If you ask nicely, asking someone to lie for you about a crime you committed is not “harassment” for obstruction of justice purposes

Ronald Wynn v. United States, No. 11-CF-22

(decided November 21, 2013)

Players: Fisher, Oberly, Ferren.  Opinion by Judge Oberly.  David Reiter for Ronald Wynn.  Trial judge: Hebert Dixon, Jr.

Issue 1: Was there sufficient evidence for an obstruction of justice conviction that Wynn had “harassed” a witness to dissuade the witness from testifying truthfully or reporting information concerning a crime?

Facts: The government’s evidence was that Wynn went to a cookout, had an argument with the decedent’s wife, had a physical altercation with the decedent, and then went to his car, retrieved a gun and shot the decedent.  The government also presented evidence that after the shooting, Wynn asked his girlfriend to say, if asked, that she was with Wynn at the time of the shooting.  Wynn’s girlfriend testified that she was confused by the request because she did not know what had happened or what was going on.  The defense was self-defense. 

Holding 1: There was insufficient evidence of “harassment.”  Merely asking a witness, in a non-threatening manner that does not cause fear, distress, or even irritation, is not sufficient evidence of “harassment” for the purposes of the obstruction statute. 

Issue 2: Did the trial court’s response to notes from the jury after a Winters anti-deadlock instruction coerce verdicts?

Facts: This case involved two trials, and this issue pertains to the first trial, which resulted in guilty verdicts on some counts and a mistrial on other counts.  At the first trial, the jury sent notes indicating it was deadlocked, but context indicated the jury was deadlocked on the murder charge.  After a Winters anti-deadlock instruction, the jury also sent updates indicating it had reached verdicts on some counts but not others.  The jury returned guilty verdicts on some weapons and obstruction counts, and ultimately a mistrial was declared on the homicide count and PFCV counts.

Held: Because the post-Winters instruction notes were merely status updates, the Court’s failure to declare a mistrial on all counts after receiving those notes did not coerce the convictions.

Issue 3: Did the trial court err when it allowed a potential defense witness to assert a Fifth Amendment privilege and not testify at all?

Facts: To support the defendant’s self defense claim, the defense proffered a witness who would testify that the decedent had a gun in his hand when the defendant shot him.  The witness asserted his Fifth Amendment privilege because he had testified before the grand jury that the witness did not have a gun, thus testimony consistent with the defense proffer would put him at risk of a perjury prosecution.  The government was willing to offer immunity only if the witness debriefed first.  The trial court concluded that there was no way to “parse” the witness’s testimony and allow some limited questions that would not implicate the witness’s Fifth Amendment privilege, thus the witness did not testify at all.

Held: While the trial court’s ruling that there was no way to “parse” the questioning of the witness to allow some questions that would not implicate the witness’s right against self-incrimination is “subject to reasonable debate,” questioning about the only fact that would be helpful to the defendant – that the decedent had a gun – would clearly implicate the witness’s Fifth Amendment right.  Therefore, even if there was a flaw in the trial court’s approach, it was harmless.  

Read full opnion here