U.S. v. Lach

• Decision Date: 13 June 1989
• Docket Number: No. 88-5411,88-5411
• Citation: 874 F.2d 1543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Joseph LACH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

874 F.2d 1543

UNITED STATES of America, Plaintiff-Appellee, v. Frank Joseph LACH, Defendant-Appellant.

No. 88-5411.

United States Court of Appeals Eleventh Circuit.

June 13, 1989.

Mark King Leban, Law Offices of Mark King Leban, P.A., Miami, Fla., for defendant-appellant.

Thomas McNulty, U.S. Dept. of Justice, Miami Strike Force, Miami, Fla., Frank J. Marine, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and COX, Circuit Judges, and KING ^*, Chief District judge.

PER CURIAM:

Frank Joseph Lach appeals from his conviction on two counts of criminal contempt for willfully disobeying two separate court orders to testify in grand jury proceedings, in violation of 18 U.S.C. Sec. 401 (1982). We affirm.

I.

In February 1986, Lach was convicted for conspiring with Sam Urbana, owner of a Miami, Florida pawn shop known as "A New Hocke Shoppe," to transport stolen property in interstate commerce in violation of 18 U.S.C. Secs. 371 and 2314 (1982), and, subsequently, was sentenced to five years imprisonment. On the date of his sentencing, April 23, 1986, Lach appeared before a federal grand jury (FGJ 86-4) in the Southern District of Florida to answer questions concerning the crime for which he had been convicted. ¹ During his appearance, Lach was advised, inter alia, that he had been convicted of conspiring to transport stolen property in interstate commerce, and that, because Mancini had obtained an immunity compulsion order from the Attorney General pursuant to 18 U.S.C. Sec. 6002 (1982), he no longer had a fifth amendment right to refuse to testify before the grand jury. Thereafter, the following questioning occurred:

Q. Okay. Now, is it your intention today to answer questions about your involvement in the crime for which you were convicted?

A. I'm going to appeal.... I'm taking the fifth regarding any questions you have in my case 'cause I have an appeal coming.

Q. ... Whether or not you have an appeal pending is irrelevant at this point in time. I have obtained from the Attorney General an immunity compulsion order. That means that you must, if directed to do so, answer questions about your involvement in the crime.

* * *

Q. Now that I've explained that to you, is it your intention nonetheless to refuse to answer questions that I pose to you?

A. I refuse.

Q. And on what grounds do you refuse to answer those questions?

A. That it might tend to incriminate me.

Q. And you understand your fifth amendment right has been removed?

A. Yes.

Q. So I am telling you--and we're going through this formality for the record really--that you no longer have a fifth amendment right. You can't refuse on those grounds. Do you understand that?

A. Yes.

Q. Now, I proposed to your attorney a series of questions. Did you get a copy of those questions?

A. Yes.

Q. All right. Just for the record, I'm going to ask you a question just so the record is clear that I gave you an opportunity to answer questions and you refused. If you want to answer them, I welcome your answers. I'm not telling you not to. But just for the record, let me ask you these questions. What involvement did Sam or Bonna (phonetic) [i.e. Sam Urbana] have in the crime for which you were convicted?

A. I must decline to answer that question because it might tend to incriminate me.

Q. And that will be your answer to all questions that I pose to you today?

A. Yes. I'm invoking the fifth.

Q. Okay. Fine. Then for formality purposes, Mr. Lach, I must at this point ask the grand jury foreperson to order you to answer the questions that I posed to you today.

THE FOREMAN: Mr. Lach, you are so directed to answer all questions posed to you by the U.S. Attorney in this matter.

THE WITNESS: I'm taking the fifth.

THE FOREMAN: Do you refuse to answer those questions?

THE WITNESS: Yes.

Immediately following his refusal to testify, Lach, his attorney, and Mancini appeared before a district judge on the government's motions to compel his testimony and to hold Lach in civil contempt. Mancini informed the court of Lach's refusal to testify and gave the court a written motion to compel Lach's testimony through a grant of immunity pursuant to 18 U.S.C. Secs. 6002-03. In response to the government's motions, Lach's attorney advised the court that Lach understood both the government's immunity request and that he could be held in contempt for refusing to testify. The attorney also stated that Lach would refuse to testify regardless of the court's ruling on the motion to compel. Subsequently, Lach himself informed the court of his intention to refuse to testify, notwithstanding the threatened contempt punishment.

Following Lach's pronouncements, the court orally granted Lach immunity pursuant to 18 U.S.C. Secs. 6002-03 ² and asked Mancini whether Lach would be returned to the grand jury. Mancini replied: "Judge, we have talked about that. It is a waste of everybody's time. Mr. Lach absolutely is not going to testify." Lach did not contest Mancini's response. The court subsequently adjudged Lach in civil contempt and ordered Lach confined until the grand jury term expired (June 4, 1987) or until he purged himself of contempt by testifying.

In March 1986, the Miami Organized Crime Strike Force obtained a court order authorizing interceptions of conversations between Sam Urbana and others at A New Hocke Shoppe. During the course of the two-month surveillance, evidence obtained both before and after Lach's April 23, 1986, grand jury appearance indicated that Urbana may have endeavored to obstruct justice by attempting to induce Lach to testify falsely or to refrain from testifying before the grand jury. In late May 1986, the Strike Force initiated an investigation before another grand jury, FGJ 85-5, into crimes that were the subject of the electronic surveillance. The investigation included an inquiry into Urbana's possible obstruction of justice.

Pursuant to a writ of habeas corpus ad testificandum, Lach appeared before FGJ 85-5 in July 1986. Prior to Lach's appearance, Lach's attorney was informed, inter alia, that an electronic surveillance of persons other than Lach had occurred and that the government intended to question Lach regarding Urbana's possible obstruction of justice concerning (1) Lach's appearance before FGJ 86-4, (2) the crime for which Lach had been convicted, and (3) criminal activities involving Urbana and others about which Lach had not been questioned on April 23, 1986. The attorney additionally was informed that the government was authorized to seek immunity for Lach.

Appearing before FGJ 85-5, Lach asserted his privilege against self-incrimination and refused to answer questions about Urbana, including whether Urbana in any way endeavored to influence him to refuse to testify or to testify falsely before FGJ 86-4. Thereafter, the government applied to the district court for an order granting immunity and compelling Lach to testify. Following a hearing on the government's application, the district court granted Lach immunity pursuant to 18 U.S.C. Secs. 6002-03 and issued a written order compelling Lach to testify before FGJ 85-5. Immediately thereafter, Lach appeared before the grand jury. The prosecutor read the court's order compelling Lach to testify under a grant of immunity, and advised Lach that he no longer had a fifth amendment privilege to refuse to testify. Asserting his fifth amendment privilege, however, Lach refused to answer the same questions he previously had refused to answer, including whether Urbana had endeavored to influence his testimony before FGJ 86-4.

On August 13, 1986, the government filed a motion to compel Lach to testify. Lach opposed the motion, arguing, inter alia, that the government was abusing the grand jury process by seeking successive civil contempt citations for his refusal to testify about the same area of inquiry that allegedly was the gravamen of the earlier contempt judgment. In response to Lach's assertions, the government maintained that the FGJ 85-5 investigation was separate from, and broader in scope than, the investigation before FGJ 86-4. Following oral argument on the government's motion, the court issued an order compelling Lach to testify.

On August 26, 1986, Lach again appeared before FGJ 85-5. Acknowledging his understanding that the court had granted him immunity to testify and asserting his fifth amendment privilege, Lach again refused to testify. Lach then was excused from the grand jury.

The following day, the government petitioned to have Lach held in civil contempt pursuant to 28 U.S.C. Sec. 1826 (1982). After a hearing on the government's motion, the court concluded that FGJ 85-5 was conducting a different inquiry than FGJ 86-4 and adjudged Lach in civil contempt for his refusal to testify. Lach was ordered confined until either the expiration of the term of FGJ 85-5 or until Lach purged himself of contempt by testifying.

Lach never appeared again before FGJ 86-4 or FGJ 85-5 to purge his civil contempt judgments. In July 1987, FGJ 85-5 issued an indictment charging Lach with two counts of criminal contempt for his refusal to testify before the grand juries. Lach subsequently moved to dismiss the indictment on various grounds, including alleged abuse of the grand jury process, double jeopardy, and failure of the district court to issue a signed immunity order on April 23, 1986, in connection with Lach's refusal to testify before FGJ 86-4. Denying the motion, the court rejected Lach's double jeopardy and grand jury abuse claims, concluding that it was "unrefuted" that the two grand jury investigations concerned different matters. The court additionally concluded that the court's failure to issue a written order of immunity in connection with the proceeding before FGJ 86-4 was immaterial since Lach had been immunized "in any event."

Following a bench trial,...