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UNITED STATES v. DURAN

April 7, 1995

UNITED STATES OF AMERICA
v.
FRANCISCO MARTIN DURAN, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 INTRODUCTION

 On March 20, 1995, the first day of trial in the above-captioned case, the Court was advised that a Government witness, David Millis, wished to assert his Fifth Amendment privilege against self-incrimination with respect to any questions regarding his alleged involvement with illegal drugs subsequent to Mr. Millis' last encounter with the Defendant on September 30, 1994. After extensive colloquies with counsel, the Court appointed a lawyer for Mr. Millis to advise him of his rights under the Fifth Amendment. After consulting with his client, counsel for Mr. Millis represented to the Court that Mr. Millis had a valid Fifth Amendment claim. The Court agreed.

 The question then arose as to whether counsel for the Defendant could nonetheless inquire of Mr. Millis' alleged drug use after September 30, 1994, knowing of Mr. Millis' intent to assert his privilege. Pursuant to the Court's direction, both sides submitted a Memorandum on the issue, and the Court orally ruled on March 21, 1995 that counsel for the Defendant could not ask questions of the witness regarding use of illegal drugs subsequent to the time of Mr. Millis' acquaintance with the Defendant. The Court also declined to strike Mr. Millis' testimony, as the Defendant had alternatively requested. This Memorandum Opinion shall set forth the Court's reasons for its ruling.

 DISCUSSION

 In his Memorandum, the Defendant argued that the. Court should either preclude Mr. Millis from testifying or allow counsel for the Defendant to ask questions before the jury to which Mr. Millis would assert his privilege. The Court finds no merit to either request.

 I. NEITHER THE DEFENDANT NOR THE GOVERNMENT MAY ASK QUESTIONS OF A WITNESS SOLELY FOR THE PURPOSE OF REQUIRING THE WITNESS TO INVOKE HIS OR HER PRIVILEGE BEFORE THE JURY

 Although a witness other than a criminal defendant cannot properly invoke the Fifth Amendment privilege against self-incrimination to avoid appearing at trial altogether, he or she can invoke the privilege to avoid answering incriminating questions. Allen v. Illinois, 478 U.S. 364, 368, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986). Moreover, "it is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense." Bowles v. United States, 142 U.S. App. D.C. 26, 439 F.2d 536, 541 (D.C. Cir. 1970) (en banc), cert. denied, 401 U.S. 995, 28 L. Ed. 2d 533, 91 S. Ct. 1240 (1971).

 In Bowles, counsel for the defendant argued that the fact that a witness had invoked his privilege should be brought to the attention of the jury. The Court disagreed, observing that "the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination." Id. at 542. The Court further explained that "an obvious corollary to these precepts is the rule that a witness should not be put on the stand for the purpose of having him exercise his privilege before the jury as this would only invite the jury to make an improper inference." Id. (citation omitted). See also San Fratello v. United States, 340 F.2d 560, 565 (5th Cir. 1965) (reversible error in permitting prosecution to call witness so as to require her to claim Fifth Amendment privilege in the presence of the jury). *fn1"

 Such is precisely what the Defendant sought in this case, however. Knowing that Mr. Millis would assert his privilege as to any inquiry about his alleged drug use after September 30, 1995, defense counsel nevertheless wanted to ask potentially incriminating questions solely for the purpose of allowing the jury to hear Mr. Millis invoke the Fifth Amendment. Because the only conceivable reason for seeking such a procedure was an impermissible one, namely, to invite the jury to draw inferences from Mr. Millis' decision to exercise his constitutional right against self-incrimination, the Court finds that the Defendant was not entitled to it. See United States v. Reese, 183 U.S. App. D.C. 1, 561 F.2d 894, 899 (D.C. Cir. 1977) (defendant has no right to put witness on the stand simply to require him to assert the privilege). *fn2"

 II. BECAUSE THE ANTICIPATED CROSS-EXAMINATION RELATED TO A COLLATERAL CREDIBILITY ISSUE AND THE JURY HAD AMPLE INFORMATION TO APPRAISE THE BIAS, MOTIVE AND MEMORY OF MR. MILLIS, THE COURT DECLINED TO STRIKE HIS TESTIMONY

 While the Defendant's contention that the jury should hear Mr. Millis invoke his privilege is contrary to law, the Court, in the exercise of its discretion, found no basis for striking Mr. Millis' testimony. See United States v. Viera, 819 F.2d 498, 500 (5th Cir. 1987) ("control over the conduct of the trial, including the scope of permissible cross-examination, is squarely within the discretionary powers of the district court"). Although the Defendant contended that cross-examination of Mr. Millis on his drug use after his last meeting with Mr. Duran was important for assessing Mr. Millis' motive, credibility, and memory, the Court finds that "'the jury had sufficient information to appraise the bias and motives of the witness.'" Id. at 501 (quoting United States v. Ray, 731 F.2d 1361, 1364-65 (9th Cir. 1984) (internal quotation marks omitted)).

 The Defendant cited United States v. Humphrey, 696 F.2d 72 (8th Cir. 1982), cert. denied, 459 U.S. 1222, 75 L. Ed. 2d 463, 103 S. Ct. 1230 (1983), to support his claim that the questions he wished to ask of Mr. Millis involved "'direct' matters, as opposed to 'collateral' matters." Defendant's Memorandum at 3. Curiously, however, the passage the Defendant quotes from Humphrey serves rather to bolster the Government's argument against striking Mr. Millis' testimony. The Humphrey Court observed that, "if . . . the refusal [to answer] relates to collateral matters, such as credibility, the danger of prejudice to defendant is considerably less, and the witness' testimony may not need to be stricken." Humphrey, 696 F.2d at 75 (emphasis added). Citing this very ...


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