Opinion
Criminal Action No. 02-10208-PBS
January 31, 2003
MEMORANDUM AND ORDER
I. Introduction
Defendant Jeffrey T. Pina moves to dismiss Count One of the indictment alleging Possession of a Firearm by a Convicted Felon, and Count Three alleging Possession of a Firearm in Furtherance of a Drug Trafficking Crime. He argues that the gun charges must be dismissed because of outrageous government conduct in violation of the Fifth Amendment, and prosecutorial interference with his ability to call witnesses on his own behalf in violation of the Sixth Amendment.
After two evidentiary hearings and review of the briefing, the motion is DENIED.
II. Facts
I find the following facts. Three law enforcement officers visited the home of defendant's girlfriend, Annette Garcia, and their infant child, at 37 Foster Street, Brockton, Massachusetts, on October 3, 2002. The three officers were Special Agents Pijaca and Donahue of the Bureau of Alcohol, Tobacco and Firearms ("ATF") and Detective James E. Smith of the Brockton Police Department. Nine months earlier on January 11, 2002, the police had executed a search warrant at the house and found crack cocaine and a Raven .24 caliber pistol. Defendant was arrested in Garcia's house.
When Garcia consented to let them in, they talked in the kitchen. Officer Pijaca asked her if she had a F.I.D. card to carry firearms, and she acknowledged that she did. He then asked Garcia if she was the owner of the firearm found in the apartment during the execution of the warrant. When Garcia responded that she did not want to answer any questions before talking with her lawyer, the officer continued to ask her about the ownership and registration of the weapon. Garcia persisted in her refusal to answer questions without counsel. Motioning with his hand towards Garcia, Officer Pijaca said that if it did turn out the gun was hers, she "might face state charges." The officer looked stern and angry when he made the remark, and Garcia felt scared and threatened by it. She picked up her baby who was eating nearby in the highchair. Smith complimented her on her apartment and asked if she owned it. She said her father left the house to her. At that point the police officers left. The whole meeting lasted approximately 10 minutes.
Subsequent to this conversation, and at the hearing on this dispute, Garcia, who was represented by court-appointed counsel, indicated that she would invoke her Fifth Amendment right against self-incrimination if asked about the ownership of the gun at defendant's trial.
A. Outrageous Conduct
Defendant first argues that the police officer's conduct in threatening prosecution was so outrageous that the gun count must be dismissed because the government violated the Fifth Amendment right to due process. "The banner of outrageous misconduct is often raised but seldom saluted." United States v. Santana, 6 F.3d 1, 4 (1st Cir. 1993). "To the extent that it survives at all, the legal doctrine on which the [defendant]'s argument hinges is of extremely limited application. The doctrine holds that the government commits outrageous misconduct when it behaves in a manner that violates 'fundamental fairness' and 'shock[s] . . . the universal sense of justice.'" United States v. Nunez, 146 F.3d 36, 38 (1998) (refusing to grant dismissal under the doctrine where the police had colluded with the defendant's drug dealer in order to ensnare the defendant in a sting operation relating to the defendant's manufacture and sale of pipe-bombs). Indeed, the outrageous government conduct defense is not normally available where the government has injured only third parties. Id.
The conduct here — an isolated comment by a single law enforcement officer to a potential witness in a ten-minute interview — was not shocking to the sense of universal justice. The motion to dismiss on the ground of outrageous conduct is DENIED.
B. Interference with Defense Witness
Defendant's claim that the officer's statement to Garcia interfered with his Sixth Amendment right to call witnesses on his own behalf presents a more difficult question.
The Sixth Amendment right of a criminal defendant to compulsory process is violated when the defendant is arbitrarily deprived of testimony that would have been "relevant and material, and . . . vital to the defense." United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446 (1982) (emphasis in original) (quoting Washington v. Texas, 388 U.S. 14, 16, 87 S.Ct. 1920, 1922 (1967)). A defendant "must at least make some plausible showing of how [the witnesses'] testimony would have been both material and favorable to his defense."
Valenzuela-Bernal, 458 U.S. at 859. See also United States v. Hoffman, 832 F.2d 1299, 1303 (1st. Cir. 1987) (holding that the "accused must, at a minimum, demonstrate some plausible nexus between the challenged governmental conduct and the absence of certain testimony"). A violation will be found "only if the government's conduct interfered substantially with a witness's 'free and unhampered choice to testify.' That interference may involve threats of prosecution, or other intimidating conduct." United States v. Pinto, 850 F.2d 927, 932 (2d Cir. 1988) (citations omitted).
This Sixth Amendment right has been held to forbid prosecutors to unduly admonish potential defense witnesses about the penalties of perjury should they testify falsely. See United States v. Morrison, 535 F.2d 223 (3rd Cir. 1976) (involving repeated warnings from prosecutor about the dangers of perjury). Courts have also found Sixth Amendment violations in cases where the government threatened prosecution of a witness on independent charges (distinct from perjury) if she were to give exculpatory testimony on behalf of a defendant. In a case with facts roughly similar to the one at bar, United States v. Golding, 168 F.3d 700 (4th Cir. 1999), the defendant was charged with being a felon in possession of a firearm and ammunition after police had found a shotgun and shells at the home shared by his girlfriend and him. The girlfriend initially claimed ownership of the gun. After the prosecutor warned the defendant's lawyer and the girlfriend's lawyer that if the girlfriend testified at the defendant's trial she would be charged federally with possession of a small amount of marijuana also found during the search, she declined to testify. Id. at 702. The prosecutor went on to comment to the jury about the fact that the woman, by the time of trial the defendant's wife, did not testify to corroborate the defendant's claim that the gun was hers. Id. The Fourth Circuit overturned the conviction, stating, "The authorities are uniform that threatening a witness with prosecution and comment about the absence of a witness who has a privilege not to testify are a violation of the Sixth Amendment right of a defendant to obtain witnesses in his favor." Id. at 703.
Other cases suggest that merely informing a potential witness of the consequences of violating the law is insufficient to constitute a Sixth Amendment violation, despite the fact that such comments may dissuade a witness from testifying. See, e.g., United States v. Hayward, 6 F.3d 1241, 1257 (7th Cir. 1997) ("Granted, the government told the witnesses that they had to testify truthfully and, if not, they would go to jail. That procedure, however, even if carried out in a caustic manner, is not cause to dismiss the indictment against the defendants.
There is nothing wrong with the government informing witnesses of the consequences of breaking the law."); United States v. Bieganowski, 313 F.3d 264, 292 (5th Cir. 2002) ("[T]he prosecution's comments regarding perjury did not amount to a substantial interference. The prosecution did no more than to advise [the witness] that she could be prosecuted if she perjured herself in her testimony. . . . There is no substantial interference in such a statement.")
The Sixth Amendment claim fails for three reasons. First, Garcia never claimed that the gun was hers, and the Court has no evidence that in fact it was hers. Since Garcia had not previously indicated a desire to give exculpatory testimony, there is insufficient evidence that the government has infringed on defendant's ability to call a witness whose testimony would be "relevant, material, and . . . vital to his defense." Valenzuela-Bernal, 488 U.S. at 867.
Second, even if it were Garcia's gun, she may well have sought Fifth Amendment protection regardless of what the officers said to her during the October 9th visit to her apartment. According to the government, the gun was last registered in the 1970's in Louisiana. The defendant has a prior felony conviction. As her attorney pointed out, two provisions of Massachusetts law would possibly be implicated with regard to Garcia: Mass. Gen. Laws ch. 140, § 128(B) (reporting requirements) and § 131(E) (purchase of gun for use of another).
Third, under the totality of the circumstances, any government interference with defendant's right to call witnesses was not substantial. While a federal officer in a moment of pique stepped over the line by raising the possibility of a state prosecution if the gun turned out to be hers, this was not a threat by a prosecutor, or even by an officer with power to press state charges. The prosecutor here has made it plain that he contacted state authorities and, to his knowledge, there is no intention to prosecute her at the federal or state level on gun charges. I do not find that the government's conduct, taken as a whole, interfered substantially with Mr. Garcia's free and unhampered choice to testify.
ORDER
The motion to dismiss is DENIED.
However, I am considering precluding the government from commenting on the witness's refusal or failure to testify.