U.S. v. Alvarez, EP-07-CR-088-DB.

• Decision Date: 11 June 2007
• Docket Number: No. EP-07-CR-088-DB.,EP-07-CR-088-DB.
• Citation: 489 F.Supp.2d 714
• Parties: UNITED STATES of America v. Santiago ALVAREZ, Osvaldo Mitat.
• Court: U.S. District Court — Western District of Texas

489 F.Supp.2d 714

UNITED STATES of America v. Santiago ALVAREZ, Osvaldo Mitat.

No. EP-07-CR-088-DB.

United States District Court, W.D. Texas, El Paso Division.

June 11, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David B. Deitch, U.S. Department of Justice, Washington, DC, for Plaintiff.

MEMORANDUM OPINION AND ORDER

BRIONES, District Judge.

On this day, the Court considered Defendant Santiago Alvarez's "Motion To Dismiss Indictment And Incorporated Memorandum of Law," filed in the above-captioned cause on February 5, 2007. The Court also considered Defendant Osvaldo Mitat's "Motion To Dismiss Indictment And Incorporated Memorandum Of Law" filed in cause number EP-07-CR-089-DB, on February 5, 2007. On February 12, 2007, the Government filed an "Opposition to Defendants' Motions to Dismiss the Indictments" ("Response").¹ On May 10, 2007, the Court entered an Order consolidating Defendant Alvarez's and Defendant Mitat's causes of action into the above-captioned cause. After due consideration, the Court is of the opinion that the instant Motions should be denied for the reasons that follow.

BACKGROUND

On December 14, 2006, Defendants were subpoenaed to testify before a federal grand jury, in El Paso, Texas,² investigating Luis Posada Carriles's ("Posada") entry into the United States.³ Specifically, the grand jury investigation concerned whether Posada made false statements to federal officials in connection with his attempted entry and naturalization.⁴ Defendants filed a Motion to Quash the subpoena, and requested an evidentiary hearing the day before their scheduled appearance. Defendants intended to proffer evidence that would substantiate their defense of fear of foreign prosecution by Cuba, Mexico, Panama, or Venezuela for participating in alleged terrorist activities including: the alleged plot to bomb a Havana, Cuba night club, the downing of a Cuban jetliner over Venezuela, the attempted assassination of Fidel Castro, and other anti-Castro activities.⁵ The Court held a hearing on January 11, 2007, where Defendants were present and represented by counsel. The Court dismissed Defendants's Motion to Quash, granted the Government's application for immunity and issued an Order compelling Defendants's testimony pursuant to Title 18 U.S.C. §§ 6002 and 6003.⁶

Despite the Court's Order, Defendants invoked their Fifth Amendment right against self incrimination, citing fear of retaliation and foreign prosecution, and refused to testify. Further, Defendants argued that the subpoenas constituted an attempt to subject them to a perjury trap. The Court found Defendants in civil contempt,⁷ and scheduled them for a show cause hearing on February 15, 2007, five days before the grand jury's term was scheduled to end. Also on January 11, 2007, Defendants were taken before the grand jury and neither complied with the Court's Order to testify. That same day, the grand jury returned separate one-count Indictments charging Defendants with criminal contempt, in violation of Title 18 U.S.C. § 401.⁸ The Court deemed the show cause hearing moot and it was canceled after the Defendants were indicted. The instant Motions followed.

DISCUSSION

Through the instant Motion, Defendants move to dismiss the Indictments on four grounds. First, Defendants contend that the Government violated their rights to due process and equal protection under the law for failure to hold a show cause hearing. Second, Defendants assert a fear of foreign prosecution defense. Third, Defendants argue the Government knowingly created a perjury trap. Fourth, Defendants allege prosecutorial misconduct, and seek to compel proof that the Indictments comply with Federal Rule of Criminal Procedure 6(c). In its Response, the Government contends that criminal contempt is distinct from civil contempt, because the crime is complete upon disobedience of the lawful Court Order. Next, the Government states that it did not create a perjury trap as it sought relevant testimony concerning a legitimate grand jury investigation. The Government further challenges Defendants's fear of foreign prosecution defense by arguing that none exists, as Defendants's argument is based on dicta from United States v. Balsys, 524 U.S. 666, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998). Finally, the Government responds to Defendants's prosecutorial misconduct contention by showing that the original Indictments contain the foreperson's signature and were sealed pursuant to the E-Government Act of 2002. The Court agrees with the Government, and shall address each of Defendants's arguments in turn.

A. Due Process and Equal Protection

Defendants assert that the failure to hold a show cause hearing violated their Due Process and Equal Protection rights because it denied them the opportunity to purge their civil contempt. Defendants specifically argue that the criminal Indictments would not have been issued if they had been afforded the opportunity to testify after thoughtful consideration. The Government responds that Defendants confuse the distinction between civil and criminal contempt, and due process does not require an opportunity to purge under criminal contempt proceedings. The Court agrees with the Government because the law is well settled as to the distinct nature among civil and criminal contempt proceedings.

A criminal contempt proceeding, by its very nature, is dissimilar to a civil proceeding. Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957). Civil and criminal contempt authority serve distinct purposes; the former is coercive, and the latter is punitive and deterrent. Id (citing Rex Trailer Co. v. United States, 350 U.S. 148, 150, 76 S.Ct. 219, 100 L.Ed. 149 (1956)). "Civil contempt is designed to force the [disobedient party] to comply with an order of the court." Willy v. Coastal Corp., 503 U.S. 131, 139, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). The purpose under criminal authority is to punish the recalcitrant witness's disobedience. United States v. Marquardo, 149 F.3d 36, 39 (1st Cir.1998). The option available under civil contempt authority is utilized for the benefit of the contemnor. See Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). Whereas confinement under criminal contempt serves to vindicate the disobedience of the court's lawful order. Yates, 355 U.S. at 72, 78 S.Ct. 128. Therefore, where the contemnor finds himself under civil contempt, compliance with the court order purges his civil contempt. See Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).

The difference between civil and criminal contempt is not the contemnor's conduct, rather, it is the manner in which the court seeks to remedy that disobedience. See, e.g., Yates, 355 U.S. at 74, 78 S.Ct. 128. Courts are directed to first consider the utility under civil contempt authority to elicit testimony. See Shillitani, 384 U.S. at 372 n. 9, 86 S.Ct. 1531; Yates, 355 U.S. at 74, 78 S.Ct. 128. Then, courts are to resort to criminal contempt after determining that civil coercion would be inappropriate. Shillitani, 384 U.S. at 372 n. 9, 86 S.Ct. 1531. However, disposition of the civil contempt proceeding is not a prerequisite to commencement of the criminal contempt proceeding. See, e.g., Petroleos Mexicanos v. Crawford Enter., Inc., 826 F.2d 392, 398 (5th Cir.1987) (citing United States v. United Mine Workers, 330 U.S. 258, 299, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (permitting a court to conduct civil and criminal contempt proceedings simultaneously)). This is so because the offense of criminal contempt is complete at the moment of the witness's refusal to obey the court order. Ochoa v. United States, 819 F.2d 366, 369 (2d Cir. 1987). "Indictment, conviction, and punishment may be based on this refusal." Id. (citing United States v. Petito, 671 F.2d 68, 73 (2d Cir.1982)).

The decision to invoke either civil or criminal contempt is within the sound discretion of the trial court. United States v. Wilson, 421 U.S. 309, 316-17, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975). Moreover, the court is not required to initiate the prosecution of criminal contempt, rather, the witness may be indicted by a prosecuting attorney. See United States v. Williams, 622 F.2d 830, 838 (5th Cir.1980) (en banc) (per curiam) (discussing an indictment issued by the prosecuting attorney after a defendant violated a condition of her release order).

Further, even upon the recalcitrant witness's compliance, the court is not proscribed from conducting criminal contempt proceedings. See Marquardo, 149 F.3d at 40 ("Had he complied ... the civil commitment would have become automatically ineffective, yet he would still have been subject to a criminal contempt because that offense was consummated once he willfully failed to comply with the [] order."). A single act of disobedience constitutes an "initial commission" of a crime. See United States v. Ward, 757 F.2d 616, 620 (5th Cir.1985).⁹ The initial commission of a crime commences at the time of the contumacious behavior. See, e.g., Williams, 622 F.2d at 838 (stating that the statute of limitations begins to run at the time the act occurred). That is so, because the crime of contempt becomes complete "when the contumacious conduct has taken place." Marquardo, 149 F.3d at 39. However, commencement of criminal contempt requires that the recalcitrant witness be afforded due process under the law equivalent to other criminal defendants. See Bagwell, 512 U.S. at 826-27, 114 S.Ct. 2552.

Here, the dispositive issue is the appropriate characterization of the instant Indictments. The Court first held Defendants in civil contempt to modify their disobedient behavior, and set the matter for a show cause hearing.¹⁰ However, that same day, the grand jury indicted Posada, and thereby mooted the need for Defendants's testimony. See Shillitani, 384 U.S. at 371, 86 S.Ct. 1531 (holding...