Before McGOWAN and EDWARDS, Circuit Judges, and KASHIWA,* Judge, United States Court of Claims. Opinion for the Court filed by Circuit Judge EDWARDS.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia. (D.C. Criminal Action 79-73-6).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EDWARDS
On February 1, 1979, Clifford Corbett, Melvin Bell, Paul Goodwin, Cecil Tate, Sixto Mendoza and Jose Pardo were charged in a two count indictment. Count I charged the defendants with unlawful possession with intent to distribute a controlled substance in violation of 21 U.S.C. 841(a); Count II charged defendants with unlawful possession of a narcotic drug in violation of 33 D.C.Code § 402. In exchange for a plea of guilty to charges contained in other indictments, the above charges against Clifford Corbett were dropped. The remaining five defendants were found guilty of possession with intent to distribute a controlled substance following a four-day jury trial. Goodwin, Tate, Mendoza and Pardo here appeal that conviction.
Three issues are raised in this appeal. First, appellants claim that the trial judge committed reversible error in sustaining Clifford Corbett's blanket refusal to testify and assertion of the Fifth Amendment privilege against self-incrimination. Second, appellants contend that if Corbett did have a valid Fifth Amendment right, the circumstances of this case required the trial court to compel a grant of immunity to Corbett as a condition for appellants' prosecution. Finally, appellants Mendoza and Pardo claim that the trial judge wrongfully denied their motions for judgment of acquittal at the close of the Government's case.
We hold that Corbett did not have a blanket Fifth Amendment right to refuse to testify, and reverse the convictions of Goodwin and Tate for a new trial if the Government so elects. This ruling does not inure to the benefit of the other appellants, however, because they never sought to obtain the testimony of Corbett at trial. As a result of this ruling regarding Corbett's Fifth Amendment claim, we need not reach the question whether appellants had a Sixth Amendment right to procure the testimony of Corbett through a grant of immunity. We uphold the trial judge's denial of appellant Mendoza's motion for judgment of acquittal at the close of the Government's case, and therefore affirm his conviction. As to appellant Pardo, however, we rule that the evidence was insufficient to justify submitting the case to the jury, and direct that Pardo's conviction be reversed and the charges against him dismissed. I.
We begin with a general outline of the facts. On appeal from conviction, we of course must present the facts in the light most favorable to the Government. United States v. Barlow, 152 U.S. App. D.C. 336, 470 F.2d 1245, 1250 (D.C. Cir. 1972).
On or about November 18, 1978, Special Agent John W. Lee, of the Drug Enforcement Administration, met Clifford Corbett (Tr. 53). *fn1 Lee introduced himself as "Johnny" and represented to Corbett that he was in the business and buying and selling narcotics (Tr. 54). On November 21, 1978, and again on November 27, 1978, Lee purchased an ounce of cocaine from Corbett (Tr. 55).
Beginning on December 27, 1978, Agent Lee made arrangements to purchase approximately two pounds of cocaine from Corbett for approximately $40,000 (Tr. 55-56). The events surrounding this transaction eventually led to the indictments involved in this appeal.
On December 29, 1978, Lee received a call from Corbett indicating that Corbett wished to meet with Lee at approximately twelve noon (Tr. 56). Corbett advised Lee that his source was ready to do business. Accompanied by his partner, Special Agent Charles Howard ("Charlie"), Lee met Corbett at the intersection of Connecticut and Florida Avenues and proceeded to Corbett's apartment at 1910 T Street, N.W. (Tr. 58-59).
Soon after the three men entered the apartment, Corbett received a telephone call informing him that his source would arrive in about fifteen minutes (Tr. 59). When the source had not arrived after approximately an hour, Lee and Howard left to take care of "other business" (Tr. 61). *fn2 Lee told Corbett he would return in forty-five minutes.
Lee returned to the apartment at approximately 4 p. m. (Tr. 62). Agent Howard remained outside in a car. Once inside the apartment, Corbett told Lee that his source would sell a pound of cocaine for $26,500 (Tr. 63). Lee offered to pay no more than $22,000. After allegedly telephoning his source and determining that Lee's price was acceptable, Corbett advised Lee that they would have to go to the place where the cocaine was stashed. *fn3 Corbett instructed Lee to return to the car and wait for him.
Soon thereafter, Corbett, appellant Paul Goodwin, and a young woman exited the apartment building and entered a nearby parked car (Tr. 64). *fn4 From the driver's seat, Goodwin motioned for the agents to follow in their own car. Goodwin led the agents to a warehouse on Sligo Mill Road in Washington, D.C. (Tr. 67).
Corbett, Goodwin and Lee got out of the cars and approached the warehouse (Tr. 67). *fn5 They were admitted to the warehouse by Melvin Bell (Tr. 68). *fn6 Inside the warehouse, Lee was introduced to appellants Cecil Tate and Sixto Mendoza (Tr. 71). *fn7 Lee overheard Tate say to Goodwin that he did not want a whole bunch of people up here, and Goodwin responded that "they are all right" (Tr. 72). *fn8 Tate then scrutinized Lee and Corbett and stated that everything was all right.
After going to the bathroom, Lee was instructed by Bell to join the others on the "mezzanine," an open room built above a lounge next to the front office (Tr. 70, 73). Lee described the mezzanine as up about fifteen to twenty stairs, measuring approximately twelve by fifteen feet (Tr. 70). When Lee reached the mezzanine, appellant Mendoza was standing at the top of the stairs, and behind him was a desk (Tr. 73-74). Behind the desk was appellant Tate and behind Tate was an individual later identified as appellant Jose Pardo (Tr. 74). *fn9 Corbett and appellant Goodwin were to the right of the desk.
Tate then asked whether Lee wanted to see "the stuff" (Tr. 75). Lee responded in the affirmative, and Tate placed a paper bag containing two plastic bags on the table. *fn10 Tate said something to the effect of "here's the stuff" (Tr. 75).
Lee then directed a question at Mendoza as to whether the stuff had been tested (Tr. 75). Mendoza responded that it had not been tested (Tr. 75, 216-18). At that point, Lee asked whether anyone had any clorox (Tr. 75). Not finding any, Lee asked Bell to go out to his car to get some clorox out of the trunk. While Bell was away, Lee inspected the powder. Tate advised Lee that everything was okay, that "it was some good stuff" (Tr. 76).
Before Bell returned, Agent Lee signaled to surveillance agents outside the warehouse (Tr. 76). Lee then pulled out his badge and revolver and arrested Corbett, Goodwin, Tate, Mendoza and Pardo (Tr. 77). Bell was arrested downstairs by one of the officers responding to Lee's signal.
On February 1, 1979, Corbett, Goodwin, Tate, Mendoza, Pardo and Bell were indicted by a federal grand jury. Count I charged the defendants with unlawful possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a); Count II charged defendants with unlawful possession of a narcotic drug in violation of 33 D.C.Code § 402. Clifford Corbett was also named in two additional indictments on the basis of the sales of narcotics to Agent Lee on November 21, 1978 and November 27, 1978, and on the basis of narcotics later seized from his apartment on December 29, 1978. *fn11
On March 20, 1979, Corbett entered pleas of guilty to one felony count in each of the other two indictments. *fn12 As part of the plea arrangement with Corbett, the two count indictment in the present case was dismissed, along with three additional counts in one of the other indictments.
A consolidated trial of the remaining defendants was conducted in the courtroom of District Judge Aubrey Robinson beginning on June 26, 1979. On June 29, 1979, a jury found defendants Goodwin, Tate, Bell, Mendoza and Pardo guilty on both counts. *fn13 Goodwin, Tate, Mendoza and Pardo brought this appeal. II.
Appellants first claim that the trial judge committed reversible error in upholding Clifford Corbett's invocation of the Fifth Amendment privilege against self-incrimination and corresponding refusal to testify at the trial of his former co-defendants. All four appellants here contend that Corbett did not have a Fifth Amendment right to refuse to testify. In addition, appellants vigorously argue that if Corbett did have a Fifth Amendment right, appellants had a Sixth Amendment right to procure his testimony through a grant of immunity to Corbett.
It is critical at the outset to review the circumstances of Corbett's dismissal from this action. In addition to the two count indictment in the present case, Crim.No. 79-73, Corbett was named in a four count indictment in Crim.No. 79-72, and a one count indictment in Crim.No. 79-74. *fn14 All charges against Corbett involved narcotics. On March 20, 1979, Corbett pled guilty to one count in 79-72 and to the sole count in 79-74. As a part of the plea arrangement with the Government, the ...