874 F.2d 1543 (11th Cir. 1989), 88-5411, United States v. Lach

Docket Nº:88-5411.
Citation:874 F.2d 1543
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Frank Joseph LACH, Defendant-Appellant.
Case Date:June 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1543

874 F.2d 1543 (11th Cir. 1989)

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.

Page 1544

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.

Page 1545

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.

Page 1546

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...

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