APPEAL FROM THE JUDGMENT AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Gibbons, Forman and Rosenn, Circuit Judges. Rosenn, Circuit Judge.
Appellant Nick Boscia was found guilty after a jury trial on two counts, conspiracy to distribute and distribution of approximately 856.5 grams of hashish in violation of 21 U.S.C. §§ 841(a), 846.
The only issue on appeal is whether appellant was denied a fair trial in that he was deprived of his constitutional right to call witnesses in his defense by the actions of Mr. Villanova, the Assistant United States Attorney. The trial judge heard sworn testimony, out of the presence of the jury, from the lawyers for the defendants (Mr. Boscia was tried with two co-defendants; other indicted conspirators pled guilty), and from Mr. Villanova. Though clearly troubled by the case and terming the actions of the Assistant United States Attorney "improper," the judge denied a motion for mistrial made during the trial and motions made after trial for judgment of acquittal or alternatively for a new trial.
The story that emerges from study of the record, including the testimony given at the evidentiary hearing, is that defendant, Mr. Boscia, and his lawyer planned his defense around the testimony of Sally Bell, Mr. Boscia's girl friend, who allegedly was prepared to swear that it was she and not Mr. Boscia who had been involved in the conspiracy to sell hashish. As the pair told the story to Joel S. Perr, Esq., Mr. Boscia's court-appointed lawyer, Mr. Boscia's involvement was minimal and incidental and he decided to reject the plea negotiations and go to trial. Ms. Bell was originally indicted with Mr. Boscia and others but charges were dropped against her when it was disclosed that she had been under eighteen years at the relevant time. She seems to have understood that with the dropping of federal charges she was free from prosecution for her role in the conspiracy. This, however, was not true. Under 18 U.S.C. § 5032 she could still be charged as a juvenile in state court, which is now the usual forum for all federal juvenile offenders, and if the state declined to prosecute her, she could be prosecuted by permission of the United States Attorney General in the federal court.
On the morning that the trial commenced, Monday, April 14, 1975, Ms. Bell assured defense counsel that she was willing to testify. Mr. Boscia's lawyer, not sure of the status of the charges against her but aware there might be conflict between her interest and that of his client, requested the court to appoint counsel for her or grant her immunity. This was opposed by Mr. Villanova. He stated that he was not going to call Ms. Bell and, should the defense do so, a warning by the court of her rights would be sufficient protection.*fn1 The judge said the court would instruct her on her rights, but expressed doubt as to whether he could appoint counsel for a witness or grant immunity except on motion of the Government.*fn2
During the next few days Mr. Villanova appears to have had a change of mind as to the protection he considered that Ms. Bell needed. On at least three occasions he sent messages to her through defense counsel warning that she was liable to be prosecuted on drug charges; that if she testified, that testimony would be used as evidence against her and, further, that as she was now eighteen it would be possible to bring federal perjury charges against her.*fn3 Not content that these messages would adequately alert her to her peril, he sent a subpoena to Ms. Bell and had her brought into his office on Wednesday, April 16.*fn4 The subpoena would not appear to have had any legal validity as it was made out for a day already past. Originally addressed to Mike McBride, his name had been scratched out and Sally Bell's inserted instead. The only purpose of the subpoena would therefore seem to have been to impress Ms. Bell with the force of the law with which she was entangling. There, surrounded by the three law-enforcement officers who had served as undercover agents in the case and whose testimony Sally Bell was meant to undermine in court, he once again impressed upon her the dangers of testifying.
At this interview Mr. Villanova, according to his testimony, advised Ms. Bell of her rights. He testified that
"Some of the rights I couldn't remember myself, even though I'm an attorney, and the police officers told me what to tell her as far as her rights, her right not to testify, not to say anything to me, her rights to have an attorney present, her right to remain silent even after she said something. . . . I told her that if she admitted she was part of this thing that she could in fact be prosecuted as a juvenile in state court, and I told her that if she could not be prosecuted as a juvenile in state court that she could be prosecuted possibly, with the permission of the attorney general, as a juvenile in federal court, and I told her that she should know that before she went up to the witness stand and confessed.
"I also told her that if she testified falsely that she could subject herself to a perjury charge, and I told her that even though the charges were dismissed against her as an adult on the dope charge itself, that if she testified falsely she was now an adult over 18, and if we could prove it, and she was testifying falsely on behalf of Nick Boscia thinking to get her to lie to exculpate himself and get off the hook, she could be prosecuted for perjury, and she should know that." Transcript at 377-9.
Ms. Bell seems to have felt increasingly intimidated under this barrage of warnings.*fn5 When she was called to the stand on the morning of Thursday, April 17, though she answered many of the questions fully and intelligently, there were more than thirty questions which she refused to answer on the ground that the answers might incriminate her, thus depriving appellant of much of the evidence he had expected to place before the jury. After Ms. Bell's testimony, Judge Knox held the before-mentioned evidentiary hearing at which the defense attorneys, Mr. Villanova and Ms. Bell testified under oath.
The Supreme Court has ...