PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4281

JERRY WAYNE GOLDING,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-97-188)

Argued: October 30, 1998

Decided: February 17, 1999

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,

and WILSON, Chief United States District Judge for the

Western District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Widener wrote

the opinion, in which Chief Judge Wilkinson and Chief Judge Wilson

concurred.

_________________________________________________________________

COUNSEL

ARGUED: F. Lee Bailey, West Palm Beach, Florida, for Appellant.

Cameron Sue Heaps, Special Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Margherita Downey, West

Palm Beach, Florida, for Appellant. Helen F. Fahey, United States

Attorney, Richmond, Virginia, for Appellee.
OPINION

WIDENER, Circuit Judge:

A federal grand jury indicted Jerry Wayne Golding in July 1996,

charging him in Count One with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and in Count Two

with possession of ammunition by a convicted felon in violation of

the same code section. At trial, the jury found Golding guilty of possession of the gun but not guilty of the ammunition. Golding appeals

from both the judgment of conviction and the district court's subsequent denial of his motion for downward departure at sentencing. We

agree that the actions of the prosecutor were improper and prejudicial.

Accordingly, we vacate Golding's conviction and remand this case

for a new trial.

I.

On June 17, 1996, Jeri Baker, Golding's then fiancee, and now

wife, called 911 from the couple's home in Goochland County, Virginia. She was agitated and threatening suicide. Golding also spoke

with the dispatcher and assured her that there were no weapons in the

house with which Mrs. Golding might hurt herself or, for that matter,

Golding.

Shortly thereafter, Corporal James Mann of the Goochland County

Sheriff's department arrived on the scene, and Golding also told him

that there were no weapons in the house. Golding had a prior felony

conviction and maintains that he had complied with the law by getting

rid of all of the weapons that he once owned.

According to Golding, it was not until Mrs. Golding ran upstairs

that morning and mentioned something about a gun that he recalled

that the weapon had been among the things that she had had delivered

from her previous residence. At that time, he warned Mann about the

presence of the firearm.

Mrs. Golding did proceed to pull the shotgun out from under a mattress, but Mann defused the situation, leaving the shotgun, and left the

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premises. Mann returned to the Goldings' home that afternoon with

a search warrant, at which time he found the shotgun, a box of .22

ammunition, and a small amount of marijuana.

Mrs. Golding claimed ownership of the shotgun. Following a conversation between the prosecutor and Golding's attorney, however,

Mrs. Golding was advised to retain her own counsel and eventually

not to testify on her husband's behalf (the couple had married in the

interim), for fear that she, herself, would be prosecuted. Indeed, Mrs.

Golding did not testify, and Golding was convicted.

Golding raises three issues on appeal. He challenges his conviction,

first, on the ground that the prosecutor violated his constitutional

rights by threatening to prosecute Mrs. Golding if she testified, which

was exacerbated by calling the absence of Mrs. Golding's testimony

to the attention of the jury, and, second, on the ground that the district

court erred by instructing the jury on constructive possession when

the government had presented insufficient evidence to support such

a theory. Additionally, Golding argues that the district court erred by

failing to grant him a downward departure at sentencing.

II.

Golding asserts that the actions of the Special Assistant United

States Attorney in this case amount to reversible prosecutorial misconduct, and we agree. The "test for reversible prosecutorial misconduct generally has two components: that `(1) the prosecutor's remarks

and conduct must in fact have been improper, and (2) such remarks

or conduct must have prejudicially affected the defendant's substantial rights so as to deprive the defendant of a fair trial.'" United States

v. Chorman, 910 F.2d 102, 113 (4th Cir. 1990) (quoting United States

v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988)), quoted in United

States v. Mitchell, 1 F.3d 235, 240 (4th Cir. 1993). We hold that the

effect of the prosecutrix's communications with defense attorneys,

initially Golding's and eventually Mrs. Golding's, compounded by

her closing argument, satisfy both the impropriety and prejudice

requirements.

There was no fact finding by the district court with respect to the

substance of the communications of the government's attorney with

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defense attorneys regarding Mrs. Golding's proposed testimony at her

husband's trial. In an affidavit attached to Golding's motion for new

trial, Mrs. Golding asserted that she owned the shotgun, that she kept

it between the mattress and the box spring on her side of the king-size

bed for her own protection, and that she originally intended to testify

to those facts at trial. She then stated that,

[a]bout a week prior to the commencement of the trial,

Attorney Janus who was defending my husband, told us that

he had been approached by the young woman who was

prosecuting the case; she told him, he said, that if I were to

take the witness stand I would be prosecuted federally for

possession of marijuana despite the fact that a state judge

had dismissed the same charge against me . . . .

Mrs. Golding indicated that while she still wished to testify on her

husband's behalf, she felt, as a result of this exchange, that she had

been "forced in this manner" not to appear.

The government did request an evidentiary hearing to resolve the

allegations in Mrs. Golding's affidavit. Instead, the district court

directed the government to make a proffer regarding the evidence that

it would present at such a hearing. In that proffer, the government,

represented at that time by Jim Comey, stated that the Special Assistant United States Attorney who prosecuted Golding, broached the

subject of Mrs. Golding's potential testimony with Mr. Janus, her

husband's attorney. The government went on to represent that she

expressed surprise to learn that Mrs. Golding might testify because

"she potentially is going to be admitting to a crime" and to note that

§ 922(g)(3) criminalizes possession of a firearm by a marijuana user.

The district court denied both the government's motion for an evidentiary hearing and the defendant's motion for new trial without making

any factual findings regarding the nature of the exchange that took

place between the prosecutrix and Mr. Janus. In the absence of such

findings of fact, this court will conduct a plenary review of allegations

of prosecutorial misconduct. See United States v. Ellis, 121 F.3d 908,

927 (4th Cir. 1997) (citing United States v. McDonald, 61 F.3d 248,

253 (4th Cir. 1995)).

Without more, it might be difficult for this court to evaluate the

uncertain evidence regarding both the context and the content of the

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conversation between the prosecutrix and Mr. Janus. The defendant,

supported by Mrs. Golding's affidavit, paints a picture of a sinister

threat, while the government maintains, via its own proffer, that the

prosecutrix merely offered a friendly warning to Mrs. Golding. Other

circumstances, however, shed some light on the issue.

At oral argument, the following exchange took place between the

prosecutrix and the court:

Q: He said that you admitted that you told this lady through

her lawyer or lawyers that she was going to be prosecuted

if she testified, is that correct?

A: No sir.

Q: You do not admit that?

A: What we admit

Q: Did you tell Mr. Janus that?

A: Yes sir, I did.

Q: You said you were going to prosecute her if she testified?

A: That's correct, your Honor.

Contrary to the government's proffer, this was not a gentle recognition of Mrs. Golding's "potential exposure" to criminal charges.

While it is a matter of concern that the Special United States Attorney threatened a defense witness with prosecution simply to prevent

testimony which would have been damaging to her own case, that is

not all that demonstrates that the threat rose to the level of intimidation necessary to constitute an abuse of process. See United States v.

LaFuente, 54 F.3d 457, 462 (8th Cir. 1995). The government did not

stop with the threat. Instead, the prosecutrix further abused her power

by using the very situation she had created against the defendant in

closing argument.

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Throughout the course of the government's closing argument and

rebuttal, the prosecutrix repeatedly called Mrs. Golding's failure to

testify to the jury's attention and proceeded to argue that it was indicative of the falsity of the defendant's story. She commented:

If his story were true, wouldn't the best evidence that this

stuff belonged to this lady be for her to come in and tell you

all that it was --. . . .

The district court overruled Golding's objection to this line of argument. Bolstered by that ruling, the prosecutrix became even more

expansive:

She didn't ever come up here and testify, and we don't

know why." [J.A. 95]

* * * *

What wife in the world wouldn't just come right on in and

tell you the truth, if that was the truth, to prevent her husband from going to prison? You can infer from the fact that

she didn't come in, why not? Why wouldn't she come in if

it were the truth? It would be that simple. You can infer that

it is not the truth. [J.A.95]

* * * *

And if his story were true, I think that any wife in the world

would come in and tell the truth. [J.A. 96]

* * * *

If that is true, there is nothing wrong with her possessing a

weapon and ammunition, and she is the one who possessed

them, why didn't she just walk right up here and tell you?

[J.A. 105]

Not only was the argument in violation of the testimonial privilege

of the wife, the suggestion that the prosecutrix did not know the rea-

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son for the absence of Mrs. Golding as a witness was at least highly

improper.

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. The same rule applies for

the testimonial privilege of a wife, except not on Constitutional

grounds. At least two cases in this circuit, in circumstances less

aggravating than those present here, have so held, as have other circuits.

In United States v. Morris, 988 F.2d 1335 (4th Cir. 1993), the government had called the defendant's wife, who was also the defendant's secretary, as a witness before the grand jury, in which grand

jury proceeding she had invoked her marital privilege against giving

adverse testimony against her husband, the defendant. The witness

was not only the defendant's wife, she had been his secretary for 26

years and was familiar with the affairs in the defendant's office upon

which the case turned. The district court recognized that the case

involved credibility. Despite that, when the wife testified before the

petit jury at trial, the district court allowed the government to prove

that the wife had claimed her marital privilege and not testified before

the grand jury. It allowed that proof as going to the credibility of the

wife. We held that permitting the proof of the invocation of the marital privilege by the wife was error and that it was not harmless

because the wife was an important corroborative witness, the case

depending, to a considerable extent, on credibility. We also held that

there was grave doubt as to whether or not the error had substantial

influence on the outcome of the case under Kotteakos v. United

States, 328 U.S. 750 (1946). We vacated the conviction and remanded

for a new trial.

In United States v MacCloskey, 682 F.2d 468, 475 (4th Cir. 1982),

the government's attorney suggested to a prospective witness's attorney that "he would be well advised to remind his client [the witness]

that, if she testified at MacCloskey's trial, she could be reindicted [for

conspiracy to murder] if she incriminated herself during that testimony [for MacCloskey]." We held that the government's suggestion

to the attorney for the witness, as just related,"destroyed the choice

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. . . [of the witness] to testify freely." 682 F.2d at 479. We held that

the error was not harmless and that it "independently warrants the

grant of a new trial." 682 F.2d at 479.

In United States v. Viera, 819 F.2d 498 (5th Cir. 1987), the defendant's father was sworn in as a defense witness. Just prior to the trial,

the government's attorney disclosed that another witness had implicated the father in several drug transactions and that "should the elder

Viera choose to testify, he would likely be forced either to incriminate

himself by admitting involvement in these crimes or to commit perjury by denying the involvement. Either way, the prosecutor said he

would seek an indictment of Gaspar Viera [the father] before a grand

jury convening the next week." The father did not testify, of course,

and in his closing argument, as here, the prosecutor compounded the

error by this argument:

We never heard from Dad, did we?

The court held that this conduct of the prosecutor violated the defendant's Sixth Amendment right to present witnesses in his behalf and

was reversible error under Webb v. Texas, 409 U.S. 95 (1972), without proof of prejudice.

In United States v. Morrison, 535 F.2d 223 (3rd Cir. 1976), the

defendant's attorney had planned his defense around the testimony of

one Sally Bell, who was prepared to testify that it was she and not the

defendant who had conspired to sell the hashish involved in that case.

The government's attorney "sent messages to her through defense

counsel, warning that she was liable to be prosecuted on drug charges;

that if she testified the testimony would be used as evidence against

her and, further, that as she was now 18 it would be possible to bring

federal perjury charges against her." 535 F.2d at 225. The government's attorney repeated these threats in a personal interview with

Sally Bell. The court held that the conduct of the government's attorney toward the witness was not to be condoned and that it was error

requiring a new trial. At the commencement of that proceeding,

immunity had been requested for Sally Bell which had not been

granted because the government would not request it. The court further held that at a new trial, in the event that the defendant called

Sally Bell as a witness, if she invoked her Fifth Amendment right not

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to testify, a judgment of acquittal should be entered unless the government requested use immunity for her testimony. United States v.

Smith, 591 F.2d 1105 (5th Cir. 1979), is a case factually on all fours

with the case at hand except on facts less aggravating. Smith was a

case involving possession of a firearm by a convicted felon in which

it was claimed that the wife owned the guns involved, and not the

husband, who was the defendant. There was no threat of prosecution

involved in that case as here, only the argument to the jury. The government argued:

You would have to believe that [the wife] Barbara Smith is

a pistol-packing mama to believe that all those guns were

hers . . . . And why haven't we heard from Barbara? . . . .

* * * *

After all, they have access to that witness. She was here the

whole time. You have a right to infer that had she taken the

stand she would have testified that those were her husband's

guns.

The court held that the argument of the prosecutor, without question, constituted error, for the failure to produce a favorable witness

does not apply to the spouse of a defendant. The court further held

that the error was not harmless, that the instruction the district court

gave with respect to not calling a favorable witness only compounded

the error instead of curing it and that the defense that the guns

belonged to the defendant's wife was the heart of his defense. A new

trial was awarded.

It follows that the conviction of the defendant must be vacated and

the case remanded for a new trial. We have not considered any objection to sentencing nor to the claim that the evidence does not support

the verdict.*

VACATED AND REMANDED

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*We cannot say what the evidence will show upon retrial, and consequently, we need not express any opinion as to the sufficiency of the evidence. United States v. Swaim, 642 F.2d 726, 729 (4th Cir. 1981); see 15

B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 3918.7 (2d ed. 1992); cf. Burks v. United States, 437 U.S.

1, 15 (1977).

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