U.S. v. Williams ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-7435
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANKIE B. WILLIAMS,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the
Northern District of Mississippi
______________________________________________
June 4, 1993
( )
Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant, Frankie B. Williams (Williams), was convicted of
one count of making false declarations before a grand jury in
violation of 18 U.S.C. § 1623. The district court sentenced
Williams to a term of imprisonment of twelve months, a three-year
term of supervised release, and imposed a $3000 fine and a $50
assessment. Williams now appeals her conviction.
Facts and Proceedings Below
During 1991, the federal grand jury for the Northern District
of Mississippi was engaged in an investigation of a drug conspiracy
involving the Rodgerick Williams drug organization (Organization)
based in Greenville, Mississippi. The grand jury heard testimony
that the Organization supplied over sixty-five pounds of cocaine to
Connie Green (Green) who distributed it in the Lake Village,
Arkansas area with the assistance of Williams and her daughter
Audrey Williams, who were both residents of Lake Village, Arkansas.
Testimony further established that after Green was incarcerated,
Williams and her daughter took over the drug distribution
operation.
Having been identified as a co-conspirator with knowledge of
the Organization, Williams was subpoenaed to appear in Oxford,
Mississippi before the federal grand jury. Williams was served
with the subpoena on October 3, 1991, and an attachment to the
subpoena advised Williams of her rights before the grand jury,
including her right to counsel. On October 18, 1991, Williams
testified before the grand jury. At the beginning of her
testimony, Assistant United States Attorney Charles W. Spillers
(Spillers) informed her that she was the subject of an
investigation, that she did not have to answer any questions or
make any statements if the answer might tend to incriminate her,
and that she could be prosecuted for perjury for knowingly making
false statements. Williams acknowledged that she understood her
rights. Spillers questioned Williams about Al Jackson (Jackson),
a major leader in the Organization and one of the principal targets
of the investigation. She denied that Jackson had ever given her
cocaine or arranged for cocaine to be delivered to her. She also
2
denied that she had ever distributed cocaine.1 At the conclusion
1
The specific parts of her testimony that served as the basis
for her indictment were:
"Q. Have you ever sold cocaine?
A. No.
Q. Have you ever distributed or given anyone any
cocaine?
A. (Witness shakes haed [sic] in the negative.)
Q. Ma'am?
A. No.
Q. Have you ever used cocaine?
A. No, sir.
. . . .
Q. When you were living in a mobile home or house did
you or anyone else sell cocaine out of that residence
on April 21, 1990 at about 6:25 p.m., ma'am?
A. I didn't.
Q. Well, did anyone else that you know of?
A. Well, looking I can't say what went on. I don't
be home all the time.
Q. I am not asking you what you don't know. I am
asking you whether you know if anybody else did?
A. No, no, no.
Q. On June 9, 1990 at about 11:40 p.m., did you or
your daughter or anyone else sell cocaine out of your
residence in the 400 block of Lee Street?
A. What for? I don't be at home that time of night.
Q. Your answer is no?
A. No.
. . . .
3
of her testimony, Williams was given an opportunity to avoid
prosecution for perjury by amending or correcting her testimony,
but she declined to do so.
Prior to Williams's grand jury appearance, she and others had
been the targets of an investigation by the Southeast Arkansas
Regional Drug Task Force of the Federal Bureau of Investigation,
and the Arkansas State Police. On October 2, 1991, an Arkansas
bill of information was filed with, and a bench warrant issued by,
the Circuit Court of Chicot, Arkansas for the arrest of Williams on
four counts of delivery of a controlled substance contrary to
Arkansas law. Williams was not arrested or served with the warrant
or the information until October 24, 1991.
Williams was indicted on December 12, 1991, for knowingly
making a false material declaration in front of a federal grand
jury in violation of 18 U.S.C. § 1623. Prior to trial, the
district court denied Williams's motions to quash the grand jury
Q. On or about September 25, 1990, at about 11:04
p.m., did you or your daughter or anyone else sell
cocaine from your residence on Lee Street?
A. No.
Q. Ma'am?
A. No.
Q. Is it your sworn testimony under oath today that
neither you nor your daughter sold cocaine on any of
the dates I asked you about?
A. Well, I can testify for myself.
Q. That you didn't?
A. I didn't."
4
indictment and to suppress evidence as being obtained in violation
of her Sixth Amendment right to counsel. The trial was conducted
on March 2 and 3, 1992, during which the prosecution presented
evidence of the materiality of Williams's statements through the
testimony of, among others, the foreman of the grand jury, Charles
Frederick (Frederick), and Spillers. Frederick testified that the
grand jury was investigating the Organization in Greenville,
Mississippi, that Williams had been identified as being associated
with the Organization, and that the grand jury wanted to determine
which members of the Organization were supplying Williams with
cocaine. Frederick further testified that he did not think that
Williams's testimonySQwhereby she denied any involvement with
cocaineSQinfluenced the grand jury investigation. Spillers
testified that other grand jury witnesses had indicated that
Williams had associated with two major figures in the Organization,
Danny Williams and Jackson. Spillers explained that if Williams
had admitted selling cocaine, then she could be asked to identify
her drug sources and may have been able to serve as another witness
in the criminal case against Danny Williams, Jackson, and other
members of the Organization.
At trial, the defense during cross-examination elicited
testimony from Clarence Cunningham, a prosecution witness, that he
had been subpoenaed by the government, had been told that he had to
go to court, and that he was scared not to because of threats to
his life. On redirect, the government asked if he knew where the
threats came from. Cunningham responded that he was threatened
over the telephone and that he could not identify the voice. The
5
defense moved to strike the answer as being hearsay and because
Cunningham could not authenticate the telephone conversation. The
district court overruled the objection.
Williams was found guilty of the one charge of perjury.
Subsequently, the district court denied Williams's motions in
arrest of judgment and for judgment of acquittal notwithstanding
the verdict of the jury. The district court then sentenced
Williams to a term of imprisonment of twelve months, a three-year
term of supervised release, and imposed a $3000 fine and a $50
assessment. Williams now appeals her conviction.
Discussion
I. The Grand Jury's Jurisdiction
Williams first argues that her perjury conviction must be
reversed because the grand jury exceeded its jurisdictional and
investigatory authority by making inquiries into her activities in
Arkansas. This argument was raised before this Court by Williams's
daughter and was rejected. United States v. Williams, No. 92-7524
(5th Cir. March 4, 1993) (unpublished). Williams points out that
a false statement made before a grand jury acting beyond its
authority is not perjury. Brown v. United States, 245 F.2d 549,
554-55 (8th Cir. 1957). However, as noted by the Williams panel,
in the Brown case the appellant was convicted in Nebraska for
perjury before the Nebraska grand jury concerning false statements
he made regarding activities in Missouri. Under the facts there,
the testimony was irrelevant to possible indictment of anyone for
an offense committed, in whole or in part, in Nebraska. Id. at
554. Here, "[t]he foreman of the grand jury connected Williams's
6
appearance in front of the grand jury to the investigation of the
Mississippi-based Rod Williams Organization, and established that
the scope of the grand jury's investigation included activities in
Mississippi as well as Arkansas." Williams, slip op. at 7. A
grand jury's investigation into a conspiracy is not limited to the
district where the grand jury is located. See Matter of Grand Jury
Proceedings: Marc Rich & Co., A. G. v. United States, 707 F.2d 663,
667 (2nd Cir.), cert. denied, 103 S. Ct. 3555 (1983); United States
v. Antill, 601 F.2d 1049, 1050-51 (9th Cir. 1979); United States v.
Phillips, 540 F.2d 319, 328 (8th Cir.), cert denied, 97 S. Ct. 530
(1976); United States v. Girgenti, 197 F.2d 218, 219 (3rd Cir.
1952). Since the foreman had sufficiently established that the
grand jury in its questioning of Williams was investigating a drug
conspiracy that took place partially in Mississippi, jurisdiction
was proper.
II. Materiality
In a similar vein, Williams argues that her grand jury
testimony concerning her activities in Arkansas was immaterial to
the grand jury's investigation in Mississippi and therefore her
perjury conviction must be reversed. To convict for perjury the
government must prove that statements made by the defendant were
false, material, and not believed by the defendant to be true.
United States v. Abroms, 947 F.2d 1241, 1245 (5th Cir. 1991).
Materiality is a legal issue that is decided by the district court
and is reviewed on appeal de novo. Id. at 1246. The test for
materiality is "'whether the false testimony was capable of
influencing the tribunal on the issue before it.'" United States
7
v. Salinas, 923 F.2d 339, 341 (5th Cir. 1991) (emphasis in Salinas)
(quoting United States v. Giarratano, 622 F.2d 153, 156 (5th Cir.
1980)). Materiality need not be proved beyond a reasonable doubt.
Abroms, 947 F.2d at 1246-47.
Williams argues that the false statements were not material to
the grand jury investigation because they related only to Arkansas.
She offers as proof of this assertion the testimony of grand jury
foreman Frederick who stated that he did not think that Williams's
false answers influenced the grand jury's investigation.2 However,
he also testified that Williams had been identified to the grand
jury as being associated with the Organization and that the
questions asked of Williams concerning whether she sold drugs were
important because "we wanted to get to the bottom of the drug
organization or get to the source of where the drugs were coming
from that was being dispensed." Frederick further testified that
the grand jury was interested specifically in Williams's testimony
as to whom she was receiving the cocaine from; and if she had
admitted to sales of cocaine the grand jury would have been
interested in her sources.
False statements "need not be material to any particular
issue, but may be material to collateral matters that might
influence the court or the jury in the decision of the questions
before the tribunal." United States v. Damato, 554 F.2d 1371, 1373
2
Williams also points out that the grand jury indictment
against her did not state why or how her false statements were
material to the investigation. However, this Court is not
limited to considering the grand jury's indictment in order to
prove the scope of the investigation and thereby the materiality
of the witness's statements. Abroms, 947 F.2d at 1248.
8
(5th Cir. 1977).3 Here, if Williams had answered truthfully
concerning whether she distributed cocaine, then the grand jury
would have been able to ask more pertinent questions concerning
from whom Williams (who had been identified to the grand jury as
associated with the Organization) had received the cocaine; and if
someone in the Organization was a source for her cocaine, her
knowledge of the Organization itself. This testimony had the
legitimate potential to lead to further evidence concerning the
known targets of the investigation and possible other persons that
the grand jury was not yet aware of.4 In light of the lawfully
broad scope of this investigation, Williams's testimony was capable
of influencing the grand jury.
3
It is not determinative that Frederick testified that he did
not think the grand jury was influenced by Williams's testimony.
As this Court has recognized, "the false statement need not
actually affect the tribunal's decision; it need only be capable
of affecting the tribunal's decision." Salinas, 923 F.2d at 341.
4
As noted by the Williams panel:
"A transcript of Williams's statements in front of
the grand jury and the foreman's testimony that the
grand jury's objective was to investigate the Rod
Williams Organization is . . . sufficient to
demonstrate materiality. The foreman explained that
the grand jury received information indicating that
Williams's source was the Rod Williams Organization.
In the context of the investigation of the Rod Williams
Organization it is clear that truthful answers might
have allowed the grand jury to ask more probing
questions about Williams's knowledge of the Rod
Williams Organization and the source of her drugs.
Truthful answers to these questions might have enabled
the grand jury to carry out its charge more
efficiently, effectively, and extensively." Williams,
slip op. at 6.
9
III. Sixth Amendment Right to Counsel
Williams contends that she was questioned by the grand jury in
violation of her Sixth Amendment right to counsel because Spillers
did not tell her prior to her grand jury testimony of her right to
counsel, nor did he mention the possibility of use immunity for her
testimony.5 She argues that Spillers was required to make such
statements because a prior bill of information charging a violation
of Arkansas law had been filed against her, so that her Sixth
Amendment right to counsel had attached and her interrogation by
the grand jury was in violation of that right.
The right to counsel attaches upon the "initiation of
adversary judicial criminal proceedings." Kirby v. Illinois, 92
S. Ct. 1877, 1882 (1972); Daigre v. Maggio, 705 F.2d 786, 788 (5th
Cir. 1983). This Court has explained that the Kirby court viewed
the initiation of such proceedings to occur "'whether by way of
formal charge, preliminary hearing, indictment, information, or
arraignment.'" Daigre, 705 F.2d at 788 (quoting Kirby, 92 S. Ct. at
1882). A bill of information was filed in Arkansas state court on
October 2, 1991, accusing Williams of two separate counts of
5
An attachment to the Subpoena that Williams received stated
that "[y]ou may consult with an attorney before testifying; you
may have an attorney outside the jury room, and if you desire,
you will be afforded a reasonable opportunity to step outside the
grand jury room to consult with an attorney before answering any
question." It also informed her that she was "a suspect in [the]
investigation," and that "you will be expected to answer all
questions asked of you, except to the extent that a truthful
answer to a question would tend to incriminate you." Spillers
also informed her at the beginning of her testimony, "you are the
subject of an investigation, and that if you . . . are asked any
question for which the answer may tend to incriminate you then
you need not answer."
10
delivery of a controlled substance in violation of Arkansas law.6
The filing of the bill of information in the Arkansas state court
certainly triggered her right to counsel in the Arkansas state
court proceedings. Kirby, supra. However, this filing did not
trigger her right to counsel concerning her October 18, 1991
appearance before the federal grand jury in Mississippi.
The initiation of adversary criminal proceedings for an
offense causes the Sixth Amendment right to counsel to attach for
that offense. United States v. Carpenter, 963 F.2d 736, 739 (5th
Cir. 1992) (noting that "the Sixth Amendment only applies to the
specific offense with which the suspect has been charged"). Only
under extremely narrow circumstances will the Sixth Amendment right
to counsel also attach to other offenses. Id. at 740; United
States v. Cooper, 949 F.2d 737 (5th Cir. 1991), cert. denied, 112
S. Ct. 2945 (1992). In Cooper, the defendant was arrested and
charged for the state offense of robbery, and his car seized as an
instrument in the crime. An inventory search of the car's contents
revealed a sawed-off shotgun in the trunk. After counsel had been
appointed for the defendant in the state case, a federal agent
questioned him about both the sawed-off shotgun and the state
offense. He was subsequently charged under federal law for
unlawful possession of an unregistered weapon, the shotgun. The
defendant's statements in the interview with the federal agent
6
Williams was asked about the underlying facts concerning
these two counts during her Mississippi grand jury appearance on
October 18, 1991. Her false answers concerning these facts
served as a partial basis for her perjury indictment. However,
there is no evidence that the grand jury was aware of the prior
bill of information filed in Arkansas.
11
concerning the shotgun, but not the state offense, were used in his
federal trial (but not in his state trial). The defendant argued
that all of his statements to the federal agent should have been
suppressed because the federal offense was so "inextricably
intertwined" with the state offense that his right to counsel for
the state charge also attached to the federal offense. Id. at 743.
We acknowledged that the Sixth Amendment right to counsel might
well attach to a charge that "was extremely closely related to
pending . . . charges," at least where the charges concerned "the
same" type of crime, "victim, residence, time span, and sovereign."
Id. at 744 (emphasis added). However, such was not the case in
Cooper, because "the federal and state crimes concern different
conduct, although, efficiently for the governments, both
prosecutions could use much of the same evidence." Id.7
Here, Williams was also charged with two different offenses:
distributing a controlled substance and perjury. Williams was
never charged by the federal authorities for her part in the drug
conspiracy, but only for perjuring herself before the grand jury.
These charges, brought by different sovereigns and concerning
7
We also held in Cooper that the defendant's Sixth Amendment
right to counsel in the federal trial was not violated because
"[e]ven assuming the federal agent erred when he questioned
Cooper about the state offense, that error is harmless because,
as the government points out, it never introduced the statement"
concerning the state offense at the federal trial. Id. at 743.
The issue here is not whether Williams's grand jury testimony
could be used in the Arkansas state case where adversary
proceedings had commenced. And, there is no evidence that
federal charges have ever been initiated against Williams for the
drug transactions she was questioned about. Indeed, she made no
damaging admissions concerning drug offenses before the grand
jury since all of her answers denied culpability.
12
different conduct, are not "extremely closely related." Williams's
Sixth Amendment right to counsel was not violated.
IV. Hearsay Objection
Finally, Williams argues that the district court erred when it
overruled her objection to prosecution-witness Cunningham's
testimony that an unidentified voice he heard over the telephone
threatened to kill him if he testified. Williams alleges that the
testimony was highly prejudicial hearsay and was not authenticated
in violation of the "voice identification" rule. In resolving this
point of error, we are mindful that our review of a trial court's
evidentiary rulings is "highly deferential," and this Court will
generally reverse such rulings only for an abuse of discretion.
United States v. Anderson, 933 F.2d 1261, 1267-68 (5th Cir. 1991).
The complained of testimony was elicited in response to a
matter opened up by defense counsel. On cross-examination of
Cunningham, Williams's counsel attempted to impeach his credibility
by showing that the government had subpoenaed him, and had told him
that he had to testify. Cunningham also testified on cross-
examination that he was scared because his life was threatened.
Cunningham's testimony on cross-examination at least arguably left
the impression that the government was the entity that had
threatened him.8 On redirect, the prosecutor elicited testimony
8
Specifically, when asked by defense counsel about the
federal official who brought him the subpoena, Cunningham
testified:
"Q. What did he tell you about the subpoena?
A. He said I had to come to court.
13
from Cunningham that he had been threatened over the phone and that
he could not identify who was making the threats. Cunningham also
testified that the person said "I would be killed one way or
another, whether they had to burn my mother's house to get me out,
one way or another I would be terminated."
Williams claims that Cunningham's statements describing the
caller's threats were hearsay. Hearsay is an out-of-court
statement offered to prove the truth of the matter asserted. FED.
R. EVID. 801(c). Here, the government was not seeking to prove
whether the threats were true, but rather to show why Cunningham
feared for his life. See United States v. Garza, 754 F.2d 1202,
1206 (5th Cir. 1985) (holding that "[t]he evidence was offered as
the fact of an assertion and not as assertion of a fact and was
therefore not hearsay"). Since the defense counsel had arguably
implied that Cunningham's testimony was unreliable because he had
been coerced by the government and was fearful, the government's
questioning had at least some relevance as rebutting the defense
counsel's implication by showing that Cunningham's state of mind
was not the result of government threats.9 Statements regarding
Q. You had to come to court?
A. Come to court because I am scared.
Q. You are scared?
A. Yes.
Q. Why you are scared?
A. Because I have been threatened. My life has been
threatened and my family's life has been threatened."
9
Williams did not object below on the ground that the
14
existing state of mind are exceptions to the hearsay rule. See
FED. R. EVID. 803(3); United States v. Taglione, 546 F.2d 194, 200-01
(5th Cir. 1977) (holding that a defendant's telephone conversation
with a third person was admissible under Rule 803(3) to establish
the defendant's state of mind concerning alleged threats made by
the defendant).
Williams also claims that the statements of the caller should
have been excluded because they were not authenticated. Federal
Rule of Evidence 901(a) does require that evidence of telephone
conversations be authenticated as a condition precedent to their
admission. See FED. R. EVID. 901(b)(5); United States v. Scott, 678
F.2d 606, 611-12 (5th Cir.), cert. denied, 103 S. Ct. 304 (1982).
The Scott court noted that the government had "offered nothing to
identify the parties to the overheard [radio] communications." Id.
at 612. However, "the radio communication evidence came in not to
prove the truth of the matter asserted . . . but to explain why the
Coast Guard undertook its investigation." Id. Similarly, the
telephone threats made to Cunningham came in not to prove the truth
of the threats (or as any kind of admission) but to explain why the
witness was fearful. Therefore we conclude, as did the Scott
court, that "in view of the strength of the evidence against
[Williams] whose conviction we affirm, any error in admitting these
evidence should be excluded under FED. R. EVID. 403 because its
legitimate probative value was substantially outweighed by the
danger of unfair prejudice. Nor has that contention been raised
on appeal. The objection below was made solely in terms of
hearsay and authentication; there was no mention of prejudice or
Rule 403. See United States v. Martinez, 962 F.2d 1161, 1168 &
n.8 (5th Cir. 1992); United States v. Vitale, 596 F.2d 688, 689
(5th Cir. 1979).
15
rather ambiguous transmissions was harmless." Id.
Conclusion
Williams has failed to show any reversible error was committed
by the district court below. Accordingly her conviction is
AFFIRMED.
16