United States v. Anthony Viera

839 F.2d 1113, 1988 U.S. App. LEXIS 3334, 1988 WL 15203

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 16, 1988
• Docket: 86-2161
• Status: Published

Opinions

REAVLEY, Circuit Judge:

Anthony Viera and Ernest King were charged with conspiracy to possess with intent to distribute cocaine and with actual distribution of cocaine. King took a plea agreement and testified against Viera at his trial. Viera appeals his conviction, complaining of restriction upon his impeachment of King, allowing proof of prior cocaine deals by King acting with Viera, the intimidation of a prospective witness, and the prosecutor’s argument commenting upon the failure of that witness to testify. We affirm.

A confidential informer and a DEA undercover agent contacted King for the purpose of purchasing cocaine. King telephoned his supplier, and shortly thereafter Viera arrived at King’s residence in a pickup truck driven by Viera’s father. King and Viera then drove in King’s vehicle to a parking lot where King walked to the undercover agent’s car with cocaine to be sold. King testified that Viera was his supplier of the cocaine. Appearances pointed to Viera’s guilt and King’s testimony, decided by the jury to be credible, resolved all doubts.

A.

A panel of this court rejected Viera’s contentions relative to King’s testimony. We agree and reinstate parts II and III of the panel’s opinion, 819 F.2d 498, 500-02.

B.

The next contention is that the prosecutor violated Viera’s Sixth and Fifth Amendment rights by intimidating his prospective witness, his father, and by interfering with the freedom to present testimony without fear of retaliation against the witness by the government. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); Washington v. Texas, 388 U.S. 14, 17-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019, 1021-23 (1967). The record here reveals that, before resting his case, defense counsel told the court that he had planned to call Viera’s father as a witness but would not do so because the prosecutor had publicly stated that if the father testified the prosecutor would have him indicted. The prosecutor responded by telling the court that the defense counsel had misstated the facts, that he had simply informed counsel that he had been recently told of the father’s own possible complicity in drug dealing and that this might pose problems for the client and the witness if the father were to testify. The court directed defense counsel to proceed, stating that the prosecutor’s information would not restrict the freedom to call the father as a witness. The defense then rested without further contention. No claim was made that the father was influenced by this expression of the prosecutor or that the father did not wish to testify. No request was made to the court to inquire further into the matter or to hold a hearing or to consider any harm or prejudice to the defendant. We find here neither error by the court nor showing of prejudice to the defendant.

The panel read a statement by the prosecutor attached to his brief in this court as an admission of conduct that constituted reversible prejudice to the defendant. The prosecutor stated:

I felt that the Government’s attorney had an ethical duty to advise defense counsel that it was possible that if the father was called as a witness and provided incriminating evidence against himself, or perjury [sic], that I would take the matter to the next setting [sic] Grand Jury, the following week, and present the matter to them for their consideration and that he could be indicted. This information was not intended as a “threat” but communicated in good faith with honorable motives.

We fail to see the vice in this statement. A prosecutor is always entitled to attempt to avert perjury and to punish criminal conduct. See United States v. Binker, 795 F.2d 1218, 1229 (5th Cir.1986); United States v. Whittington, 783 F.2d 1210, 1219 (5th Cir.1986). By adding that he would move promptly to present any violation to the Grand Jury, the prosecutor cannot be charged with harassment, particularly when the statement was made to defense counsel rather than to a prospective lay witness. No showing has been made that a prospective witness was intimidated or that he refused to testify. See United States v. Blackwell, 694 F.2d 1325, 1343 (D.C.Cir.1982). Nor is there any suggestion in anything that is before us that the father’s testimony would have contained any material exculpatory evidence to aid Viera’s defense. See United States v. Weddell, 800 F.2d 1404, 1410-12 (5th Cir.1986). We are, of course, in no position to know what evidence might be developed by Viera in a collateral attack upon the conviction.

C.

Finally, Viera complains about the following portion of the prosecutor’s closing argument:

At the beginning of this trial, do you remember who stood up in this courtroom? The father, Mr. Viera—

[Objection] [Overruled]

Do you remember when the Court asked all of us to come in here and I told the Judge I don’t have all of my witnesses. All of mine that were in the courtroom were sworn in because we have a duty to inform the Court of it. Do you know who stood right here next to his son and raised his right hand, papa, Mr. Viera.

The Judge is going to tell you that a defendant hasn’t any burden to come forward in the case. That is the law. The Government has the total burden. Dad was just out there having a drink. We never heard from dad, did we, but you did hear from Mr. King.

In overruling the defendant’s objection the trial judge stated that he did not construe the argument as a comment on the father not testifying. The prosecutor replied that he intended no comment of that nature. It is true that his argument proceeded without further suggestion that the father’s testimony would have been adverse to the defendant, but it is difficult to dismiss the statement as something other than a contention that the father’s failure to testify was gain for Viera. It is not clear, however, that the prosecutor was forbidden to make this comment. The relationship of the witness to the defendant, and the fact that the witness had been called to court and put under oath as a witness for the defense, demonstrated the control of the uncalled witness that warranted an inference the jury was permitted to draw against the defendant. United States v. Chapman, 435 F.2d 1245, 1247 (5th Cir.1970). There was a possibility, known to the prosecutor, that the father might refuse to testify or invoke the Fifth Amendment. If so, defendant’s control would have been lacking and the argument unwarranted. See United States v. Miller, 460 F.2d 582, 588 (10th Cir.1972). This possibility was only a matter of speculation, however, and in any event the prosecutor’s statement, standing alone, cannot be considered as having had any prejudicial effect against the defendant.

The conviction is AFFIRMED.