Grand Jury Proceedings, In re

• Decision Date: 02 June 1987
• Docket Number: No. 87-5275,87-5275
• Citation: 819 F.2d 984
• Parties: In re GRAND JURY PROCEEDINGS. Appeal of Ronald Anthony PERDUE, Witness. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 984

819 F.2d 984

In re GRAND JURY PROCEEDINGS Appeal of Ronald Anthony PERDUE, Witness.

No. 87-5275

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 2, 1987.

D. Robert Silber, Ft. Lauderdale, Fla., for appellant.

J. Brian McCormick, Sp. Atty., U.S. Dept. of Justice, Ft. Lauderdale, Fla., for appellee.

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

Before TJOFLAT, HATCHETT and CLARK, Circuit Judges.

PER CURIAM:

The appellant in this case, Ronald Perdue, has been committed, pursuant to 28 U.S.C. Sec. 1826(a) dealing with recalcitrant witnesses, under a judgment for civil contempt because of his refusal to testify before a grand jury. This appeal has received expedited consideration under 28 U.S.C. Sec. 1826(b). For the reasons stated in this opinion, we affirm the judgment below.

I. FACTS

In 1986, Perdue was a defendant in a criminal case in the United States District Court for the Northern District of Georgia. Perdue and the government engaged in plea negotiations, with the government represented by Assistant United States Attorney Mary Stewart. During the negotiations, as described by the government in the proceedings below in this case, the government made two plea offers: the government would make a low sentence recommendation in exchange for voluntary cooperation in on-going investigations, or the government would make a higher recommendation if Perdue refused to cooperate. In consultation with counsel, Perdue rejected the offer of a low sentence recommendation in exchange for cooperation; instead, on August 18, 1986, Perdue entered a plea and the government made a higher recommendation. ¹ According to Perdue's current counsel, Perdue rejected the low sentence offer out of fear of possible harm to his family and himself.

Then, in January of 1987, the United States Attorney for the Southern District of Florida applied for an order pursuant to 18 U.S.C. Sec. 6002 compelling Perdue to testify and granting him immunity from prosecutions based on the testimony. An immunity order was entered on January 7, 1987. On January 9, Perdue was brought in front of a grand jury, where he refused to answer any questions. Following an order to show cause, the district court held a hearing in early February, at which Perdue, through his attorney, argued (1) that the immunity order was ineffective because he could be prosecuted in the Bahamas based on his testimony, and thus he could not be compelled to testify, and (2) that the plea agreement from the Northern District of Georgia barred the government from attempting to force Perdue to testify. On February 27, the district court rejected these arguments and adjudged Perdue in contempt. On April 1, after Perdue again refused to testify, the court sentenced Perdue to prison under 28 U.S.C. Sec. 1826 and ordered that Perdue's sentence from his criminal conviction (which Perdue was serving at the time) be stayed until after Perdue testifies or the contempt sentence expires by function of law.

Perdue appealed to this court, raising the same arguments that he made to the district court. By order of the court, the court extended until June 2, 1987 the time within which it would rule on the appeal. Because his claim about foreign prosecutions is directly controlled by binding precedent, we will only briefly discuss that issue before turning to Perdue's arguments about his guilty plea.

II. THE RISK OF FOREIGN PROSECUTIONS

Before the district court and on appeal, Perdue has argued that the Fifth Amendment privilege against self-incrimination protects against foreign as well as domestic prosecutions. Thus, according to Perdue, because a district court immunity order cannot bind a foreign jurisdiction, an individual cannot be compelled to testify when doing so might subject him or her to prosecution in a foreign country.

Perdue acknowledges the binding precedent in this circuit which has held that "a possibility of prosecution in a foreign country is not a sufficient basis for immunity from testifying before a grand jury." In re Baker, 680 F.2d 721, 721 (11th Cir.1982). That case is founded on earlier precedent that held that the district court has sufficient power to prevent disclosure of grand jury testimony so as to protect a witness against possible foreign prosecutions. See In re Brummitt, 608 F.2d 640, 643 (5th Cir.1979).

To the extent that Perdue is asking this court to reconsider this precedent, this panel is, of course, not at liberty to do so--such arguments must be addressed to the en banc court in a petition for rehearing. Perdue, however, also tries to distinguish the holding in In re Baker. He argues that by stating that "a possibility of [foreign] prosecution" does not exempt a witness from testifying, the Baker panel was implicitly holding that a stronger showing (i.e., more than a mere "possibility") of foreign prosecution might in fact be sufficient to allow a witness to avoid testifying. Based on this approach, Perdue argues that the district court should have at least held a hearing to consider the possibilities of foreign prosecutions.

While in an appropriate case a district court should consider a hearing on this point, in this case, Perdue has made no proffer of evidence or even given the courts a hint of why, in his case, he claims that there is more than a mere possibility of foreign prosecution. This court's decision in In re Application of the President's Commission of Organized Crime, 763 F.2d 1191 (11th Cir.1985), reveals how substantial a showing must be made before the "possibility" of foreign prosecution becomes concrete enough to warrant excusing a witness from testifying. In that case, foreign authorities had already issued an arrest warrant for the witness. Because of the low likelihood of extradition in that case, and the safeguards that the district court can impose to ensure secrecy, this court refused to exempt the witness from testifying. Id. at 1198-99. Similarly, in In re Brummitt, 613 F.2d 62 (5th Cir.1980), the appellants made an offer of proof but that offer did "not present a sufficient showing that [the appellants] will be prosecuted by a foreign sovereign or that the protection of [Fed.R.Crim.P.] rule 6(e) will be inadequate to prevent the disclosure of incriminating testimony." Id. at 64. In light of these holdings, we decline to exempt Perdue from testifying because of a risk of foreign prosecution.

III. THE PLEA AGREEMENT

Perdue argues that the government is bound by its plea agreement, and that it is breaching the agreement by forcing Perdue to testify before the grand jury. Perdue cites Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971), for the proposition that "when the plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled."

Perdue argues that he and the government agreed that Perdue could either take a short sentence and testify or he could take a longer sentence and not testify. Although the government acknowledged before the district court that Perdue was offered a shorter sentence recommendation in exchange for cooperation, the actual text of the plea agreement does not address the point. See supra note 1. Perdue contends that the agreement was a shorter recommendation in exchange for any testimony, while the government contends that the offer was only a shorter sentence in exchange for voluntary testimony. ²

Without deciding the question, it seems quite possible Perdue was at least unintentionally misled by the government into thinking that the plea agreement meant a longer recommended sentence, but no testimony. The government has not presented any evidence that would make such a...