United States v. Esric Ricardo Lugg

BUCKLEY, GINSBURG, ordained, Before Congress plan D.H. SENTELLE, Judges. and Circuit per- majority has rewritten with a most standing verse use of the doctrine. Opinion for the Court filed Circuit Judge SENTELLE.

SENTELLE, Judge: Circuit (“Lugg” “appel- Lugg or Esric Ricardo lant”) of con- appeals from his conviction America STATES UNITED cocaine with intent spiracy possess 846. in violation of U.S.C. distribute He asserts that the § LUGG, Appellant. Ricardo Esric District Court erred No. 88-3174. co-de- refusing compel the Appeals, Court by the defense fendant witnesses called Circuit. of Columbia District pleas had entered after those co-defendants 11, 1989. Argued Oct. the District guilty. As we find that error in its committed reversible Court Decided Dec. 1989. us, af- rulings questions on the before Rehearing and

Opinion on Denial of for the reasons more firm the convictions March 1990. Rehearing En Banc fully set out below. Background I. The indictment in originally this case charged appellant and four co-defendants conspiracy possess with cocaine with intent to distribute violation of 21 U.S.C. The indictment additionally § charged co-defendants, some Lugg, but not with other related Two defen- dants, Dennis Fuller Fyffe, and Michael fugitives were The other at the time of trial. two, Corinthia Robinson and Goff, pleaded guilty pursuant Sharon plea agreements which will be further dis- therefore, Appellant, cussed below. stood trial alone. The offered evi- dence to the Fyffe effect that Fuller and ran a crack distribution business from the apartments Goff; of Robinson and Robinson, appellant lived with while Fuller (both Fyffe Yorkers) stayed and either New Robinson Goff while the Dis- Columbia; trict of and that the three male kept supply defendants in Goff’s of crack cocaine apartment and sold from Robin- apartment. son’s Both Robinson and Goff transported and sold crack in return for money dence further tended to show that drugs. government’s evi- Lugg Fuller, drugs drugs received rectly male defendants sold di- himself, gave drugs to the fe- for re-sale. conspiracy theory, further support its government presented testimony from rela- they tives of testified that Robinson who apartment during peri- had lived at her by this Baskir, appointed M. Lawrence conspiracy given od of the crack Court, appellant. for Fuller, by appellant, Fyffe. cocaine Both relatives further testified that sold the cocaine and returned the Atty., with Bestor, Asst. U.S. Geoffrey Atty., money Stephens, U.S. Jay B. whom John Washing- given of the three had them the Fisher, Atty., whichever Asst. U.S. R. brief, appellee. drugs, retaining money while some of ton, D.C., privilege after drugs payment Fifth Amendment continued receiving as govern- guilty plea pursuant entry by in the sale. Other her of a participation ment evidence er the to drop testimony plea agreement included as to oth- a to all conspiracy each charges, especially agreement cocaine because details of the provision physical obtained under search contained a that evidence apartments testimony “if warrants executed at two witness would offer truthful needed.” In appellant proposition, support of that March Pardo, offers United States government’s of the After the conclusion (D.C.Cir.1980). Appellant 636 F.2d 535 cor- case, attempted the defense to call co-de- rectly argues in held that a Pardo we Appellant’s fendants Goff and Robinson. honoring in district court had erred Fifth Amendment claim of a witness who sub- testimony proffered trial counsel he through expected to introduce these two previously plea bargain entered a had stantially witnesses, proffer a on information based the same as those entered attorneys represent- himby received is, witnesses in this case. That the witness proffer ing the witnesses. The claimed Goff, Pardo, in agreed like Robinson testify that there had been Goff would count, plead guilty to one and the $68,000 apartment her when the search government agreed drop all other $39,500 than as re- was conducted rather In against the witness. Pardo we ported by police, and that Fuller had noted that apartment immediately left the before police execute the warrant. He arrived to is well established that once a wit- ‘[i]t testify also claimed that Robinson would the transac- ness has been convicted for police that she overheard a radio trans- question, longer in he tions is no able to confirming mission the amount of the mon- privilege claim the of the Fifth Amend- $68,000 ey at and that she overheard a may compelled testify.’ ment and apart- conversation between officers at her (quoting Rome- Id. at 543 United States v. indicating that the officers knew who (2d Cir.1957)). ro, 249 F.2d We apparently deliberately Fuller was and re- him, noted that same result of leased testimony in to the further course attaches the offense in contradiction officers’ “[t]he pled guilty if the witness they had not arrested Fuller being than question, rather because did not know who he was and following a trial” and that “the probable Appel- did not then have cause. convicted respect privilege is also lost lant contends that would an charges or counts of indictment which impeachment have been valuable for part plea agreement.” are dismissed as of a officers. Therefore, Id. because the witness had been it followed Pardo rep- each prospective two The pled guilty and counsel, took by separate resented sentenced, and because all other hearing out of the dire at a voir stand dismissed, protection charges had ques- response to jury. presence of longer the Fifth Amendment no extend- of ed to those counsel each trial tioning by appellant’s Thus, held that privilege Amendment Fifth her asserted failing the district court Pardo erred to all response against self-incrimination testify. compel the witness to wit- upheld the court The trial questions. nesses’ invocation re- Appellant significant, overlooks two in testimony. Appellant their to order fused objected, controlling, deed do and the distinctions between Par- now, then, argues he asserting as First, case. Fifth her waived each witness case, although each witness had guilty under rights pleading entered a pleaded appel- before agreement specific guilty, neither had been sentenced. As has lant’s trial. been held in circuits, several of our sister offering then rested without The defense convicted but unsentenced defendant “[a] guilty. jury found defendant evidence. retains his rights.” Fifth Amendment him a term The District Court sentenced Paris, United States v. 827 F.2d special together with a years fifteen (9th Cir.1987) (footnote omitted). Accord, Lugg filed the of $50. assessment appeal. Tindle, (4th Cir.1986); Khan, United States v. Analysis II. (5th Cir.1984); Appellant Domenech, asserts trial Cir. 1973). in holding erred noted, that each As our sister circuits witness’s Litiga Antitrust Container Corrugated defendant unsentenced but convicted (D.C.Cir.1981), com this tion, F.2d 875 protectable legitimate retains Amendment statu only on “formal founded testifying pulsion tory in not interest require” a witness immunity” and “to that could incriminating matters statutory immu Paris, not received such Tin who has See on his impact sentence. incriminating testimony ... Domenech, nity “to offer supra. dle, and at 887. peril.” Id. to do so at his would be case from this distinguishing Further though statutorily immunized wit Even nesses must Pardo, other the factor that is the Pardo incriminating testify as to prospective witness the against charges compul contempt, this pain on of matters dismissed, apparently already been had like extend to not sion does there, “the held weAs prejudice. with case, are not who those in the formally lost is also Amendment] [Fifth with dispo rather await immunized but an of charges or counts respect plea a charges, in the face of even sition of part of as a dismissed which are indictment case, either We have found agreement. Pardo, F.2d at 636 agreement.” plea a other, that has any this Court or a Indeed, that “when emphasized we testimony in face of a compelled the on a degree significant any plea rests solely the of privilege, on basis Amendment so prosecutor, the agreement of or promise sentencing long the plea a so as agreement the induce- part of to be it can be said that the other yet nor had not been conducted consideration, promise must such or contrary, To cases charges dismissed. the v. (quoting Santobello Id. be fulfilled." courts that witnesses from several indicate 495, 257, 262, 92 York, S.Ct. 404 U.S. New have breached their who sup- (1971))(emphasis 499, L.Ed.2d 427 30 prosecution on the otherwise subject are there Pardo). present case the plied e.g., United dismissible against Robinson charges other remained 172, (3d 175-76 Skalsky, v. States dismissed. not had which and Goff If for Cir.1988); Stirling, 571 v. bargain plea became the any reason (2d Cir.1978); 708, F.2d 731-32 United or if ineffective, example Robinson for 467, Pellon, F.Supp. 475 States plea if testimony or the gave false Goff F.2d (S.D.N.Y.1979), op., 620 without aff'd apart, reason came any bargain for Cir.1980). 286 dis- never might be charges the authori- appears any of the far as So compel Thus, could not court the missed. the a ties, entered into government if the has each witness’s face of testimony in the condi- agreement with a plea defendant privi- Amendment her Fifth of invocation testimony and tioned that defendant's upon unfair, and is that this Lugg asserts lege. of other government’s dismissal the immunity, as he as- a one-sided constitutes serts that com- bargain has been charges, until have could government the in fact and the pletely effectuated in chief in its case Goff Robinson or called dismissed, her Fifth the witness retains testimony. The fact her compelled compelled protection against Amendment government even if the is that matter the had and, government is if the testimony even and she or Goff called Robinson her, remedy for calling only the party the her refusal privilege, her Fifth asserted the testimony. the testify is revocation the compelled have could not originally con- prosecution bargain and templated, not as the Appellant’s assertion the witness compulsion of compelled the wit- have could government privilege. the assertion of face of her merit. testify without is nesses by authorities offered us defendant argument contrary. True, erroneous are not Appellant’s many eases have exercised government plea agreements have held can be en- in his confusion grounded government. See, forced compulsion e.g., Johnson, 509, those in which Mabry 504, present case with 467 U.S. 104 2543, 2547, a formal granted (1984); witness has S.Ct. 437 L.Ed.2d government 6001- York, 257, 262, 18 U.S.C. immunity v. New §§ under Santobello 404 U.S. use statutory provision. 495, 498, (1971). some similar S.Ct. 30 L.Ed.2d 427 statutory immu Presumably a valid True, the case of ease this would testi compelled to prevented government have dicting charges following can from in- nity, the witness Fifth Amend U.S. of the fy her assertion Robinson Goff dismissed over States, United of their Kastigar v. effectuation ment. 32 L.Ed.2d However, agreements. nor neither 92 S.Ct. Santobello In re However, noted in any as we nor (1972). Mabry other case offered Cir.1984)). also (7th See proposition stands appellant Alessio, compel can government we or not Whether pending a still under witness aof Circuits Ninth revoking the Seventh merely join would opposed agreement presented her side uphold view in this fails she bargain if facts do case, appropriate present agreement. If Robinson question. course, is, like argues, it appellant As trial exactly as testified Goff either called had the ly that presented would hoped, counsel at most prosecution testified she would or Goff Robinson aof impeachment questionable than rather prosecution on behalf mat- a collateral as to witness proposition this While bargain. her lose dep- to constitute it takes Whatever ter. rivation empower troubling, does bemay prosecution’s trial a fair of ignore the us to district discretion broad its exercise to failure immunity two witnesses rights not case does the grants, and defense by the called they were when refused it. argues testify. Appellant to been have could unfairness apparent the short, In Judge the did not in District err im granting prosecution alleviated granting immunity not he the Goff and munity to Robinson grant grant immunity der. ordering prosecution in not nor the to immunity. such have ordered should court Whether rect he when could not so or- cor is otherwise or not defendant had no immaterial, the court since is III. Conclusion cases immunity. The such power to order above, reasons set forth we con- For the Execu only the uniform that legion and are tive can no clude that the District Court committed immunity, not a statutory grant Consequently, error. we affirm reversible Payton, v. e.g., United States court. judgment. the Cir.1989); (8th United 1089, 1092 F.2d 878 564, Herrera-Medina, F.2d 853 v. States OpinionPer Curiam. Tay v. Cir.1988); (7th States United 568 concurring in result filed Statement the We 930, lor, 934 728 F.2d Judge by Circuit SENTELLE. rule to this universal exception are not PER CURIAM: the view approved previously “ for con- Lugg’s conviction affirming of the trial proper business not the is ‘it with intent cocaine possess propriety spiracy into the inquire judge prosecution’s 846, U.S.C. immuni of 21 § in violation grant use distribute refusal to ” decision that court’s the district upheld United we prospective witness.’ ty to (D.C. 1238, amendment 1283 fifth Heldt, two witnesses’ v. States after “continued against v. Turk self-incrimination Cir.1981) States (quoting United plea (Lumbard, guilty of a Cir.1980) entry by (2d the pursuant them] ish, [each 769 drop agreement to all to a J., concurring part)). op. 102. This charges.” Panel at indicated cases Some independent upon two rested conclusion grant compelled may grounds that ear- distinguished from our it immunity “extraordi witness defense nary Pardo, 636 v. United States lier decision See, e.g., United circumstances.” (1980): (1) “although each 535, 542-47 F.2d (2d 927, Cir. Pinto, F.2d v. States plea agreement had entered a witness pleaded guilty, Praetorius, 622 v. 1988); States United sen- neither had been Cir.1979), denied cert. 1054, 1064 F.2d Government, tenced”; (2) although States, 449 U.S. Lebel v. United nom. sub agreement with part (1980). L.Ed.2d 101 S.Ct. charges drop the agreed to had occur seems effect to that Language them, charges “had not those mis prosecutorial in instances largely conduct, op. 103. Panel dismissed.” been instant which presents a rehearing now petition for Cir and Ninth the Seventh At least case. the second thinking that strong reason may inter that courts indicated cuits have was incorrect. decision basis for our immunity decision prosecutorial vene agreed plead not to Once the witnesses decision prosecutor’s “[w]here immunity exchange has ‘dis for the guilty to one count use a witness grant ” process,’ fact-finding promise dismiss Government’s judicial torted] J., them, dis (Kozinski, charges against the Government was Paris, F.2d at then Taylor, agreement and could not bound States senting) (quoting United that it charges colleagues’ analysis for the try subject them decide to Newv. question to dismiss. Santobello would leave that is the office agreed day for a when 495, 498, York, necessary. 92 S.Ct. I 404 U.S. do not understand it to be Pardo, 636 F.2d at (1971); of an Article III 30 L.Ed.2d Court to decide was so Moreover, unnecessary questions. the Government 543. regardless of whether bound formally dismissed. See Blackwell, Thus, assuming that (D.C.Cir.1982). BRIDGESTONE/FIRESTONE, the Government arose to release problem INC., Appellant, appar- agreement, the Government from its prosecuted wit- could not have ently agreed it had charges that for the nesses BENEFIT GUARANTY PENSION aof formal even in the absence dismiss CORPORATION, et al. of those dismissal No. 88-7270. hand, something if did arise the other On Appeals, Court required the district court to release Circuit. of Columbia District witnesses from their Argued Nov. (for example, claim of ineffective a valid of counsel at the time assistance Decided Dec. agreement), the Govern- entered into 22,1990. As Amended Feb. likely have reinstated the ment could dismiss, agreed to re- charges that it had gardless of whether the district court had already e.g., entered the dismissal. Lynaugh, Fransaw We have no occasion whether, if the witnesses had comment on time, their testified used them once the be were reason, reinstated; no how- we see ever, question why the answer to that the dismissal had would turn on whether entered. ever been that the be correct Lugg may therefore dis- having entered the district court’s missal of charges against the witnesses bearing upon his trial has the time of fifth amend- their they retained whether necessary for us privilege. It is time, however. matter at this resolve the to As noted above, also rested decision our that the wit- independent ground upon the at the sentenced had not nesses time of certainly had a They Lugg’s trial. account, privilege on that fifth amendment excusing no error there was and thus Lugg’s trial. testifying at them from Petition denied. SENTELLE, Judge, concurring in Circuit result: my colleagues I concur with Lugg presented has nothing warranting us re- hearing. I further concur with them that it necessary ques- is not for us to resolve the entry

tion of whether or not of dismis- Goldsmith, whom Patricia sal affects witness’s retention of Fifth Willis J. privileges. Since it is not nec- Anklam, Washing- E. A. Dunn and James essary I engage my see no reason to brief, D.C., appellant. ton,

Case Details

Case Name: United States v. Esric Ricardo Lugg

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

Date Published: Mar 2, 1990

Citation: 892 F.2d 101

Docket Number: 88-3174

Court Abbreviation: D.C. Cir.