilege--
but only "upon the request of the United States attorney."
18 U.S.C. s 6003. The government made no such request of
the district judge and the judge therefore lacked authority to
invoke the statute. See United States v. Doe, 465 U.S. 605,
616-17 (1984) ("We decline to extend the jurisdiction of courts
to include prospective grants of use immunity in the absence
of the formal request that the statute requires."); see also
United States v. Lugg, 892 F.2d 101, 104 (D.C. Cir. 1989)
("The cases are legion and uniform that only the Executive
can grant statutory immunity, not a court. We are not an
exception to this universal rule and have previously approved
the view that 'it is not the proper business of the trial judge
to inquire into the propriety of the prosecution's refusal to
grant use immunity to a prospective witness.' ") (citations
omitted). The appellants nevertheless urge that we recognize
an "inherent" judicial authority to grant use immunity with-
out regard to the statute or to the government's position. In
the past we have repeatedly rejected claims of judicial author-
ity to grant such immunity. In Ellis v. United States, 416
F.2d 791 (D.C. Cir. 1969), we observed that, in enacting the
immunity statute, the Congress had "acted with care and
particularity, limiting the power to grant immunity--in the
presence of a valid claim of privilege--to a limited group of
federal officials" and therefore concluded that "[w]ith that
statute on the books, the power to grant immunity is plainly
outside the judicial province." 416 F.2d at 796-97. In Unit-
ed States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981), cert.
denied, 456 U.S. 926 (1982), we upheld the district court's
refusal to grant immunity, approving the view that " 'it is not
the proper business of the trial judge to inquire into the
propriety of the prosecution's refusal to grant use immunity
to a prospective witness.' " 668 F.2d at 1283 (quoting United
States v. Turkish, 623 F.2d 769, 779 (2d Cir. 1980) (Lombard,
J., concurring in part and dissenting in part), cert. denied, 449
U.S. 1077 (1981)). Finally, in United States v. Lugg, we
concluded that "the District Judge did not err in not granting
immunity that he could not grant nor in not ordering the
prosecution to grant immunity when he could not so order,"
stressing that "the court had no power to order such immuni-
ty." 892 F.2d at 104. Under circuit precedent, therefore, the
district judge lacked authority to grant Hartwell use immuni-
ty.2 Accordingly his failure to do so was not error.
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2 In Lugg the court noted that "[s]ome cases have indicated that
the government may be compelled to grant a defense witness
immunity in 'extraordinary circumstances.' " 892 F.2d at 104 (cit-
ing United States v. Pinto, 850 F.2d 927, 935 (2d Cir.) cert. denied,
488 U.S. 867 and 488 U.S. 932 (1988); United States v. Praetorius,
622 F.2d 1054, 1064 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980)).
"At least the Seventh and Ninth Circuits," the Lugg court observed,
"have indicated that courts may intervene in the prosecutorial
immunity decision '[w]here the prosecutor's decision not to grant a
witness use immunity has distort[ed] the judicial fact-finding pro-
cess.' " Id. (quoting United States v. Paris, 827 F.2d 395, 403 (9th
Cir. 1987) (Kozinski, J., dissenting; citing United States v. Taylor,
728 F.2d 930, 935 (7th Cir. 1984); United States v. Alessio, 528 F.2d
1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948 (1976)). Without
deciding "[w]hether or not we would join the Seventh and Ninth
Circuits in this view were we presented with an appropriate case,"
Waiver
Next, the appellants assert that Hartwell waived his Fifth
Amendment privilege by testifying at trial and by writing the
letter. We agree with the district court that there was no
waiver.
In support of waiver the appellants rely on Rogers v.
United States, 340 U.S. 367 (1951), and, in particular, on the
statement therein that " '[i]f the witness himself elects to
waive his privilege, as he may doubtless do, since the privi-
lege is for his protection and not for that of other parties, and
discloses his criminal connections, he is not permitted to stop,
but must go on and make a full disclosure.' " 340 U.S. at 372
(quoting Brown v. Walker, 161 U.S. 591, 597 (1896)) (footnote
omitted). Construing Rogers we have held that "where a
non-indicted witness has waived his Fifth Amendment privi-
lege by testifying before a grand jury voluntarily and with
knowledge of his privilege, his waiver extends to a subsequent
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the Lugg court concluded that "[w]hatever it takes to constitute a
deprivation of a fair trial by the prosecution's failure to exercise its
broad discretion on immunity grants, the present case does not
present it." Id. We reach the same conclusion here. The appel-
lants argue that the prosecution's failure to immunize Hartwell for
testimony he might provide during the new trial proceedings some-
how deprived the trial itself of fairness. We fail to see the logic in
this. If anything could be said to have affected the trial's fairness it
would have been the prosecutorial misconduct before and during
trial alleged in the Hartwell recantation letter, not the post-trial
lack of immunity. And we cannot accept the allegations of the
letter which the district court rejected as unworthy of belief. See
App. exh. 4 at 20, 22-23; United States v. Ramos-Oseguera, 120
F.3d 1028, 1037 (9th Cir. 1997) ("The district court's factual finding
regarding whether the government did intentionally distort the fact-
finding process is reviewed for clear error."), cert. denied, 66
U.S.L.W. 3557 (Feb. 23, 1998) (No. 97-7425); cf. United States v.
Simmons, 699 F.2d 1250, 1253 (D.C. Cir.) (Edwards, J, dissenting)
(district court finding that "prosecutor's conduct neither denied
[defendant's] right to call a defense witness nor deprived him of a
fair trial" subject to "clearly erroneous" review), cert. denied, 464
U.S. 835 (1983).
trial based on an indictment returned by the grand jury that
heard his testimony." Ellis v. United States, 416 F.2d 791,
805 (D.C. Cir. 1969). At the same time, however, we cau-
tioned that "[t]he privilege of course remains as to matters
that would subject the witness to a 'real danger' of further
crimination." Id. at 802 (quoting Hoffman v. United States,
341 U.S. 479, 486 (1951)). Because Hartwell never disclosed
at trial that the testimony he was offering might be false, any
post-trial testimony indicating that it was--even a simple
acknowledgment that he wrote the recantation letter--posed
"a 'real danger' of further crimination." His trial testimony
therefore cannot be construed as a waiver of the privilege he
later invoked. See United States v. Wilcox, 450 F.2d 1131,
1141 (5th Cir. 1971) ("And so when a witness is asked a
question that could show that he had already committed a
crime, i.e., perjury at a prior trial, his refusal to answer is
permissible almost by the definition of self-incrimination. He
is still criminally accountable for his perjury, but he may not
be convicted out of his own mouth over his claim of privi-
lege."), cert. denied, 405 U.S. 917 (1972).
Finally, we conclude the recantation letter was not a waiver
of Hartwell's Fifth Amendment privilege. The appellants
contend that the letter waived Hartwell's privilege against
testifying about the truthfulness of his trial testimony just as
the grand jury testimony in Ellis was found to have waived a
witness's privilege as to its subject-matter. In Ellis, howev-
er, the court emphasized the importance to its holding of the
"credibility and reliability" that necessarily attaches to grand
jury testimony. 416 F.2d at 805 n.37. No such authority
supports the contents of the recantation letter, which the
district judge accurately characterized as "an undated, un-
sworn hearsay statement which has not been authenticated,"
App. exh. 4 at 22, and "wholly lacking in credibility," id. at 23;
see also id. at 20. Accordingly, we cannot accept the letter as
a waiver.3
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3 Nor does the record show, as it did in Ellis, that Hartwell
intended a knowing and voluntary waiver of privilege. See 416 F.2d
at 806 (noting that defendant "expressly stated to the grand jury
For the preceding reasons, the judgment of the district
court is
Affirmed.
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that he had consulted a lawyer prior to going before the grand jury;
that he wished to cooperate with the Government though he under-
stood he did not have to; that this cooperation was voluntary, and
that he knew anything he said could be used against him").