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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-3225
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAWRENCE KIMBALL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(February 10, 1994)
Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
Lawrence J. Kimball appeals his conviction of possession of a
firearm by a felon and the enhanced prison sentence imposed for
that crime. Finding neither error nor abuse of discretion we
affirm.
Background
A jury found Kimball, a convicted felon, guilty of possessing
a firearm. He received an enhanced sentence of 235 months
imprisonment. His first trial ended in a mistrial. In the second

trial, Kimball sought to elicit from the government's case agent a
part of his testimony during the first trial,1 a strategy which
would have enabled the presentation of his earlier exculpatory
testimony without any cross-examination leveler. The district
court ruled that the case agent could not testify about Kimball's
earlier exculpatory statements.
Before trial the government notified Kimball that it would
seek imposition of penalty enhancements under 18 U.S.C. § 924(e)(1)
because of his prior convictions. Finding a previous conviction
for aggravated battery and two independent convictions for cocaine
distribution, the district court imposed a significantly enhanced
sentence. Kimball timely appeals.
Analysis
Kimball challenges the evidentiary ruling and the enhanced
sentence. He first contends that the hearsay exceptions of the
Federal Rules of Evidence allow introduction of a person's former
testimony where that person is unavailable.2 Kimball argues that
he was unavailable as a witness because at the time of the district
court's evidentiary ruling he had invoked his fifth amendment
privilege against self-incrimination, a privilege that under our
1In the previous trial, Kimball had explained that he was only
in possession of a firearm because immediately before the arrival
of the police he had wrested the weapon from an unidentified person
who had attempted to rob him at gunpoint.
2Fed.R.Evid. 804(b)(1). This exception is subject to the
condition that "the party against whom the testimony is now offered
. . . had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination." Id.
2

precedents constitutes unavailability under the Rules.3 We review
the district court's rejection of this argument for an abuse of
discretion.4
Kimball's argument is answered by the Rules. The sponsor of
a declarant's former testimony may not create the condition of
unavailability and then benefit therefrom.5 The rule Kimball
relies upon was designed to ensure one access to testimony where,
by the actions of the opponent, or at least through no fault of the
testimony's proponent, a desired witness becomes unavailable. In
the instant case, Kimball created his own unavailability by
invoking his fifth amendment privilege against self-incrimination.6
While sensitive to the importance of not discouraging or
3See United States v. Young Bros., Inc., 728 F.2d 682 (5th
Cir.), cert. denied, 469 U.S. 881 (1984) ("it is clear that a
witness who is unavailable because he has invoked the Fifth
Amendment privilege against self-incrimination is unavailable under
the terms of 804(a)(1)").
4United States v. Capote-Capote, 946 F.2d 1100 (5th Cir.
1991), cert. denied sub nom., Rodriguez v. United States, 112 S.Ct.
2278 (1992).
5"A declarant is not unavailable as a witness if [his]
refusal . . . is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness
from attending or testifying." Fed.R.Evid. 804(a)(5).
6Although Kimball had invoked his fifth amendment privilege at
the time of the evidentiary ruling, he nonetheless waived this
right and testified at his second trial in even stronger terms than
at his first. The presentation of his version of the facts was not
adversely affected by the ruling. Were we to reject the ruling,
any error necessarily would have been harmless. See, e.g., United
States v. Quintero, 872 F.2d 107 (5th Cir. 1989), cert. denied, 496
U.S. 905 (1990) (error is harmless if it did not influence the jury
or had only a slight effect).
3

prejudicing a defendant who invokes the fifth amendment,7 we cannot
accept the view proposed by Kimball. A defendant seeking to
testify
and
make
exculpatory
statements
must
face
cross-examination.8 That is a basic rule of our adversary system.
Kimball would change that. The district court did not abuse its
discretion in its evidentiary ruling.
As to the assigned sentence enhancement error, Kimball insists
that his two cocaine distribution convictions were not based upon
distinct criminal acts. The controlling rubric provides that a
convicted felon in possession of a firearm is subject to enhanced
penalties if the person "has three previous convictions . . .
committed on occasions different from one another."9
Kimball maintains that inasmuch as the cocaine distribution
charges were brought at the same time, he had been convicted of
only one crime before committing both his second and third
offenses. Kimball suggests that this compels us to ignore one of
his cocaine convictions for purposes of section 924(e)(1). He also
argues that because the two charges involved incidents only days
apart, the two convictions should be treated as part of a single
7See, e.g., Doyle v. Ohio, 426 U.S. 610 (1976) (barring
prosecutorial comment on a criminal defendant's constitutionally
privileged silence and suggesting that invocation of fifth
amendment should carry no penalty).
8See Fitzpatrick v. United States, 178 U.S. 304 (1900) ("While
no inference of guilt can be drawn from his refusal to avail
himself of the privilege of testifying, he has no right to set
forth to the jury all the facts which tend in his favor without
laying himself open to a cross-examination upon those facts.").
918 U.S.C. § 924(e)(1).
4

crime "spree" and not as separate offenses committed on separate
occasions. We are not persuaded.
As to the former argument, we have expressly rejected the
proposition that multiple offenses should be counted as one
conviction under section 924(e)(1) merely because they are
prosecuted in the same judicial proceeding.10 As to the latter, we
have found that temporal proximity will not transform two crimes
into one.11 By our announced standard, Kimball had three extant
convictions at the time of his arrest as a felon in possession of
a firearm. He was sentenced legally.
AFFIRMED.
10United States v. Herbert, 860 F.2d 620 (5th Cir. 1988), cert.
denied, 490 U.S. 1070 (1989).
11United States v. Kelley, 981 F.2d 1464 (5th Cir.), cert.
denied, 113 S.Ct. 2427 (1993) (two drug deliveries at separate
locations are separate criminal transactions under section
924(e)(1)); United States v. Washington, 898 F.2d 439 (5th Cir.),
cert. denied, 498 U.S. 842 (1990) (robbing the same clerk at the
same convenience store twice within a few hours constituted
separate crimes). Herbert (burglaries committed at separate
locations within three days of each other constituted separate
criminal transactions).
5