U.S. v. Donahey, 75--2376

• Decision Date: 05 April 1976
• Docket Number: No. 75--2376,75--2376
• Citation: 529 F.2d 831
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Denise DONAHEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 831

529 F.2d 831

UNITED STATES of America, Plaintiff-Appellee, v.Denise DONAHEY, Defendant-Appellant.

No. 75--2376.

United States Court of Appeals Fifth Circuit.

April 5, 1976.

Rehearing Denied May 3, 1976.

Arthur B. Stark, Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Donald L. Ferguson, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before GEWIN and AINSWORTH, Circuit Judges, and MARKEY^*, Chief Judge.

PER CURIAM:

DefendantDenise Donahey appeals from her conviction on Count 1 of the indictment which charged her with violation of 21 U.S.C. § 952(a).We affirm.

Issues

Defendant asserts that the District Court erred when in (1) failed to require specific performance of a Plea Bargaining Agreement, (2) failed to grant defendant equitable immunity for her Grand Jury testimony, (3) failed to dismiss the indictment because of a denial of fair and impartial consideration before the Grand Jury and (4) misstated the law in its answer to a post-instruction inquiry.

(1) Plea Bargaining Agreement

Donahey was apprehended and found in possession of cocaine.Soon after her arrest the Government entered a Plea Bargaining Agreement with her, signed by the Assistant U.S. Attorney, whereby in exchange for testimony before the Federal Grand Jury and for full cooperation in the prosecution of one Vincent Marotta, the Government would permit Donahey to plead guilty to a misdemeanor and would recommend a sentence of one year probation.Before the trial, the Government indicated that it would prosecute her on all counts of the indictment.At a pre-trial hearing the Government produced several witnesses who testified that Donahey had given evasive and misleading answers, had given answers which could not be verified, and, on numerous occasions, had refused to answer questions at all.

The District Court had ample basis, therefore, for concluding that Donahey had failed to live up to her part of the Plea Bargaining Agreement, thus freeing the Government from its pledge.We find no error in the District Court's refusal to require specific performance by the Government of the Plea Bargaining Agreement.

(2) Equitable Immunity

Donahey testified freely before a Grand Jury on matters which were self-incriminatory.She was not given any cautionary warnings.

In returning the indictment against Donahey, however, the Grand Jury was instructed not to consider her testimony and at trial none of her Grand Jury testimony was used against her.She was in no way prejudiced, therefore, by her testimony or by the lack of cautionary warnings.

Immunity in exchange for testimony is obtainable only by way of a grant from the District Court, 18 U.S.C. § 6003.Donahey knew, as evidenced by the Plea Bargaining Agreement, that she was subject to prosecution on the matters to which she was testifying before the Grand Jury.She appeared and answered questions voluntarily.Donahey says she did so in reliance on the Plea Bargaining Agreement, yet it was she, not the Government, who by her own actions violated the Plea Bargaining Agreement.That fact and the non-use of her Grand Jury testimony...