United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3824

___________

United States of America, *

*

 Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Gregory Allen True, *

*

Appellant. *

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Submitted: May 10, 1999

Filed: June 11, 1999

___________

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

___________

HEANEY, Circuit Judge.

Gregory Allen True was convicted on six drug-related counts and sentenced to

168 months imprisonment. On appeal, True challenges the sufficiency of the evidence

supporting his conviction and contends that the government substantially interfered with

a material, exculpatory defense witness resulting in a deprivation of his Fifth and Sixth

Amendment rights. We affirm.
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I.

As a preliminary matter, we have carefully reviewed the record and find no basis

for True’s contention that insufficient evidence supports his conviction. Of the

evidence adduced at trial, the surveillance videotapes and audiotapes of numerous drug

transactions alone support the conclusion that True engaged in the charged conduct and

was an experienced drug dealer who had participated in such conduct in the past.

True’s allegation of government interference, however, warrants a more complete

discussion.

The basis for True’s argument that the prosecutor substantially interfered with

a material defense witness is contained largely in the affidavits of Andrea George and

Joseph Margulies, attorneys who represented Dale Oakland. Oakland pled guilty in his

own federal drug case and received a sentence of 168 months. Before Oakland was

Mirandized, he allegedly told police that True was his source for drugs. This statement

was contained in a subsequent search warrant application that was introduced at True’s

trial. Subsequent to Oakland’s original statement, he gave at least three tape-recorded

statements that did not implicate (nor exonerate) True as his source for drugs. 

Prior to True’s trial, Assistant United States Attorney Carol Needles, who

prosecuted both Oakland and True, contacted George “regarding Mr. Oakland’s

willingness to cooperate and testify against Mr. True in his upcoming trial in exchange

for a possible sentence reduction under Rule 35 of the Federal Rules of Criminal

Procedure.” (George Aff., Appellant’s Br. at A-10.) George informed Needles that

Oakland did not wish to testify favorably for the government. Sometime thereafter,

Oakland was listed as a potential defense witness and subpoenaed in True’s case.

Needles indicated “that if Mr. Oakland testified contrary to the statement attributed to

him within the search warrant of Greg True’s home (that Greg True was his drug

source) that Mr. Oakland could be subject to perjury charges.” (George Aff.,

Appellant’s Br. at A-10.) When asked whether Needles would actually charge
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Oakland, “Needles responded that she probably would charge Mr. Oakland with

perjury.” (George Aff., Appellant’s Br. at A-10.) Subsequently, Oakland was

provided with new counsel, Margulies, whose advice he followed and asserted his Fifth

Amendment right to refuse to testify at True’s trial. Margulies’ affidavit corroborates

the facts set forth in George’s affidavit, adding Needles’ statement that “if Mr. Oakland

testified that True was not the source for his [drugs], he risked not only a prosecution

for perjury, but prosecution under [18 U.S.C.] § 1001 for making a false statement to

a peace officer.” (Margulies Aff., Appellant’s Br. at A-14.)

In True’s closing argument, his counsel stated that “Dale Oakland never testified

in this case, wasn’t called as a witness. Do you think if he was called as a witness, or

he would testify against Greg True, the government would not have called him?” (Trial

Tr. at 1375-76.) In her rebuttal closing argument, Needles responded that the

government need not call every potential witness–specifically Oakland–and implied that

True could have subpoenaed Oakland himself. The district court determined that

Needles’ comments were highly improper and issued a cautionary instruction:

Members of the jury, you heard arguments yesterday concerning the

absence of Dale Oakland as a witness. The government in rebuttal

argument yesterday suggested that Gregory Allen True could have used

a subpoena for Dale Oakland. You are instructed that Gregory Allen

True did subpoena Dale Oakland to testify in this trial, and that Dale

Oakland took the Fifth Amendment and refused to testify.

(Trial Tr. at 1442.) 

At trial, the district court conducted a hearing to determine the basis of

Oakland’s silence and whether improper threats had coerced it. The district court

determined by order, and again at the sentencing hearing, that the prosecutor’s conduct

did not constitute substantial interference with a material defense witness:
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I have stated on the record, and it was clear when I re-read it, this case

has a lot of problems with it, and I stated that on the record, but it does

not, as far as I can see, rise to the extent that the Court can do anything

regarding the calling of Mr. Oakland. It just isn’t there.

It’s one of the cases that leaves a bad taste in everybody’s mouth, and I’m

sure in the Government’s mouth and certainly in Mr. True’s mouth, and

certainly the Court’s mouth. But based on the law that has been

submitted to me, and based on the law that I researched and based on the

facts that we have, my order stands.

(Sentencing Hr’g Tr. at 5.) While we share the district court’s disapproval, we are

unable to say that the prosecutor violated True’s Fifth or Sixth Amendment rights.

II.

We review findings of fact for clear error and the legal conclusions based on

those facts de novo. See United States v. Beatty, 170 F.3d 811, 813 (8th Cir. 1999).

“The test for reversible prosecutorial misconduct has two parts: (1) the prosecutor’s

remarks or 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. Hernandez, 779 F.2d 456, 458 (8th Cir.

1985). 

This case presents three questionable acts of the prosecutor. First, Needles

offered a Rule 35 downward departure to Oakland for testifying on behalf of the

government at True’s trial. Second, Needles spoke with Oakland’s attorneys regarding

possible perjury charges. Finally, Needles suggested in rebuttal closing argument that

True could have, but did not, subpoena Oakland.
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With regard to the downward departure, the record reflects that the offer was

made prior to Oakland being subpoenaed by True. Had the offer been made after the

fact or in exchange for Oakland’s silence, we would be inclined to conclude that

Needles’ offer constituted impermissibly coercive conduct. As it stands, however,

Needles was not precluded by law from soliciting Oakland’s testimony. Accordingly,

this conduct was permissible.

True relies primarily on United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998),

to challenge Needles’ remaining questionable conduct. In Vavages, as a result of

government threats of perjury prosecution and withdrawal of a plea agreement in an

unrelated case, a potential alibi witness invoked her Fifth Amendment rights and

refused to testify for Vavages. See id. at 1187. At closing, the government commented

on the defense’s failure to present any adult alibi witnesses. See id. at 1191.

Subsequent to Vavages’ conviction, the district court held a sua sponte hearing to

determine if the government threatened the potential witness. See id. at 1187. The

district court determined that the government had coerced the witness into refusing to

testify but that the conduct did not prejudice Vavages. See id. 

In disagreeing with this assessment, the Ninth Circuit first observed that a

“defendant alleging [interference with a defense witness] is required to demonstrate

misconduct by a preponderance of the evidence. Whether substantial government

interference occurred is a factual determination to be made by the district court that we

review for clear error.” Id. at 1188 (citations omitted). The court then stated: 

The substantial interference inquiry is extremely fact specific. Among the

factors courts consider in determining the coercive impact of perjury

warnings are the manner in which the prosecutor or judge raises the issue,

the language of the warnings, and the prosecutor’s or judge’s basis in the

record for believing the witness might lie. . . . Where, under the totality

of the circumstances, "the substance of what the prosecutor communicates

to the witness is a threat over and above what the record indicates is
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necessary, and appropriate, the inference that the prosecutor sought to

coerce a witness into silence is strong."

Id. at 1190 (citations omitted). The court cautioned that “[w]e do not mean to suggest

that a prosecutor should never articulate his belief that a witness is lying. Rather, we

disapprove of such conduct where the prosecutor lacks any substantial basis in the

record for believing the witness is lying.” Id. Specifically, “unusually strong

admonitions against perjury are typically justified only where the prosecutor has a more

substantial basis in the record for believing the witness might lie–for instance, a direct

conflict between the witness’ proposed testimony and her own prior testimony.” Id.

Finding such a substantial basis lacking in Vavages’ case, the Ninth Circuit concluded

that the district court erred in finding that Vavages had not been prejudiced by the

prosecutor’s misconduct. See id. at 1193.

Standing alone, Needles’ comments regarding perjury and false statement

charges are impermissible. Rather than a simple admonition against perjury, Needles

stated that she could and would prosecute Oakland for perjury and/or making a false

statement to a peace officer. While Needles may have had reason to believe that

Oakland’s testimony would have been false, her comments constituted an

impermissible, coercive threat designed to prevent him from testifying. In response to

the threat, the district court solicited full briefing from the parties regarding the

misconduct. The district court held a hearing to examine the basis for Oakland’s

invocation of the Fifth Amendment and determined that, in addition to possible charges

of perjury and false statements, the possibility of state prosecution on drug charges

constituted a basis for his silence. We do not believe that the district court committed

clear error when it determined that possible state charges counseled Oakland’s

invocation of the Fifth Amendment. Accordingly, we conclude that the record does not

support the conclusion that Needles’ comments caused Oakland’s silence. True was

not therefore prejudiced.
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We agree with the district court that Needles’ commentary on True’s failure to

subpoena Oakland was highly improper. In her favor and unlike the statement in

Vavages, Needles made her comment in her rebuttal closing argument. While

improper, her comment was a direct response to defense counsel’s attempt to persuade

the jury to draw an inference favorable to True from Oakland’s failure to testify.

Moreover, the district court issued a cautionary instruction that adequately addressed

the improper mention–by both parties–of Oakland’s failure to testify in closing

arguments. Considering these facts, we cannot conclude that the comment prejudiced

True. 

Finally, we note that a prosecutor is not charged with manipulating possible

defense witnesses. In the event that Oakland testified at True’s trial, Needles would

have been able to cross-examine him and could have subsequently charged him for any

offense committed on the witness stand. This is the heart of the adversarial process and

the way things should have proceeded. We do not endorse a course of prosecutorial

conduct that promises to encroach on the adversarial process through back-room

threats.

III.

For the reasons stated above, we affirm.

A true copy.

Attest.

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