UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5787

THOMAS WAITKUS WILLIAMSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5877

KATHY JOANN BOLES, a/k/a Melissa

Lauren Cales,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

James A. Beaty, Jr., District Judge.

(CR-94-268)

Submitted: January 28, 1997

Decided: March 27, 1997

Before WIDENER, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

William L. Osteen, Jr., ADAMS & OSTEEN, Greensboro, North Carolina; Thomas N. Cochran, Assistant Federal Public Defender,

Greensboro, North Carolina, for Appellants. Walter C. Holton, Jr.,

United States Attorney, Paul A. Weinman, Assistant United States

Attorney, Greensboro, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kathy Joann Boles was convicted by a jury of possession of crack

cocaine with intent to distribute, 21 U.S.C. § 841 (1994). In a separate

trial, Thomas Waitkus Williamson was convicted of the same offense

as well as conspiracy to distribute crack, 21 U.S.C.§ 846 (1994).

Boles appeals her 60-month sentence, alleging that the district court

misunderstood its authority to depart on the ground of duress and

erred in finding that she obstructed justice and did not accept responsibility. USSG §§ 5K2.12, p.s., 3C1.1, 3E1.1.* Williamson appeals

his conviction, arguing that the court abused its discretion by refusing

to permit him to call the prosecutor and Boles' attorney as defense

witnesses. We affirm.

Boles and Williamson were questioned by drug interdiction officers after they got off a flight from New York City to Greensboro,

North Carolina. Williamson was not carrying any drugs and left the

airport after denying that he knew Boles. Boles was carrying two

packages of crack. She was arrested and implicated Williamson. She

said he forced her to go to New York with him, gave her money for

_________________________________________________________________

*United States Sentencing Commission, Guidelines Manual (Nov.

1994).

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the plane ticket, and made her carry the crack. Boles used a false

name, birth date, and social security number in her initial interview

with a pre-trial services officer, signed a financial affidavit with the

false name, and maintained her false identity in her initial appearance

before a magistrate. Boles' real identity was discovered a week later,

one day before her detention hearing.

Both Boles and Williamson entered not guilty pleas. Boles agreed

to testify against Williamson. Their trials were severed but scheduled

for the same day, with Boles' case being tried first. Boles testified that

she had gone to New York under duress and did not know what the

packages she was carrying contained. She said she complied with

Williamson's directions because he threatened to hurt her if she did

not.

While Boles' jury was out and after Williamson's trial had begun,

Boles' attorney asked the government prosecutor whether he would

recommend a substantial assistance departure for Boles in return for

her testimony against Williamson. The prosecutor said he would recommend a departure to the United States Attorney. Williamson's

attorney was present during the conversation.

During Williamson's trial, the district court denied defense

requests to call the prosecutor and Boles' attorney to testify about the

offer Boles had received. Boles initially testified that she did not

expect to gain anything from her testimony. Under cross-examination,

she admitted that she had been told there was a possibility her sentence might be reduced, but stated that she had agreed to testify

before the jury returned a verdict. The court permitted Williamson's

attorney to question Boles concerning the fact of her conviction, but

did not allow him to bring out her plea of not guilty or the jury's

apparent rejection of her testimony at her own trial.

We first find that the district court did not abuse its discretion in

refusing to permit Williamson to call the prosecutor and Boles' attorney to testify. The attorney's conversation with his client was protected by the attorney-client privilege, which Boles had not waived.

A prosecutor may be called as a defense witness if the defendant has

a compelling need for his testimony. United States v. Prantil, 764

F.2d 548, 554 (9th Cir. 1985). Williamson contends that, in order to

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impeach Boles' credibility, he needed the prosecutor's testimony for

"full disclosure of the deal" which was promised to Boles in return

for her testimony. The argument is not persuasive because Boles

agreed to testify long before her attorney broached the subject of a

substantial assistance departure with the prosecutor. Moreover, Williamson's attorney was able to bring out through Boles' testimony her

knowledge that her testimony might result in her sentence being

reduced. Consequently, Williamson did not show a compelling need

for further testimony about the details of the offer.

Williamson also contends that his right of confrontation was prejudicially limited when the court refused to allow him to ask Boles

about her not guilty plea and subsequent conviction. He argues that

Boles' credibility would have been severely damaged by evidence

that a jury had disbelieved her testimony and that she "then struck a

deal for substantial assistance." Because Boles was scheduled to testify against Williamson before she was convicted, this argument has

no basis in fact. We find that the district court did not abuse its discretion in limiting Williamson to inquiring whether Boles had previously

been convicted of a felony.

At her sentencing hearing, Boles requested a downward departure

for coercion or duress pursuant to USSG § 5K2.12. The court

declined to depart, explaining that:

[I]t was unreasonable for the defendant to fail to notify persons in authority of her alleged claim of duress prior to the

pretrial interview. It does not serve the defendant well that

this information was not provided long after Mr. Williamson

had been taken -- or had removed himself from the incident. The Court will not give the defendant any departure.

Generally, a court's decision not to depart is not reviewable, United

States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S.

819 (1990), but such a decision based on a perceived lack of legal

authority to depart is reviewed de novo. United States v. Hall, 977

F.2d 861, 863 (4th Cir. 1992). Boles argues that the district court

applied too high a standard for a departure, requiring her to meet the

"immediate notification" standard necessary to prevail on a defense of

coercion to an escape charge under 18 U.S.C. § 751(a) (1994), and

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thus misperceived its authority to depart on a lesser showing of

duress. However, the record discloses that the court did not accept

Boles' claim of duress in any degree. Consequently, this portion of

Boles' appeal will be dismissed.

Boles also objected unsuccessfully to the probation officer's recommendation that she receive an adjustment for obstruction of justice

based on her use of a false identity. Boles contends that de novo

review of the court's determination is necessary because the facts are

not disputed. See United States v. Daughtrey, 874 F.2d 213, 217 (4th

Cir. 1989) (factual sentencing issues reviewed for clear error; legal

issues reviewed de novo). However, her objection to the probation

officer's recommendation and her argument at sentencing focused on

her motive for giving false information to the pretrial services officer

and the magistrate, a factual question, rather than the materiality of

the false information, which would be a legal issue. Therefore, we

review the district court's decision for clear error.

Boles argues that she was motivated by fear of Williamson rather

than a desire to impede the investigation, and points out that she

cooperated immediately after her arrest by describing the trip to New

York. While this conduct demonstrated Boles' willingness to cooperate in the investigation and prosecution of Williamson, it did not preclude a simultaneous attempt to derail the investigation and

prosecution of herself. The district court agreed with the probation

officer's estimation that Boles willfully provided false material information to the court and thus attempted to obstruct justice in her own

case. USSG § 3C1.1, comment. (n.3(f)). This finding was not clearly

erroneous. Boles also claims that the court failed to make specific

findings. However, the court adopted the reasoning in the probation

officer's response to Boles' objection to the presentence report, and

adequately resolved the issue in this manner.

Last, Boles asserts that she was entitled to an adjustment for acceptance of responsibility because she never disputed her factual guilt

and went to trial solely to preserve her coercion defense, an issue

which she characterizes as unrelated to factual guilt. In fact, at trial

Boles not only said she went to New York under duress, but also disclaimed any knowledge of, or involvement in, the offense and put the

government to its burden of proof. The district court did not clearly

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err in denying the acceptance of responsibility adjustment on this

basis as well as because of the obstruction of justice adjustment. See

USSG § 3E1.1, comment. (n.4).

Accordingly, we affirm Williamson's conviction and Boles' sentence. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court

and argument would not aid the decisional process.

AFFIRMED

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