IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 94-30517
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLAUDE ANTANNE GRIFFIN, JR.,
Defendant-Appellant.
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NO. 94-30555
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MAXON H. MORGAN,
Defendant-Appellant.
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Appeals from the United States District Court
for the Eastern District of Louisiana
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September 21, 1995
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Claude Griffin, Jr., and Maxon Morgan appeal their convictions
of cocaine trafficking. They contend that their Sixth Amendment
right to compulsory process was denied when the district court
refused to allow them to call a witness before the jury for the
sole purpose of having him invoke an invalid privilege against
self-incrimination. Because the Sixth Amendment recognizes no such
right, we affirm.
I.
In 1993, Claude Griffin, Sr., hatched a plan to import cocaine
into the United States with the assistance of his son, Claude
Griffin, Jr., Maxon Morgan, and others. The conspiracy was
ultimately uncovered and the conspirators indicted. The elder
Griffin pleaded guilty and received life imprisonment; the younger
Griffin and Morgan received a joint jury trial.
At trial, both defendants denied culpability, seeking to shift
blame to the elder Griffin. Claude Griffin, Jr., denied any
participation in the conspiracy. He argued that his father's use
of the family home and air conditioning business to set up the
importation scheme had unfairly cast suspicion upon him. Morgan
did not deny involvement but alleged that Griffin had coerced him
into participating in the scheme. He claimed that Griffin had
loaned him money for a legitimate business and then used the
indebtedness, coupled with threats of personal harms to force him
to join the conspiracy.
Both defendants sought to call the elder Griffin as a witness.
2
The trial court, advised that he would claim a privilege against
self-incrimination and refuse to testify, conducted an in camera
review of Griffin and determined that he had waived his privilege
by pleading guilty. After Griffin informed the court that he
nonetheless would refuse to testify, the court fined him and
returned him to prison.1
The defendants then requested that the court either place
Griffin on the stand so that he could assert his Fifth Amendment
privilege before the jury or inform the jury of his refusal to
testify. The court denied both requests.
II.
The defendants contend that the Compulsory Process Clause of
the Sixth Amendment2 guarantees them the right to place a witness
on the stand for the sole purpose of having him invoke an invalid
Fifth Amendment privilege in the jury's presence. They recognize
that we have unambiguously ruled that the Compulsory Process Clause
provides no such right with respect to a witness claiming a valid
privilege.3 Their argument rests on distinguishing those witnesses
1
Griffin's life sentence prevented the court from doing anything more
to compel him to testify.
2
The Compulsory Process Clause of the Sixth Amendment states: "In all
criminal prosecutions, the accused shall enjoy the right . . . to have
compulsory process for obtaining witnesses in his favor . . . ." U.S. CONST.
amend. VI.
3
United States v. Bolts, 558 F.2d 316, 324 (5th Cir.), cert. denied,
434 U.S. 930 (1977), cert. denied, 439 U.S. 898 (1978); United States v.
Gomez-Rojas, 507 F.2d 1213 (5th Cir.), cert. denied, 423 U.S. 826 (1975);
United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419
U.S. 1053 (1974); see also United States v. Johnson, 488 F.2d 1206, 1211 (1st
Cir. 1973); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971); Bowles v.
(continued...)
3
who invoke valid Fifth Amendment privileges from those who invoke
the privilege improperly.
In fact, our caselaw suggests that the validity of the
witness's privilege is unimportant. In Lacouture we stated that a
defendant's right to compulsory process was "exhausted by [the
witness's] physical availability at court." 495 F.2d at 1240.
The Sixth Amendment requires that a witness be brought to
court, but it does not require that he take the stand after
refusing to testify. Id..4 Once a witness appears in court and
refuses to testify, a defendant's compulsory process rights are
exhausted. It is irrelevant whether the witness's refusal is
grounded in a valid Fifth Amendment privilege, an invalid privi-
lege, or something else entirely.5 The defendants' Sixth Amendment
rights were satisfied as soon as the elder Griffin appeared in
court and refused to testify; the court was under no obligation to
grant their request to place Griffin on the stand.6
3
(...continued)
United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970) (en banc), cert. denied,
401 U.S. 995 (1971).
4
See also United States v. Gloria, 494 F.2d 477, 480 (5th Cir.)
(defendant not denied compulsory process when subpoenaed witness appeared at
trial but refused to testify), cert. denied, 419 U.S. 995 (1974).
5
See In re Bizzard, 559 F.Supp. 507, 510 (S.D. Ga. 1983) (right to
compulsory process not denied when court failed to enforce subpoena against
witness who refused to testify for fear of his life).
6
Griffin and Morgan do not assert that the district court erred by
concluding that it lacked the discretion to grant their request. See
Lacouture, 495 F.2d at 1240 ("[T]he trial court was within its discretion in
excluding matter of such dubious probative value and high potential for
prejudice."); Gomez-Rojas, 507 F.2d at 1220 ("Once the court satisfies itself
that the [Fifth Amendment] claim is well-grounded . . . it may, in its
discretion, decline to permit either party to place the witness on the stand
for the purpose of eliciting a claim of privilege or to comment on this
circumstance."); see also Johnson, 488 F.2d at 1211 ("[T]he court may, in its
(continued...)
4
We explained in Lacouture why a district court should be free
to prevent a witness from invoking the privilege against self-
incrimination before the jury: "[A] claim of Fifth Amendment
privilege is likely to be regarded by the jury as high courtroom
drama and a focus of ineradicable interest, when in fact its
probative force is weak and it cannot be tested by cross-
examination." 495 F.2d at 1240.7 We observed that "[n]either side
has the right to benefit from any inferences the jury may draw
simply from the witness' assertion of the privilege either alone or
in conjunction with questions that have been put to him." Id.
(quoting Johnson, 488 F.2d at 1211). Juries are no less likely to
draw improper inferences from an invalid assertion of privilege
than from a valid assertion. In either case, the witness avoids
cross-examination. Lacouture's rationale applies whenever a
witness refuses to testify, irrespective of whether the refusal is
grounded in a legitimate Fifth Amendment privilege.
Griffin and Morgan assert that even if they had no right to
call the elder Griffin to the stand, the Constitution at least
mandates that they be able to call the jury's attention to his
refusal to testify. We rejected this argument in Lacouture,
approving an order that defense counsel avoid reference to a
6
(...continued)
discretion, refuse to allow [the witness asserting the privilege] to take the
stand."). Our holding should not be taken to mean that a court may never
grant such a request, but only that the Sixth Amendment does not require that
it do so.
7
See also Bowles, 439 F.2d at 541-42 ("[T]he probative value of the
event is almost entirely undercut by the absence of any requirement that the
witness justify his fear of incrimination and by the fact that it is a form of
evidence not subject to cross-examination.").
5
reluctant witness's absence. Id. We did so for the same reasons
that led us to conclude that the defendant had no right to call the
witness in the jury's presence. Id. We therefore reject this
argument as well.
For the foregoing reasons, the judgments of conviction are
AFFIRMED.
6