United States v. Simpson

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 14, 2002
• Docket: 01-31220
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31220 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAVIN SIMPSON,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (01-CR-99-ALL-S) _________________________________________________________________ May 13, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges:

PER CURIAM:*

Ravin Simpson challenges his convictions under 18 U.S.C.

§ 1623 for perjury before the United States District Court, arising

out of the testimony he gave voluntarily in a criminal prosecution

of a coconspirator that was contrary to testimony Simpson gave in

an earlier proceeding in which he was convicted in another United

States District Court. Simpson entered guilty pleas conditioned

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. upon the right to appeal the denial of his motion to quash the

indictment.

Simpson contends that the Government violated his rights under

the Fifth Amendment by not advising him of his right against self-

incrimination and not providing him counsel. He asserts also that

the Government violated his rights under Miranda v. Arizona, 384

U.S. 436 (1966), by interviewing him prior to his appearance as a

witness at the coconspirator’s trial.

A ruling on a motion to quash is reviewed for abuse of

discretion. United States v. Crow, 164 F.3d 229, 234 (5th Cir.),

cert. denied, 526 U.S. 1160 (1999).

The Fifth Amendment privilege against self-incrimination

applies to compelled testimony; the Amendment “does not preclude a

witness from testifying voluntarily [as here] in matters which may

incriminate him”. United States v. Monia, 317 U.S. 424, 427

(1943). If a witness desires the protection of the privilege, he

must invoke it. Id.

Simpson has not shown a violation of his privilege against

self-incrimination. He voluntarily testified at his

coconspirator’s trial and he did not invoke his right against self-

incrimination. Id. In addition, the statements for which Simpson

was prosecuted did not relate to a crime that occurred prior to

Simpson’s testimony; the statements were not confessional in

nature; and the statements, in and of themselves, constituted the

2 crime of perjury for which Simpson was prosecuted. See United

States v. Kirk, 528 F.2d 1057, 1061-62 (5th Cir. 1976).

Simpson was not entitled to Miranda-type warnings prior to his

commission of perjury. See United States v. Mandujano, 425 U.S.

564, 580-83 (1976). Furthermore, he has not shown he was in

custody and entitled to counsel afforded under the Fifth Amendment.

See McNeil v. Wisconsin, 501 U.S. 171, 176-78 (1991); United States

v. Smith, 7 F.3d 1164, 1167 (5th Cir. 1993).

Finally, Simpson asks that we exercise our “supervisory

powers” to vacate his conviction because of claimed misconduct by

the Government. The Government responds that, inter alia, this

argument constitutes a due-process-fundamental-fairness argument,

and that we should not consider it because no due process argument

was raised in the district court. Simpson replies that he is not

raising a due process argument and that he is asking only that we

vacate the conviction under our “supervisory powers” if we conclude

that the Government violated Simpson’s Fifth Amendment rights.

Even assuming arguendo we have such power, we decline to

exercise it because Simpson, as stated, has shown no Fifth

Amendment violation, nor has he shown misconduct on the part of the

Government.

For the foregoing reasons, the judgment is

AFFIRMED.