US v. Bruce Miller, No. 10-4297 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4297 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BRUCE WAYNE MILLER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (7:09-cr-00001-H-2) Argued: May 12, 2011 Before MOTZ and Circuit Judge. DIAZ, Decided: Circuit Judges, and June 14, 2011 HAMILTON, Senior Affirmed by unpublished per curiam opinion. ARGUED: Thomas Reston Wilson, GREENE & WILSON, PA, New Bern, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Kelly L. Greene, GREENE & WILSON, PA, New Bern, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Thomas B. Murphy, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Bruce Wayne Miller was found guilty of: (1) interference with commerce by robbery, and aiding and abetting the same, 18 U.S.C. §§ 1951 and 2; and (2) aiding and abetting the relation to appeal, use a crime Miller compulsory and carriage of was that a his abridged firearm id. violence, contends process of §§ Sixth by the during 924(c) and in 2. On right to and Amendment district court. We affirm. I This case convenience involves store a located robbery in at Tobacco Lumberton, House #3, North Carolina. a At approximately 10:45 p.m., on October 28, 2008, George William Blackwell entered the store, purchased a drink, and left. Approximately five minutes later, he reentered the store, this time accompanied by Miller. As the pair entered the store, Blackwell pointed a gun at one of the store s employees, Yosef Gazali, who register. was standing behind the counter near the cash The pair repeatedly instructed Gazali to give them all of the money in the cash register. Initially, Gazali turned over only the $20 bills in the cash register. In response, Miller told Gazali to hand over all of the f***ing money. After Gazali delivered all of the money (approximately $800.00) - 2 - from the cash register, Blackwell went behind the counter looking for the cash drawer that contained the state lottery receipts. As he moved toward the drawer, Blackwell passed a loaded shotgun that was stored behind the counter. drawer, Blackwell retrieved approximately $70.00. From the Meanwhile, Miller walked to a cooler in the store and grabbed a twelve-pack of beer. As the pair was leaving the store, Gazali grabbed the shotgun, pointed trigger, but the it at safety Miller was and on, Blackwell, preventing and the pulled shotgun the from discharging. After Miller and Blackwell left the store, Gazali followed them, shotgun in hand, with the safety off. Gazali pursued the pair to the side of the store, where a red Mustang was parked. A shot was fired at Gazali, so he retreated, positioning himself near one of the doors to the store. Gazali then approached the Mustang and fired a shot at the car. As the car sped off, another shot was fired at Gazali, so he returned fire, hitting the back of the Mustang. Shortly after the robbery, Detective Timothy Wilkins of the Lumberton Police Department was dispatched to the scene. Detective Wilkins interviewed Gazali and another store employee, Nasr Alnagger, and collected evidence outside of the store, including a shotgun shell casing and the twelve-pack of beer - 3 - that Miller had taken from the store, but had left in the robbery, law parking lot. Within a day of the Tobacco House #3 enforcement officers began to suspect that Blackwell and his friend and associate, Dixie Lynn Oxendine, were involved in the robbery, because Blackwell was a suspect in two October 2008 bank robberies and Dixie Oxendine s red Mustang fit the description of the car described by Gazali as leaving the scene of the robbery at Tobacco House #3. By this time, a state warrant had been issued for the arrest of Blackwell in one of those bank Oxendine robberies. might investigated be Suspecting staying their that together, whereabouts law and Blackwell and enforcement discovered Dixie officers that Dixie Oxendine was staying at a Howard Johnson s hotel in Lumberton. On the morning of October 31, 2008, officers arrived at the Howard Johnson s. law enforcement The law enforcement officers received information that Dixie Oxendine was sharing a room registered in her name with two adult males, later identified as Miller and Blackwell, and an adult female, later identified as Dawn Oxendine. Because of the threat of a shootout, the arrest plan involved getting one of the room s occupants to answer the door. Police Department approached the room. and FBI Two detectives from the Lumberton Special Agent Frank Brostrom After knocking on the door a couple of - 4 - times, Blackwell answered the door and was promptly arrested. Following Blackwell s room was conducted. arrest, a protective sweep of the During the sweep, law enforcement officers recovered an AMT Automag II .22 Caliber Rimfire gun. A hat and jacket worn by Blackwell during the Tobacco House #3 robbery were also recovered. Miller, Blackwell, and Dixie Oxendine were interviewed later that morning at the Lumberton Police Department. During her interview, Dixie Oxendine admitted that, on the night of the Tobacco House #3 robbery, she drove Blackwell and Miller in her red Mustang to the store to get cigarettes and beer. After they arrived, Blackwell suddenly exited the car[,] . . . pulled out a gun . . . and walked towards the gas station with Mr. Miller. A short time later, Blackwell ran back to the car yelling: Go, Dixie, go. Dixie Oxendine also recalled the exchange of shots between Blackwell and Gazali, leaving Miller at the scene, and picking him up later on while he was walking along a local highway. During his interview, Miller initially denied knowing that Blackwell had robbed a bank. saw Blackwell with a gun, He also indicated that he neither nor knew he owned interview progressed, Miller s story changed. one. As his He admitted that he had lied about Blackwell because he did not want to tell on him; that he knew Blackwell owned a gun, having seen it about a - 5 - month before in Blackwell s back pocket; that he knew Blackwell had robbed a bank because the two had discussed it; and that he knew that Blackwell was wanted for bank robbery. When asked about the Tobacco House #3 robbery, Miller initially said that he went into the store with Blackwell to buy beer and cigarettes, and, once inside the store, suddenly pulled out a gun and does this robbery. Blackwell Miller said he then dropped his beer and ran out of the store, catching up later with Blackwell. However, after Miller was shown the video of the robbery, he shut down, refusing to answer any further questions. On January 8, 2009, Miller, Blackwell, and Dixie Oxendine were charged in an eight-count indictment. charged Blackwell with bank robbery, id. Counts One and Two § 2113(a), stemming from two October 2008 bank robberies, one on October 9, 2008, the other related to on the October robbery 21, of 2008. a Lumberton on October 13, 2008. 1 BP Counts Sun-Do Three through convenience Five store in Counts Six through Eight related to the Tobacco House #3 robbery. 1 Count Six charged Miller, Count Three charged Blackwell and Dixie Oxendine with interference with commerce by robbery, and aiding and abetting the same, 18 U.S.C. §§ 1951 and 2. Count Four charged Blackwell with using and carrying a firearm during and in relation to a crime of violence, id. § 924(c), and Count Five charged Blackwell with possession of a firearm by a convicted felon, id. § 922(g)(1). - 6 - Blackwell, and Dixie Oxendine with interference with commerce by robbery, and aiding and abetting the same, id. §§ 1951 and 2, and Count Seven charged Miller, Blackwell, and Dixie Oxendine with using and carrying a firearm during and in relation to a crime of violence, and aiding and abetting the same, id. §§ 924(c) and 2. Count Eight charged Blackwell with possession of a firearm by a convicted felon, id. § 922(g)(1). Prior to Miller s trial, Blackwell pled guilty to Counts One, Six, and Seven pursuant to a plea agreement, and Dixie Oxendine pled guilty to Counts Six and Seven, also pursuant to a plea agreement. 2 On December 1, 2009, Miller and the government each filed their respective proposed witness list, and each list included Blackwell as a possible witness. On the same day, Miller s two-day jury trial began. The government presented chief, and none in rebuttal. six witnesses in its case-in- The government s case rested on, among other things, statements made to law enforcement officers by Miller and his witnesses called evidence recovered co-defendants, by at the the the government, scene, testimony and including of certain a video the six physical of the robbery, the twelve-pack of beer left at the scene by Miller, 2 On October 13, 2009, Dixie Oxendine was sentenced to a total of eighty-four months imprisonment. On February 9, 2010, Blackwell was sentenced to a total of 155 months imprisonment. - 7 - and the shotgun shell casing fired from the shotgun used by Gazali. At the beginning of the second day of trial, just before the government notified the called its district last court witness, that Blackwell s Miller counsel intended to call Blackwell as a witness and that he instructed Blackwell not to testify. In response, the district court engaged in an extensive colloquy with Blackwell s counsel, Miller s counsel, and the Assistant United States Attorney. was concerned jeopardy the that, by testifying, application of an Blackwell s counsel Blackwell acceptance would of place in responsibility downward adjustment at his sentencing, and, far worse, would result in the enhancement. application Blackwell s of an counsel obstruction also was of justice concerned about Blackwell s recollection of the events, considering some of the things that were in his system at that time, namely, alcohol and Xanaxes. Miller s counsel stressed that all the defense wanted was for Blackwell to testify truthfully, reasoning that truthful testimony sentencing. would have no impact on Blackwell s Although Miller s counsel was not exactly clear about how that truthful testimony would be favorable to Miller, the record suggests that Miller s counsel believed that Blackwell would testify that it was his idea to rob the Tobacco House #3 and not Miller s, and that Blackwell would say that - 8 - Miller had no idea that a gun would be used in the robbery. At the conclusion of its colloquy with counsel, the district court decided that Blackwell would testify outside the presence of the jury with his attorney by his side, thus, allowing the district court to decide which questions Miller s counsel later could ask Blackwell in the presence of the jury. At the beginning of the voir dire examination by Miller s counsel, Blackwell answered a series of questions concerning the contents of his plea agreement and the clothing he wore on the night of the Tobacco House #3 robbery. At this point, the district court remarked that, so far . . . there is no basis for the Fifth Amendment by the testifying witness. Blackwell also identified the AMT Automag II .22 Caliber Rimfire gun and a clip for the gun, and admitted the gun was used during the robbery. He answered questions concerning the red Mustang and who was, and who was not, present in the car leaving the scene of the robbery. The district court did, however, allow Blackwell, with the assistance of his counsel, to assert the Fifth Amendment questions privilege concerning against Miller s self-incrimination involvement in the to robbery, including whether it was Miller s idea to rob the store, whether Miller was with Blackwell when the store was robbed, whether Miller touched the gun, and whether Miller was in the car as it left the store. - 9 - At the conclusion of Blackwell s testimony, the district court recessed court to allow it and counsel to further research the Fifth/Sixth Amendment issue. The district court discussed the issue with counsel in chambers, and, later, in open court, but outside the presence of the jury, ruled that: (1) Miller could call Blackwell to testify; (2) Blackwell could testify with his attorney at his side; and (3) it would listen to the questions and make rulings if [it] believe[d] there is a basis for a Fifth Amendment issue. Blackwell was the only witness called by the defense. Consistent with the district court s ruling, he testified with his attorney acknowledged at his his plea side. During agreement his and testimony, identified Blackwell the jacket he wore during the Tobacco House #3 robbery. hat and As allowed by the district court, Blackwell asserted the Fifth Amendment privilege against self-incrimination in response to only one question, whether he was carrying or using [the] gun when [he] entered the store on October 29. Blackwell did acknowledge, in response to Miller s counsel s next question, that he pleaded guilty to brandishing a firearm during the robbery. acknowledged Johnson s that hotel the were hat used and gun during recovered the from robbery. He also the Howard Blackwell identified the red Mustang and acknowledged that Miller was not in the car as it sped away from the scene. - 10 - In response to the question of whether Miller knew that he was going to rob the store, Blackwell replied: I don t remember nothing much about that night that would hardly help anybody. In response to a similar question, you didn t tell [Miller] that you were going to rob the store before you robbed it, Blackwell replied: I might have did. Following I don t I can t remember. closing arguments by counsel and the court s jury instructions, the case went to the jury. convicted Miller on both counts. district The jury He was sentenced to a total of 324 months imprisonment, and this timely appeal followed. II Miller compulsory contends process that was his violated Sixth by the Amendment district right court. to In particular, he contends that the district court did not conduct a sufficient inquiry into the validity of Blackwell s assertion of his Fifth Amendment privilege against self-incrimination and thus violated his Sixth Amendment right to compulsory process. Alternatively, Miller suggests that, to avoid the Sixth Amendment violation, the district court was required to order the government to grant Blackwell immunity. We reject these contentions. The Supreme Court has broadly construed the protection afforded by the Fifth Amendment - 11 - privilege against self- Maness v. Meyers, 419 U.S. 449, 461 incrimination. also Hoffman (instructing v. United lower construction ). 3 States, courts Thus, to the 341 give the privilege U.S. 479, privilege not only (1975); see 486 a (1951) liberal extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. Hoffman, 341 U.S. at 486. A defense witness s invocation of the privilege is proper unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the defense witness is mistaken and his answers could not possibly have a tendency to incriminate. Id. at 488 (internal quotation marks omitted); see also United States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007) ( Because requiring a witness to prove the necessity of the privilege would often vitiate the privilege itself, it need only be evident from the implications of the question, in the 3 The Fifth Amendment to the United States Constitution provides in relevant part: No person . . . shall be compelled in any Criminal Case to be a witness against himself. U.S. Const. amend. V. Like other provisions of the Bill of Rights, this guarantee was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed. Hoffman, 341 U.S. at 486 (quoting Feldman v. United States, 322 U.S. 487, 489 (1944)). - 12 - setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. ) (quoting Hoffman, 341 U.S. at 486-87). retains the privilege even Moreover, defense pleading after a witness guilty, and a sentencing court may not draw adverse inferences from a pleading defendant s silence. 329-30 (1999); see Mitchell v. United States, 526 U.S. 314, also id. at 326 (noting that the Fifth Amendment privilege against self-incrimination generally remains available, absent a valid waiver, until a defendant s sentence has been final ). fixed and the judgment of conviction has become And it is the responsibility of the district court to determine whether the privilege should be invoked. Hoffman, 341 U.S. at 486. A witness s Fifth Amendment privilege against self- incrimination often can rub up against a defendant s right under the Sixth Amendment to compulsory process. 4 Thus, if a defense witness refuses to testify on the basis of the privilege, the district court must make a proper and particularized inquiry into the legitimacy and scope of the witness [s] assertion of 4 The Constitution guarantees a criminal defendant s right to present a complete defense. United States v. Lighty, 616 F.3d 321, 358 (2010). This right is grounded either in the Sixth Amendment s guarantee of compulsory process or in the more general Fifth Amendment guarantee of due process. Id. - 13 - Gaskins v. McKellar, 916 F.2d 941, 950 (4th the privilege. Cir. 1990). The privilege operates on a question-by-question basis, United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997), but a witness may be totally excused . . . if the court finds that he could legitimately refuse to answer any and all relevant questions. Gaskins, 916 F.2d at 950. In this case, the district court proceeded with commendable caution. It Amendment basis. prohibited privilege Blackwell against from invoking self-incrimination on the a Fifth wholesale In an attempt to narrow the assertion of the privilege, the district court conducted a thorough voir dire hearing to ascertain the questions Miller s counsel sought to pose and the scope of the privilege sought by Blackwell. When Blackwell eventually testified before the jury, the district court allowed Blackwell s counsel to stand by his client to confer, and the procedure correctly allowed attorney, to the assert Blackwell, privilege, as and opposed allowed court to rule on a question-by-question basis. Blackwell s eliciting counsel testimony sought to concerning prevent the his district Understandably, Miller s Miller s to counsel involvement in from the crime, considering Blackwell s inability to recall specifics and the effect such vague testimony would have on Blackwell s ability to receive favorable treatment at sentencing. when one considers the video evidence - 14 - before the Clearly, jury and Miller s knowledge of the gun, testimony from Blackwell tending to exculpate Miller would have subjected Blackwell to the charge of perjury. Moreover, testimony from Blackwell exculpating Miller would have jeopardized Blackwell s ability to receive an acceptance of sentencing, responsibility and obstruction of perhaps justice downward resulted as well. adjustment in an Thus, at his enhancement for Blackwell s counsel prudently sought to protect Blackwell from further charges and increased penalties. Accordingly, we reject Miller s argument that the district court did not conduct a sufficient inquiry into the validity of Blackwell s assertion of the privilege. We also find no merit to Miller s contention that the district court was required to order the government to grant Blackwell immunity. It is well-settled that a district court does not have the authority to grant immunity, even where the grant of immunity would allow a defendant to present material, favorable evidence. United States v. Moussaoui, 382 F.3d 453, 467 (4th Cir. 2004); United States v. Abbas, 74 F.3d 506, 511-12 (4th Cir. 1996). However, a district court can compel the government to grant immunity when (1) the defendant makes a decisive showing of prosecutorial misconduct or overreaching and (2) the proffered evidence would be material, exculpatory and unavailable from all other sources. - 15 - Id. at 512. In this case, there is no overreaching by the government. evidence of misconduct or Indeed, there is no suggestion that the government delayed Blackwell s sentencing to preserve his Fifth Amendment privilege against self-incrimination or did anything to gain an unfair tactical advantage. We also note that, assuming there was a Sixth Amendment See error in this case, such assumed error would be harmless. United States (noting that subject to v. a Sayles, Sixth 296 F.3d Amendment harmless error 219, 223 compulsory analysis). (4th Cir. process A 2002) claim Sixth is Amendment compulsory process error is harmless if it is clear beyond a reasonable defendant doubt guilty that a absent rational the jury would Id. error. have found (quoting Neder the v. United States, 527 U.S. 1, 18 (1999)). In this case, overwhelming. the Gazali evidence testified of that Miller s Miller guilt and was Blackwell entered the Tobacco House #3, with Blackwell pointing a gun at him. Both Miller demanded money. of the entering robbery, the repeatedly and Blackwell approached the counter and Gazali confirmed his testimony with the video which store showed with threatening a gun Gazali, Miller and Blackwell drawn and pointed and demanding together at Gazali, money. Dixie Oxendine admitted to driving Miller and Blackwell to the store where Blackwell pulled out a gun, and, together with Miller, - 16 - went into the store. In his statement, Miller admitted that he knew Blackwell owned a gun, having seen it a month prior to the robbery, and that he knew Blackwell had robbed a bank. Miller also lied concerning his knowledge of, and participation in, the robbery. Moreover, any testimony from Blackwell was suspect, because he testified that he could not remember . . . much about that night that would hardly help anybody. Given the evidence at trial, the result would not have been any different had Blackwell been willing to testify favorably (albeit falsely) for the defense. Unquestionably, a rational jury presented with such testimony would have found beyond a reasonable doubt that Miller was guilty of the charges contained in Counts Six and Seven of the indictment. III For the reasons stated herein, the judgment of the district court is affirmed. AFFIRMED - 17 -

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