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Williams v. Borg

March 23, 1998


Appeal from the United States District Court for the Northern District of California James Ware, District Judge, Presiding Argued and Submitted February 12, 1996--San Francisco, California

D.C. No. CV-91-20802-JW

Before William C. Canby, Jr. and Andrew J. Kleinfeld, Circuit Judges, and Audrey B. Collins,* District Judge.

The opinion of the court was delivered by: Kleinfeld, Circuit Judge


Opinion by Judge Kleinfeld; Dissent by Judge Canby


Though there are others, the primary issue in this case is whether a Judge may constitutionally strike a defendant's testimony if, after warning and after opportunity to change his mind, the defendant refuses to be cross-examined.


Williams appealed the district court's denial of his petition for a writ of habeas corpus, under 28 U.S.C. S 2254. He is serving a life sentence imposed by a California state court, for forcible oral copulation, kidnapping, robbery, and other crimes, committed during the events described below.

The victim testified that Williams grabbed her as she was walking toward her car outside a convenience market. She had just finished having a late-night breakfast with her boyfriend, a bartender, and it was about 3:15 a.m. Williams forced her into the passenger seat of her own car, got into the driver's seat, and drove off. He demanded money, but all she had was $10, not enough for him. She offered Williams her ATM card and the two drove to her bank, but the ATM was closed. Williams then drove to a side street, parked, and forced her to perform oral sex on him. Then he drove about 100 yards, parked, made her get out of the car, and made her perform fellatio again. Williams then drove back to where he had abducted the victim and left, keeping her ATM card. The victim drove away for about ten minutes, then stopped at a gas station and called the police.

A few hours later, the police staked out the ATM to which Williams had taken the victim. They caught him there. Williams and his wife had driven to the machine, and his wife was trying to get money out of the machine with the victim's card, while Williams sat in the car.

Williams took the stand and told an entirely different story. Before he did, the court held a conference out of the jury's presence. Defense counsel had advised Williams not to testify in order to keep the jury from hearing about his prior convictions, but told the court that Williams might insist. The Judge warned Williams that the prosecutor was entitled to use his prior felony convictions to impeach his credibility, although his convictions for unlawful oral copulation would be called "moral turpitude." The Judge specifically instructed Williams that if he refused to be cross-examined because the answers might incriminate him, the Judge would grant a motion to strike his testimony and tell the jury not to consider it. Williams said he understood all this.

Williams chose to testify after being so advised. He claimed that as he left the convenience store after buying something to drink, the supposed victim drove in front of him, rolled down her window, and asked "did I have any weed for sale." He said he had no marijuana, but had some cocaine. She asked him to get into the car. He offered a gram of cocaine for $100, but all she had with her was $20. They drove to an ATM so she could get more cash, but it was closed. She managed to talk him out of a gram of cocaine anyway, by promising to meet him in the morning and pay him, giving him her ATM card and number so that he could use it if she did not meet him, and volunteered to "show faith" by performing fellatio. Williams testified that "upon weighing her credibility" he decided to trust her, accepted the card and fellatio, and gave her the cocaine.

The cross-examination was short and unsuccessful. The prosecutor asked a series of "Isn't it a fact that . . ." questions about seven prior crimes of which Williams had been convicted. They included kidnapping, armed robbery, sex crimes, and others. Williams refused to answer the questions. He said that the answer "may incriminate me in the case at hand right now." The prosecutor asked the Judge to instruct the witness that he had to answer the questions and could not avoid them by invoking the Fifth Amendment. The Judge obliged. He told Williams "you have no right to invoke the Fifth Amendment and refuse to answer the questions in regard to the prior felony convictions" and expressly ordered Williams to answer. Williams expressly refused. On the prosecutor's motion, the court then held Williams in contempt, ordered Williams' testimony stricken, and instructed the jury to disregard it. Neither the prosecutor nor defense counsel asked any other questions.

The next morning, the Judge offered Williams an opportunity to put things right. He stated that if Williams took the stand and answered the questions, "I would purge you of contempt. I would also permit the jury to consider your direct examination testimony." But Williams turned him down.


A. Jurisdiction.

Appellee argues that Williams filed his notice of appeal too late, so we lack jurisdiction. He had to file "within 30 days after the entry date of entry of the judgment." Fed. R. App. P. 4(a)(1). Williams' attorney argues that he filed timely, as his receipt shows, but that the clerk stamped his notice "filed" the next day, which was late, and his timely filing sufficed under Aldabe v. Aldabe, 616 F.2d 1089, 1091 (9th Cir. 1980).

We need not resolve whether the notice was timely filed, because, as Williams' attorney correctly argues, the district court clerk never entered judgment "on a separate document," as required by Federal Rule of Civil Procedure 58. The appeal is therefore timely and we have jurisdiction under Allah v. Superior Court, 871 F.2d 887, 890 (9th Cir. 1989). We held in that case that the time for filing notice of appeal runs from entry of judgment in compliance with Civil Rules 58 and 79(a), and a party will ordinarily not be found to have exceeded the time allowed by Appellate Rule 4(a) where the clerk has not entered a proper judgment. We also held in that case that if the appellee does not object to appellate jurisdiction on the ground that final judgment has not yet been properly entered in compliance with those rules, then the separate judgment rule is waived, because it is not jurisdictional. We then may exercise jurisdiction on the premature notice of appeal to avoid the pointless exercise of dismissal, remand, entry of judgment, and a second notice. Id. at 890, n.1. Appellee has not raised the separate judgment rule, so it is waived under Allah.

Williams filed his case before Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("the Antiterrorism Act"), Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), so we do not analyze it under the new provisions added by that Act. See Lindh v. Murphy, 117 S. Ct. 2059, 2061 (1997).

B. The Striking of Williams' Testimony.

Williams argues that he was deprived of his right to present his own testimony in his defense, and that this violated the Constitution as construed in Rock v. Arkansas, 483. U.S. 44 (1987). He claims that because admission of his prior felony convictions would have been merely collateral, the Judge was not entitled to strike his testimony in its entirety.

Williams insisted on testifying without being cross-examined on his prior convictions. He was warned before he testified, admonished when he refused to testify, and warned again when he was given a second chance the next morning, that he had no right to refuse to answer the questions and that his testimony would be stricken if he did refuse. He obdurately refused to be cross-examined about his priors. Williams said they "may incriminate me in the case at hand right now." That, of course, was the point.

Williams had a fair choice. He could testify, subject to oath and cross-examination. Or he could refuse to testify, and not have his silence used against him. As the California Court of Appeal said in its unpublished opinion in this case,"a defendant with prior convictions must decide whether to take the stand, thereby exposing himself to impeachment based on his priors, or whether to forego his right to testify in his own defense." The Constitution does not give a defendant a right to testify without subjecting himself to cross-examination which might tend to incriminate him. Brown v. United States, 356 U.S. 148, 154-55 (1958); United States v. Nobles, 422 U.S. 225, 241 (1975).

In a habeas case such as this one, we are limited to deciding "whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 112 S. Ct. 475, 480 (1991). We therefore review only ...

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