U.S. v. Allmon, 09-1440.

• Decision Date: 10 February 2010
• Docket Number: No. 09-1440.,09-1440.
• Citation: 594 F.3d 981
• Parties: UNITED STATES of America, Appellee, v. Julian ALLMON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

594 F.3d 981

UNITED STATES of America, Appellee, v. Julian ALLMON, Appellant.

No. 09-1440.

United States Court of Appeals, Eighth Circuit.

Submitted: December 18, 2009.

Filed: February 10, 2010.

Joseph Blake Hendrix, argued, Little Rock, AR, for appellant.

Angela Sue Jegley, argued, Little Rock, AR (Patrick C. Harris, on the brief) for Appellee.

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Appellant Julian Allmon entered into a plea agreement under which he agreed to testify for the Government. After testifying at his uncle's trial, pursuant to his plea agreement, the Government called Appellant to testify in a subsequent trial against his cousins. Appellant refused, citing the Fifth Amendment privilege against self-incrimination. The district court¹ found that Appellant had no Fifth Amendment privilege and found him guilty of contempt. Following the guidelines' instructions in regard to contempt, see U.S. Sentencing Guidelines Manual § 2J1.1 (2009), the district court applied § 2J1.2 (Obstruction of Justice) as an analogous guideline under § 2X5.1 (Other Offenses) and sentenced Appellant to thirty-three months' imprisonment. On appeal, we address the validity of Appellant's conviction in light of his claim for Fifth Amendment privilege and whether the district court erred in selecting § 2J1.2 as the applicable guideline rather than § 2J1.5 (Failure to Appear by a Material Witness). For the following reasons, we affirm.

I.

In November 2004, a grand jury indicted Appellant's uncle, Derek Allmon ("Derek"), for drug distribution, a firearms offense, and attempting to murder a federal witness. Subsequently, Turna Grigsby, another Government witness, was the victim of attempted murder. In August 2005, a grand jury indicted Appellant on charges of conspiracy to distribute five or more kilograms of cocaine, conspiracy to murder a government witness, and attempted murder of a government witness. The latter two of these charges concerned the attempted murder of Grigsby. In March 2006, Appellant entered into a plea agreement in which he agreed to plead guilty to the distribution charges and the Government agreed to dismiss the murder charges. The plea agreement also contained a provision under which Appellant agreed to cooperate with the Government, and, in exchange, the Government agreed to move for a downward departure if it found Appellant's cooperation truthful and substantial.

Pursuant to the plea agreement, the Government called Appellant as a witness at Derek's trial, where Appellant testified that he received and distributed cocaine through Derek. In addition, Appellant testified that, at Derek's direction, Garrick Allmon ("Garrick"), Anthony Harris, and Brandon Reed carried out the attempted murder of Grigsby. Garrick is Appellant's brother; Harris and Reed are his cousins. At the conclusion of the trial, the jury found Derek guilty on all counts.

After Derek's conviction, a grand jury indicted Harris and Reed for conspiring to kill Grigsby. At Harris and Reed's trial, the Government called Appellant to testify pursuant to his plea agreement, expecting that he would testify in a manner consistent with his testimony at Derek's trial. Prior to taking the stand, however, Appellant's attorney stated that Appellant would claim his Fifth Amendment privilege. The grounds, according to Appellant's attorney, were that Appellant could face state prosecution and might, out of fear of reprisal, deviate from his previous testimony, subjecting himself to perjury charges. The district court found that Appellant had no Fifth Amendment privilege and ordered Appellant to take the stand. When Appellant took the stand, the Government asked Appellant, "I understand that you do not want to testify against [your cousins]; is that correct?" Appellant responded, "Yes." The district court again ordered Appellant to testify. Despite the court's order, Appellant continued in his refusal. The district court cited Appellant for contempt of court. Appellant then indicated that he was willing to answer questions from his cousins' defense attorneys, but not from the Government. After the district court informed Appellant that this was not an option, Appellant stated that he would not testify at all. At the conclusion of the trial, Harris and Reed were acquitted of all charges.

Subsequently, the Government filed a notice of contempt of court pursuant to 18 U.S.C. § 401. The district court issued Appellant a notice and order to show cause why he should not be held in contempt of court for his failure to comply with the court's order. Appellant then filed a motion to dismiss, arguing that he had a valid Fifth Amendment privilege, thus eliminating the "willfulness" element of contempt. The district court rejected Appellant's argument, finding that the grounds on which Appellant's Fifth Amendment claim rested were insufficient to permit his refusal to testify. Following denial of the motion to dismiss, Appellant waived his right to a jury trial and agreed to submit the matter to the district court. The district court found appellant guilty beyond a reasonable doubt of criminal contempt.

Because there is no sentencing guideline for contempt convictions, see U.S.S.G. § 2J1.1, the guidelines instruct district courts to apply the most analogous offense guideline, see U.S.S.G. § 2X5.1. The district court applied § 2J1.2, which has a base offense level of fourteen. The court then increased the offense level by three, finding, under § 2J1.2(b)(2), that Appellant's conduct resulted in a "substantial interference with the administration of justice" because, had Appellant testified at the Harris and Reed trial, there was "a reasonable possibility and maybe a probability that the jury would have convicted the defendants." However, the district court also reduced his offense level by three, under § 3E1.1, for Appellant's acceptance of responsibility, resulting in a total offense level of fourteen. When factoring in Appellant's criminal history category of IV, the advisory range was twenty-seven to thirty-three months. The district court sentenced Appellant to thirty-three months. On appeal, Appellant argues that, because he had a valid Fifth Amendment privilege, there is insufficient evidence to support a conviction for contempt. He also argues that the district court erred in selecting § 2J1.2 as an analogous guideline, rather than § 2J1.5.

II.

A court's determination of whether a witness has a valid claim for exercising the Fifth Amendment privilege against self-incrimination is highly fact-intensive. Accordingly, we review a district court's decision not to permit a witness to invoke his Fifth Amendment privilege for abuse of discretion. See United States v. Washington, 318 F.3d 845, 856 (8th Cir.2003). Appellant contends that the district court abused its discretion in finding that he had no Fifth Amendment right, and therefore had insufficient evidence with which to find him guilty of contempt because his contempt was not willful. We disagree.

A valid assertion of the Fifth Amendment privilege is a defense to a contempt charge because it negates the willfulness requirement. See United States v. Quam, 367 F.3d 1006, 1008 (8th Cir.2004). But the rights under the Fifth Amendment are not self-executing. It is a well-established rule that the Fifth Amendment privilege against self-incrimination must be asserted in a timely fashion by the person seeking its protection. Roberts v. United States, 445 U.S. 552, 559, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Island v. United States, 946 F.2d 1335, 1339 (8th Cir.1991). The claimant must make some positive disclosure showing that the danger of self-incrimination is "real and appreciable, not remote and speculative." Ueckert v. Comm'r, 721 F.2d 248, 250 (8th Cir.1983). Accordingly, we must look to the grounds on which Appellant asserted his Fifth Amendment privilege.

At trial, Appellant cited three justifications for refusing to testify. First, he asserted that his testimony could subject him to state prosecution. Second, he suggested that he might not be truthful in his testimony due to a fear of reprisal from other prison inmates, thereby subjecting him to perjury charges. Third, when Appellant took the stand, he simply stated that he did not want to testify against his cousins. There is no question that the third justification does not provide valid grounds on which to assert the Fifth Amendment privilege. See Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 95 L.Ed. 344 (1951) ("[R]efusal to answer cannot be justified by a desire to protect others from punishment."). Accordingly, we focus on Appellant's first two justifications.

As to Appellant's first justification, it is established that the threat of future prosecution of a witness arising from that witness's testimony is precisely the harm that the Fifth Amendment is designed to protect. See United States v. Gianakos, 415 F.3d 912, 919 (8th Cir.2005). However, Appellant failed to meet his burden of demonstrating the presence of that danger in this case. The testimony that the Government sought to elicit in the Harris and Reed trial was precisely the same as that which Appellant had already given at Derek's trial. Testifying consistently with his prior testimony would not expose Appellant to any further jeopardy beyond that which existed by virtue of prior testimony. We recognize that there is ample precedent for the rule that waiver of the Fifth Amendment privilege in one proceeding does not waive that privilege in a subsequent proceeding, often because circumstances have changed between the two proceedings. See, e.g., United States v. Burch, 490 F.2d 1300, 1303 (8th Cir. 1974); United States v. Licavoli, 604 F.2d 613, 623 (9th Cir.1979); United States v. Cain, 544 F.2d 1113, 1117 (1st Cir.1976); In re Neff, 206 F.2d 149, 152 (3d Cir.1953). Accordingly, our decision should not be read to hold that Appel...