The Honorable James M. Rosenbaum, United States District Judge for the

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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 the

United States District Court for the District of Minnesota, upon a jury verdict, finding 1
On October 2, 1995, appellant pleaded guilty in Hennepin County District

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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 years

probation.

Appellant was also charged with and convicted of conspiring to obtain firearms 3

through false 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.

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him guilty of being a felon in possession of a firearm in violation of 18 U.S.C.

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

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guidelines to fifty-one months imprisonment, three years of supervised release, and a

special assessment of one hundred dollars. For reversal, appellant argues that the

district court erred in (1) partially denying his motion for judgment of acquittal,

(2) refusing to immunize his sister, the complaining witness, (3) admitting his

audiotaped telephone conversation with a Minneapolis police officer in which appellant

stated his intention to obtain more guns upon release from custody for then-pending

state law gun possession charges, (4) limiting his closing argument, and (5) excluding

his sister from the courtroom during the final minutes of trial. For the reasons discussed

below, we affirm the judgment of the district court. 

Jurisdiction

Jurisdiction 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 911

call reporting a disturbance at the home of appellant’s parents, James and Jacqueline
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Blanche. The call was placed by Shawana Blanche (Shawana), appellant’s then-sixteen

year-old sister, 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 family residence, Minneapolis police saw appellant

exiting the house in clothing that matched the 911 dispatcher’s description and took

appellant into custody. Appellant did not have a gun on his person. During the

execution of 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 found

additional ammunition for that gun behind a speaker in the basement bedroom. The

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 bedroom

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.) 

Following appellant’s arrest, on June 26 and 27, 1996, and later in November

1996, Minneapolis 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 and

having any involvement with the Lorcin handgun. However, after initially denying

ownership of the Ruger pistol, on the second day of the interviews, appellant admitted

that his girlfriend, Lashawn Slayden (“Slayden”) had purchased the Ruger pistol for
Appellant and Slayden were charged in a superseding indictment in the instant 4

case. Count 1 charged appellant with being a felon in possession of firearms. Counts

2-15 charged Slayden with being a straw purchaser of firearms. Count 16 charged both

Slayden and appellant with a conspiracy to obtain firearms through the use of false

statements on firearm acquisition forms (straw purchases). Slayden pleaded guilty to

Count 2 prior to trial and received a sentence of 18 months imprisonment. 

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him. Appellant also admitted to placing the Ruger pistol in the ceiling rafters in the

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basement. 

 

The officers 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 allegations that she had made to the 911 dispatcher regarding

the assault. Shawana was interviewed by police four days later and gave the same

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

called Shawana to testify under subpoena, the district court warned Shawana that she

might face “very serious legal consequences” if her testimony at trial differed materially

from her testimony before the grand jury, and further, counseled her to seek the advice

of her own attorney. The government had contacted the public defender’s office about

appointing Shawana “independent counsel” after learning that she would testify that

appellant did not have a gun on the evening of June 25, 1996.

The district court ultimately summoned a federal public defender to advise

Shawana of the consequences of her testimony. After conferring with Shawana, counsel

from the public defender’s office informed the district court that Shawana did not want

counsel. T.T. I at 134. The following exchange occurred:
Mr. Mohring suffered from a conflict of interest in light of the federal public

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defender’s representation of Slayden in the underlying matter.

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MR. MOHRING [Counsel from the federal public defender’s office]: Your

Honor, I have had some time to talk with the witness. Because of the

conflict of interest,[ ] I haven’t gone into any of the details of what her

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testimony might be or what her prior testimony was. I cannot, therefore,

advise the court 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 with you and see if you can find somebody who is from

some other organization or someone else other 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 she

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, listen to that person.

You are permitted to make any decisions you want, but nobody should

make a decision without understanding what happens if they make
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a particular decision, and so we will put this matter over until 9:00 o’clock tomorrow

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 things that you don’t, and I would suggest

that 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, after consulting with new

counsel, Shawana announced to the district court that she intended to invoke her Fifth

Amendment privilege not to testify. The district court then excused her from testifying.

Neither the government nor the district court would grant Shawana immunity at

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 argument. After the defense rested, the

district court ordered, sua sponte, appellant’s mother, father, and Shawana from the

courtroom in order to “maximize . . . opportunities” for their recall and in accordance

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 Amendment

privilege against self-incrimination. Appellant repeatedly objected to the sequestration

of his family on the ground 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 of

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 trial claims both in his brief and at oral argument.

Accordingly, we address this issue squarely. 

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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 most

significance on appeal are appellant’s allegations that the district court erred in soliciting

independent counsel for Shawana and in failing to grant immunity to her after she

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invoked her Fifth Amendment right not to testify. Specifically, appellant contends that

“the government and the district court combined to insure [that] Shawana Blanche would

invoke the [F]ifth [A]mendment” and the jury would be denied her exculpatory evidence.

Brief for Appellant at 13. These “errors,” asserts appellant, coupled with the district

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 the

government may be compelled to grant immunity to an exculpatory witness where

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. 1229

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(1996); United States v. Baker, 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, th
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825-26 (2d Cir. 1992); United States v. Chalan, 812 F.2d 1302, 1310 (10 Cir. 1987); th

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

Appellant argues that where, as here, both the government and the district court actively

encouraged the complaining witness to invoke the Fifth Amendment, this principle holds

even greater force. Appellant further contends that both the district court’s and the

government’s failure to grant Shawana immunity after she invoked the Fifth Amendment

compounded the error. Appellant challenges the district court’s and the government’s

refusal to grant immunity on the ground that the threat of prosecuting Shawana for

perjury was “chimerical” and in bad faith because it was unlikely that, Shawana, a minor

on medication and under psychiatric care, would be prosecuted. 

“Traditionally, defendants have used two theories in presenting due process

arguments for immunization of defense witnesses. The first suggests setting the

conviction aside to permit the balanced immunization of witnesses; the second would

authorize judicial immunity.” United States v. Capozzi, 883 F.2d 608, 613 (8 Cir.

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1989) (Capozzi). In the instant case, appellant does not allege that the government

granted use immunity to its witnesses but refused to immunize defense witnesses.

Rather, appellant relies on the second theory, “judicial immunity,” which holds that a

court has inherent power to immunize witnesses whose exculpatory testimony is

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

1997); United States v. Warfield, 97 F.3d 1014, 1020 (8 Cir. 1996) (Warfield), cert.

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denied, 117 S. Ct. 1119 (1997); United States v. Robaina, 39 F.3d 858, 863 (8 Cir.

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1994); Capozzi, 883 F.2d at 613-14; United States v. Doddington, 822 F.2d 818, 821

(8 Cir. 1987); United States v. Hardrich, 707 F.2d 992, 994 (8 Cir. 1983) (Hardrich). th th

This court 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 extraordinary
In United States v. Capozzi, this court explained: “[T]he . . . Compulsory

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Process Clause gives the defendant the right to bring his witness to court and have the

witness’s non-privileged testimony heard, but does [not] carry with it the additional

right to displace a proper claim of privilege, including the privilege against

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)).

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remedy, to be used sparingly, and then only where the proffered evidence is ‘clearly

exculpatory.’” Capozzi, 883 F.2d at 614 (footnote and citations omitted); accord

Dierling, 131 F.3d at 732 (“Use immunity has been ordered elsewhere on occasion for

a witness with ‘clearly exculpatory’ evidence where there is no strong countervailing

interest of the government.”) (citing Government of the Virgin Islands v. Smith, 615 F.2d

at 972-73); Warfield, 97 F.3d at 1020 n.3 (“Even if we were to formally recognize the

concept [of judicial immunity], . . . the doctrine is applicable only if the proffered

testimony of the witness is ‘clearly exculpatory.’”) (citing Hardrich, 707 F.2d at 993-94).

We have not had the opportunity to address a case in which the evidence for which

immunity 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 witnesses thereby interfering with the fact finding process.” Id. This court

found, however, 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 showing by appellant of prosecutorial misconduct in making its immunity

decisions.” Id. Thus, we held that the “extraordinary relief” of judicial immunity, if

available, could not be ordered where the appellant’s allegations of prosecutorial

misconduct were meritless. Id. We also considered the possible violation of the

appellant’s Sixth Amendment right to compulsory process, holding that, to establish

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such a violation, a defendant must show the absence of material testimony favorable
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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 permitted 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

whether a court has inherent authority to fashion such extraordinary relief as judicial

immunity of potential defense witnesses.” Id.

Likewise, in Dierling, the appellant sought to overturn his conviction on the

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 judicial

involvement in use immunity” on the ground that “[t]here was enough evidence to

convict the appellants of conspiracy without evidence of the killing, and there was no

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 the 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) (witness 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 testify untruthfully); United States v. Heller, 830

F.2d 150 (11th Cir. 1987) (defense 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 judicial
While 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 of

advocate even in such delicate circumstances as preventing a minor from exposing

herself to perjury charges. 

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conduct must be responsible for the violation of the defendant’s the right to present

witnesses on his or her own behalf to establish a defense.

In the instant case, we believe that the conduct of the government, in contacting

the public defender’s office, and the district court, in pointedly cautioning Shawana and

adjourning the proceedings to allow her to consult with new counsel over defense

counsel’s and her own unequivocal objection, came close to prosecutorial or judicial

overreaching to compel Shawana’s invocation of the Fifth Amendment. We do not find

error, however, in the district court’s solicitation of independent counsel for Shawana

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” warned

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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 three

eyewitnesses whose testimony contradicted the government’s evidence and was

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 secure

independent counsel for Shawana. Indeed, the evidence suggests that Shawana reached

her decision not to testify after consulting with independent court-appointed counsel and

not as a result of government or judicial coercion. Accordingly, we again decline to

resolve “the ultimate question of whether a court has inherent authority to fashion such

extraordinary relief as judicial immunity of potential defense witnesses,” Capozzi, 883

F.2d at 615, where palpable judicial or government interference has been shown.
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As for the district court’s admission of appellant’s audiotaped jail cell

conversation with a Minneapolis police officer, we hold that the district court did not

abuse its discretion in admitting the audiotape as an admission of a party opponent,

under the Fed. R. Evid. 801(d)(2)(A), or as evidence of appellant’s motive, preparation,

and plan to commit the underlying offense, Fed. R. Evid. 404(b). 

In addition, we hold that the district court did not unfairly curtail appellant’s

closing argument by barring appellant’s reference to the portions of the interview

videotape that were not presented to the jury. The government did not introduce the

other portions of the interview videotape at trial because they dealt with appellant’s

alleged participation 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 the

government should have introduced the remaining portions of the videotape. The district

court responded that defense counsel could address the remaining portions of the

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 obviously

prejudicial to appellant and therefore inadmissable. Moreover, there is no evidence in

the record that appellant suffered any prejudice as a result of the district court’s

limitation of his closing argument. Appellant had access to the entire six-hour videotape

and, by agreement, could have introduced into evidence any portion of the videotape that

would have been helpful to his defense. Further, appellant referred to the remaining

portions of the videotape in closing, despite the district court’s instruction, stating that

“there are 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 appellant’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 shall order witnesses excluded so that they cannot hear

the testimony of other witnesses, and it may make the order of its own motion.”

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II. Sixth Amendment right to a public trial

In his brief 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, appellate counsel limited

this contention to the exclusion of Shawana. Appellant asserts that because defense

counsel, as an officer of the court, assured the district court that Shawana would not be

called to testify, the district court had no basis for excluding Shawana. We hold that,

despite defense counsel’s averments, the district court had valid concerns under Rule

615 of the Federal Rules of Evidence in light 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 closure of the proceedings, the district court made express

findings as to why partial closure was warranted under the circumstances. See Waller

v. Georgia, 467 U.S. 39, 45 (1985); see also United States v. Farmer, 32 F.3d 369, 371-

72 (8 Cir. 1994) (McMillian, J., dissenting) (“[T]he requirement that the trial court

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make sufficient findings to allow the reviewing court to determine whether or not a

closure was justified is equally applicable in a case of partial closure.”). The district

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 the

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 the

partial closure. The record shows that the trial was nearly concluded at the time that

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 by

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showing that both guns were in working order and had previously traveled in interstate

commerce and that appellant was a convicted felon.

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III. Sufficiency of evidence

Finally, appellant asserts 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 appellant’s repeated denial of involvement with the Lorcin handgun and the

government’s failure to link appellant through direct evidence to the purchase or

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 verdict may be reversed for insufficiency of the evidence if, upon viewing the

evidence in the light most favorable to the verdict, no reasonable jury could have found

defendant guilty beyond a reasonable doubt upon the proof adduced. See United States

v. Wade, 111 F.3d 602, 604 (8 Cir. 1997); United States v. Stands, 105 F.3d 1565,

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1570 (8 Cir. 1997). Here, the proof adduced by the government included (1) the taped th

911 call made by Shawana accusing appellant of assault, identifying appellant, and

describing the gun ultimately found in the basement, (2) mail addressed to appellant

found in the same room where the Lorcin handgun was found, (3) appellant’s admission

that Slayden purchased the Ruger pistol for him, and (4) appellant’s admission that he

placed the Ruger pistol in the ceiling rafters in the basement. We hold that this

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evidence is sufficient to support appellant’s conviction.

Conclusion

For the foregoing reasons, the judgment of the district court is affirmed.
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A true copy.

Attest:

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