U.S. v. Bolton
| Decision Date | 22 October 1992 |
| Docket Number | No. 91-2653,91-2653 |
| Citation | 977 F.2d 1196 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ernest BOLTON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Barry R. Elden, Ross O. Silverman, Asst. U.S. Attys., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.
Constantine J. Gekas, Harvitt & Gekas, Chicago, Ill., for defendant-appellant.
Before CUDAHY and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
For a price--a pack of cigarettes, a few pastries or as little as ten dollars--Ernest Bolton, an inspector for Chicago's Consumer Services Department, was apparently prepared to turn a blind eye to health code violations, real or threatened. After a four-day trial, a jury convicted Bolton of three counts of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951 (1988), and one count of RICO conspiracy, 18 U.S.C. § 1962(d) (1988). Bolton appeals, contending that the government improperly used his immunized testimony, that the prosecution withheld exculpatory evidence and that the district court improperly admitted evidence. We affirm.
In 1984 and 1985, Bolton worked as a health inspector for the City of Chicago's Consumer Services Department. The job required that Bolton inspect various food establishments around the city, report violations and issue tickets when appropriate. Bolton's supervisor was Charles Watson who often accompanied Bolton on inspections. Together, Bolton and Watson allegedly solicited bribes from store owners and restaurateurs. Watson was charged with conspiracy to commit extortion and extortion; he pled guilty and agreed to cooperate with the government's investigation.
The procedural history of Bolton's prosecution is rather complex. On February 3, 1987, a grand jury returned a second superseding indictment charging Bolton with racketeering and extortion. After an eight-day trial, the jury found Bolton guilty of racketeering conspiracy and extortion and not guilty of attempted extortion. Bolton appealed from that conviction, arguing that the indictment must be dismissed because the grand jury's term had expired.
While Bolton's first appeal was pending, the government subpoenaed Bolton to testify before a federal grand jury investigating corruption in the Consumer Services Department. Bolton invoked his Fifth Amendment rights, and the prosecution was forced to apply for an order compelling Bolton's testimony under a grant of immunity. 18 U.S.C. § 6002 (1988). Judge Grady was concerned about the possible impropriety of compelling Bolton's testimony while his conviction was under appeal but nonetheless granted the petition. When Bolton came before the grand jury, the government asked Bolton about wrongdoing by other health inspectors but also asked him about his own involvement in bribery and extortion. In response to the latter questions, Bolton denied that he had ever taken or solicited bribes.
We then reversed Bolton's first conviction and remanded with instructions to dismiss the indictment. United States v. Bolton, 893 F.2d 894, 895 (7th Cir.1990). Soon after, another grand jury returned a third superseding indictment against Bolton. But this indictment was obtained by Assistant United States Attorney (AUSA) Helene Greenwald, who had attended the grand jury investigation and heard Bolton's testimony. Upon protest by defense counsel, the government conceded error, dismissed the indictment, "sanitized" Bolton's file and reassigned the case to another AUSA who was not involved in the earlier investigation. Finally, on July 25, 1990, the grand jury returned a fourth superseding indictment against Bolton charging him with one count of racketeering conspiracy and seven substantive Hobbs Act violations. 1 The charges in the fourth superseding indictment were identical to those in earlier indictments.
Bolton moved to dismiss the case based on the government's alleged use of his immunized testimony in obtaining the latest indictment. The district court denied the motion, noting that the evidence presented in Bolton's first trial was a sufficient independent basis for the second prosecution. Nonetheless, Judge Norgle offered to reconsider the issue after the trial, should the evidence actually presented turn out to be infected by the immunized testimony. On May 8, 1991, a jury trial began against Bolton on the fourth superseding indictment. The trial involved six incidents in which Bolton allegedly demanded bribes from store owners. The evidence produced at trial consisted of the testimony of the shopkeepers involved, the testimony of Charles Watson and inspection reports filed by Bolton.
The jury convicted Bolton on one count of conspiracy and three counts of extortion, and acquitted him on one count of extortion (two of the incidents of extortion were not presented to the jury as separate crimes). After the trial, Bolton did not ask for a hearing or further ruling regarding the use of his immunized testimony. The district court sentenced Bolton to concurrent sentences of one year and a day on each count. Bolton now appeals his conviction.
The immunity statute, section 6002, is supposed to provide "a comprehensive safeguard, barring the use of compelled testimony as an 'investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures." Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972) (footnote omitted). Once a defendant demonstrates that he has testified under immunity, the government bears the burden of showing that its evidence "is not tainted by establishing that [it] ha[s] an independent, legitimate source for the disputed evidence." Id. (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 n. 18, 84 S.Ct. 1594, 1610 n. 18, 12 L.Ed.2d 678 (1964)). Bolton argues that the district court erred in denying his motion to dismiss the indictment because the government used his immunized grand jury testimony in violation of Kastigar 's "sweeping proscription of any use, direct or indirect, of the compelled testimony and information derived therefrom." Id. Bolton asks us to reverse his conviction and remand for a Kastigar hearing.
The evidence presented at the first trial could not have been tainted by Bolton's subsequent immunized testimony. The earlier evidence was a legitimate independent basis on which the second prosecution could go forward. United States v. Pantone, 634 F.2d 716, 721 (3d Cir.1980). Of course, the second prosecution might have turned out to be tainted by the use of Bolton's testimony, and the district court expressly offered Bolton an opportunity to make that argument when the trial was over. But Bolton did not avail himself of the opportunity and has thus waived this argument on appeal.
If we were to reach the merits, it is unlikely that Bolton's argument would succeed. Bolton's testimony before the grand jury consisted entirely of denials of wrongdoing and assertions that the witnesses at the first trial had lied. This testimony cannot have been much help to the prosecution. Bolton has a more plausible claim that knowledge of the denials may have affected the prosecution's strategy. But we recently held in United States v. Velasco, 953 F.2d 1467, 1474 (7th Cir.1992), that "the mere tangential influence that privileged information may have on the prosecutor's thought process in preparing for trial is not an impermissible 'use' of that information." Velasco, 953 F.2d at 1474; see also United States v. Serrano, 870 F.2d 1, 16-18 (1st Cir.1989); United States v. Mariani, 851 F.2d 595, 600-01 (2d Cir.1988), cert. denied, 490 U.S. 1011, 109 S.Ct. 1654, 104 L.Ed.2d 168 (1989); and United States v. Byrd, 765 F.2d 1524, 1529-32 (11th Cir.1985). But see United States v. McDaniel, 482 F.2d 305, 311 (8th Cir.1973) (); and United States v. North, 910 F.2d 843, 856-60 (D.C.Cir.1990) (per curiam) (), modified on other grounds, United States v. North, 920 F.2d 940 (D.C.Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991)). In any event, we doubt that even a "tangential influence" is present here, since the two AUSAs who handled the second trial had, at most, indirect contact with the earlier investigation. Byrd, 765 F.2d at 1531-32 (); North, 910 F.2d at 860 ().
At the first trial, several of Bolton's victims were unable to identify him in the courtroom. Accordingly, the government had to rely on evidence that on earlier occasions the victims had identified Bolton from photographs. During the investigation, the FBI used a book of black and white photographs of the Chicago health inspectors, a similar book of color photographs (obtained because the black and white photographs were of poor quality and did not facilitate identification) and a number of six-man photo spreads. All of the victims were shown both photo books. Some victims were also shown one or more six-man spreads.
At some point during the first trial, Bolton learned that three of the photo spreads shown to the victims (labelled AA, BB and CC) were missing. After Bolton's conviction was reversed and the government decided to re-prosecute, Bolton's counsel made several explicit requests for the production of the missing photo spreads. The government complied with none of the requests. 2
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