IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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NO. 94-30517

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CLAUDE ANTANNE GRIFFIN, JR.,

Defendant-Appellant.

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NO. 94-30555

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MAXON H. MORGAN,

Defendant-Appellant.

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Appeals from the United States District Court

for the Eastern District of Louisiana

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September 21, 1995

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:2

Claude Griffin, Jr., and Maxon Morgan appeal their convictions

of cocaine trafficking. They contend that their Sixth Amendment

right to compulsory process was denied when the district court

refused to allow them to call a witness before the jury for the

sole purpose of having him invoke an invalid privilege against

self-incrimination. Because the Sixth Amendment recognizes no such

right, we affirm.

I.

In 1993, Claude Griffin, Sr., hatched a plan to import cocaine

into the United States with the assistance of his son, Claude

Griffin, Jr., Maxon Morgan, and others. The conspiracy was

ultimately uncovered and the conspi rators indicted. The elder

Griffin pleaded guilty and received life imprisonment; the younger

Griffin and Morgan received a joint jury trial.

At trial, both defendants denied culpability, seeking to shift

blame to the elder Griffin. Claude Griffin, Jr., denied any

participation in the conspiracy. He argued that his father's use

of the family h ome and air conditioning business to set up the

importation scheme had unfairly cast suspicion upon him. Morgan

did not deny involvement but alleged that Griffin had coerced him

into participating in the scheme. He claimed that Griffin had

loaned him money for a legitimate business and then used the

indebtedness, coupled with threats of personal harms to force him

to join the conspiracy.

Both defendants sought to call the elder Griffin as a witness.1 Griffin's life sentence prevented the court from doing anything more

to compel him to testify.

2 The Compulsory Process Clause of the Sixth Amendment states: "In all
criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . . ." U.S. C ONST

. amend. VI.

3 United States v. Bolts , 558 F.2d 316, 324 (5th Cir.), cert. denied

, 434 U.S. 930 (1977), cert. denied , 439 U.S. 898 (1978); United States v. Gomez-Rojas , 507 F.2d 1213 (5th Cir.), cert. denied , 423 U.S. 826 (1975);

United States v. Lacouture , 495 F.2d 1237, 1240 (5th Cir.), cert. denied , 419

U.S. 1053 (1974); see also United States v. Johnson , 488 F.2d 1206, 1211 (1st Cir. 1973); United States v. Beye , 445 F.2d 1037 (9th Cir. 1971); Bowles v. (continued...)

3 The trial court, advised that he would claim a privilege against

self-incrimination and refuse to testify, conducted an i n camera

review of Griffin and determined that he had waived his privilege

by pleading guilty. After Griffin informed the court that he

nonetheless w ould refuse to testify, the court fined him and

returned him to prison. 1

The defendants then requested that t he court either place

Griffin on the stand so that he could assert his Fift h Amendment

privile ge before the jury or inform the jury of his refusal to

testify. The court denied both requests.

II.

The defendants contend that the Compulsory Process Clause of

the Sixth Amendment 2 guarantees them the right t o place a witness

on the stand for the sole purpose of having him invoke an invalid

Fifth Amendment privilege in the jury's presence. They recognize

that we have unambiguously ruled that the Compulsory Process Clause

provides no such right with respect to a witness claiming a valid

privilege. 3 Their argument rests on distinguishing those witnesses3 (...continued)

United States , 439 F.2d 536, 541-42 (D.C. Cir. 1970) (en banc), cert. denied

, 401 U.S. 995 (1971).

4 See also United States v. Gloria , 494 F.2d 477, 480 (5th Cir.)
(defendant not denied compulsory process when subpoenaed witness appeared at trial but refused to testify), cert. denied , 419 U.S. 995 (1974).

5 See In re Bizzard , 559 F.Supp. 507, 510 (S.D. Ga. 1983) (right to
compulsory process not denied when court failed to enforce subpoena against witness who refused to testify for fear of his life).

6 Griffin and Morgan do not assert that the district court erred by
concluding that it lacked the discretion to grant their request. See

Lacouture , 495 F.2d at 1240 ("[T]he trial court was within its discretion in excluding matter of such dubious probative value and high potential for prejudice."); Gomez-Rojas , 507 F.2d at 1220 ("Once the court satisfies itself that the [Fifth Amendment] claim is well-grounded . . . it may, in its discretion, decline to permit either party to place the witness on the stand for the purpose of eliciting a claim of privilege or to comment on this
circumstance."); see also Johnson , 488 F.2d at 1211 ("[T]he court may, in its (continued...)

4 who invoke valid Fifth Amendment privileges from those who invoke

the privilege improperly.

In fact, our caselaw suggests that the validity of the

witness's privilege is unimportant. In L acouture we stated that a

defendant's right to compulsory process w as "exhausted by [the

witness's] physical availability at court." 495 F.2d at 1240.

The Sixth Amendment requires that a witness be brought to

court, but it does not require that he take the stand after

refusing to testify. I d.

. 4 Once a witness appears in court and

refuses to testify, a defendant's compulsory process rights are

exhausted. It is irrelevant whether the witness's refusal is

groun ded in a valid Fifth Amendment privilege, an invalid privilege, or something else entirely. 5 The defendants' Sixth Amendment

rights were satisfied as soon as the elder Griffin appeared in

court and refused to testify; the court was under no obligation to

grant their request to place Griffin on the stand. 66 (...continued)

discretion, refuse to allow [the witness asserting the privilege] to take the stand."). Our holding should not be taken to mean that a court may never grant such a request, but only that the Sixth Amendment does not require that

it do so.

7 See also Bowles , 439 F.2d at 541-42 ("[T]he 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.").

5 We explained in Lacouture why a district court should be free

to prevent a witness from invoking the privilege against selfincrimination before the jury: "[A] claim of Fifth Am endment

privilege is likely to be regarded by the jury as high courtroom

drama and a focus of ineradicable interest, when in fact its

probative force is weak and it cannot be tested by crossexamination." 495 F.2d at 1240. 7 We observed that "[n]either side

has the right to benefit from a ny inferences the jury may draw

simply from the witness' assertion of the privilege either alone or

in conjunction with questions that have been put to him." I d.

(quoting Johnson

, 488 F.2d at 1211). Juries are no less likely to

draw improper inferences from an invalid assertion of privilege

than from a valid assertion. In either case, the witness avoids

cross-examination. L acouture 's rationale applies whenever a

witness refuses to testify, irrespective of whether the refusal is

grounded in a legitimate Fifth Amendment privilege.

Griffin and Morgan assert that even if they had no right to

call the elder Griffin to the stand, the Constitution at least

mandates that t hey be able to call the jury's attention to his

refusal to te stify. We rejected this argument in L acouture

,

approving an order that defense counsel avoid referen ce to a6

reluctant witness's absence. Id. We did so for the same reasons

that led us to conclude that the defendant had no right to call the

witness in the jury's prese nce. I d. We therefore reject this

argument as well.

For the foregoing reasons, the judgments of con viction are

AFFIRMED.