*2 MURNAGHAN, Bеfore SPROUSE and ' CHAPMAN, Judges. Circuit CHAPMAN, Judge: Circuit Indicted on two counts violating § Appendix 1202(a)(1), States Code which makes it a crime for pos- a felon to firearm, sess a Gary Teague Arthur ap- peals his conviction as to Count One. In a acquitted trial he was as to Count by Two. He claims error trial admitting alleged posses- into evidence an sion of a firearm not mentioned in the indictment, admission of as to illegal gun witnesses, sales one of his and claims that his sixth and fourteenth rights amendment were violated the as- sistant in threaten- ing intimidating one of his wit- main Finding nesses. no merit in of these exceptions, we affirm.
I 17, 1975, April Teague On was convicted Superior County, in thе Gaston breaking North Carolina of felonious entering. As a convicted felon he became subject to the federal restrictions as to of firearms. On June Teague, being then a resident of North Carolina, went to a Western Auto Store in Clover, Henry Phillips, South Carolina with resident, Larry South Mar- Carolina tin, a North Carolina resident and licensed gun Phillips dealer. testified that buy gun Teague, him to asked since Teague was not a resident of South Caroli- na, but that did not tell him that he According was a convicted felon. to Phil- lips, Teague picked out a .45 caliber Colt pistol, Commander serial number Nelson testi- caliber automatic for purchased $300. Phillips then 70BS74237, which weapon showing Phil- fied that he saw the form the 4473 out and filled agents leaving the time. The did not possession at the Upon purchaser. lips as the money purchase to make the Store, Phillips gave enough have Auto Western time, days later returned two at that but Teague. *3 Teague that he upon inquiry advised and 1979, 31, Teague arrest was January On gun. possession already The had sold County, North Carolina by a Gaston ed 17, in the April 1980 is not covered and drunken for reckless police officer indictment. no During the arrest the officer driving. pistol on the floor caliber day a .45 morning ticed of the second On the the same This was Teague’s automobile. trial, attorney the court Teague’s advised 8, 1978 and was purchased on June weapon that assistant arresting depu by officer to a delivered intimidated his had threatened and Stuart County. pistol The of Gaston ty sheriff court conduct- Larry Martin. The identification and retained tagged for claim, was jury’s hearing on this out of the ed a at the Sheriff’s custodian by the evidence further proceeding and presence, before firearm is possession of the This Office. testimony. The evidence showed first count in the indict for the the basis Stuart, day trial Mrs. that after the first ment. go- having aware that Martin was become called Don ing to a defense witness thereafter, Teague contacted Shortly Bumgardner, attorney, Martin's ad- and go him to to the Sher- Phillips and asked perjured him that if Martin himself vised Teague pistol. and claim the iff’s Office hearing from the United he would be at- Office and to the Sheriff’s had been pre- Attorney’s office and Martin’s weapon saying that it tempted to claim agreement would be re- trial diversion Teague did not belonged a Since to friend. passed along This information was owner, voked. the custodian claim to be attorney, by his who advised him, to Martin so contacted not deliver it telling prosecuted for he could not be They to the Western Auto Phillips. went truth, any way he could if there was but copy in Clover and obtained Store testifying he should do so. owner, get out of showing to be the Phillips form court, morning prior to Martin on following of this form to the custo- upon presentation sought Mrs. out Stuart. automatic, his own initiative bearing Colt dian the .45 caliber by any- her or not been contacted above, He had the same serial number mentioned refused to dis- from her office. She one Phillips immediately was delivered to who him, him but told cuss the matter with May Teague. This occurred on gave it to his trying to interfere with she was not charged in and is the perjure not testifying he had bettеr but the second count of the indictment. himself. he not know the Teague testified that did hearing, the concluded court After
pistol automobile at the time was his government had from the arrest, left that no one that it must have been his only and he had been Martin his threatened by Phillips, there who had borrowed testify truthfully. Martin However, admonished Phillips denied ever borrow- car. as defense witness and take the stand Teague’s the car of did ing Teague’s car or he, as a North Carolina wife, pistol day testified seeing the after the or ever dealer, pistol transferred the .45 Colt had Teague asked him to purchase of its until Clover, Auto South to the Store North Western retrieve it from the Sheriff’s Office. legally it could be in order that that he Carolina agent Nelson testified Carolina SBI Carolina, by Phillips in South purchased working capacity undercover in an Phillips purchased by that it was April 1980. and ATF agent with an use, he did not see Phillips’ personal Hideaway they in Rick’s While were Teague and had never Phillips. give it to to sell them a .45 lounge, Teague offered determining possession. He stated whether the defendant com- seen it charged in mitted the act or acts large pistol automatic the indict- had seen a keeping the ment. This is in with this Phillips’ about three weeks after court’s hand time, suggested procedure. Masters, “At the He also testified: See U.S. purchase. (4th Cir.1980). charge alcoholic and This Phillips Mr. awful bad give repeated also in the final pills.” to take Martin could instruc- was bad January tions. no as to the events 21, 1979, May possessions 1979 or indictment, because he was covered HI when was arrested nor Appellant complains of the’ court allow- pistol was reclaimed from when ing his witness Martin to be cross exam- Office. Sheriff’s alleged prior gun ined about sales Mar- *4 charges of the indictment count Each through tin to the defendant intermediar- ownership, only possession, and not of the testimony ies. This follоwed a bench con- only on weapon. convicted judge at clearly ference which the trial possessing knowingly of the .45 Count One explained weighed pro- that he had at the time of his traffic arrest caliber Colt posed questioning line of under Rule 403 31, testimony The of January on probative prejudi- it and found more than help him or hurt him on Martin could explained coming cial and that it was knowingly having possession, issue of only purpose impeaching for the of time, at that actual or constructive either testimony direct of Martin that he had not Teague was alone in the vehicle
because possession seеn the defendant in of a fire- weapon. felony arm since defendant’s conviction. The evidence also admitted to show II possible of Martin. bias There no error in the admission scope permissible impeach The of testimony Special Agent of Nelson gener ment of a in a criminal trial witness In of the North Carolina State Bureau of ally is committed to the sound discretion of had offered to vestigation that defendant court, the trial which discretion must be a .45 caliber Colt automatic sell Croswell regard for the defend exercised with due Hideaway Lounge for at Rich’s on $300 rights. ant’s v. constitutional U.S. Domin 17, April testimony 1980 and the оther sur (4th Cir.1979). 304, 604 F.2d 310 guez, rounding this incident. Prior to line of this showing There has no of an abuse of been questioning, attorney the prosecuting ad present discretion in the case or that the vised counsel and the court defense rights constitutional were in defendant’s testimony nature intended and its any way abridged by this cross examina intent, purpose knowledge to show and ab tion of Martin. witness sence of mistake under Federal Evidence 404(b). A Rule voir dire examination of
Agent Nelson was conducted outside IV jury’s presence and the court found this pro Defendant claims that his due testimony pur admissible for the intended rights were violated the action of cеss pose probative found it than also more attorney assistant United States Stuart prejudicial under Rule 403. attorney calling the Martin and witness addition, advising perjured that if Martin himself he immediately receipt after hearing from the United jury, this before the the court be States would pretrial agreement gave charge instructing an excellent and his diversion that it could consider such be revoked. This is not the identical act only trying to determine the defendant’s that we condemned United States v. intent, 468, (4th motive, knowledge MacCloskey, or state of mind 682 F.2d 479 Cir. 1982), similar, it and such could not considered but is and since MacClos- 382 possessed owned or yeаr almost a before the this firearm. He
key was decided tried tried, Phillips’ testimony by accusing the United States to discredit present action was time, drinking heavily during have been aware him of Attorney’s office should this making any unso and he testified that he of it and refrained had never seen prospective possession for a defendant in licited call to an a firearm since felony them of the to remind conse defendant’s conviction. calls are unnec quences perjury. Such However, give helpful he could no testi- in criminal essary because most witnesses mony about of the laws false cases are aware January weapon charge dangerous are swearing. Such calls also convicted, upon which he was because dangerous they can because foolish— Teague was alone when arrested for driv- process right due a defendant’s violate ing weapon under the influence and the freely, his defense witnesses inwas the vehicle with him. warnings given by foolish because of the leading case on witness intimidation court and others. this United States v. depriving a defendant of due supra., MacCloskey, United States v. Mor Texas, 409 U.S. 34 Webb S.Ct. (3rd Cir.1976), rison, 535 F.2d (1972) L.Ed.2d which the court found Hammond, F.2d 1008 that the action of the' trial intimidat- Cir.1979) Thomas, and United States v. only ed the defensе witness such an (6th Cir l973).1 extent that he was driven from the witness *5 MacCloskey open question In we left the testify stand and did not for the defendant. warning of whether such a call or to a prior The witness Leslie Mills had a crimi- attorney consequences witness’ serving prison nal record and was then perjury could be harmless error. Under judge sentence. The on his own initiative in particular the facts this case we find no the admonished witness: prejudice resulting to the defendant from you Now have been called as a down the and therefore the call action of the in this case the witness Defendant. It attorney assistant United States was harm- duty you is the Court’s to admonish that less. you testify, anything don’t have to judge The trial you say against you. was advised of what had can and will be used happened hearing, you and conducted a If out of take the witness stand and lie jury’s presence, oath, personally at which the facts were under the Court will see thoroughly developed testimony your goes Jury from case to the Grand Martin you perjury and statements from the assistant and indicted for and will be you get United States and defense attor- the liklihood [sic] ney. The court perjury was satisfied that Martin convicted of and that it was be by any you already got, had not been threatened federal stacked on to what have agent attorney. or It you got is obvious to us from so that is the matter to have reading up your you get Martin’s that he mind If did all make on. lie, to probably could assist defense. stand and it is witness going Martin testified that he years had been a licensed to mean several and at least gun you’re dealer in North going Carolina June 1978 more time that to have to arranged against you and had to transfer the cali- It also held .45 serve. will pentitentiary you’re up pa- ber Colt automatic to the dealer in when Clover, you South Carolina so that it and the to thor- could be role Court wants legally purchased by Phillips, oughly you who undеrstand the chances are by getting South taking Carolina resident. He swore on the witness stand part may had no in this transaction and never under oath. You tell the truth 1. Each of these cases resulted ain remand for a or invoked the fifth amendment and new because helpful trial a defense witness was intimi- to the defendant was not received. point testify dated to the that the witness did not do, right, you expected but if lie much of the evidence he had you if that is all her. The you get into real trouble. can that. You don’t owe you to know
wants
Hammond,
In
supra,
United States
testify
it
anything to
and must
anybody
the Fifth Circuit restated its rule that sub
voluntarily and with
freely and
be dоne
government
stantial
interference with á de
you
thorough understanding that
unhampered
fense witness’ free and
choice
taking.
you
hazard
are
know the
testify
process rights
to
violates the due
the defendant.2 Hammond involved a
objected
counsel
to these com-
Defense
warning
given
agent
that was
an FBI
to
claiming they put the witness under
ments
important
during
recess,
a court
freely
duress that he could
such
actually
but while the witness was
on the
testify
voluntarily decide whether
warning
The
stand.
was to the effect that
court had not admonished
that the
if the witness continued with his
witnesses
a similar fashion.
the State
nothing
he would have
but trouble in a
Supreme Court found that
the trial
The
case,
pending,
Colorado state criminal
then
“effectively drove that witness off
judge
agent
of which the FBI
aware.
stand,
deprived
petitioner
and thus
morning
next
this witness as well
anoth
as
under the fourteenth
due
of law
subpoenaed
er defense witness were
before
at
2. The rule was Cir.1977) Henricksen, codefendant that he not at Hen- States v. ricksen’s government confessed error on in which the trial. dricksen’s Attorney appeal had where the United States January MacCloskey, supra, In ed so he could not United States attorney give any testimony States became aware about of the weapon produced during the trial that the defendants intend- which the conviction. Patsey to call Edwards as a witness. ed per We do not feel that there should abe attorney for He then called the Edwards preventing any se rule contact between the him that “He would be well-ad- and told prosecutor attorney and an for a witness that, client if vised to remind his she testi- prevent perjury, made an effort to trial, MacCloskey’s she could be fied at prejudice since no to the defendant resulted reindicted if she incriminated herself dur- case, judgment from the contact this ing testimony. Thereafter a voir dire hearing conducted and she testified was AFFIRMED. presence way of the in a out of the exculpatory completely of both her and MURNAGHAN, Judge, Circuit dissent- MacCloskey. When she was called as a ing: many to she refused answer of the I fully agree panel While opin- with the great had questions she answered in which ion insofar as it sanctions the admission of the voir dire and advised detail at that she regarding Teague’s evidence alleged pos- invoking privi- her fifth amendment of a session firearm not mentioned lege she was the indictment because afraid prior gun purchases indictment and of his against her be dismissed. The Martin, I majority’s do not share the defense motion to introduce the voir dire view that the action of Assistant United testimony pursuant to Rule 804 was de- Attorney Stuart constituted no viola- nied. stated that her rеason Edwards process tion of rights. due invoking the fifth amendment warning attorney. particular, I disagree majori with the deprived MacCloskey important ty’s conclusion that suffered no exculpatory testimony. approach harm from the initiated prosecutor to pur Martin’s in a case, In the was not de- ported guard against perjury.1 effort prived of his witness’ and the majority While the analy would confine its transcript reflects that the witness Martin finding sis in this situation to a gave all favorable that the “dangerous Stuart’s conduct was and fool expected. defendant could have There was ish,” I would hold that her actions consti threatening no intimidation or of the wit- tuted a due violation harmful ness the court as in There was Webb. Teague in their pre interference with his by any agent no direct threat to Martin *7 sentation of witnesses in his defense. government the as in and Hammond Thomas and no direct emphasize teaching threats or harass- I would thus ment Supreme Texas, the United States as in the Court 409 Webb 351, In each requiring (1972) Morrison. of the cases 93 S.Ct. 34 U.S. L.Ed.2d 330 reversal, curiam), the defendant (per was denied either in which the Court reversed appellant’s granted all of the of the intimidated wit- conviction and a new helpful testimony ness or all of the upon finding judge from trial a that the trial presеnt In “effectively witness. case drove sole wit [the defense] got helpful testimony all of the from Mar- ness off the stand” his extended admo tin that he anticipated. sponte during jury had Martin was nitions issued a sua present not at the time arrest- was recess.2 The witness’ refusal even to take emphasized ap- charge support perjury contradictory 1. It should be that Stuart’s a if forthcoming. proach simply evidence were to counsel for Martin was exhortation. It was not based on the availabili- witness, “[Ajnythmg 2. The trial told the ty of factual information in the Government's you say you____ against can and will be used hands, witness, might unknown to the which anybody anything testify You don’t owe to and
385
against
fense. Since the evidence
by majority of the
deemed
[the
was
the stand
violation,
overwhelming
not
we
...
process
a due
to constitute
defendant]
Court
say that
right to
are unable to
the error was
denied the
appellant was
insofar as
his own de-
harmless.
to establish
witnesses
present
v. Tex-
Quoting
Washington
fense.
(emphasis original).
at 479
Id.
1920, 1923,
87 S.Ct.
as, 388 U.S.
quite
case is
similar to that of
(1967), the
reiterated
L.Ed.2d
MacCloskey, presenting
the defendant
“is
right
to
witnesses
prosecutorial
gratuitous
ad
an instance
of due
element
fundamental
justi
of factual
monitions
were devoid
at 353.
at
93 S.Ct.
409 U.S.
law.”
Moreover,
the evi
fication of
kind.
recognized the
has likewise
Teague,
against
This Court
like that
dence
right, and has
was,
mind,
nature of the
my
fundamental
MacCloskey,
defendant
governmental
trial when
granted
Thus,
a new
overwhelming.”
error
“not
Stuart’s
the unfettered
overbearing undermined
deemed harmless.
It is true that
cannot be
testify free
witness to
of a defense
choice
real
Martin’s counsel believed
Stuart’s
MacCloskey,
ly.
In United States
that Martin should be admon
concern was
Cir.1982),
the United States
manner,
testify in a truthful
and
ished to
made, on the
prosecuting the ease
Attorney
try
time
to influence
that at no
did Stuart
trial,
for a
a call to counsel
day of
particu
second
in a
counsel to have Martin
origi
who herself had
Nonetheless,
key defense
her communications
way.
lar
the defendant.
indicted with
nally
counsel,
been
then to Martin himself on
first
Attorney
Specifically,
testified,
the United
left no doubt that “she
day
he
be well
that the witness would
suggested
expected completely truthful
...
fifth amendment
her
testify truthfully
advised to invoke
a failure to
...
and that
to take the
she choose
privilege should
result in a review of
de
[Martin’s]
reindicted if
stand,
that she could be
agreement.”
prosecution
Stuart
ferred
herself.3
she incriminated
counsel that “the
admitted she told
herself
agreement would be re
pretriаl diversion
result,
when the
MacCloskey,
As a
perjured himself.”
if
voked
[Martin]
stand,
she claimed
took the
witness
of “the truth” should
own version
Stuart’s
thirty
privilege some
fifth amendment
The issue of truth vel
predominate.
answer cer-
thereby refused to
times. She
prosecu
jury,
for the
not for
non
that she had
questions before
tain
Court,
by the
questioned
trix. When
exculpa-
completely
in a
fully and
answered
that, although no
Martin admitted
during her
tory fashion for the defendant
Attorney’s Of
the United States
one from
Finding reversible error
prior voir dire.
directly,
him
threatened
fice had ever
trial, the Court ob-
granting a new
“good
they
there was a
chance
did feel that
served:
charge
try to
probably would
[him]
primary
defense witness.
[She]
pretrial release” if
nullify
perjury
[his]
gave in the first voir
she
(as perceived by
truth
from the
he deviated
contradicted, or
detailed and
dire was
Stuart).
to,
explanations
innocent
offered
[other]
sure,
did take the stand and
short,
To
Martin
testimony.
her de-
damaging
*8
exculpatory manner for
fully
in a
de-
testimony
vital to
was
tailed
[the]
original
thorough
the
indictment
While it is true that
under-
3.
... with the
it must be done
dropped
against
had been
before the
the witness
you
you
are
standing
know the hazard
that
began, the witness testified at
defendant’s trial
95-96,
taking."
S.Ct. at 352. He
U.S. at
93
409
was
the trial
that "she
voir dire before
prior
who had
the
also reminded
would not be dis-
afraid that her indictment
serving a sen-
was then
record and
criminal
Thus,' her fear of
Teague, pleading never harmless”). Nonetheless, although the tran- ment. seemingly in a testimony reads script his of case, appears In the instant it that we reviewing the for one
forthright manner
say
cannot
that
contacts
“absent [Stuart’s
that
text,
problem remains
beyond
the
that
printed
it
clear
a reasonable doubt
is]
cannot
the
would have returned a verdict of
this Court
after-the-fact
review
Hasting, 461
United States v.
guilty.”
import of the crit-
adequately
the
discern
499,
1981,
1974,
103
76 L.Ed.2d
U.S.
S.Ct.
of the
subliminal effects
ical nuances and
Hasting,
(1983).
Supreme
the
96
Court
his testimo-
in
Martin delivered
way which
Appeals’
the
of
order for
did reverse
jury. Martin told
trial
ny
before
improper closing
trial
a new
based on
“the
in
he knew
bind
judge that
was]
[he
argument
prosecutor,
the error
since
here,”
like
up
and that he did not
testifying
beyond
was determined to bе harmless
”
here;
argument, Teag-
“being up
at oral
Finding
reasonable doubt.
that “a more
that Martin’s de-
represented
ue’s counsel
compelling
guilt
imag-
case of
is difficult to
those of one who
livery and demeanor were
given
overwhelming weight
eye-
ine”
Particularly
scared.”
“nervous and
was
testimony
against
adduced
the de-
herself conducted
cross-ex-
since Stuart
Hasting reempha-
fendants,
the Court
amination,
upon
pressure
Martin could
Chapman
v. Califor-
teaching
sized the
constantly
rather
dissipate, but
was
not
nia, 386 U.S.
824,
87 S.Ct.
17 L.Ed.2d
eyes in the form of an ever-
his
before
(1967),
duty
that “it is the
of a review-
watchful,
potentially menacing United
ing court to consider the trial record as a
Attorney.
ignore
and to
errors that are harm-
whole
less,
tions____”
including most constitutional viola-
scenario,
this factual
it would be
Given
—
at-,
U.S.
103 S.Ct. at
reviewing court to determine
difficult for a
(citations omitted).
testimony
jury’s
Martin’s
and the
whether
Teague’s
may
readily
situation
distin
actually
reaction to it
affected
were
guished from that of the defendants
Stuart’s actions: a search
indications of.
Hasting,
however. The evidence
testimony
possible changes
his
truly “compelling,”
was not
require a skill in divination
a court of
testimony
specifical
Martin’s
was directed
simply
possess.
gen-
not
As a
review
doеs
Phillips’ purchase
ly to the issues of
proposition,
eral
because
witness is
possession
gun,
of the
and to the
continued
subject to
and instanta-
subtle motivations
gun
fact
that Martin never saw
decision-making
neous
while on
stand
majority
Teague’s possession.
asserts
(influencing
aspect
every
on
that because Martin was
choice,
from word
to tone and conviction of
January
arrest
1979 when
voice),
a clear-cut determination
whether
gun,
in his car with the
Martin “could
ed
prosecutorial misconduct did or did not
helpful testimony
give no
about
have a harmful
on the
of a
effect
weapon”
day.
possession of the
How
may
defense witness
often elude
Court.
ever, Teague vigorously contested that he
Morrison,
Compare
United States v.
gun
any knowledge
had
that the
his
Cir.1976) (Court
(3rd
acknowl-
car,
Phillips
and testified that
had bor
edges that
the Government has
“where
gun
the car and left the
under the
rowed
prevented the defendant’s witness
Thus,
front seat.
Martin’s
jury, it cannot
testifying freely
Teague’s knowing
before the
critical on the issue
jury,
January
have be-
on
1979.4
be held that
would not
section,
U.S.C.App.
port a conviction under the
it must be
is true
a violation of 18
It
specific
predicated
pos-
in-
1202 need not be
the defendant knew he was in
§
shown that
Harvill,
States v.
COMMISSION, Petitioner,
FEDERAL COMMUNICATIONS COM- and United
MISSION
America, Respondents, Telephone Association,
North American al.,
et Intervenors.
No. 83-1136. Appeals, Court of
Fourth Circuit.
Argued Oct. 1983.
Decided June Rehearings In Banc
Rehearings and 3, 1984.
Denied Oct.
Widener, Judge, Circuit dissented and opinion.
filed
him).
prove
prejudice”
"substantial
to obtain reversal
But see United States v.
dence
Simmons,
grounds
prosecutor
conviction on
de-
670 F.2d
372 n.