U.S. v. Bounos

• Decision Date: 29 October 1982
• Docket Number: 82-2448,Nos. 82-2441,s. 82-2441
• Citation: 693 F.2d 38
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael BOUNOS and John Browning, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 38

693 F.2d 38

UNITED STATES of America, Plaintiff-Appellee, v. Michael BOUNOS and John Browning, Defendants-Appellants.

Nos. 82-2441, 82-2448.

United States Court of Appeals Seventh Circuit.

Submitted Oct. 21, 1982.

Decided Oct. 29, 1982.

William H. Theis, Chicago, Ill., James M. Shellow, Shellow, Shellow & Glynn, Milwaukee, Wis., for defendants-appellants.

Robert W. Tarun, John L. Sullivan, Ira H. Raphatlson, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before ESCHBACH, POSNER, and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

This is an interlocutory appeal, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), from an order denying the defendants' motion, based on the double jeopardy clause of the Fifth Amendment, to dismiss a federal indictment charging them with participation in a narcotics conspiracy. The defendants were convicted last July on a separate indictment charging a conspiracy materially identical to the present one except in respect to time: it charged a conspiracy that began in April 1980, whereas the present indictment charges a conspiracy that ended in May 1979. If the allegations of the two indictments with respect to the dates of the conspiracies are correct, they are separate conspiracies and the previous judgment against the defendants is no bar to this prosecution. The defendants were prepared to testify in the hearing on their motion to dismiss the indictment on double jeopardy grounds that the conspiracy which the government thought had ended in May 1979 was still going on in April 1980, showing there was a single conspiracy. But the defendants naturally were worried about the consequences of confessing that they had engaged in illegal activity in a period during which the government thought they had been "clean." They wanted the court to tell them: "as to the matters you discussed today, with the exception of those that are on trial, you cannot be prosecuted, for as a Federal Judge I give you immunity for those." The court refused to intone this formula but did offer "to hold as a matter of law that the Fifth Amendment privilege has not been waived."

This did not satisfy the defendants; they did not testify; and the district court found that there had been two conspiracies rather than one and denied the motion to dismiss the indictment. Since the remaining evidence at the double jeopardy hearing established that there were two separate conspiracies and hence that the defendants' conviction last July was not a bar to the present prosecution, the only substantial question on this appeal is whether the district court improperly discouraged the defendants from introducing testimony that the two conspiracies were really one, by refusing to give them the immunity they sought.

A criminal defendant may not be put to the choice between giving up his Fifth Amendment right not to incriminate himself and giving up some other constitutional right. Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968); Wade v. Franzen, 678 F.2d 56, 57 (7th Cir.1982). Hence if the defendants had testified to their conspiratorial activities between May 1979 and April 1980 in order to establish a claim under the double jeopardy clause of the Fifth Amendment, they would not thereby have surrendered their right (also under the Fifth Amendment) not to give testimony that could be used directly or indirectly to convict them of those unlawful activities. United States v. Inmon, 568 F.2d 326, 333 (3d Cir.1977); United States v. Stricklin, 591 F.2d 1112, 1118 (5th Cir.1979). The district court was therefore correct in offering to hold that the defendants would not be waiving their Fifth Amendment rights if they confessed guilt for the purpose of making out their double jeopardy claim.

The novelty in this case comes from the defendants' insistence that they were entitled to a judicial grant of immunity before they decided whether to testify in the double jeopardy hearing. This circuit has consistently held that there is no such animal as judicial immunity, see, e.g., United States v. Allstate Mortgage Corp., 507 F.2d 492, 494-95 (7th Cir.1974); United States v. Smith, 542 F.2d 711, 715 (7th Cir.1976), on the basis of the reasoning in Earl v. United States, 361 F.2d 531, 534-35 (D.C.Cir.1966). The Third Circuit has recently taken a contrary view. See, e.g., Government of Virgin Islands v. Smith, 615 F.2d 964, 968-74 (3d Cir.1980). But all these cases involve efforts of defendants to get the court to grant immunity to witnesses who the defendants believe can help them make out their defense. They are therefore just the obverse of cases where the prosecutor grants immunity to obtain evidence helpful to the prosecution. But here no one was trying to drag in a reluctant witness. No one tried to force these defendants to testify; the government was entirely content that they should remain silent. But of course the defendants could not remain silent without sacrificing their double jeopardy claims. They were therefore vitally concerned with the consequences...