United States v. Simpson ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31220
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAVIN SIMPSON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(01-CR-99-ALL-S)
_________________________________________________________________
May 13, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:
PER CURIAM:*
Ravin Simpson challenges his convictions under 18 U.S.C.
§ 1623 for perjury before the United States District Court, arising
out of the testimony he gave voluntarily in a criminal prosecution
of a coconspirator that was contrary to testimony Simpson gave in
an earlier proceeding in which he was convicted in another United
States District Court. Simpson entered guilty pleas conditioned
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
upon the right to appeal the denial of his motion to quash the
indictment.
Simpson contends that the Government violated his rights under
the Fifth Amendment by not advising him of his right against self-
incrimination and not providing him counsel. He asserts also that
the Government violated his rights under Miranda v. Arizona, 384
U.S. 436 (1966), by interviewing him prior to his appearance as a
witness at the coconspirator’s trial.
A ruling on a motion to quash is reviewed for abuse of
discretion. United States v. Crow, 164 F.3d 229, 234 (5th Cir.),
cert. denied, 526 U.S. 1160 (1999).
The Fifth Amendment privilege against self-incrimination
applies to compelled testimony; the Amendment “does not preclude a
witness from testifying voluntarily [as here] in matters which may
incriminate him”. United States v. Monia, 317 U.S. 424, 427
(1943). If a witness desires the protection of the privilege, he
must invoke it. Id.
Simpson has not shown a violation of his privilege against
self-incrimination. He voluntarily testified at his
coconspirator’s trial and he did not invoke his right against self-
incrimination. Id. In addition, the statements for which Simpson
was prosecuted did not relate to a crime that occurred prior to
Simpson’s testimony; the statements were not confessional in
nature; and the statements, in and of themselves, constituted the
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crime of perjury for which Simpson was prosecuted. See United
States v. Kirk, 528 F.2d 1057, 1061-62 (5th Cir. 1976).
Simpson was not entitled to Miranda-type warnings prior to his
commission of perjury. See United States v. Mandujano, 425 U.S.
564, 580-83 (1976). Furthermore, he has not shown he was in
custody and entitled to counsel afforded under the Fifth Amendment.
See McNeil v. Wisconsin, 501 U.S. 171, 176-78 (1991); United States
v. Smith, 7 F.3d 1164, 1167 (5th Cir. 1993).
Finally, Simpson asks that we exercise our “supervisory
powers” to vacate his conviction because of claimed misconduct by
the Government. The Government responds that, inter alia, this
argument constitutes a due-process-fundamental-fairness argument,
and that we should not consider it because no due process argument
was raised in the district court. Simpson replies that he is not
raising a due process argument and that he is asking only that we
vacate the conviction under our “supervisory powers” if we conclude
that the Government violated Simpson’s Fifth Amendment rights.
Even assuming arguendo we have such power, we decline to
exercise it because Simpson, as stated, has shown no Fifth
Amendment violation, nor has he shown misconduct on the part of the
Government.
For the foregoing reasons, the judgment is
AFFIRMED.
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