United States of America, Appellee, v. Earl Bowe, Appellant, 698 F.2d 560 (2d Cir. 1983)

Appellant Earl Bowe appeals from a judgment of conviction entered in June 1982, in the United States District Court for the Eastern District of New York, after a jury trial before Henry Bramwell, J., for possession of narcotics in violation of 21 U.S.C. § 844(a). Judge Bramwell sentenced appellant to one year in prison, with six months suspended, fined him $5,000 and placed him on probation for five years. Appellant has apparently completed his prison term. He contends before us that the judge erroneously deprived him of his right to present critical testimony at a hearing on his motion to suppress key evidence obtained as a result of a search, and that the judge erred in denying the motion because the warrant was obtained by means of deliberate falsehood or in reckless disregard of the truth. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). For reasons set forth below, we remand to the district court for further consideration of the motion to suppress, in accordance with this opinion.

In April 1982, appellant went to trial on an indictment charging him with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Just prior to trial, the judge held the hearing already referred to on appellant's motion to suppress physical evidence and incriminating statements obtained as a result of a search of appellant's apartment two months earlier pursuant to a search warrant. The relevant facts are as follows:

The affidavit that is the primary object of appellant's attack was prepared by Deputy United States Marshal Ronald Ehnes. In his affidavit, Ehnes swore that: Pursuant to a warrant issued by the United States Parole Commission, he and two other officers (later identified as Inspector Robert Leschorn and Deputy United States Marshal Michael Hollander) went to the last known residence of fugitive William Bullion, 91 Ocean Parkway, Apartment 3-B, Brooklyn, New York. A female (later identified as Gloria Jones) answered the door of apartment 3-B and initially refused to let the officers in; she stated that Bullion was in apartment 1-A. When the officers finally were admitted, the officers did not find Bullion but did discover small quantities of narcotics and narcotics paraphernalia. The affidavit further stated that Jones told the marshals that Bullion had left the evening before and although she expected him back shortly, she claimed ignorance of where Bullion was. Only after Jones's young child left the room, did Jones state "in a whisper, to look for [Bullion] in apartment 1-A, which she then identified as the residence of one 'Bow'," appellant's friend and partner in narcotics transactions.

The affidavit further stated: At the request of Ehnes, Jones led the marshals to apartment 1-A, reiterating that this was where Bullion could be found. A woman in the apartment refused to open the door, stating that she did not know either Bullion or "Bow". Shortly thereafter, the woman ran from the apartment locking the door behind her. The woman identified herself as Mrs. Williams (and was later identified as Francesca Ferrera). Based on information obtained from a telephone conversation with Inspector Leschorn outside of apartment 1-A, Ehnes swore that another individual remained inside the apartment.

Upon the facts presented in the Ehnes affidavit, Magistrate A. Simon Chrein issued a warrant to search apartment 1-A. Thereafter, the marshals were able to gain entrance to apartment 1-A only by forcing the door open. Once inside, they discovered appellant Bowe in the bedroom. The marshals made a cursory search of the premises for Bullion. Although he was not there, the marshals found in plain view narcotics, numerous pieces of narcotics paraphernalia and a box of bullets. At this point, Deputy Hollander left to obtain a second warrant for a broader search of the apartment. While Hollander was gone and after appellant had received Miranda warnings, appellant made several spontaneous inculpatory remarks.¹  After the second warrant was issued, the deputies searched apartment 1-A more thoroughly and uncovered additional evidence.

C. The Suppression Hearing: The "Testimony" of Gloria Jones

At the suppression hearing, Inspector Leschorn testified for the government, as did Deputies Hollander and Mary Balderacci. Francesca Ferrera testified for appellant, although for the bulk of her testimony, she was also made a government witness. During the hearing, appellant's counsel was able to bring out a number of apparent inconsistencies between the testimony and the affidavits made two months before in support of the warrants.² 

Of particular concern on this appeal is the testimony of Gloria Jones--the individual whom the marshals first encountered when they first went to apartment 3-B. Before proceeding with his cross-examination of a government witness, defense counsel stated that he had subpoenaed Jones to testify and that Jones had indicated that she did not want to testify without counsel. Defense counsel suggested that while he was not making an application on behalf of Jones, counsel might be appointed for her. Judge Bramwell questioned his authority to appoint counsel for Jones under the Criminal Justice Act, 18 U.S.C. § 3006A (West Supp.1982), since she was not a defendant. While acknowledging appellant's right to subpoena Jones, the judge indicated that he would warn Jones of her right against self-incrimination.

Thus, when Jones took the stand, the judge stated that if Jones testified, she was "liable to be involved in the matter involving William Bullion as well as this matter ..." and the judge suggested that Jones not testify before speaking to an attorney. Jones then said that she did want to consult with an attorney before testifying and further indicated that she did " [n]ot really" wish to testify at all. Upon questioning from the judge, Jones stated that she did not wish to take the fifth amendment but "would not like to testify." The judge then indicated he would not force her to testify in the absence of an attorney. Following objection by defense counsel, Jones was sworn in and again expressed a desire not to testify without counsel. Judge Bramwell then made a finding that Jones was asserting her fifth amendment privilege and excused her from the courtroom. Portions of the relevant colloquies are reproduced in the margin.³ 

Defense counsel continued to object to the procedure, arguing that Jones' willingness to testify was "not the issue." Furthermore, counsel stated that he could ask questions that would not implicate Jones in other crimes. Counsel noted that Jones was not a friendly witness and that her testimony was "necessary" to appellant's case. Thus, counsel stated that Jones would testify "that she did not at any time tell the marshals that her husband, William Bullion, can be found in apartment 1-A, that they had asked her about 1-A but she did not know where her husband was, [and that she] did not tell them that he was in 1-A." From this, of course, defense counsel argues to us that the contrary statements in the Ehnes affidavit were either deliberately false or made in reckless disregard of the truth.

At the close of the hearing, Judge Bramwell decided the motion in open court, holding that the search warrants had been supported by probable cause, that Jones had provided what turned out to be reliable and accurate information and had given the marshals no reason to believe her information to be inaccurate, and that appellant had failed to show that the marshals had knowingly presented inaccurate information to the magistrate. Accordingly, the judge denied the motion to suppress.

Following a short trial, appellant was convicted by a jury of the lesser included misdemeanor offense of possession of heroin. In this court, appellant contends that the district judge erred in denying the motion to suppress and that the judge's failure to require Jones to testify at the suppression hearing violated appellant's fifth and sixth amendment rights under the United States Constitution.

In pressing this appeal, appellant relies principally on Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676-77, 57 L. Ed. 2d 667 (1978). Under that decision, evidence obtained pursuant to a search warrant must be suppressed if a false statement either knowingly and intentionally or with reckless disregard for the truth was included in the affidavit requesting the warrant and the statement was necessary to establish probable cause. See also United States v. Barnes, 604 F.2d 121, 152-53 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980). The government contends that appellant may not argue the point because he did not raise it below. It is true that defense counsel did not spell out his argument on this point with clarity at the start of the suppression hearing. However, during the course of the proceeding it did become apparent that appellant claimed that portions of the Ehnes affidavit⁴  constituted either deliberate falsehood or reckless disregard of the truth. Thus, defense counsel stated appellant's position to be that "many of the facts stated in the affidavit are not true or accurate," and announced his intention to call a witness to show that certain statements in the affidavit were untrue. Counsel elaborated on this when he proffered what Jones would have said if compelled to testify, and counsel clearly indicated the principal portions of the affidavit he would attack through Jones's testimony. Also, in clarifying his position, counsel stated that he did not "want the court to feel that [defense counsel] was not alleging there was bad faith in the preparation of the affidavit ... [w]hether actual perjury it was reckless disregard of the truth." Finally, the judge's reference both to Franks v. Delaware, supra, and United States v. Barnes, supra, in his oral opinion shows that he understood counsel's point and reached the merits of the issue. Under the circumstances, we will not hold that appellant is foreclosed from making the argument here.

On the merits, appellant urges that the judge's handling of the witness Jones denied appellant his right to compulsory process under the sixth amendment and to a hearing in accordance with due process standards under the fifth amendment. There is no doubt that appellant had the right under the sixth amendment to subpoena Gloria Jones to testify on his behalf at the suppression hearing. See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967); Ronson v. Commissioner of Corrections, 604 F.2d 176, 178 (2d Cir. 1978) (per curiam). However, the right to compel witnesses to testify is not absolute, see Ronson v. Commissioner of Corrections, supra, 604 F.2d at 178, and may be limited by the witness' proper invocation of a fifth amendment privilege against self-incrimination. See, e.g., United States v. Gay, 567 F.2d 916, 919 (9th Cir.), cert. denied, 435 U.S. 999, 98 S. Ct. 1655, 56 L. Ed. 2d 90 (1978). Though it can be argued to the contrary, see Westen, the Compulsory Process Clause, 73 Mich. L. Rev. 71, 167 (1974) (suggesting the ability of the government to grant use immunity),⁵  there may well be situations where the two rights--to compulsory process and against self-incrimination--are irreconcilable. In such circumstances, a defendant's right to call a witness may be effectively nullified by the witness' refusal to answer questions on fifth amendment grounds. See Kastigar v. United States, 406 U.S. 441, 444, 92 S. Ct. 1653, 1656, 32 L. Ed. 2d 212 (1972); United States v. Goodwin, 625 F.2d 693, 700 (5th Cir. 1980).

The Government argues that, putting all else aside, this is such a case of irreconcilable conflict and we should, therefore, simply affirm. But on this record, we cannot be sure this is so. To begin with, Jones did not properly assert her fifth amendment privilege. Though a prudent judge should inform a witness of the dangers of testifying, see United States ex rel. Robinson v. Zelker, 468 F.2d 159, 162 n. 5 (2d Cir. 1972), cert. denied, 411 U.S. 939, 93 S. Ct. 1892, 36 L. Ed. 2d 401 (1973), the witness herself must assert the claim that answers to questions might reasonably implicate her in a crime or provide evidence leading to proof of criminal behavior. Cf. Matter of Grand Jury Empanelled February 14, 1978, 603 F.2d 469, 477 (3d Cir. 1979). At the suppression hearing, Jones expressly refused to invoke the fifth amendment privilege; instead, she responded to the judge's inquiries that she would "not like" to, and was unwilling to, testify. However, a witness' mere unwillingness to testify is inadequate to sustain a fifth amendment claim, see, e.g., Piemonte v. United States, 367 U.S. 556, 81 S. Ct. 1720, 6 L. Ed. 2d 1028 (1961); United States v. Doe, 478 F.2d 194 (1st Cir. 1973), in the absence of a determination by the court that "substantial and 'real', and not merely trifling or imaginary, hazards of incrimination [exist]." Marchetti v. United States, 390 U.S. 39, 53, 88 S. Ct. 697, 705, 19 L. Ed. 2d 889 (1968). See also Kastigar v. United States, supra, 406 U.S. at 444-45, 92 S. Ct. at 1656.

Moreover, only questions which might elicit incriminatory answers are barred by a proper fifth amendment claim. United States v. Zappola, 646 F.2d 48, 53 (2d Cir. 1981), prohibits a blanket assertion of a fifth amendment privilege and, instead, mandates the court to "undertake a particularized inquiry to determine whether the [fifth amendment] assertion was founded on a reasonable fear of prosecution as to each of the posed questions." In the case before us, it is not at all clear, for example, that the answer to the critical question: "Did you tell the marshals that Bullion was in apartment 1-A?" would reasonably implicate Jones in criminal activity. Of course, as the government points out in its brief to us, it could cross-examine Jones once she takes the stand. How narrowly the government's questions should be circumscribed to avoid impairing Jones' fifth amendment privilege and what the consequences of that would be are questions for the district court in the first instance, should it be necessary to reach them. We leave such particularized inquiries to the district court on remand.

Finally, we note that prior to and during her testimony, Gloria Jones requested that counsel be appointed for her to render advice concerning her fifth amendment privilege. Judge Bramwell apparently believed that under the Criminal Justice Act, 18 U.S.C. § 3006A (West.Supp.1982), he was precluded from appointing counsel for a person other than a defendant in a criminal proceeding. We do not believe, however, that the Criminal Justice Act repeals or displaces a court's "inherent authority to do those things reasonably necessary for the administration of justice in the exercise of [its] jurisdiction", cf. Kovarik v. County of Banner, 192 Neb. 816, 224 N.W.2d 761, 763 (1975), including the power to appoint counsel to represent indigents. See generally United States v. Dillon, 346 F.2d 633, 636-38 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S. Ct. 550, 15 L. Ed. 2d 469 (1966) (tracing age-old professional obligation on bar to represent indigents without compensation). The Criminal Justice Act simply supplements this inherent power by providing for the compensation of counsel for what had previously been gratuitous service.

Moreover, it is at least arguable that the Criminal Justice Act applies here. While the appointment of counsel for Jones at this stage does not appear mandated by the sixth amendment or by federal law, but cf. In re DiBella, 518 F.2d 955, 958-59 (2d Cir. 1975), the 1970 amendments to the Criminal Justice Act, Pub. L. 91-447, 84 Stat. 916 (amended 1970), expanded coverage of the Act "to include those instances where judicial decisions or Federal statutes may require the appointment of counsel...." S.Rep. No. 91-790, 91st Cong., 2d Sess. 5 (1970); see also VII Guide to Judiciary Policies and Procedures, Sec. 2.01(A) (4) (Administrative Office of the U.S. Courts Transmittal 4, December 24, 1978). This language suggests that judicial appointment of counsel may carry with it application of the Criminal Justice Act. The Act itself states compensation is available to an indigent "for whom the Sixth Amendment to the Constitution requires the appointment of counsel or for whom, in a case in which he faces loss of liberty, any Federal law requires the appointment of counsel." 18 U.S.C. § 3006A(a) (4). Thus, it is possible, although unclear, that the Act would apply here before Jones testifies, on the theory that if she refused to answer questions on the basis of improper fifth amendment considerations, she would be risking contempt proceedings and loss of liberty.

In any event, we need not decide the issue now. Because we believe that appellant should have been able to question Jones further at the suppression hearing, we are remanding the case to the district court to afford appellant another opportunity to do so. Should Jones appear as a witness without counsel, be unable to retain counsel herself and request that one be appointed, it would be wise for the district court to appoint counsel to advise her with respect to her fifth amendment privilege. It is up to the district court in the first instance whether to appoint counsel under its inherent authority to insure the fair and effective administration of justice or under the Criminal Justice Act. The government contends that if counsel is appointed, the advice will certainly be to invoke the fifth amendment privilege. Of course, the final determination as to whether the privilege is appropriate is with the court. This claim is speculative, as is the government's argument that should Jones take the stand, she would surely lie. Whatever truth there may be as to Jones's motive to fabricate, that is not for us to determine, and appellant should have the opportunity to present the testimony, in any event. In this respect, we do not understand the government to be alleging that Jones's testimony would be cumulative, immaterial or irrelevant, cf. United States v. Taylor, 562 F.2d 1345, 1367 (2d Cir.), cert. denied, 432 U.S. 909, 97 S. Ct. 2958, 53 L. Ed. 2d 1083 (1977).

In conclusion, we remand this case to the district court for further proceedings consistent with this opinion. We note that it is not necessary for the district court to conduct a de novo suppression hearing. Rather, the court may evaluate any further testimony from Jones in light of the testimony already received on the suppression issue.⁶  We do not believe it would be appropriate to vacate the conviction at this time, as appellant requests, since Judge Bramwell may well again conclude on remand that there is insufficient evidence that the affidavits upon which the search warrants were based were prepared by means of deliberate falsehood or in reckless disregard of the truth. We hold only that appellant should be given a fair opportunity to question Gloria Jones on the issue in accordance with this opinion.

Case remanded to the district court.