United States of America v. Marqitis M. Wright

The Honorable Michael P. McCuskey, United States District å
Court for the Central District of Illinois, sitting by designation.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2330
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARQITIS M. WRIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cr-00251—Charles N. Clevert, Jr., Chief Judge.
ARGUED DECEMBER 8, 2010—DECIDED FEBRUARY 25, 2011
Before FLAUM and EVANS, Circuit Judges, and
MCCUSKEY, District Judge.å
EVANS, Circuit Judge. Marqitis Wright and Justin Holt
were best friends. They referred to each other as step-
brothers. Holt dated, and later moved in with, the aunt
in whose house Wright once lived. Holt and Wright

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2 No. 10-2330
had something else in common: drugs. Holt began dab-
bling in drugs from a very young age, and in his later
teens Wright joined him in this endeavor. At some point,
Holt and Wright became involved in dealing drugs to
Carmen Estrada, and on two occasions, October 25, and
November 8, 2007, Estrada bought guns from the duo.
Unbeknownst to Holt and Wright, Estrada was
actually a confidential informant for the Bureau of
Alcohol, Tobacco and Firearms (ATF), albeit one who
continued to use crack cocaine obtained through her
own private purchases. Estrada was also a convicted
felon, a fact she mentioned to Holt and Wright during
the October 25 transaction, the entirety of which was
caught on video and audiotape by the ATF (as was the
November 8 transaction).
Holt and Wright were arrested, and Wright was
charged with two counts of selling a firearm to a con-
victed felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Holt was charged with four counts and pled
guilty to two of them. Wright pled not guilty and went
to trial.
At Wright’s trial the jury saw the video and audio
recordings of the October 25 and November 8 transac-
tions with concurrent transcription, and during delibera-
tions the jury requested the October 25 recording again,
this time without transcription. What the jury did not
see during trial was Holt. Although Holt was originally
on the government’s witness list, he was interviewed a
few days before trial and provided, as the government
saw it, a statement that was not entirely truthful. He

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No. 10-2330 3
said, amongst other things, that he and Wright never
discussed Estrada’s felony status in connection with
the gun sale. After his interview, the government
decided not to call Holt as a witness. Wright was
informed of this fact. The government also informed
Holt’s attorney of its view that Holt was not being
truthful, and further informed Wright’s attorney that
Holt’s statement might be potentially exculpatory for
Wright.
The trial judge had Holt produced outside of the
jury’s presence, where Holt stated, on the advice of
his attorney, that he would assert his Fifth Amendment
right not to testify if called as a witness. At this time,
although Holt had pled guilty, he was awaiting sen-
tencing, and so he faced possible sentencing guideline
adjustments as well as further prosecution if he perjured
himself or obstructed justice. Holt also stated that the
government had neither threatened him nor made any
promises to him pertaining to his refusal to testify. The
district judge found that Holt’s exercise of his Fifth
Amendment privilege rendered him unavailable as a
witness.
Faced with this situation, Wright requested that the
government seek a grant of immunity for Holt so that
anything he testified about could not be used against
him. The Assistant U. S. Attorney prosecuting the case
declined, stating,
[t]he United States is not going to seek immunity for
a witness on perjury offenses; in other words, so that
the witness could take the stand, perjure himself,

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4 No. 10-2330
and we would have no recourse. If there had been
some other offense that Mr. Holt had criminal
exposure on that was relevant to his potential testi-
mony . . . that could be considered. . . . But the
United States does not believe it’s appropriate
for—and I can’t imagine the Department of Justice
authorizing immunity for potential perjury should
Mr. Holt be allowed to take the stand.
The trial concluded without Holt giving testimony.
Wright was found guilty on both counts. Wright now
seeks a new trial claiming the judge erred in not con-
ducting a colloquy with Holt before allowing him to
assert his Fifth Amendment privilege, and that the gov-
ernment violated Wright’s Fifth Amendment due process
and Sixth Amendment compulsory process rights by
refusing to move the judge to confer a grant of im-
munity on Holt. We review a judge’s Fifth Amendment
privilege finding for an abuse of judicial discretion,
and we review an immunization decision only when
there is substantial evidence showing a clear abuse of
prosecutorial discretion. United States v. Longstreet, 567
F.3d 911, 922 (7th Cir. 2009); United States v. Hooks, 848
F.2d 785, 799 (7th Cir. 1988) (citing United States v.
Taylor, 728 F.2d 930, 935 (7th Cir. 1984)).
“[W]hen a witness invokes his Fifth Amendment
right, the district court should confirm that he ‘cannot
possibly incriminate himself,’ and if the ‘witness’s testi-
mony may make him vulnerable to prosecution, the
trial court may allow him to . . . refuse to testify.’ ”
Longstreet, 567 F.3d at 922 (citing United States v. Mabrook,

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No. 10-2330 5
301 F.3d 503, 506 (7th Cir. 2002)). Also, as pertinent
here, a defendant who has not yet been sentenced
may still assert his Fifth Amendment right against self-
incrimination if called to testify. Longstreet, 567 F.3d at
922; see also Mitchell v. United States, 526 U.S. 314, 325
(1999). Wright contends that the trial judge’s lack of
colloquy with Holt means that the district court did not
confirm that Holt could not “possibly incriminate him-
self” if forced to testify.
The judge, in ruling that Holt could claim his Fifth
Amendment privilege, remarked, “[T]he Court, on
the basis of the statement of Mr. Holt and the matters
previously presented in this case, concludes that—
and Mr. Holt has the right to invoke his privilege
against self-incrimination, and that he has asserted
that privilege and that the privilege must be respected
in this matter.” This statement, although a bit disjointed,
suggests that based on the circumstances the judge be-
lieved a colloquy was unnecessary.
This makes sense, as the judge was not ruling in a
vacuum. He was well aware of the situation up to
this point. He was aware that Holt was a co-defendant
awaiting sentencing. He was aware that the govern-
ment thought Holt’s testimony, if consistent with his
statement during the interview, would be false. And
he had just heard Holt say that he was invoking his
Fifth Amendment right on the advice of his counsel,
and that he had been neither coerced nor bribed by the
government to do so.
Certainly, the judge could have engaged in an extended
colloquy at this moment and asked more pointed ques-

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6 No. 10-2330
tions. However, given what he knew about the situa-
tion, he was not required to do so. In this instance it was
reasonable for the judge to conclude from the circum-
stances that Holt had a legitimate reason to invoke his
Fifth Amendment privilege. Further, if we were to con-
clude that a colloquy was required, Wright would get
only partial relief as the proper remedy would be remand
for the making of a more complete record, not a new trial.
As for Wright’s prosecutorial abuse of discretion claim,
such an abuse only occurs when a prosecutor intends
to use his authority under the immunity statute to distort
the judicial fact-finding process. Taylor, 728 F.2d at 935.
Wright has provided no evidence of such an abuse.
His claim rests on the fact that Holt was on the govern-
ment’s witness list until the government found out that
his statement (if true, of course) would help Wright.
And so the government correctly identified Holt’s state-
ment as “potentially exculpatory” to both the judge
and Wright’s counsel.
Wright claims that the government’s behavior
amounts to the “sharp tactics” denounced in United
States v. Herrera-Medina, where we remarked that,
in an appropriate case, the refusal of the government
to immunize a defense witness might be at once so
damaging to the defense and so unjustifiable in
terms of legitimate governmental objectives that the
refusal to grant immunity would be a denial of due
process of law to the defendant, and preclude his
conviction.
853 F.2d 564, 568 (7th Cir. 1988). We do not believe that
the government’s behavior here amounts to such sharp

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No. 10-2330 7
tactics, nor do we believe that the refusal to grant im-
munity was so damaging to the defense as to be a denial
of due process, and Wright has provided no evidence to
the contrary.
It is within the province of a prosecutor to decline to
call a witness she fears may perjure himself. In our case,
the government informed Wright of the decision not
to call Holt, as well as of the potentially exculpatory
nature of Holt’s testimony, as soon as the interview with
Holt was completed. Granted, this interview took place
shortly before trial, but as the government had no reason
to believe Holt would give a potentially exculpatory
statement, there is no reason to think that this was a
tactical delay on the government’s part. In fact, it looks
like the eleventh-hour statement from Holt took the
government by surprise as it was expected that, if called,
Holt would help drive another nail into Wright’s coffin.
Further, avoiding future violations of the law, such
as potential perjury, is hardly an unjustifiable and il-
legitimate government objective. Here, the government
made it clear, through multiple representatives, that the
concern with Holt’s testimony was the fear, based on
inconsistencies between his statement and the facts as
the government understood them, that Holt would
perjure himself. The government went so far as to
explain that immunity for other violations could be
considered, but that immunity for potential perjury
would be out of the question.
As far as damage to the defense goes, we believe that
any damage done by the unavailability of Holt was mini-

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8 No. 10-2330
mal. Wright claims that Holt’s testimony was imperative
to rebut Estrada’s claims that Wright knew she was a
felon, and that she’d mentioned her felony status on
more than one occasion. Even without Holt’s testimony,
the jury might be skeptical of Estrada, a witness who,
in the words of the government, “came with a lot of
baggage.” The jury was aware that Estrada was a
paid informant who had originally gotten into the game
to work off a drug bust and who still bought and used
crack cocaine outside of her confidential informant role.
It is not clear that testimony from a close friend (a pro-
verbial “step-brother”) of Wright’s would work to dis-
credit Estrada any further than her own behavior would.
Further, whatever the jury thought of Estrada, it also
had audio-visual proof, in the form of the October 25
video, that Estrada mentioned her felony status at least
once in Wright’s presence. Therefore, even if the jurors
completely disregarded Estrada’s testimony, they could
still credit the video, which they viewed both with and
without transcription, and find that Wright was aware
of Estrada’s felony status. The refusal to move to im-
munize Holt was not an abuse of discretion.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
2-25-11

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