United States v. Claude L. Blackwell

America STATES UNITED BLACKWELL, Appellant. L.

Claude

No. 82-1261. Appeals, Court of of Columbia Circuit.

District Sept.

Argued Dec.

Decided

Larry Ritchie, J. Washington, (ap- D.C. pointed by Court), appellant. for Reed, Robert K. Atty., Asst. U.S. Wash- ington, D.C., with Stanley Harris, whom S. Atty., U.S. Terry, John A. Asst. Atty., D.C., Washington, at the time the brief was filed, Russell, Jr., and Percy H. Asst. U.S. D.C., Atty., Washington, brief, were on the appellee. ROBINSON, Before Judge, Chief GINSBURG, WALD and Judges. Circuit Opinion the Court filed Circuit Federal Rules Criminal Procedure Judge WALD. have dissuaded may Blackwell from presenting a witness his defense. Never- Concurring opinion filed Judge Chief theless, we affirm the conviction because ROBINSON. object counsel failed to to those remarks as WALD, Judge: Circuit inaccurate at do not consti- tute error so as to be noticeable on Following jury 1-4, a February trial on appeal. 1982, appellant, Blackwell, Claude L. was convicted of violating app. U.S.C. Background I. 1202(a)(1) (possession of a by § firearm a 10,1981, On September Washington, D.C. felon) convicted and 22 D.C.Code § police executed a search warrant at pistol a (carrying license). without a Black- Hotel, Pitts in a room by rented appellant’s well subsequently was prison sentenced to a wife, common-law Lillie T. Robinson. Both term of two years to six on the D.C.Code Robinson and appellant, Claude L. Black- and offense a concurrent term to ex- not well, present in were the room when the years ceed two the federal on On offense. search search, During occurred. their this appeal, challenges Blackwell the validi- police seized guns two in room, hidden ty of his on grounds: (1) conviction two a magnum .357 Dan Wesson revolver and four photographs showing Blackwell a .38 revolver; Smith & Wesson a brown a holding were admitted into evidence bag canvas containing both live and at his trial in violation of Federal Rules of spent ammunition, .357 and .38 weapon 901(a), 402, 403, 404; Evidence (2) cleaning tools, and breakdown a Smith & sixth amendment to have a Wesson box bearing the same serial number witness on his behalf was violated as that revolver, seized .38 Black- by prosecutor’s and the judge’s certificate, well’s birth pawnbroker’s and a warnings a defense witness that she certificate with Blackwell’s name and ad- prosecuted could be perjury and lose the it; dress on marijuana; four pho- color benefit of her plea bargain if gave tographs of Blackwell with revolver simi- a certain testimony. On the evidentiary is- lar to the .357 magnum during discovered sue, we hold that the trial court did not the search. prejudicial commit error when it admitted the photographs in question into evidence. Blackwell subsequently charged with On issue, the sixth amendment we hold that violating app. U.S.C. 1202(a)(1) (pos- § the perjury warnings proper. session a felon),1 firearm a convicted warnings plea witness 21 U.S.C. 844 (possession § marijuana),2 agreement might revoked, however, re- and 22 pistol D.C.Code 3204 (carrying a § flected a misunderstanding of Rule 11 of license).3 without a charged Robinson was app. 1. 1202(a)(1) provides: tice, U.S.C. except § or as otherwise authorized (a) Any person subchapter who— subchapter chap- or II of this (1) has Any been person convicted court any political ter. who violates this subsection United States or of a State or shall imprisonment be sentenced a term of felony subdivision of a thereof ... who year, of not more than one a fine of not more receives, possesses, transports or in com- $5,000, both, except than or that if com- he affecting commerce, or merce after the date mits prior such offense after a conviction or Act, any of enactment of this firearm shall be convictions under this subsection be- $10,000 fined not than imprisoned more or final, come he shall be to a sentenced term of years, for not more than two or both. imprisonment years, of not more than 2 $10,000, provides, pertinent 2. 21 fine part: U.S.C. more than § 844 or both. (a) It person shall any be unlawful provides: 3. 22 § D.C.Code knowingly intentionally possess or a con- trolled person substance unless such No was pre- shall within substance the District of Co- directly, pursuant obtained carry openly or to a valid either lumbia or concealed or order, scription practitioner, person, from a except while about his dwelling in his acting professional prac- place course of his house or of business or on other land son; his birth certificate 844 and 22 D.C. violating 21 U.S.C. § nightstand ticket were on a pawnbroker’s Code § room, and that bag; not inside district court February On by the introduced photographs, four color by which Robin- agreement accepted taken hotel government were at another marijuana possession guilty to the pled son the dismissal in return for day charge. On same gun possession Robin- planned also to call Blackwell had two to trial proceeded Blackwell Her witness at his trial. son as defense having government charges, weapons attorney prof- later testimony, charge. marijuana possession dismissed fered, the testimo- have corroborated introduced into government At Robinson, Black- ny Williams during seized weaponry all the evidence well, hotel brought guns and several black 1981 search September addition, would have room. hotel of Robinson’s photographs and white know that Blackwell did not testified search, which during the room taken in Defense guns the room. presence of the and their places the two showed revolvers to the trial court counsel first indicated bag, canvas discovery, the brown of to testi- subpoena was Robinson going he the background. room in of hotel parts after immediately Blackwell fy on behalf objection, it also intro- Blackwell’s Over before guilty her she entered of Black- photographs the four color duced response this announce- began. trial during the search. well discovered ment, believed stated that he two witnesses: presented The defense privilege a fifth amendment Robinson had Williams, Jr., friend Eleazar of Robin- charges against not to because son’s, Williams tes- and Blackwell himself. attorney pending. her still Robinson’s were 9, 1981, on Robinson September tified that ad- the court that he had agreed, telling gun shop to a in accompanied him her amendment vised her to invoke fifth bought he a .38 revolver Virginia, where arid self-incrimination privilege against He then used and some ammunition.. with her opportunity speak would like an .38, .357 magnum as well his own as subject. on the further revolver, On target practice. way their day On the second stated, home, his truck broke Williams that, against informed attorney charge down. He left Robinson advice, waive his Robinson had decided guns truck and and went search of prose- The privilege. her amendment fifth help repair friend to him the truck. When permission inquire later, cutor then asked he he returned several hours discover- left, of Robinson’s intended taking guns the voluntariness ed that Robinson had “close waiver, with her. Williams also testified that out that there was a pointing seized in at Robinson’s ho- guns the search and Robin- relationship” between Blackwell tel room the were his. day next “very son substantial” and a judge trial of Black- perjury. inquired The stand, testifying Blackwell then took going attorney well’s whether Robinson that he did not live at Robinson’s hotel hers; guns two he to claim that room, but there about three times a visited replied going was not to make that she seeing week. He ever the two re- denied judge questioned claim. then Robinson The before volvers discovered them police oath, her re- advising that she still under September 1981. He also stated that because bag belonged privilege the brown to Robin- tained a fifth amendment canvas by him, possessed pistol, he convicted in the District of Co- without a license has been provided, section or of a therefor or lumbia of a violation this issued as hereinafter any deadly dangerous weapon capable felony, or either District of Columbia being jurisdiction, in which case he shall so Whoever violates this another concealed. provided imprisonment punished more as be for not section shall be sentenced 22-3215, years. the violation occurs after than 10 § unless gun yet possession charge. she had not been sentenced liable After possession charge pend- was therefore still discourse, Blackwell’s attorney stated ing against her. The also told Robin- to the court Blackwell’s concern that falsely son that if she testified she would be prosecuted. Robinson testified she subject perjury. to a replied, The court “She will. There is no replied that she still wanted to take the it.” doubt about Tr. at 263. testify. stand and Immediately after made gave prosecutor per- court then comments, these Blackwell took the stand mission to examine Robinson. He ques- acknowledge understanding that Rob- regarding relationship tioned her her inson, testify, might should she prose- Blackwell; whether and when she and original posses- cuted indictment for Blackwell discussed the possibility her pistol sion of a without a license and could testifying his behalf well as the cir- be prosecuted Virginia also under law for cumstances and the content of those discus- sions; transporting weapons into the why she District of wanted to and if testify; why result, to waive privilege stated, wanted As a Columbia. Blackwell he His final ques- self-incrimination. subpoena would withdraw the that had was, you posses- tion intend claim “[D]o been issued to Robinson. weapons?” sion of these Although Robin- February On Blackwell was con- “No,” son answered the court sustained victed of the charged both offenses. objection question, com- menting testify that “if she going were guns hers, lay

that the were she would Analysis II. open herself to the case being dismissed at against her.” Tr. 133. A. The Evidentiary Issue Later in the the defense called Wil- argues appeal Blackwell that the testify. prosecutor objected, liams to The trial of photographs court’s admission four requesting proffer testimony. his Af- showing holding gun him was a clear ter Blackwell’s attorney described what abuse of discretion photographs because the be, Williams’ testimony would the judge were unauthenticated and He irrelevant. commented that she had not understood urges that their admission therefore violat- going that Robinson was that she 402, ed Federal Rules 901(a), of Evidence possession of the weapons. The 403, and In 404. order to authenticate the was disturbed that Robinson would be in contends, photographs properly, he “incriminating bringing situation government identify conclusively needed guns herself,” District of Columbia place and the photographs time were Tr. at and remarked that if she testi- prove weapon taken and also to that proffered, fied as counsel had obvi- “[w]e ously weapons charge] photographs gun couldn’t allow was the same seized to the [the Tr. at dismissed.” September 10, when he was arrested on the photographs Because were not so Apparently concerned that Robinson still authenticated, concludes, Blackwell did not merely understand that possessing, were irrelevant to the case and inadmissible owning, rather than guns open would up possession her under the rules of gun charge, evidence. questioned

court then Robinson under oath again, once telling that if she testified 1. Authentication possession weapons in the District rule, a general tangible As evi Columbia, she could guilty be found photographs dence such as must be properly gun charge. replied being identified or authenticated guns before ad hers and that she understood just that possessing them would make her at mitted into evidence trial. Fed.R.Evid. objection, prosecu- In to this response F.2d Gregory, v. Richardson 901(a);4 testimony proffered tor that there would be (D.C.Cir.1960); Mikus v. United 626, 630 photographs showed forthcoming that Cir.1970); States, (2d 433 F.2d 719 exactly gun looked (6th holding a Blackwell Hobbs, 403 F.2d 978-79 v. weapons, seized in a room like one of the Cir.1968). identifica Authentication exactly like hotel relevancy looked specialized aspects tion are decided judge thereupon room. The precedent necessary are conditions intro- allowed to government M. Ber admissibility. 5 J. Weinstein and |901(a)[02] photographs. duce the Weinstein’s Evidence ger, Bendix, (1978); 11 J. Moore H. 901-18 first through did so The 901.01[3.-l]-(a) Practice Moore’s Federal § witness, partici- officer who had police (2d 1982). 901(a) only Rule at IX-7 ed. hotel search of Robinson’s pated in the documentary requires proponent officer, tes- Hampton, room. The Detective per showing make a sufficient to evidence photo- man shown in the tified that to find that juror mit a reasonable defendant, Blackwell. She graphs was the proponent claims. evidence is what its in the depicted also room testified Sutton, 1202, 1207 United States like the room exactly looked photographs (D.C.Cir.1969). September point- she had searched in the ing to details as similarities such showing of a of a sufficiency Hotel and layout the room the Pitts rests within authenticity document’s ap- pictures in the and in the that shown judge. of the trial Id. sound discretion of the room’s pearance positioning States, 1207; Jackson v. United conditioner, bed, chair, air nightstand, Greg (D.C.Cir.1968); Richardson v. addition, Hampton testified draperies. de 281 F.2d at 630. The court’s ory, photographs appeared gun will not regarding admissibility termination during the to be seized identical a clear abuse of dis be overturned absent the similari- search. asked detail When Id.; Smith, 490 United States cretion.. ties, she testified: curiam). (per (D.C.Cir.1974) color, The the black steel and the brown The in this case indicates that record gun end of grips; in the the butt following regarding were taken the actions pic- in the there’s a hole that’s reflected showing authenticity required by the of ture; are inlay sights the red red that 901(a). day first of coun Rule On the marked; length appears of the the barrel the sel for Blackwell alerted trial same; the looks the cylinder be the planned object that he admission same. the grounds that photographs shells, ejects the The rod the gun government prove could not the rod the in frame around the is built same in the was the same photographs shown it is weapon this in the one September in gun during seized the search picture. the photographs room in the Tr. at 118. in the the same room as the one which also a firearms made, were The called pictures goyernment search was or that the Washington, with the D.C. Metro- charged at a examiner taken time relevant Department testify regard- photo politan of the Police offenses. The admission ing photographs. He stated that graphs, argued, would two of the attorney catalogue put to these photographs therefore be immaterial showed irrelevant and by Company. Dan Wesson This preju issue in out the any highly also the case and as the Wesson Pistol catalogue, known Dan dicial to his client’s defense. support finding 901(a) the sufficient Rule dence 4. in full: reads proponent is what its matter in (a) requirement provision. of General The claims. as a condition authentication or identification precedent admissibility satisfied evi- Hotel, and .357 inson into Pack, special described the .38 moved the Pitts she was revolvers, weapons the same two magnum question. unable to answer either The the Hotel. In police the Pitts found government attempt made other during no addition, several government the introduced its to pinpoint case-in-chief the time when during photographs black and white taken photographs the have been taken September the 1981 search of Robinson’s any degree certainty.6 with photographs room. These were available government, Fortunately the Black- such jury compare so that could de- well himself some on provided information appearance gun tails as time period the relevant when he took the in hotel room in them with the same details testify stand to near end trial. photographs. the four color Blackwell stated that Robinson had moved this, evidence, After introduction Hotel June Pitts of 1981. Based juror reasonable could have concluded that marked similarities between Blackwell, photographs these depicted room the four photographs showed him with the same as one question here and the room depicted in search, during the and that the pho- seized photographs black and white during taken taken at the Pitts tographs were Hotel.5 room, the search of jury not, however, present did government reasonably could concluded that any sufficient evidence to establish with four color photographs had been taken when degree certainty photographs the Pitts Hotel sometime between June and Proper were taken. requires authentication September result, aAs even if the not the government identify the photographs were fully authenticated depicted scene in the photographs, but also prosecution by the their admission into place. their coordinates time and Stearns, premature, any evidence error was cured (9th Cir.1977). Although prosecu- testimony the defendant before Hampton tor did ask Detective if she close' of the knew trial. A new trial is therefore pictures when the were taken or when required Rob- ground.7 Although photographs hoped get four were received employ- to be able to a Dan Wesson before Williams or judge, into evidence either Black- ee fact. The trial how- defense, prosecutor’s ever, well testified for the delay any longer refused to the trial than provides cross-examination of the two men fur- so; result, a half hour or as a these witnesses photographs. ther authentication of the Wil- presented. were never liams Blackwell as the man shown in identified photographs three a .38 revolver 7. The Ninth Circuit has reached the same result and testified that a Dan Wesson Pistol Pack Steams, in a similar case. United States v. catalogue photo- was shown in two of the Steams, (9th Cir.1977). F.2d 1167 the court graphs. Blackwell admitted on direct examina- held that court committed error when person pho- tion that he was the in shown the photographs it admitted certain into evidence tographs gun, they with a but denied that had testimony providing key before crucial the to room, testifying taken been in Robinson’s hotel authenticating photographs all the as to time in had been shot cross-examination, another in hotel place proper and was the before court. The 1977. On Blackwell admit- action, stated, course of the court would have layout furnishings ted that the and of the room been the to the admit evidence in shown both the black white and color conditionally or to it refuse admit until suffi- photographs appeared be the same. authenticity cient evidence of had been ad- February authenticating duced. But of On the because all the informed support evidence the Company that he a needed to the wanted call Polaroid admission of type photographs official to was of film introduced the of before close photographs question prosecution’s case-in-chief, in the photo- used four color in the graphs the produced had not been until June and that were not used elicit further real or photographs a code on the back the of indi- pertaining testimonial evidence to the defend- particular picture type cated that that guilt, of had jury photo- ant’s did not view the produced September not been before 1980. He graphs premature until the end of also stated he had discovered that the Dan photographs admission of the was deemed catalogue pictured Wesson photographs Pack Pistol in the harmless error. Id. at 1172. produced in June 1981 and 1170; Hurt, v. 476 F.2d at United States Relevance States, 389 F.2d v. United Harried authenticat being properly In addition value probative The (D.C.Cir.1967). also La relevant ed, must photographs ex- would have been photographs these the trial. United at issue in to some matter conclusively if been high it had tremely 1164, 1170(D.C.Cir. Hurt, photo- gun and room in the proven that curiam); v. Hob 1973) (per United States gun to the seized were identical graphs Cir.), cert. de son, (9th at the Pitts Hotel and that the room 283, 46 931, 96 L.Ed.2d nied, 423 U.S. before were a short time photographs taken out test for relevance set (1975). The This, course, was not arrest. “having any refers to evidence by Rule 401 result, probative a value As case. fact any tendency to make existence diminished, even photographs the" determination consequence is of photo- room gun and the in the though the probable less probable more or of the action gun and closely the seized graphs resemble the evidence.” be without than addition, room. In the defendant Pitts were in here photographs may prejudiced by been the admission have conten clearly prosecution’s relevant charges One of the photographs. of the .38 and .357 that Blackwell had a a tion possession a Blackwell concerned the Pitts Hotel. possession revolver in his at photo- convicted felon. The by firearm a showing the defend Certainly, photographs believe may jury have led the graphs one seized after holding gun ant similar to possessed if Blackwell had not that even room identical to the nearly his arrest in a at Pitts Hotel he had guns found he was arrested have the room which felony in his since his guns possession some likely make it tendency to more There is also some likelihood conviction. guns possession seized his viewing photo- jury, after these discovery. time of their prejudiced by Black- graphs, may been bemay Relevant evidence inadmissi (holding them well’s stance one of 404,9 however, 4038 and ble under Rules ease position) by apparent firing its probative outweighed by value is its weap- familiarity presence misleading na inflammatory, prejudicial, or ons.10 solely to ture or if it has been introduced balance, the trial court striking to commit propensity show defendant’s dangers finding did not err in charged. the crime with which he has been 794; Smith, admitting photographs associated See United States same, provides: or cution to rebut the evidence of 8. Rule 403 ' peacefulness victim trait of of the character relevant, may Although ex- evidence prosecution in a case offered homicide substantially probative cluded if its value first rebut evidence that victim was the prejudice, outweighed danger of unfair aggressor; issues, misleading or confusion (3) witness. Character of Evidence jury, delay, of undue considerations witness, provided in rules time, character of a presentation waste or needless and 609. evidence. cumulative crimes, (b) wrongs, Evi- or acts. Other provides: 9. Rule 404 crimes, wrongs, is not dence of other or acts (a) generally. evidence Evi- prove person Character the character oí a admissible person’s dence or a trait of his conformity of a character in order to show that he acted in purpose however, for the conformity of character is not admissible proving may, It be admissible therewith. motive, he in there- proof acted purposes, as of for other such occasion, except: particular intent, on a opportunity, preparation, plan, knowl- (1) of Evidence of a identity, Character accused. edge, of or acci- or absence mistake pertinent by an trait of character offered dent. accused, by prosecution to or the rebut the same; request Apparently, a lim- did not Blackwell judge instructing (2) per- iting the instruction from the of victim. Evidence of a Character they exactly jury could to what inferences tinent of character of the victim of the as trait accused, photographs. prose- not from the crime an the and could draw offered According Blackwell, probative value.11 a defense witness. to outweigh their did not proven prepared was that she conclusively it was not Robinson to though Even photographs transported guns Virginia in the two from the room shown Columbia, gun guns or that to" the District of the Pitts Hotel room was Blackwell’s, in her possession, the were in and gun appearing was the same seized nothing make it photographs did that Blackwell knew about them. photographs, those judge prosecutor were the likely more When and the told significantly that, prosecuted a then be for same and as same room result, charged possession guilty perjury Blackwell was of and for and that her sum, bargain district possession. repudiated of In she so testi- crime fied, forced, however, when it con- court did not abuse its discretion Blackwell was he tends, call a photographs into evidence. to decline to her as defense admitted witness. B. The Amendment Issue Sixth government argues The the actions preserves The Sixth Amendment judge prosecutor of the trial and the were right compulsory to the defendant “to have designed merely protect to Robinson’s fifth process obtaining for witnesses in his fa amendment privilege self-incrimi- 14, 19, Texas, Washington vor.” 388 U.S. nation. There no conviction after a plea 1920, 1923, (1967), 18 L.Ed.2d 1019 S.Ct. or verdict of con- guilty, government party’s right a to clearly established that tends, until enters judgment court a present establishing his own witnesses imposes a sentence. Because the trial is a of due component defense fundamental yet Robinson, had not court sentenced its process: runs, argument danger she remained in of right to of wit- testimony offer incriminating gun charge, herself on the nesses, attendance, compel and to their if which was to dismissed when she right is in terms the to necessary, possession was for marijuana. sentenced defense, present right present The trial and prosecutor genu- the defendant’s version of the facts as concerned, inely government suggests, prosecution’s jury well as the so it truly that Robinson did not understand that the truth lies. Just may decide where temporary there was no difference between an accused confront the right has possession legal ownership guns prosecution’s purpose witnesses for the purposes opening for the herself up challenging their he has testimony, addition, prosecution. government right present his own witnesses to out, es- points the efforts the trial court and right tablish a defense. This a funda- prosecutor did not intimidate Robinson mental process element due of law. since at no time did she ever refuse to testify. v. Mississippi, also Chambers 410 U.S. 284, 302, 93 S.Ct. 35 L.Ed.2d 297 types governmental judi- Various (1973) (“[f]ew rights are more fundamental cial interference have been found to deprive than that an to present accused witness the criminal right defendant of the es in defense”). his own present his own witnesses establish See, Texas, e.g., defense. Webb v. argues

Blackwell that he was unconstitu- 409 U.S. tionally (1972) (per denied his to obtain witnesses L.Ed.2d 330 curiam) (defense effectively his favor when the combined actions of witness driven the trial forced off witness stand remarks of trial him plan to abandon his regarding penalties perjury); call Robinson as Unit- Circuit, robbery robbery For similar decision the Ninth near where used in vehicle Abraham, photographs showing see United States v. de- abandoned and Cir.), (9th Huguley allegedly wearing cap cert. denied sub nom. fendant the same out- States, effect; weighed any prejudicial 447 U.S. 100 S.Ct. did trial court (1980) (in prosecution admitting L.Ed.2d 1123 evi- armed abuse its such discretion robbery, dence). cap relevance found on afternoon of

1334 Warnings 1. Perjury Smith, (D.C.Cir. F.2d 976 v. 478

ed States by prosecutor told 1973) (defense witness of a constitutional The indicated other by as if he testified that to call in his witnesses criminal defendant . prosecuted be or would testimony he could that be free to testi they defense mandates weapon, governmental obstruct retaliation. carrying fy concealed fear of for without se a trial court murder); improper per It is for accessory and as an justice, ing pro to advise judge prosecuting attorney 682 MacCloskey, F.2d 468 v. United States penalties for testi spective witnesses telephoned Cir.1982) (U.S. Attorney de (4th See, e.g., v. fying falsely. United States attorney to him advise girlfriend’s fendant’s Simmons, (D.C.Cir.1982) (per 670 F.2d 365 if she testified his client remind curiam). warnings concerning the dan But dropped on could be reindicted trial be gers perjury emphasized of cannot Goodwin, v. 625 States charges); United intimidate point where threaten and Cir.1980) (defense (5th witnesses 693 refusing testify. the witness by prison of officials intimidated threats 34 Texas, 409 93 Webb v. S.Ct. tes upon whether witnesses conditioned 330; Harlin, 539 L.Ed.2d States v. United Hammond, trial); v. United States tified Cir.), denied, (9th cert. 429 U.S. F.2d 679 (defense Cir.1979) wit (5th 1008 (1976); 50 L.Ed.2d 313 agent with retalia by threatened FBI ness Morrison, (3d F.2d 223 v. him); against pending tion in other cases Morris, F.Supp. v. Cir.1976); Berg Henricksen, 564 F.2d 197 United States v. judge and trial prosecutor Cir.1977) curiam) (defense (5th (per witness warned Robinson of the con case each plea bargain intimidated terms of sequences one occasion. perjury Only of case); Thomas, another United States heard, on the prosecutor When the first Cir.1973) (per curiam) (6th second had de day Robinson (defense told secret service witness privilege cided her self-in to waive during trial that agent recess of he wit crimination and as a defense felony testified); if he prosecuted be ness, permission of the court he asked Morris, Berg F.Supp. (E.D.Cal. of her intend inquire into the voluntariness 1980) (trial giv court coerced witness into waiver, citing relationship” ed the “close ing inculpatory warning evidence twice point and and between Blackwell Robinson him that his would be revoked probation ing “very out substantial trial perjury” was involved. The and filed if the truth were perjury charges oath, questioned Robinson stat then under told). alleged two There are sources ing: judicial prosecutorial misconduct in this mean- always perjury there are actions of (1) case: warnings ing you lie you if under oath testimony that Robinson’s charge. away can sent a new open up charges perjury; could her Do you understand that? (2) their statements Robinson THE Yes. WITNESS: as proffered testified had been important THE COURT: So dismissed part scheduled to be just I want everybody to tell truth. bargain would not dismissed. you what situation is. to understand warnings concerning find that per We All right? jury proper, judge’s and that you. THE WITNESS: Thank telling prosecutor’s comments you Do THE still wish to COURT: reinstated, could be gun charge take stand and testify? while reflecting an erroneous construction WITNESS: Yes. THE did not Fed.R.Crim.P. constitute “plain error” under circumstances of Tr. at The record reveals no other this case so as reversal justify Black the dan- warnings regarding to Robinson gers committing perjury. well’s conviction. through ness her prose- attorney warning

The conduct of the and the her just begin ap- that, testified, recounted does not to cutor if she liable prose- she was to level misconduct described in proach cution, that her would testimony be used as Webb v. Texas United States v. Morri- her, against evidence and that it would be Webb, example, for Supreme son. In possible bring perjury charges federal a burglary reversed conviction for Court addition, against subpoenaed her. In he judge gratuitously when a trial and at brought witness and had her to his office length warned a dire great witness interview, for an intimidating personal tell- committing perjury. consequences ing her during interview that trial had told the witness: if falsely she testified ... she could sub- If you take the witness stand and lie ject to a perjury charge, herself and I oath, the will personally under Court see told her that even though charges your goes case to the grand jury and against were dismissed as an adult on you perjury will indicted for itself, dope charge if she testi- you get liklihood is that con- [sic] falsely fied she was now an adult over perjury victed of it and that would be it, prove and we could and she was you got, stacked onto what have already testifying falsely on behalf of de- [the you so that is got the matter thinking get her to lie to fendant] up If your you get make mind on. on the exculpate himself get hook, off the lie, it witness stand and is probably going prosecuted she could be for perjury, and years to mean several more at least she should know that. are you going time that to have to serve. at F.2d 226. As a result these activi- It will also you be held ties part prosecutor, on the the court penitentiary you’re when for up parole held that the defendant’s constitutional you thoroughly and the Court wants particular to have this freely witness’ you’re taking understand the chances given testimony infringed. had been Id. at on that getting witness stand under oath. do, may you You tell the truth and if you you all but if lie right, get can Rather, this case falls within this circuit’s real trouble. The court wants you to rule more requiring than a mere warning know that. You don’t owe anybody any- regarding dangers of perjury before thing testify and it must be done free- reversal a criminal conviction is warrant- ly voluntarily thorough and with the Simmons, ed. United understanding you know the hazard Simmons, In this court remanded a you taking. are case district court for full hearing at 352. The Su- on the prosecutorial defendant’s preme held that these “threatening Court misconduct; time, however, at the same we remarks” had effectively driven the witness hardly stated that a threat “[i]t stand, off the thereby depriving the defend- witness, prosecutor potential to advise a process ant of due of law. Id. at 93 who is two telling respect stories with to a S.Ct. at 353. involvement, defendant’s criminal that he Morrison, prosecutor might prosecuted perjury sent at least if he testi- three messages potential to a defense wit- falsely.”12 fies Id. at 371. See also United remand, grant that, 12. On may the trial though court declined to held even have been a though new prose- trial even it found that the mistake for the meet with the prisoner brought potential cutor giving attorney to his office so witness without his that he opportunity present, prosecutor’s find out what he intended to an to be co-defendant, deprive to at the trial of his lec- conduct did not the defendant of a fair prisoner consequences tured ability com- call or the a witness mitting perjury minutes, witness, for two to three defense. at 6-7. The Id. the court engaged exchange found, in an of obscenities with invoked fifth amendment for reasons Simmons, 80-504, him. United prosecutorial States v. No. other than intimidation and his slip op. (D.D.C. July 1982). 6 The court you that under- wanted to be sure just I court Harlin, (trial all, an abso- that, you have first of process due stand defendant deprive not did case, as to counsel in this testify to presence right in his lute not it stated when that “I assume know; testify. to a codefendant have a representing you you penalties her of the advised you have you subpoenaed and You have been that appears it that if .. . and perjury because right, Fifth Amendment have a can take the Court lying, defendant yet you sentenced haven’t been you account, too”). your hanging over charges your still have in this prosecutor The trial head. limits acceptable well within stayed case understanding was The regarding to Robinson warnings their of sen- the time be dismissed at would committing perjury dangers potential tence. regard in this Their conduct she testified. I you, as Now, work it would constitutional legitimate rise to no gave you understand.... am sure complaint. added). (emphasis at 129-30 Tr. of the Reinstatement Warnings on several point this judge reiterated The Charge Dismissed When the Blackwell’s trial. during times Rule 11 a. Violation of Robinson, who was called asked prosecutor trial, judge repeatedly judge, request During the stand at on one suggested prosecutor stated of the possession claim whether she would which was to charge gun occasion testified, if she weapons bar part of Robinson’s dropped objection to defense counsel’s sustained testified reinstated if she gain would be go- were commenting that “if she question, Blackwell, she, not defense that Blackwell’s hers, she guns ing testify room. into the hotel brought guns being open herself case lay would view, in our reflected warnings, These At Tr. at 133. against her.” dismissed misunderstanding of Fed.R.Crim.P. serious trial, judge indi- in the point another judge. the trial part 11 on the Robinson would be concern that cated her trial, Rob- day of Blackwell’s the first On bringing “incriminating situation in the marijuana guilty possession pled inson her- District of Columbia guns into the gun posses- of a for the dismissal in return if she self,” and remarked that Tr. at after the trial Immediately charge. sion proffered, counsel testified as defense “[w]e attor- Blackwell’s plea, judge accepted weapons allow obviously couldn’t [the call going was that he ney indicated Tr. at 228. to be dismissed.” charge] in Blackwell’s behalf. testify personally informed Robinson judge also time, stated At possessed that she if she testified privilege a fifth amendment Robinson had Columbia, “could she in the District of guns are still charges because “the testify not to Tr. at charges.” guilty gun be found still be that she could pending,” implying counsel did Blackwell’s At no time to be scheduled prosecuted to the object with or disagreement indicate counsel plea. Blackwell’s dismissed concerning gun warnings judge’s prose- accuracy object did charge. remarks on the status ox cution’s charge. however, Black- the end of Near mentioned attorney well’s in- attorney day The next testi- if Robinson concern that planned that Robinson formed the court The court prosecuted. would be fied she privilege waive her fifth amendment is no doubt answered, will. There “She judge then for the defense. The Immediately there- Tr. at 263. it.” about Robinson, informing her that questioned Id. 7-8. provided support defense. testimony little after, promise subpoena agreement Blackwell withdrew his for of the prosecu- tor, Robinson, so that stating he can be part under oath that said to be consideration, inducement or such doing promise so because if she testified she could must be fulfilled.” Santobello v. New prosecuted original gun still be York, 257, 262, 92 S.Ct. charge and because it was at least conceiva- (1971). L.Ed.2d 427 As court recently ble invite prosecution also Pardo, stated in United States v. transport- Virginia violations of law (D.C.Cir.1980), “promises to dismiss ing weapons into the District of Columbia. charges part as of a plea agreement are Our 11 reading per- Fed.R.Crim.P. binding result, on the As Government.” a judge pros- suades us that both the may “a witness not be exposed prosecu- to ecutor were plea agreement bound the on Id. charges.” Thus, tion [the dismissed] accepted by day on the court the first of the in this government case the could not have power to renege trial. Neither had the on keep refused to its promise to dismiss the agreement gun the as to dismissal of the gun charge simply because Robinson subse- charge.13 quently testified Blackwell’s defense.14 prosecutor As is far as the con Consequently, misleading it was for the cerned, open it is longer question prosecutor no to even to suggest plea any degree “when a rests in significant occur.15 not, government testify, plea agreement 13. The is as the ar- he did the gues, simply one of whether Robinson retained be void and he would be tried on all counts of privilege against a fifth amendment indictment). self-incrim- probably privi- ination. Robinson lege did retain a possibility Virginia fortuity weapons 15. We due to the do think the that Robinson’s prosecution. sentencing is gun issue whether the misin- and the formal dismissal of the conveyed by prosecutor charge postponed formation and trial though had been even judge prosecution bargained-for plea as the likelihood of accepted by itself had been original gun charge judge motivated Blackwell not to changes government’s responsi- call a bility Robinson as defense witness and consti- promises. under Santobello to fulfill its require tuted so serious an error as to remand Santobello, true, it is decided that some though unobjected even to at trial. remedy constitutionally required when the government improperly declines honor a government argument

14. The admitted at oral plea bargain; it left to state trial court discre plea agree- it could not altered the have plea specific tion whether vacation of the Mercer, ment. See 691 United States v. F.2d performance bargain appropriate. of the was (7th Cir.1982) (if cooperation 343 government 346 at with Barksdale, See also McPherson v. (6th Cir.1981) (federal 640 F.2d 780 precedent plea was condition supervisory courts lack bargain provisions plea agree- “then the of the authority specify remedy prose for state it, ment should have included and the court plea bargain); cutor’s breach of Palermo v. further should have so instructed the defendant Warden, 286, (2d Cir.1976), 545 F.2d 297 cert. prior acceptance plea”). of the dismissed, 911, 2166, 431 U.S. 97 S.Ct. 53 Moreover, appears extremely doubtful that (1977) (remedy plea L.Ed.2d 221 for broken prosecution required have could bargain discretionary court). agree testify to part not to in Blackwell’s defense as instances, however, In several federal courts original plea bargain. See United plea bargain per- have ordered that be Pardo, (D.C. States v. 636 F.2d 540 15 n. formed and concessions carried out. Cir.1980) (government specifically disclaimed Cooper, (4th See United 594 F.2d 12 any right part plea agree to enforce the of a Cir.1979) (plea bargain proposed by govern- required potential ment which a defense wit accepted by ment and defendant enforced even defense); testify ness to refuse to for the Unit though government withdrew offer before de- Bell, (D.C.Cir. ed States v. 506 222 pled); Carter, fendant United States v. 1974) (government impairment of the accused’s (4th Cir.1972) (charges must dismissed ability to call witnesses his behalf condi per agreement); Lieber, United States v. tioning upon acceptance pleas its of the witnesses’ F.Supp. (E.D.N.Y.1979) (court orders dis- their refusal to defendant subsequent missal tolerated); indictment as cannot be sen, violative United States v. Henrick plea agreement); (5th Cir.1977) (per cf. United States v. Grandi- cu netti, riam) (5th (Department Cir.1977) (resentencing 564 F.2d 723 of Justice confesses error preventing testifying agreement a ordered because witness from on be violated by informing by expressing half a agreed-upon defendant reservations witness about 11(e)(2); Rule 8 Moore’s drug charge the decision. plea at government’s 11-90. based Federal Practice expressly K11.05[2] at the gun charge addition, 11(e)(3) dismiss promise to makes it Fed.R.Crim.P. accepted she sentencing. Once time of judge accepts plea trial a mandatory, if the record, believe that the we plea on the agreement, that she tell defendant to vacate judge authority without was also judgment incorporate she will reinstatement of the plea and order provided for in the disposition sentence the out in Santo charge. Although, pointed agreement. purpose “This serves the plea bello, there 404 U.S. immediately informing the defendant plea guilty is “no absolute implemented.”16 will agreement may reject plea accepted,” and “[a] note, advisory Fed.R.Crim.P. 11 committee discretion,” judicial of sound exercise added). (emphasis 1974 amendment accepted and bound judge once has dispute the trial There is no it, cannot, except pos defendant guilty plea and that its accepted here fraud, carry through refuse to sibly for bargained-for predicate, dismissal if the trial at the Even bargain. sentencing, at the time of was might ques was offered have plea time the accepted and by set out on the record her as her to tes about intentions tioned Robinson Indeed, judge trial expressly well. the Blackwell, of and even if she tify in favor accept accepted to if warned when she her plea have refused the indicated that would so plea you Robinson had that the event that should “in testify, plea accepted the the once to plea want withdraw this before the im- repudiate had discretion to judge longer no sentence, the Court would tell position of the because of Robinson’s subse agreement ready proceed are to you that because we to quent testimony. now, not be you permitted would Transcript plea to do that either.” of at straight- We this conclusion the base bargain 3-4. The and the were sealed plea of Fed.R.Crim.P. language forward we know of point,17 at that no authori- judge which states that the shall indicate on ty judge, for short of of plea the time a the evidence record at the is offered it, it, fraud,18 accept reject change will or defer her mind as to the whether she to wis- See, bargain). generally, judge plea plea Wes- While the could disavow the sentence Westin, bargain presumably accepted, she would ten A Law of Reme- once Constitutional by Bargains, permitted Rule 11 to take into dies for Broken Plea 66 Cal.L.Rev. been subsequent testimony in (1978). account Robinson’s 471 given imposing Here, only appropriate remedy to the sentence Robinson since the the agreed upon plea. government’s perform, had been light no sentence the to of failure Bond, Bargaining Guilty judge’s See J. Plea Pleas plea and the to admonition 1982), 6.17(f) (2d at 6—45 ed. cases cited § withdraw sen- that she could not it before therein. specific performance tencing, have been would agreement. of the 6.18(f) is 18. See id. at 6-56: Because there § Note, 11: also Revised Federal Rule suggestion government any See by kind no the that Cases, Tighter for Pleas in during Guidelines Criminal perpetrated plea of fraud was the bar here, L.Rev. 1014 n. 33 gaining Fordham not be we need concerned with (1976): precise exception scope the of the fraud the to carry judge bound to rule that the out the arraignment pre-trial or other hear- At the accepted plea agreement once she has it. Pre court, plea ing the is offered the at which the sumably, penalizing at be it is aimed deceitful it, judge may accept reject deci- or or defer during negotiating engaged the havior of the presentence sion until he has considered the court, agreement, presentation plea in its report. Upon deciding accept plea, the by or in its the defendant. See Ham execution judge inform the that must defendant Barrett, (Miss.1976) (defe lin v. So.2d 898 agree- provided sentence will be as deliberately prior felony ndant concealed by judge prose- ment. Because failure plea questioned by judge accept time when gener- keep plea bargain promise cutor to promise probation). ed for of fairness,” many outraged ates “an sense of government argument appellate traditionally conceded at oral The courts have reversed plea judge’s power to vacate a convictions for this failure. any dom and refuse to enforce bargain of the does announce deferral of it.19 acceptance, and the defendant adheres parties all bargain, to the terms to it Indeed, requirement Rule ll’s are rule does Although permit bound. of ac- judge make a definite announcement accept or-reject deferral the decision to deci- ceptance, rejection, or deferral of her bargain plea indispensible usually sion about a plea, purpose viewing justice system depend- criminal so heavily mere presentence report, postpone- Santobello plea ent on bargaining. the sentencing ment of itself to a future York, New at 498 date does not auc iorize remake component (plea is “an essential bargaining plea bargain or vacate the for whatever justice”). of the administration Pleas appropriate reasons later seem her. defendant, only bind or even judge’s faithful observance defendant, prosecutor and the but not requirements just of Rule 11 is as vital judge, would unfair the defendant the fairness and efficiency process as and would the incentive for defend- dilute the prosecutor’s compliance. pri- She has a If with the plead compliance ants at all. duty mary under rule to insure not bargain depend- terms of a were to plea bargain terms of are ent on some but unannounced con- implied understood but defendant ditions of between the ac- good behavior sides, are adhered to both as well ceptance of plea imposition believe, That, the court itself. we is the sentence, advantages defend- purpose Rule ll’s insistence there be pleading guilty ant be substantial- public record of ly appears un- the terms bar- speak reduced. Rule equivocally; plea if the accepted, gains.20 the subsequent agreement basis of events was It if “unsettled.” to defendants allowed withdraw justify attempt made guilty pleas). an to such action here asserting that Robinson and Blackwell’s attor- also See United States ex rel. Selikoff v. ney misled the court at trial as whether to Correction, 650, 653, Commissioner of possession guns. Robinson would claim of the denied, (2d Cir.1975), 951, n. 1 cert. 425 U.S. 96 any argument We cannot find basis for this 1725, (1976) (citing 48 L.Ed.2d 194 state transcript reading sug- the record: our of the Selikoff, approval). cases with the defend gests merely that was confused to sought corpus ant had writ of habeas on the legal “possession” the between and distinction ground judge’s that a state trial failure to fulfill 129, 133, “ownership” guns. See of the Tr. at promises regarding sentencing made to defend 225-28, 260. plea agreement ant when he entered a denied Although we have found no cases federal process due law. defendant of The Second precisely held, point, on several state courts have judge Circuit held that the trial because was situations, analogous judge that a trial precluded making as a matter of law from an vacate, authority sponte, has no sua a valid- to promise unconditional as to sentence at the ly accepted guilty plea subsequent because of guilty pleas accepted time the were because he report validity impugn events which the do not yet presentence had not seen the and See, original plea e.g., agreement. Lombrano judge specifically the because agreed-upon noted that his Court, Superior 525, v. 124 Ariz. P.2d 15 606 predicated sentence was the (1980) (trial sponte court could not plea); set sua time, facts known to him the at the defendant Matthews, guilty People aside v. 71 specific performance. was not entitled to Id. 864, 192, (1979) A.D.2d 419 N.Y.S.2d 193 Mercer, Cf. United States v. (memorandum court) (a plea guilty the of (vacation plea required judge 345 of where and, fraud, a conviction in the absence of the agreement, plea committed “breach of the and power plea court has no to set aside with- understanding conveyed by the district consent); People out the defendant’s accord v. judge, prior acceptance change of Hardin, of 67 A.D.2d 414 322 N.Y.S.2d Gilligan, plea”); F.Supp. (1979); United States 256 Damsky, People 47 366 A.D.2d (S.D.N.Y.1966) (vacation plea necessary (per curiam) of (1975) (trial N.Y.S.2d 13 no application had court original authority by judge grant' government’s promised where followed). sentence inherent not plea aside with- and set defendant’s consent). out But v. Wen- defendant’s cf. State zel, 11(g) requires (Iowa 1981) (trial Fed.R.Crim.P. verba- “[a] N.W.2d reject plea agreement proceedings court tim of could time of record at which the sentencing though accepted and, plea even had enters a shall be made defendant Plain Error case, inadvertently but b. perhaps

In this misled certainly, nonetheless three classes recognizes Fed.R.Crim.P. by stating and Blackwell both Robinson errors, implicitly: one explicitly two and part dismissed as first, prejudice to be not de- errors do are considered “harmless” dis- fendant agreement could still plea of Robinson’s objected not appeal, whether or regarded moreover, information, This prosecuted. trial; second, may errors to at potential infringing for a definite had objected were to at prejudicial and been sixth amendment “reversible”; third, trial are deemed in his own defense. Since present witnesses a violation that are so fundamental errors objection the proper failed to raise counsel require rights they of the defendant’s reinstatement,21 warnings at trial fail- regardless reversal of the defendant’s however, we must decide whether now are object to them at trial termed ure the resultant enough error was evident 3A C. Federal Practice “plain.” Wright, to Blackwell attributable prejudice (1982). and Procedure: Criminal 2d § “plain to constitute warnings grave enough 52(b) allows appellate Rule courts correct con- of Blackwell’s requiring error” reversal affecting substan- “[pjlain errors defects close Although is a viction. although brought rights” tial one, error was not we conclude that the attention of the trial court. v. Frady, and therefore the conviction.22 456 U.S. plain, affirm United States however, contendere, appeal, argue piea guilty did there is a or nolo include, limitation, plea agreement. compelled to fulfill the record shall without defendant, inquiry court’s advice to 22. We have discussed the merits whether including any plea the voluntariness agreement, judge’s error the trial actions constituted accuracy inquiry into the First, majority (emphasis added). several reasons. unlike guilty plea” cases, involving legal error issue Rule previously attorney decided 11 has been came to a 21. The closest Blackwell’s judge’s following objection We believe that the trial threat court. relevant response occurred in the prosecutor’s renege bargain was a clear violation assertion implications privi- Robinson still retained fifth amendment of Rule 11 serious court; just everyday lege though guilty plea been business the district our even legal interpreta- accepted: appropriate enunciation of repetition. designed 11 is to avoid tion of Rule Honor, my it’s MR. ABBENANTE: Your Second, although with we find no fault Chief understanding that Fifth Amendment Judge concurring statement that privilege is available Miss Robinson under questions preferably should constitutional certain circumstances. record, complete we on a here are submit, circumstances, decided deciding only I would under these misinterpret- that light government in agreed, pursuant of the fact has here, her. Rule 11 on record before Because agreement ed plea persist calling Robinson Blackwell did not as prosecute any of- will not her for witness, however, do not find charged a misinterpretation we in the fenses that she’s indictment, been deprived Blackwell his plea agreement, as a result of her present witnesses in sixth amendment she does not same—she does have the addition, position since a decision not stand in the to invoke the his favor. same plain inevitably privilege potential error has occurred Fifth Amendment as other whether opportunity government no defendants. means that the below, unique agreement respond that situation is not She has entered into a vol- counsel, appellate untarily, upon Finally, this case. we note advice own, made, courts, deciding agreement part including whether has it’s our been occurred, record, necessary agreement has often find it error Court there is no fact, will, government, at first if has been error all. for the to decide there Herron, 510, See, e.g., proffer 567 F.2d as 1 understand that has been United States v. Pinkney, (D.C.Cir.1977); v. United States made to Court.. .. 514 (D.C.Cir.1976); United States v. Tr. at 62-63. 551 F.2d 1241 Bass, later, however, (D.C.Cir.1976); nor he enter F.2d United Neither then did 535 110 Peterson, (D.C.Cir.1974); objection pros- specific F.2d 408 States v. 509 that the references 1170, (9th Giese, 1199 charges legally v. errone- United States 597 ecution Cir.1979). newly appointed ous. Blackwell’s counsel

1341 1584, 1592, 71 (1982); 102 S.Ct. L.Ed.2d 816 criminal conviction on appeal. Although Alston, 315, United v. 551 F.2d 320- Supreme States has Court held that some con (D.C.Cir.1976); 21 United States v. Wil- rights stitutional are “so basic to a fair trial liams, (D.C.Cir.1972); 962 463 F.2d that their infraction can never be treated as McClain, United States v. 245 ...,” Chapman harmless error v. Califor (D.C.Cir.1971). nia, 18, 23, 824, 827, 386 87 U.S. 17 (1967), L.Ed.2d 705 and four circuits have Although cursory reading of the held that intimidation of defense witnesses rule would seem to require only that requires reversal without a showing of prej unobjected-to error be a plain (i.e., one so udice, Hammond, see United States v. obvious that should have recog 1013; Morrison, F.2d at United States v. own) nized it on her or that it affect sub 228; 535 F.2d at Thomas, States (i.e., stantial rights harmless), that it not be 336; Bray F.2d at v. Peyton, 429 F.2d law case on which the rule rests re (4th Cir.1970) (per curiam); see quires much more. According to the Su also United MacCloskey, States v. preme pronouncement, Court’s latest 479; Morris, Berg at F.Supp. plain error rule is to be “used sparingly” 186-87, recently more “in Court has only those circumstances in which a stated “interests miscarriage justice protected by would otherwise re Sixth sult.” United v. Frady, degree Amendment look to the prejudice 163 n. 102 S.Ct. at aby 1592 n. 14. incurred defendant as a gov From result of neglected that we surmise that error must ernmental action or inaction.” United rise to a level far above that required to States v. Valenzueia-Bernal, - U.S. -, 52(a)’s survive Rule ban against reversals 102 S.Ct. (1982). L.Ed.2d 1193 for harmless error.23 On the basis of the trial record in this On the basis of a careful weighing case, we cannot decide that it could have below, of the factors discussed we find that no significant made difference jury case, the error in this probably while “re Robinson had along testified the lines sug- objected versible” if to at does not rise gested proffer. (de- id. at 3447 to the level of error so “obvious and sub fendant must testimony show of deported manifest,” stantial” or so “serious and 3A witness “would have been both material Wright, C. Federal Practice and Procedure: defense”). and favorable to Although Criminal 2d 856 at affects the § Williams, testimony very integrity process, of the trial and re himself, defense witness paral- other than reversal quires of Blackwell’s conviction. Robinson, proffer leled the signifi- We do not find this to be a situation where nonappearance cance of Robinson’s could a defendant is “convicted in a incon way not have jury. been lost on the sistent with the integrity fairness and of was Blackwell’s common-law wife and the judicial proceedings, the courts [and where] person in whose name the hotel room where should invoke plain error rule in order guns were found was rented. The fact protect public reputation.” their own Id. that she did not take the stand to corrobo- 341; Atkinson, United States v. 297 U.S. rate or supplement Williams’ testimony as (1936). 56 S.Ct. 80 L.Ed. 555 guns to how the came to be found in the testify Pitts Hotel room or to whether

(1) The Substantiality of the they Blackwell knew were there could have Right Affected gap been fatal in his defense. Robinson 52(a) Rule logical mandates that errors at trial was the only person other than that do not rights affect substantial of the Blackwell might who have known the cir- defendant are guns’ presence insufficient to reverse a cumstances of the in the Wright, concept appellate impossible 3ACf. C. Federal Practice and Pro- courts find define, they cedure: Criminal 2d 586 at 337: “the save that know it when see § cases give impression ‘plain the distinct it.” error’ is did, that judge herself charge as the knowl- of Blackwell’s and the extent room error as labelling the Indeed, against militates too presence. of their

edge integ- the “fairness and implicates attorney, who one told Blackwell’s allegedly represents or rity judicial proceedings” court, that “there was then informed very “miscarriage justice.” We must world Mr. Black- way no absolutely error applying plain confident before were in the guns those well knew impression in in- to issues of first doctrine kept at 262. Robinson apartment.” Tr. of Criminal the Federal Rules guns terpreting knowledge possession Procedure, rule in incor- stated, unless the Blackwell, because attorney from or well-established constitutional porates a record and because prior knew he had a designed Rule 11 was legal principle. to know she had Since want Blackwell she did not for the a new uniform structure up Williams. to set Virginia been guilty pleas, where there had acceptance of in cases of prejudice the test for Since before, interpretation its correct none been missing evidence whether the type this is trial may require some application affected the likely substantially have might sum, prior precedent lack of error. v. see United States outcome of of the issue novelty the circuit and the (D.C.Cir.1976); Rule Bass, F.2d 110 calling the against militate presented substantiality of the 52(b), we assess the mistake error. judge’s plain militating in favor of find- right affected Failure to (3) The Defendant’s case. ing plain error this Right Preserve His Issue (2) Novelty Legal Alleged As Plain Error connection be- Finally, the clear causal conveyed by misinformation tween the out, we the error pointed As prosecutor’s remarks judge’s previously Rule 11 was one not interpreting weak; thus, is failure of Robinson to Indeed, this court. none upon by ruled Rule 11 violation be sure that the we cannot prosecutor, de- participants trial — right. constitutional infringed Blackwell’s counsel, judge appears or trial fense — tilts our decision This concern Thus, an error. have been aware it was error in this case. As the finding the ease of an obvious error out, himself government points Blackwell unobjected-to in the heat which went to call Robinson to the abandoned the trial. witness stand. that an error requiring A reason for key distinguish This circumstance serves objected appeal to if it is to be noticed on the usual one in which the the case from will have a fair and is so that a trial court to intimidation witness succumbs prevent to cure prompt opportunity and refuses to or the error, any recurrences. or at least original Texas, See, e.g., Webb v. testify. especially appropriate principle That 330; L.Ed.2d United 93 S.Ct. here, was con- since the misinformation 335; Simmons, United v. 670 F.2d States trial; an veyed during on several occasions 976; Smith, v. United States time have focused objection might the first 468; MacCloskey, 682 F.2d United v. States attention on issue allowed 1008; Hammond, v. States warnings, thereby to retract her cur- 334; Thomas, Berg Also, ing any potential harm to Blackwell. Morris, F.Supp. 179. While we would objected, prosecu- if the defendant to rule that the same constitu- be reluctant pro- tor have been able to possibly apply against prose- protections tional justify duce evidence to reinstatement in- judicial directly acts that cutorial and charges exception under a fraud to Rule applica- have no If, here, no timidate a defense witness the situation as we discern a defendant to tion to acts that motivate counsel objection was made because defense witness to expose particular to refuse misapprehension labored under the same risk, with whom he has an especially one judge’s power to reinstate abo.ut balance, on family relationship, peculiar if it objected intimate had been to at surrounding trial, fail- circumstances we might have concluded that ure to to the stand make us reluc- be called misinformation constituted harmful and re- reverse the conviction because she error, tant to versible under this scenario we can- did not testify. not find that it meets the significantly higher required plain standard error.

We recognize potential all for abuse if a forego calling key defendant is allowed to sum, In the error was “plain” no one at solely witness on his assertion that he is trial and had not been ruled on previously her welfare. It is protecting always possi- court; by this it also the interpre- involved ble that is really refraining defendant rule, tation of a recent relatively federal from calling a witness because the testimo- rather than a well-established constitutional ny might be favorable to him be- or common law right. important, More cause the priv- witness intended raise the however, is the lack of a direct nexus be- ilege grounds on other than the mistaken judge’s prosecutor’s tween the remarks charges fear in a plea bargain and Blackwell’s loss of Robinson’s testimo- case, could be reinstated. In this all we balance, ny. despite On the violation of know is that the defendant took the stand Rule 11 and the sixth amendment interest immediately judge’s after the trial warn- implicated, we find no plain error sufficient ings to the witness and testified he would to require reversal of the conviction. her, although not call he had previously Affirmed. to, intended because of the threat of re- prosecution gun charge newed ROBINSON, III, SPOTTSWOOD W. possible on a prosecution state Judge, concurring: Chief witness, hand, charge. The on the other join 11(A) I I Parts of the court’s minutes before stated her contin- opinion, and in the result reached by the short, ued testify. intention to In we have 11(B). view, court in Part In my the court’s no way knowing what would have actu- analysis part the latter does not utilize ally if Blackwell happened had called Rob- sufficiently an vitally important element inson as a defense witness. We have obvi- determining whether proceed- trial-court ous concerns about allowing defendant ings “plain reveal I error.” thus feel con- legal decide for himself when risks to an- strained to add my thoughts on that sub- other person permit will suffice to him to ject. waive right his constitutional to a defense bargaining and proceedings witness assign ancillary and still it as error on bar, Where, here, to the case at appeal. prosecutor agreed the witness herself the gun charge against never refuses to the nexus dismiss testify, between exchange the error and the loss of her for her testimony guilty plea to another inevitably defendant attenuated and and the judge accepted Robinson’s the substantiality of the harm' attributable forthcoming plea. During to the error less than however, “manifest.”24 While both the prosecutor and the Pardo, government deportation Cf. United States v. 541- F.2d at or threatened with (defendants refusing testify against who stood silent when the trial the defendant and they planned government asked if to call a witness had sent another witness appeal could country prevent appear not raise as error on the court’s on a tour of the recognition privilege); appeal though witness’ Wilkes v. ance could be raised defense States, (D.C.Cir. apparently attempt 685-86 counsel made no to call 1969) (defendant objection witnesses); Morris, Berg F.Supp. who raised no at the these (E.D.Cal.1980) (defendant time the announced the witness who assign impermissibly would not could not then as error claimed that trial court had in appeal present the court’s failure to make the wit terfered with his a defense personally privilege). coercing giving ness assert But see certain witness testi Bertone, (3d mony required United States v. was not to establish direct or Cir.1957) (allegations judge’s three of a defend exclusive between the causation action prosecuted by testimony given). ant’s witnesses had been either

1344 It an propo- elemental and well-settled might gun charge that the plainly indicated dropped would not probably sition that courts will not consider an issue Blackwell, she, Robinson testified when the appeal first raised on criminal the motel weapons brought incomplete record is or lacks sufficient data seized.1 Black- they room in which resolution of the issue.6 To to ensure sound well, by these state- arguably influenced only do otherwise would not undermine the ments,2 then not to call Robinson decided in fundamental interest accurate decision- witness, any way not in a defense but did unfairly penalize would also making but of his constitutional possible claim violation Government, which in such circumstances in his defense. I present witnesses opportunity augment meaningful has no he thus cannot this claim agree press favorably the record to its cause. constituted unless the statements appeal meaning error” within the of Federal “plain here, for principle obviously applies This 52(b).3 Criminal Rule to raise the neglected Blackwell claim he now would have us rule constitutional Recognizing plain error cir- only exceptional entertain, should be invoked thereby effectively deprived cumstances,4 inap- it today the court finds of a chance to assemble the Government (a) por- because the issue plicable primarily thereto. present evidence relevant yet by any tended has to be resolved federal incomplete resulting, record light of court, (b) participants spot- of the trial none then, Black- we must decline examine (c) Blackwell has not problem, ted the well’s constitutional claim on its merits.7 demonstrated a clear causal connection be- ability to formulate and The Government’s not to call Robinson and tween decision argument persuasive legal articulate communicat- purported misinformation proposed to Blackwell’s construc- opposition judge prosecutor to him the and the ed application tion and of the Sixth Amend- respect gun charge to dismissal of the may handicapped signifi- have been ment grounds While these against Robinson.5 cantly by amplify absence of occasion to might acceptable support furnish Moreover, point. this record record this finding proceedings court’s under interposes substantial deficiency obstacles error, I plain review do not reveal believe judicial decisionmaking.8 to sound Not buttressing there is another factor any impediments length. merits treatment at some Government’s 63, 129-130, 133, error, (Tr.) plain they Transcript 1. Trial not amount but neverthe- 226-228, 261, 263. less seem to “notice” the statements as error when determine that the went amiss 2. See Tr. 265-267. by informing weapons charge likely would not be dismissed if Robin- 52(b). 3. Fed.R.Crim.P. possession weapons. son testified This, submit, entirely I is not faithful Majority Opinion (Maj. Op.), 4. See note text at 52(b). textual dictates of Rule Co., Kennedy generally 8. See v. Silas Mason Id. at 34-37. 249, 257, 1031, 1034, 334 U.S. 68 92 L.Ed. 1347, States, (1948) (refusing impor- Washington 1351 to address 134 6. See v. United U.S. 1119, 223, because, App.D.C. 225-226, legal question “[wjhile might 1121— tant we 414 Easter, able, (1969); record, present [inadequate] 1122 539 F.2d United States 663, (8th Cir.1976); case, 665 Robinson v. United that would reach conclusion decide States, 618, Cir.1964); Spahr (8th lacking 327 F.2d 623 well be found later to be States, (9th Cir.), precede v. United 409 F.2d thoroughness judgment that should denied, 90 S.Ct. cert. importance purpose and which it is the Lepinski, (1969); States v. Habib, L.Ed.2d 91 judicial process provide”); Lee Cir.1972). (10th U.S.App.D.C. (1970) (“[tjhere appellate can never be effective 52(b) provides that the court 7. Fed.R.Crim.P. reviewing not able to review if the may if it is and affects error “notice” picture precise obtain a clear nature of colleagues My rights. find substantial below”). alleged errors the court do statements 1345 on finding plain Blackwell’s constitution- a error a materi- capacity to counter full bene- deprived us of the arguments al ally incomplete record. the inade- adversary process, but

fits of Additionally, disposi even if the court’s factual the record obscures the quacy newly-raised tion of Blackwell’s constitu percep- blurs problem contours of the limits objection10 proper tional reflects Indeed, a legal tion of its ramifications. rescind judicial power acceptance essential to deci- well-developed record is plea bargain, we cannot be certain that especially one constitu- any question, sion of prevail would not under this Government character, novel in and the defec- tional and if interpretation opportunity afforded the open have leaves tive record we now to adduce further evidence. The court ac to resolu- possibility that factors relevant would de knowledges that the Government may escape tion the constitutional issue feat Blackwell’s claim if it can show that Accordingly, I think judicial attention.9 engaged in fraudulent or deceitful to adhere in this good there are reasons militating during doctrine conduct discussions11 case to traditional 119, 136-137, 1709, 1719, 52(b), Independently of Rule courts tradition 431 U.S. 97 52 9. S.Ct. ques 184, ally (1977); constitutional have refused to decide L.Ed.2d 197 Alabama State Fed’n incomplete inadequate McAdory, tions on an record. supra, of Labor v. 325 U.S. at 461- Mexico, 529, 546, Kleppe 426 See v. New U.S. 462, 1389-1390, 65 S.Ct. at 89 L.Ed. at 1734- 2285, 2295, 34, (1976) 49 L.Ed.2d 47-48 96 S.Ct. 288, 347, 1735; TVA, Ashwander v. 297 U.S. 56 impor (holding not decide that courts should 466, 483, 688, (1936) (Bran 711 S.Ct. 80 L.Ed. questions than tant constitutional on less an deis, J., concurring); Liverpool, N.Y. & Phil. “ ”) (quoting ‘adequate record’ and full-bodied Emigration, S.S. Co. v. Commissioners of 113 Rickover, 369 U.S. Public Affairs Assocs. v. 33, 39, 352, 899, 355, 5 901 U.S. (1885). S.Ct. 28 L.Ed. 582, 604, 111, 113, 580, 7 607 82 L.Ed.2d S.Ct. outgrowth logical It would seem (1962)); Publishing American 85, Tennessee Co. v. when, here, holdings these as the record is 87, Bank, 18, 22, Nat’l 57 81 299 U.S. S.Ct. deficient, materially the court should not un 13, (1936) (“[i]t is a familiar rule that L.Ed. 15 any pronouncement dertake all, constitutional at anticipate the decision of a the court will not knowledge of is as its relevant facts limited upon question constitutional record which Indeed, depart at we would from the best. it”). appropriately present See also does not historically impor deference extended to the 426-427, Barrera, 402, Wheeler v. 417 U.S. 94 delicacy adjudica tance and of constitutional 2274, 159, 2288, (1974); 41 178 S.Ct. L.Ed.2d tion, Bartley, supra, 431 see Kremens v. U.S. at McAdory, Alabama State Fed’n of Labor v. 325 127-128, 1714, 192; at 52 L.Ed.2d at 97 S.Ct. 450, 461-462, 1384, 1389-1390, 89 U.S. 65 S.Ct. Barrera, 426, supra, v. 417 U.S. at 94 Wheeler 1725, (1945); Allen-Bradley L.Ed. 1734-1735 2288, 178; 41 at Ashwander v. S.Ct. L.Ed.2d 1111, Elec. Workers v. Wisconsin Local Employment United TVA, 345, 482, supra, 297 56 S.Ct. at 80 740, 746, U.S. Bd, 315 Relations U.S. J., (Brandeis, concurring), 820, 824, 1154, 710 were we (1942); L.Ed. at 62 1163 86 L.Ed. belatedly-posed, States, 100, to decide Blackwell’s novel is Wilshire 102-103, 295 U.S. Oil Co. v. 673, 674, 1329, seriously in 79 L.Ed. 1331 sue of constitutional law on the 55 S.Ct. (1935); Superior complete Petroleum Co. v. Bandini record before us. 103, 108, Court, 8, 22, 76 284 U.S. 52 S.Ct. 136, (1931). generally L.Ed. Socialist Maj. Op., at notes 13-20. The 10. See text 583, Party Gilligan, n. Labor 2, 406 U.S. 588 & today statutory grounds concludes on 2, 317, 32 L.Ed.2d 92 S.Ct. 1719 & n. misap- judge’s statements demonstrate (court (1972) decide 322 & n. should not prehension power of the limitations on question question unless the constitutional judicial plea agree- acceptance rescind clarity “presented needed for effective with the not, however, unequivo- ment. The court does Army Municipal adjudication”); Rescue cally violated Black- hold that statements Court, 549, 584, 331 U.S. 67 S.Ct. though says rights, it well’s Sixth Amendment (1947) (court 91 L.Ed. should Id., they “probably” at note did. text question ques decide constitutional unless the error, Because, we need not for lack of presented tion is form”); “clean-cut and concrete questions, express opinion these I no reach NLRB, Associated Press v. proper resolution. their 650, 655, 57 S.Ct. 81 L.Ed. (1937) (court will not resolve constitutional Id., scope of text at 18 & note 18. The note facts). hypothetical Addi basis all, yet exception, ill- exists at is as this defined, it tionally, frequently courts have adverted may ultimately prove broad longstanding precept not for should enough misrepresentations to include various than mulate rules of constitutional law broader so, If a defendant to the Government. Bartley, required E.g., the facts. Kremens v. mit, conduct, proof entirely any have no of such we bereft factual basis in While we occur; proof justified also lack did not the record. Nor could it be simply point not address this record does holding responsible the Government for the Because this silence is attributa directly. for, point, absence of evidence on the as the Blackwell, ble to and because the Govern acknowledges, ques- the constitutional might produce ment have been able to evi tion to which such evidence bears relevance such conduct if provided dence of the Indeed, Blackwell. by was not tendered so,12 we cannot properly chance to do con managed to barely ap- Blackwell raise on clude that the District Court committed er question whether peal statements error, ror, plain much less in this case. by judge prosecutor and the revealed misapprehension their of the Government’s recognizes that The court obligation and the District Court’s ad- present failure to his constitutional claim to plea agreement; here to the only refer- the District robbed the Court Government single ence to it that I can discover is a fraud,13 opportunity prove of an but it Moreover, sentence in his brief.15 as the not fully appreciate import does seem opinion today apparently court’s is the first circumstance, of this as it nevertheless de- decision a federal court that by attempts judge ultimately termines that lacked any way explicate her law on this sub- power acceptance plea to rescind agreement case,14 ject, in this the Government could not heretofore necessarily which implies any that even have been confident that excep- court also has made the factual determination that tion for fraud or deceit would be no fraud oc- available. conclusion, short, curred here. This latter I it sub- seems to me that the Govern- ground increases the likelihood that Government courts often decide whether able, given they been had it been the trial court committed error before chance, showing to introduce evidence plain reach the whether the error was rights Blackwell’s Sixth Amendment infringed. were not contemplation 52(b). within the of Rule See id. purported at the cases note Of cited in however, support proposition, of this none in- suggests possibility 12. The record volves, bar, materially as does the case at might academic. When confronted with record; incomplete accordingly, deficient or privilege Robinson’s readiness to waive her against authority support none constitutes relevant by testifying self-incrimination my colleagues’ decision to reach the statuto- perhaps say she had Blackwell — brought room, ry question implicated by Blackwell’s constitu- weapons the seized into the motel emphasize cyno- tional claim. I would judge prose- see Tr. at 127—the and the not, my position my colleagues sure of apparently misapprehend, specter perjury ques- cutor raised the id., merely see waiver, tioned the voluntariness of the id. at opportunity has no the Government to re- 127-130. This behavior indicate aware- spond to Blackwell’s Sixth Amendment claim representations by ness of earlier trial; is, deprivation rather that this has transported weapons. that she had not Of record, seriously inadequate upon created course, repre- we cannot know whether these any by which determination this court that the or, so, sentations occurred whether judge power abrogate misconceived ac- justified reneging would have the Government ceptance prema- of Robinson’s would be agreement gun charge on its to dismiss the unfounded, ture, 52(b). violation of Rule posses- Robinson had she testified to any inappropriateness weapons. decision on the sion of the But the fact that claim, moreover, judge untimely prosecutor merits of Blackwell’s acted in manner represen- heightened respect larger consistent existence of such is indeed with my colleagues tations should prejudge bolster our resolve not to constitutional issue that do not adversely resolve, principles ju- the merits of the issue for traditional of federal incomplete requirement Government on an record for risprudence reinforce the of Rule responsible. which Blackwell is 52(b) ques- that we not decide constitutional seriously tions on a flawed record. It is for Maj. Op. 13. See at 1342. that I concur in the court’s these reasons ing hold- judge that the statements and the id., My colleagues 14. text at notes 13-20. prosecutor do not constitute error. holding, seek to defend their gun charge erred when she stated that probably Appellant 15. See Brief for 15-16. would not be dismissed if Robinson possession weapons, part testified to ment has hardly apprised been of the rele- an adequate afford upon foundation which fraud, vance of much less afforded any sort to determine whether the remarks of the of meaningful opportunity pursue in this case bred plea bargain. circumstances less, error of any then, sort. Much is there suggestion or Any factual determination holding basis for the District Court this court that engage Robinson did not in proceedings disclose the “miscarriage of fraudulent or deceitful conduct is both pre- justice” required by the Supreme Court for unfounded, mature and and we thus should finding of plain error within the terms of prejudge ques- merits of the fraud 52(b).17 Rule adversely tion Government a rec- ord made barren Blackwell’s own failure register objection seasonably.16

So, even if the partial court’s resolution

of the constitutional issue belatedly ad-

vanced Blackwell is a correct explication law, there remains insuperable

obstacle that appeal the record on does not Johnson, 266, 291,

16. See Price unambiguous 334 U.S. must appellate facts before an 1356, (1948) cutting L.Ed. requiring determination off or retrial (“[a]ppellate courts proper”). cannot make factual deter- may rights minations which be decisive of vital where the crucial facts not been devel- Frady, 152, 17. See United States v. 456 U.S. oped”); Collins, 68, U.S.App.D.C. Brown v. 14, 163 n. 102 S.Ct. 1592 n. (1968) (‘‘[wjhere the rec- (1982). L.Ed.2d 827 n. 14 claim, legal ord shows no reference to the

Case Details

Case Name: United States v. Claude L. Blackwell

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 10, 1982

Citation: 694 F.2d 1325

Docket Number: 82-1261

Court Abbreviation: D.C. Cir.