01-1858, 01-2333 U.S. v. McClurge

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“The four questions Marks refused to answer clearly dealt with issues collateral to the culpability of McClurge and Carlisle. The trial transcript demonstrates that Marks was asked whether he had ever seen Eiland commit murder, whether he had ever kidnapped anyone else with Eiland, and (twice) whether he had ever covered up any of Eiland’s crimes. (Tr. at 967, 975, 983.) Marks had already testified on direct about his relationship with Eiland (Tr. at 706-18, 799), but had limited that discussion to the time and events surrounding the kidnapping referred to herein. (Id.) Thus, questions surrounding Marks’s relationship with Eiland beyond that time period clearly were aimed at impugning Marks’s credibility, an attempt which must cease at the threshold of Marks’s own Fifth Amendment rights. The commentary to Rule 608(b) of the Federal Rules of Evidence states that the Rule constitutes a rejection of the doctrine . . . that any past criminal act relevant to credibility may be inquired into on cross-examination, in apparent disregard of the privilege against self-incrimination. While it is clear that an ordinary witness cannot make a partial disclosure of incriminating matter and then invoke the privilege on cross-examination, no tenable contention can be made that merely by testifying he waives his right to foreclose inquiry on cross-examination into criminal activities for the purpose of attacking his credibility. So to hold would reduce the privilege to a nullity. … Courts from other circuits have reached the same conclusion when presented with similar facts. See, e.g., United States v. Brooks, 82 F.3d 50, 54 (2d Cir. 1996) (holding that a witness’s invocation of his Fifth Amendment privilege on a ‘collateral’ matter did not violate defendant’s Sixth Amendment right to confrontation); United States v. Berrio-Londono, 946 F.2d 158, 158-59 (1st Cir. 1991) (affirming a refusal to strike the direct testimony of a coconspirator who asserted his Fifth Amendment right concerning prior drug deals with a coconspirator other than the defendant).”

Affirmed.

Appeals from the United States District Court for the Northern District of Illinois, Moran, J., Coffey, J.