The Honorable James M. Rosenbaum, United States District Judge for th e 1 District of Minnesota.



## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 97-2203

___________ United States of America, * * Appellee, * * Appeal from the United States
v. * District Court for the * District of Minnesota Kawaskii Blanche, * * Appellant. *

___________ Submitted: October 22, 1997 Filed: June 23, 1998

___________ Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.

___________
McMILLIAN, Circuit Judge.

Kawaskii Blanche (appellant) appeals from a final judgment entered in th e United States District Court for the District of Minnesota, upon a jury verdict, finding 1On Oc tober 2, 1995, appellant pleaded guilty in Hennepin County Distric t 2 Court , Minneapolis, Minnesota, to illegal possession of a short-barreled shotgun

. Appellant was convicted on April 5, 1996 for this crime and sentenced to five year s probation. Appellant was also charged with and convic ted of conspiring to obtain firearms 3 through fal se statements in violation of 18 U.S.C. § 922 (a)(6). However, the district court granted appellant ’s motion for judgment of acquittal notwithstanding the verdict on this count.

2 him g uilty of being a felon in possession of a firearm in violation of 18 U.S.C

. 2 § 922(g)( 1). The district court sentenced appellant under the federal sentencin g

3 g u idelines to fifty-one months imprisonment, three years of supervised release, and a special assessment of one hundred dollars. For reversal, appellant argues that th e district court erred in (1) partially denying his motion for judgment of acquittal , (2) ref using to immunize his sister, the complaining witness, (3) admitting hi s audiotaped telephone conversation with a Minneapolis police offic er in which appellant st ated his intention to obtain more guns upon release from custody for then-pendin g state law gun pos session charges, (4) limiting his closing argument, and (5) excluding his sister from the courtroom during the final minutes of trial. For the re asons discussed below, we affirm the judgment of the district court.

Jurisdiction

Jur isdiction was proper in the district court based upon 18 U.S.C. § 3231

. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.
Background

On June 25, 1996, at about 7:00 p.m., Minneapolis police responded to a 91 1 call reporting a disturbance at the home of appellant’s parents, James and Jacqueline3

Blanche. The call was placed by Shawana Blan che (Shawana), appellant’s then-sixteen year-old s ister, who described an assault to her person with a handgun by appellant

. During that call, Shawana also described the handgun used in the assault and appellant’s clothing.
Upon arriving at the Blanche f amily residence, Minneapolis police saw appellant exitin g the house in clothing that matched the 911 dispatcher’s description and too k ap pellant into custody. Appellant did not have a gun on his person. During th e execution o f a search warrant at the Blanche home later that evening, the police seized a Lorcin .380 handgun and ammunition for the gun inside a cabinet in a bedroom in the west end of the basement. The police also seized a fully loaded, semi-automatic Ruger .40 pistol inside a box in the ceiling rafters in the east end of the basement and foun d additional ammunition for that gun behind a speaker in the basement bedroom. Th e Ruger was the same make as the gun that Shawana had described to the 911 operator. Neither the Lorcin nor the Ruger weapon bore appellant’s fingerprints. However, the police found several pieces of mail addressed to appellant in the basement bedroo m where the Lorcin handgun was found. (Appellant did not live in his parents’ home but was known to stay there at least two to three times per month.)

Followin g appellant’s arrest, on June 26 and 27, 1996, and later in Novembe r 1996, Min neapolis detectives conducted videotaped interviews of appellant that lasted
a total of 325 minutes. Ninety percent of the interviews dealt with appellant’s alleged participation in a fatal drive-by shooting; only ten percent dealt with the firearm charges in the instant case. During the interviews, appellant denied assaulting Shawana an d hav ing any involvement with the Lorcin handgun. However, after initially denyin g
owne rship of the Ruger pistol, on the second day of the interviews, appellant admitted that his girlfriend, Lashawn Slayden (“Slayden”) had purchased the Ruger pistol forAppellant and Sla yden were charged in a superseding indictment in the instant 4 case. Count 1 charged app ellant with being a felon in possession of firearms. Counts 2-15 charged Slayden with being a straw purchaser of firearms. Coun t 16 charged both Slayden and appellant with a conspiracy to obtain firearms through the use of fals e statement s on firearm acquisition forms (straw purchases). Slayden pleaded guilty to Count 2 prior to trial and received a sentence of 18 months imprisonment.

4 him. Appell ant also admitted to placing the Ruger pistol in the ceiling rafters in th e 4 basement.

The off icers interviewed Shawana the night of the assault and photographed her showing a fresh bruise and lump on the right side of her forehead. Her version of events at that time confirmed the allegati ons that she had made to the 911 dispatcher regarding the assault . Shawana was interviewed by police four days later and gave the sam e account. Shawana also retold this same version of events before the grand jury a few months later. On the eve of testifying at trial, however, Shawana changed her story , averring not only that she had lied about appellant assaulting her, but also that she, not appellant, had hidden the guns in the basement of her parent’s home. When appellant calle d Shawana to testify under subpoena, the district court warned Shawana that sh e might face “very serious legal consequences ” if her testimony at trial differed materially from her test

imony before the grand jury, and further, counseled her to seek the advice of her own attorne y. The government had contacted the public defender’s office about appoint ing Shawana “independent counsel” after learning that she would testify tha t appellant did not have a gun on the evening of June 25, 1996.

The dis trict court ultimately summoned a federal public defender to advis e Shawana of the consequences of her testimony. After conf erring with Shawana, counsel from the public de fender’s office informed the district court that Shawana did not want counsel. T.T. I at 134. The following exchange occurred:M r. Mohring suffered from a conflict of interest in light of the federal publi c 5 defender’s representation of Slayden in the underlying matter.

5 MR. MOHRING [Counsel from the federal public defender ’s office]: Your Honor, I have had some time to talk with the witness. Because of th e con flict of interest,[ ] I haven’t gone into any of the details of what he r

5 testimony might be or what her prior testimony was. I cannot, therefore, advise the c ourt about whether she has Fifth Amendment exposure in that arena or with respect to what her testimony is. Standard advice that I would give to anybody who has any concerns in that area is that they speak with a lawyer who can get into those details, and that would certainly be my advice to this witness or anyone in her situation.

. . . [I]t’s not my understanding that the witness wishes counsel

. That is certainly against my advice, but that may be where she is at.

. . . . THE COURT: . . . . Mr. Mohring, I’m going to tell you what I’m going to do, and then I am also going to tell you at the same time, Ms. Blanche, I think I am going to continue this matter. I am going to ask you if you will take Ms. Blanche w ith you and see if you can find somebody who is from some other organization or someone else oth er than one of your colleagues and get this young woman

some advice, because it is my strong sense that she needs some, and then she is free to make whatever decisions sh e wishes, but I want to make sure they are informed decisions. Ms. Blanche, do you understand what I have in mind? THE WITNESS [Shawana Blanche]: Sure. THE COURT: All right. Ms. Blanche, Mr. Mohring will help you find an attorney, someone will come and talk with you. Now, l isten to that person. You are permitted to make any decisions you want, but nobody shoul d make a decision without understanding what happens if they make6

a partic ular decision, and so we will put this matter over until 9:00 o’clock tomorro w morning. THE WITNESS: Excuse me, but I have no misunderstandings right now. I am ready to testify. THE COURT: I appreciate that, ma’am, but one of the reasons lawyers go to law school is they may know t hings that you don’t, and I would suggest t h at it would be appropriate for you to chat to a lawyer before you testify today. MR. ORTH [Defense counsel]: I object to that procedure, Your Honor. THE COURT: Your objection is noted, Counsel. Thank you. Trial Transcript, Volume I, at 133-35. The following morning, af ter consulting with new counsel, Shawana announced to the district court that she intended to invoke her Fifth Amendment privilege not to test ify. The district court then excused her from testifying. Neither th e government nor the district court would grant Shawana immunity a t appellant’s request.
At trial, Jacquelyn Blanche, Tynique Nako, and April Majors, eyewitnesses of the June 25, 1996 incident, testified that appellant did not pull a handgun on Shawana and did not have possession of a handgun during the arg ument. After the defense rested, the district court ordered, sua sponte , appellant’s mother, father, and Shawana from th e
co urtroom

in order to “maximize . . . opportunities” for their recall and in accordanc e with the parties’ earlier

agreement. Appellant’s mother and father had already testified for the defense and, as noted above, Shawana had invoked her Fifth Amendmen t privilege against self-incrimination. Appellant repeatedly objected to the sequestration of his family on the groun d that they would not be recalled as witnesses, and thus, their sequestration

violated his Sixth Amendment right to a public trial. Appellant’s parents were not recalled and Shawana did not testify.At oral argument, appellant’s counsel stated that the issue was not the district 6 court’ s and the government’s refusal to grant immunity, but rather, the violation o f appellant’s Fifth and Sixth Amendment rights to put on a defense. However, appellant relied heavily on the district court’ s and the government’s refusal to grant immunity as the basis for his due process and fair tri al claims both in his brief and at oral argument. Accordingly, we address this issue squarely.

7 Appellant was convicted, following the jury trial, of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). This appeal followed.

Discussion
I. Due process violations
Appellant argues that he was effectively denied his due process right to a fair trial
as a result of the cumulative effect of several prejudicial errors at trial. Of mos t significance on appeal are appellant’s allegations that th e district court erred in soliciting independent counsel for Shawana and in failing to grant immunity to her after sh e 6 invoked her Fifth Amendment right not to testify. Specifically, appellant contends that “the government and the district court combined to insure [that] Shaw ana Blanche would invoke the [F]ifth [A]mendment” and the jury would be denied her exculpa tory evidence. Bri ef for Appellant at 13. These “errors,” asserts appellant, coupled with the distric t court’s admission of appellant’s jail cell conversation and the limitation of appellant’s closing argument, deprived him of his due process right to a fair trial.

In support, appellant cites the law of several other circuits holding that th e gover nment

may be compelled to grant immunity to an exculpatory witness wher e government overreaching has forced that witness to invoke the Fifth Amendment. See,
e. g. , United States v. Abbas , 74 F.3d 506, 512 (4 Cir.), cert. denied , 517 U.S. 122 9 th (1996); United States v. Ba ker , 10 F.3d 1374, 1414-15 (9 Cir. 1993); United States v. th Follin , 979 F.2d 369, 374 (5 Cir. 1992); United States v. Bahadar , 954 F.2d 821, th8

825- 26 (2d Cir. 1992); United States v. Chalan , 812 F.2d 1302, 1310 (10 Cir. 1987); th Governmen t

of the Virgin Islands v. Smith , 615 F.2d 964, 968-69 (3d Cir.1980))

. Appellant argues that where, as here, both the g overnment and the district court actively encouraged the complaining witness to invoke the Fifth A mendment, this principle holds
even greater force. Appellant further contends that both the district court’s and th e government’s failure to grant Shawana immunity after she invoked the Fifth Amendment compounded the e rror. Appellant challenges the district court’s and the government’s refusal to grant immunity on the ground that the threat of prosecuting Shawana fo r perjury was “chimerical” and in bad faith because it was unlikelythat, Shawana, a minor on medication and under psychiatric care, would be prosecuted.

“Trad itionally, defendants have used two theories in presenting due proces s arguments for immunization of defense witnesses. The first suggests setting th e conviction aside to permit the balanced immunization of witnesses; the second would auth orize judicial immunity.” United States v. Capozzi , 883 F.2d 608, 613 (8 Cir

. th 1989 ) ( Capozzi ). In the instant case, appellant does not allege that the governmen t granted use i mmunity to its witnesses but refused to immunize defense witnesses. Rather, appellant relies on the second theory, “judicial immunity,” which holds that a
cou rt has inherent power to immunize witnesses whose exculpatory testimony i s essential to an effective defense.

This court has consistently declined to apply the concept of judicial immunity

. See, e.g. , United States v. Dierling , 131 F.3d 722, 732 (8 Cir. 1997) ( Dierling ), cert. th denied , 118 S. Ct. 1379 (1998); United States v. Stewart , 122 F.3d 625, 627 (8 Cir. th 19 97); United States v. Warfield , 97 F.3d 1014, 1020 (8 Cir. 1996) ( Warfield ), cert

. th denied , 11 7 S. Ct. 1119 (1997); United States v. Robaina , 39 F.3d 858, 863 (8 Cir

. th 1994); Capozzi , 883 F.2d at 613-14; United States v. Doddington , 822 F.2d 818, 821 (8 Cir. 1987); United State s v. Hardrich , 707 F.2d 992, 994 (8 Cir. 1983) ( Hardrich ). th th This cour t has posited, however, that “[e]ven assuming a district court has authority to immunize defense witnesses, . . . it is clear that such an order is an extraordinaryIn United States v. Capozzi , this court explained: “[T]he . . . Compulsor y 7 Process Clause gives the defe ndant the right to bring his witness to court and have the witness ’s non-privileged testimony heard, but does [not] carry with it the additiona l righ t to displace a proper claim of privilege, including the privilege agains t self-incrimination.” 883 F.2d 608, 614 n.11 (8 Cir. 1989) (quoting United States v. th Turkish , 623 F.2d 769, 774 (2d Cir. 1980)).
9 remedy , to be used sparingly, and then only where the proffered evidence is ‘clearl y exculpato ry.’” Capozzi , 883 F.2d at 614 (footnote and citations omitted); accor d Dierling , 131 F.3d at 732 (“Use immunity has been ordered elsewhere on occasion for
a w itness with ‘clearly exculpatory’ evidence where there is no strong countervailin g interest of the government.”) (citing Government of the Virgin Islands v. Smith , 615 F.2d at 9 72-73); Warfield , 97 F.3d at 1020 n.3 (“Even if we were to formally recognize the concept [of j udicial immunity], . . . the doctrine is applicable only if the proffere d testimony of the witness is ‘clearly exculpatory.’”) (citing Hardrich , 70 7 F.2d at 993-94). We hav e not had the opportunity to address a case in which the evidence for whic h immuni ty was sought was clearly exculpatory. See, e.g. , Dierling , 131 F.3d at 732 ; Capozzi , 883 F.2d at 614.

In Capozzi , the appellant argued that “the timing of the government's notification of unindicted co-conspirators was designed and intended to intimidate and discourage appellant’s witn esses thereby interfering with the fact finding process.” Id. This court found, howe ver, that “[t]he seven month period from indictment to trial was more than an adequate time to prepare a defense. Moreover, the [indictees’ role in the underlying offense] was known to all from the time the indictment was returned. Finally , there ha[d] been no s howing by appellant of prosecutorial misconduct in making its immunit y decisions.” Id. Thus, we held that the “extraordinary relief” of judicial immunity, i f available , could not be ordered where the appellant’s allegations of prosecutoria l misconduct were meritless. Id. We also considered the possible violation of th e ap pellant’s Sixth Amendment right to compulsory process, holding that, to establis h 7 such a violation, a defendant must show the absence of material testimony favorable10

to his or her defense. Id. (citing United States v. Rubin , 836 F.2d 1096, 1101 (8 Cir. th 1988); United States v. Holtzen , 718 F.2d 876, 878 (8 Cir. 1983) (per curiam)). We th found that the appellant was per mitted to present to the jury as much of the exculpatory evidence as was necessary to his defense and therefore suffered no Sixth Amendment violation. Id. at 615. We therefore refrained from resolving “the ultimate question of whet her a court has inherent authority to fashion such extraordinary relief as judicia l immunity of potential defense witnesses.” Id.

Lik ewise, in Dierling , the appellant sought to overturn his conviction on th e ground that the trial court erred in refusing to provide immunity for his witnesses after the court appointed counsel for them and they were advised of their Fifth Amendment rights. 131 F.3d at 732. We declined to examine “the policy implications of judicia l involvement in use immunity” on the ground that “[t]here was enough evidence t o
conv ict the appellants of conspiracy without evidence of the killing, and there was n o deliberate distortion of the truth -finding process by the government, and no government misconduct or threats to witnesses.” Id.
We examine appellant’ s due process claims under the same analysis. Warnings concerning t he dangers of perjury can be emphasized to the point that they compel a witness, by threat or intimidation, not to testify or to invoke the Fifth Amendment. See, e.g. , Webb v. Texas , 409 U.S. 95 (1972) (witnes s refused to testify for defense after the trial judge singled him out for a lengthy admonition of the dangers and dire consequences of perjury and suggested that he would testifyuntruthfully); United States v. Heller , 830 F.2d 150 (11th Cir. 1987) (def ense witness was subjected to threats and interference of I.R.S. agents who forced the witness accountant to testify falsely against defendant) ; United States v. Morrison , 535 F.2d 223 (3d Cir. 1976) (defense witness asserted her Fifth Amendment rights because the prosecutor repeatedly warned her of her liability to the prosecution and held an intimidating personal interview with her). However, in such cases, the government or judicialWhile we commend the district court for diligently protecting Shawana’s right 8 to advice of counsel, we caution district judges to refrain from assuming the role o f advocate even in such delicate circumstances as preventing a minor from exposin g herself to perjury charges.

11 conduct must be responsible for the violation of the defendant’s the right to presen t witnesses on his or her own behalf to establish a defense.

In th e instant case, we believe that the conduct of the government, in contacting the public defender’s office, and th e district court, in pointedly cautioning Shawana and adjou rning the proceedings to allow her to consult with new counsel over defens e counsel’s and her own unequivocal objection, came close to prosecutorial or judicia l overreaching to compel Shawana’s invoca tion of the Fifth Amendment. We do not find
er ror, however, in the district court’s solicitation of independent counsel for Shawan a or in warning her of the serious consequences of perjuring herself in light of the facts that Shawana was a minor under psychiatric care and unrepresented by counsel. See Culkin

8

v. Purkett , 45 F.3d 1229 (8 Cir. 1995) (holding that trial judge “properly” warne d th preadolescent witness who was unrepresented by counsel of the consequences of perjury and appointed counsel for witness after she equivocated regarding her desire to testify without advice of counsel). Further, we find that appellant was not effectively deprived of a fair opportunity to present his defense. Appellant called to testify thre e eye witnesses whose testimony contradicted the government’s evidence and wa s permitted to fully cross-examine the government’s witnesses. Finally, we defer to the district court’s finding that the government acted in good faith in attempting to secur e independent counsel for Shawana. Indeed, th e evidence suggests that Shawana reached her decision not to testify after consulting with ind ependent court-appointed counsel and not as a result of government or judicial coercion. Accordingly, we again decline t o resolve “the ultim ate question of whether a court has inherent authority to fashion such extraordin ary relief as judicial immunity of potential defense witnesses,” Capozzi , 883 F.2d at 615, where palpable judicial or government interference has been shown.12

As for the district court’s admission of appellant’s audiotaped jail cel l conversation with a Minneapolis police officer, we hold that the district court did no t abuse its discretion in admitting the audiotape as an admission of a party opponent , under the Fed. R. Evid. 801(d)(2)(A), or a s evidence of appellant’s motive, preparation, and plan to commit the underlying offense, Fed. R. Evid. 404(b).

In add ition, we hold that the district court did not unfairly curtail appellant’ s clos ing argument by barring appellant’s reference to the portions of the intervie w videotape t hat were not presented to the jury. The government did not introduce th e other por tions of the interview videotape at trial because they dealt with appellant’ s alleged pa rticipation in a fatal drive-by shooting. However, in a bench conference just prior to trial, defense counsel stated that he intended to argue to the jury that th e government should have introduced the remaining portions of the vi deotape. The district court r esponded that defense counsel could address the remaining portions of th e videotape in closing argument only if the government could reopen the evidence. We hold that it was not error for the district court to bar appellant from referring in closing argument to the remaining portions of the videotape. Those portions were obviousl y pr ejudicial to appellant and therefore inadmissable. Moreover, there is no evidence in the re cord that appellant suffered any prejudice as a result of the district court’ s limitation of his closing argument. Appellant had acce ss to the entire six-hour videotape and, by agreement, could have introduced into evidence any portion of the videotape that would ha ve been helpful to his defense. Further, appellant referred to the remainin g p o rtions of the videotape in closing, despite the district court’s instruction, stating that “there ar e about 325 minutes of videotape, and the government’s picked out three. ” Trial Transcript, Volume II, at 59. In light of the foregoing, we conclude that the district court did not commit any error in violation of appell ant’s due process right to a fair trial.Rule 615 of the Federal Rules of Evidence provides, in relevant part, that “[a]t 9 the request of a party the court shal l order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.”
13 II. Sixth Amendment right to a public trial

In his bri ef on appeal, appellant contends that his Sixth Amendment right to a public trial was violated by the exclusion of his mother, father, and Shawana from the courtroom at the close of his case. At oral argument on appeal, app ellate counsel limited this c ontention to the exclusion of Shawana. Appellant asserts that because defens e counsel, as an officer of

the court, assured the district court that Shawana would not be cal led to testify, the district court had no basis for excluding Shawana. We hold that , despite de fense counsel’s averments, the district court had valid concerns under Rul e 615 of the Federal Rules of Evidence in lig ht of Shawana’s earlier vacillation regarding 9 her willingness to testify. Further, to the extent that the exclusion of Shawana (and her parents) amounts to a partial cl osure of the proceedings, the district court made express findi ngs as to why partial closure was warranted under the circumstances. See Waller v. Georgia , 467 U.S. 39, 45 (1985); see also Unite d States v. Farmer , 32 F.3d 369, 371- 72 ( 8 Cir. 1994) (McMillian, J., dissenting) (“[T]he requirement that the trial cour t th make su fficient findings to allow the reviewing court to determine whether or not a closur e was justified is equally applicable in a case of partial closure.”). The distric t court found that the parties’ prior agreement to sequester witnesses under Rule 615 and the interest in maximizing appellant’s opportunity to present his defense through th e recall of his parents or the new testimony of Shawana justified partial closure

. Moreover, appellant has failed to demonstrate that he suffered any prejudice from th e pa rtial closure. The record shows that the trial was nearly concluded at the time tha t appellant’s family was excluded. We therefore hold that the district court did not abuse its discretion in excluding appellant’s family from the courtroom.In addition, the government established the other elements of the crime b y 10 showing that both guns were in working order a nd had previously traveled in interstate commerce and that appellant was a convicted felon.

14 III. Sufficiency of evidence
Finally, appellant ass erts that there was insufficient evidence, as a matter of law, to convict appellant of possession of the Lorcin handgun found in the basement bedroom because of appellan t’s repeated denial of involvement with the Lorcin handgun and the government’s failure to link appellant through direct evidence to the purchase o r possession of the gun. Appellant argues that the jury could only have convicted him of possession of a firearm if the jury was swayed by unfair prejudice. We disagree.

A verdic t may be reversed for insufficiency of the evidence if, upon viewing the evidence in the light most favorable to th e verdict, no reasonable jury could have found defendant guilty beyond a reasonable do ubt upon the proof adduced. See United States
v. Wade , 1 11 F.3d 602, 604 (8 Cir. 1997); United States v. Stands , 105 F.3d 1565 , th 1570 (8 Cir. 1997). Here, the proof add uced by the government included (1) the taped th 911 call made by Shawana accusing appellant of assault, identifying appellant, an d desc ribing the gun ultimately found in the basement, (2) mail addressed to appellan t found in the same room where the Lorcin hand gun was found, (3) appellant’s admission that Slayden purchased the Ruger pistol for him, and (4) appellant’s admission that he place d the Ruger pistol in the ceiling rafters in the basement. We hold that thi s 10 evidence is sufficient to support appellant’s conviction.

Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.15

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.