USA v. Harris, Richard, No. 01-3057 (D.C. Cir. 2002)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2002 Decided December 31, 2002

No. 01-3057

United States of America,

Appellee

v.

Richard M. Harris,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 01cr00010-01)

Neil H. Jaffee, Assistant Federal Public Defender, argued

the cause for the appellant. A. J. Kramer, Federal Public

Defender, was on brief.

Elizabeth H. Danello, Assistant United States Attorney,

argued the cause for the appellee. Roscoe C. Howard, Jr.,

United States Attorney, and John R. Fisher and Oliver W.

McDaniel, Assistant United States Attorneys, were on brief.

 Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,

and Williams, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: Appellant

Richard M. Harris was convicted of criminal contempt for

refusing to obey the district court's order to testify before a

grand jury. He challenges the conviction on two grounds: (1)

the evidence at the contempt hearing was insufficient to

support his conviction and (2) the district court erred in

rejecting without a hearing Harris's post-conviction claim of

ineffective assistance of counsel. Because the Assistant Unit-

ed States Attorney (AUSA) did not introduce competent

evidence below that Harris refused to testify before the

district court grand jury, as charged, we reverse the con-

tempt conviction for insufficient evidence. We therefore do

not address Harris's ineffective assistance claim.

I.

In 1998, while incarcerated in Virginia, Harris informed

prison authorities he had furnished the name of a potential

"hit man" to the two defendants in a pending felony prosecu-

tion in the District of Columbia Superior Court--United

States v. Tommy Zurita and Farid Rashid--who planned to

kill the complaining witness in the case. After failing to

persuade Harris to enter a cooperation agreement, the gov-

ernment called him as a witness to testify about the planned

"hit" before a D.C. Superior Court grand jury on December

15, 1998. Harris appeared but refused to testify, invoking his

privilege against self-incrimination under the Fifth Amend-

ment to the United States Constitution.

The government applied to the district court for an order

under 18 U.S.C. s 60031 to compel Harris to testify. In a

__________

1 This statute provides:

Court and grand jury proceedings



(a) In the case of any individual who has been or may be called

to testify or provide other information at any proceeding before



January 7, 1999 order the district court granted the applica-

tion and directed Harris to "give testimony or to provide

other information which he would otherwise refuse to give or

provide on the basis of his privilege against self-incrimination

as to all matters about which he may be interrogated in the

Grand Jury investigation of a murder-for-hire plot and ob-

struction of justice and during the trial or trials of United

States v. Tommy Zurita and Farid Rashid." 1/7/99 Order at

2. The order further provided, pursuant to 18 U.S.C.

__________

or ancillary to a court of the United States or a grand jury of

the United States, the United States district court for the

judicial district in which the proceeding is or may be held shall

issue, in accordance with subsection (b) of this section, upon the

request of the United States attorney for such district, an

order requiring such individual to give testimony or provide

other information which he refuses to give or provide on the

basis of his privilege against self-incrimination, such order to

become effective as provided in section 6002 of this title.



(b) A United States attorney may, with the approval of the

Attorney General, the Deputy Attorney General, the Associate

Attorney General, or any designated Assistant Attorney Gener-

al or Deputy Assistant Attorney General, request an order

under subsection (a) of this section when in his judgment--



(1) the testimony or other information from such individual

may be necessary to the public interest; and



(2) such individual has refused or is likely to refuse to testify

or provide other information on the basis of his privilege

against self-incrimination.



18 U.S.C. s 6003. The D.C. Superior Court was established by the

District of Columbia Court Reform and Criminal Procedure Act of

1970, 84 Stat. 473 (1970), " 'pursuant to article I of the Constitu-

tion.' " Palmore v. United States, 411 U.S. 389, 398 (1973) (quoting

D.C. Code Ann. s 11-101(2) (Supp. V, 1972)). The D.C. Superior

Court is therefore a "court of the United States" and the D.C.

Superior Court grand jury is, accordingly, a "grand jury of the

United States" subject to section 6003(a). See, e.g., United States v.

Rorie, 518 A.2d 409, 412 (D.C. 1986) (recounting that "United States

District Court for the District of Columbia ordered appellee to

testify under a grant of immunity pursuant to 18 U.S.C. s 6002

(1982)" before D.C. Superior Court grand jury).

s 6002,2 that "[n]o testimony or other information, directly or

indirectly, may be used against Richard M. Harris in any

criminal case, excluding any other prosecution for perjury,

giving false statements, or otherwise failing to comply with

this Order." Id.

On January 21, 1999 Harris again appeared before a D.C.

Superior Court grand jury and again refused to testify,

invoking his Fifth Amendment privilege. He did the same

before a district court grand jury on March 7, 2000.

On April 12, 2000 the government applied for an order to

show cause why Harris should not be held in contempt for

refusing to comply with the January 7, 1999 order. On April

18, 2000 the district court granted the application and sched-

uled a show cause hearing for May 4, 2000. At the hearing

the AUSA summarized the government's factual allegations

as a proffer only, that is, without formally introducing evi-

dence, and Harris's lawyer offered a "duress" defense, relat-

ing that Harris was concerned about the safety of his family

and indicating that, although he would not again invoke the

Fifth Amendment, he "still cho[se] not to cooperate." 5/4 Tr.

at 13. Harris's mother then testified that Harris knew that,

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2 This statute provides in relevant part:

Whenever a witness refuses, on the basis of his privilege

against self-incrimination, to testify or provide other informa-

tion in a proceeding before or ancillary to--



(1) a court or grand jury of the United States,



...



and the person presiding over the proceeding communicates to

the witness an order issued under this title, the witness may

not refuse to comply with the order on the basis of his privilege

against self-incrimination; but no testimony or other informa-

tion compelled under the order (or any information directly or

indirectly derived from such testimony or other information)

may be used against the witness in any criminal case, except a

prosecution for perjury, giving a false statement, or otherwise

failing to comply with the order.



18 U.S.C. s 6002.

should he testify, "there's a very good likelihood that some-

body in his family is going to get killed." Id. at 17.

In a memorandum order filed January 11, 2001 the district

court held Harris in criminal contempt for violating the

January 7, 1999 order. The court expressly found that on

"[o]n March 7, 2000, the United States called Mr. Harris to

testify before a United States District Court grand jury" and

that Harris "refused to answer any questions based on an

assertion of a claimed privilege against self-incrimination."

1/11/01 Order at 3. The court rejected Harris's duress

defense because "the fear described by Mr. Harris does not

rise to the level of duress," noting that Harris "ha[d] not

shown that he meets all the elements of duress," in particular

"proof of immediacy." Id. at 6.

At a sentencing hearing on January 30, 2001, Harris assert-

ed that his lawyer's representation at the contempt hearing

had been ineffective and, in addition, that counsel had a

conflict of interest that had arisen since the hearing. The

district court agreed to appoint new counsel and postponed

sentencing.

On April 5, 2001 Harris filed a pro se motion to vacate the

contempt conviction, alleging, inter alia, insufficiency of evi-

dence because the government failed to produce competent

evidence of Harris's refusal to testify at the March 7, 2000

grand jury hearing, and ineffective assistance of counsel,

because his lawyer failed to elicit important testimony in

support of Harris's duress defense.

In an order filed May 2, 2001 the district court denied the

motion to vacate. The court rejected the sufficiency argu-

ment because both the government, in its proffer accompany-

ing the show cause application, and Harris's lawyer, in raising

the duress defense at the hearing, affirmatively represented

that Harris had refused to testify as charged and Harris,

having failed to object contemporaneously, could not do so

post-conviction. She rejected Harris's ineffective assistance

claim because he had "fail[ed] to prove that the actions of

counsel were not proper, tactical decisions." 5/2/2001 Order

at 3. At a hearing on May 3, 2001 the court sentenced Harris

to time served.

 II.

Harris contends the district court erred in denying his

motion to vacate the conviction because the record contained

neither testimonial nor documentary evidence to support the

court's finding that he violated the January 7, 1999 order by

refusing to testify. We agree that the finding is not sup-

ported by competent evidence and that Harris's conviction

should therefore be reversed.3

In United States v. Gilliam, 167 F.3d 628, 638-39 (D.C. Cir.

1999), the court reversed a conviction of possession of a

firearm by a convicted felon, prohibited by 18 U.S.C.

s 922(g), because the government failed to put into evidence

a copy of the felony conviction it claimed to possess. The

government there, as here, asserted on appeal that, by failing

to object to the lack of supporting evidence at trial, the

defendant had waived his right to do so on appeal. The

Gilliam court squarely rejected this argument because, not-

withstanding the appellant's "silence in failing to challenge his

prior convictions, the burden remained on the government to

offer into evidence proof of every element of the charged

offense." 167 F.3d at 639. "While it could have done so by a

stipulation with the defendant or by a waiver by the defen-

dant of his right to put the government to its proof, neither

occurred...." Id. (citing Old Chief v. United States, 519 U.S. 172 (1997); United States v. Olano, 507 U.S. 725, 733

(1993) (citing Johnson v. Zerbst, 304 U.S. 458, 463 (1938));

Jackson v. Denno, 378 U.S. 368 (1964)). Similarly here, the

government could have procured a stipulation or express

waiver--but it did not. Nor did it follow the obvious course

of entering relevant portions from the district court grand

jury transcript into evidence.4 Instead, the government of-

fered no evidence to satisfy its burden of proof.

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3 As noted supra, because we reverse Harris's conviction for

insufficiency of evidence, we need not reach his ineffective assis-

tance claim.

4 The record does contain an excerpt from the transcript of the

December 15, 1998 D.C. Superior Court grand jury proceeding

 The government argues that the court should accept as

sufficient the AUSA's oral proffer of facts at the May 4, 2000

contempt hearing because the AUSA was present at the

March 7, 2000 grand jury proceeding and was therefore

competent to testify as to what occurred there. This argu-

ment overlooks the fact that the AUSA participated in the

contempt hearing as a legal advocate for the government and

not as a witness. His factual recitation was neither under

oath nor subject to cross-examination and cannot be regarded

as competent trial testimony. Cf. Gilliam, 167 F.3d at 639

(refusing to accept as evidence prosecutor's "inform[ing] the

district court that he had a certified copy of a prior convic-

tion" or his "proffer[ ] that Gilliam had prior convictions for

armed robbery, robbery, kidnaping, obstruction of justice,

assault with a deadly weapon, and carrying a deadly weap-

on"); see also Brinegar v. United States, 338 U.S. 160, 174

(1949) ("Guilt in a criminal case must be proved beyond a

reasonable doubt and by evidence confined to that which long

experience in the common-law tradition, to some extent em-

bodied in the Constitution, has crystallized into rules of

evidence consistent with that standard.").5

__________

establishing Harris's refusal to testify in that proceeding but, even

assuming the excerpt constitutes competent evidence, this avails the

government nought. The district court's order of conviction ex-

pressly found Harris in contempt "for his refusal to testify before

the grand jury on March 7, 2000, in the United States District

Court for the District of Columbia." 1/11/2001 Order at 9 (empha-

sis added).

5 The government relies on the Texas Supreme Court's holding in

Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997). In Banda, defense

counsel attempted to establish the terms of an automobile accident

settlement agreement at a hearing through her own desciription of

the terms based on her participation in the settlement. The court

concluded that the plaintiff, who "did not, at any time, object to the

trial court's failure to administer the oath," "waived any objection

he had and [defense counsel's] statements to the court are some

evidence of the settlement agreement." 955 S.W.2d at 272. In

Banda, however, the lawyer made it clear that she intended her

statements as testimony. She expressly said to the court: "[A]s an

 Because the government failed below to prove that Harris

refused to testify at the March 7, 2000 district court grand

jury hearing in violation of the court's January 7, 1999 order,

Harris's contempt conviction is

Reversed.

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officer of the court I can just state under oath what--what I am

telling the court and what my representations were by [sic] [defense

counsel] and the understanding I had." Id. She also referred at

one point to "this agreement that I'm testifying to today before the

court as an officer of the court." Id. Under those circumstances,

the Texas Supreme Court determined that plaintiff's counsel

"should have known to object to [defense counsel's] unsworn state-

ments" and that the failure to object constituted waiver. Id.