United States v. Larry Hill ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5170
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY A. HILL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (3:08-cr-00734-MBS-1)
Submitted: July 21, 2011 Decided: August 11, 2011
Before KING and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. William N. Nettles,
United States Attorney, Jeffrey Mikell Johnson, Robert F. Daley,
Jr., Assistant United States Attorneys, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Larry Hill of one count of perjury
pursuant to 18 U.S.C. § 1623 (“Count 1”), and one count of
obstruction of justice pursuant to 18 U.S.C. §§ 1503(a) and (b)
(“Count 2”). Hill was sentenced to a total of 63 months’
imprisonment. Hill’s counsel filed an appeal raising six issues:
(1) Whether Hill’s grand jury testimony was constitutionally
obtained; (2) Whether the district judge committed plain error
in failing to recuse herself from Hill’s trial; (3) Whether the
district court abused its discretion in admitting evidence of
Hill’s past involvement with the Capital Consortium Group; (4)
Whether the evidence was sufficient to support Hill’s
convictions; (5) Whether the indictment and jury instructions
were impermissibly vague; and (6) Whether the government used
Hill’s invocation of the Fifth Amendment as evidence against him
at trial. We reject all of Hill’s contentions and affirm.
Hill first argues that the district court abused its
discretion in permitting him to be prosecuted on the basis of
testimony he gave after he attempted to invoke his right to
silence. However,“[i]t is well established that a defendant
cannot immunize acts of perjury through suppression of false
statements that were taken in violation of the defendant’s
constitutional rights.” United States v. Kennedy, 372 F.3d 686,
693 (4th Cir. 2004). Nor does Hill succeed on his claim that his
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case falls into the narrow category of cases where a perjury
conviction should be overturned because “the false statements
were induced by prosecutorial misconduct so unfair as to amount
to a denial of due process,” id. at 695-96, as the only
misconduct that he claims is the prosecutor’s failure to grant
him immunity or to seek a citation for contempt before indicting
him for perjury.
In considering claims that a defendant’s testimony was
compelled in violation of the constitution, we must determine
whether he was properly instructed before giving such testimony.
See United States v. Bollin, 264 F.3d 391, 414 (4th Cir. 2001)
(finding that proper warnings regarding a witness’s Fifth
Amendment rights “eliminate[] any possible compulsion to self-
incrimination”). A witness is not permitted to invoke his right
to silence in response to any question he does not want to
answer. See Hoffman v. United States, 341 U.S. 479, 486 (1951)
(“The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself . . . .
It is for the court to say whether his silence is justified and
to require him to answer if ‘it clearly appears to the court
that he is mistaken.”) (internal citations omitted). Here, the
record reflects that Hill was correctly instructed on his rights
and ordered to answer only questions where he possessed no Fifth
Amendment privilege.
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Hill next argues that the district judge erred in failing
to recuse herself from his criminal proceedings because she had
presided over an earlier civil trial involving fraudulent
conduct relevant to this case. As Hill did not raise this claim
before the district court, we review for plain error. See United
States v. Rooks, 596 F.3d 204, 210 (4th Cir. 2010). While
recusal is appropriate any time the judge’s impartiality might
reasonably be questioned, see United States v. Mitchell, 886
F.2d 667, 671 (4th Cir. 1989), “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion,”
see United States v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008))
(citing Liteky v. United States, 510 U.S. 540, 555 (1994)). See
also Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984) (finding
that a judge does not abuse his discretion by denying a recusal
motion if the complaint is merely based upon the judge's rulings
in the instant case or related cases or attitude derived from
his experience on the bench). Consequently, Hill provides us
with no reason to find that the district judge’s failure to
recuse constituted error, plain or otherwise.
Hill next argues that the district court violated Federal
Rules of Evidence 401, 403, and 404 by admitting evidence of
Hill’s past associations with the Capital Consortium Group.
These contentions are without merit. All of the disputed
evidence was properly admitted because it was directly relevant
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to the question at hand: whether Hill committed perjury before
the grand jury. Furthermore, we find that the evidence was not
unduly prejudicial, and was introduced only what was relevant
and necessary to prove up the offenses charged in the instant
case.
Hill next claims that the district court erred in denying
his Rule 29 motion and his Motion for Judgment of Acquittal.
When considering a challenge to the sufficiency of the evidence,
we determine whether, “after viewing the evidence in the light
most favorable to the prosecution, any trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Reversal
for insufficient evidence is reserved for ‘the rare case where
the prosecution’s failure is clear.’” United States v. Ashley,
606 F.3d 135, 138-39 (4th Cir. 2010) (quoting United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)). The record
reflects that this is not such a rare case; rather, there was
ample evidence presented at trial to support Hill’s convictions.
Hill also argues that Counts 1 and 2 of the indictment were
duplicitous and that he was subjected to double jeopardy. Again,
we review this claim for plain error. See Rooks, 596 F.3d at
210. Because both of the charged offenses required proof of
elements that the other did not, Hill was not subject to double
jeopardy. See United States v. Siers, 873 F.2d 747, 750 (4th
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Cir. 1989) (citing Blockburger v. United States, 284 U.S. 299,
304 (1932)).
Hill’s final contention is that it was improper for the
government to indicate to him that his testimony before the
grand jury was secret and then prosecute him for attempting to
assert his right to remain silent. As the record was redacted to
remove all references to the Fifth Amendment during Hill’s grand
jury testimony from appearing in Hill’s trial, Hill’s claim is
again without merit.
We therefore affirm the judgment of the district court; we
also deny Hill’s motion for leave to file a pro se supplemental
brief. 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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