U.S. v. L'Hoste

• Citation: 640 F.2d 693
• Decision Date: 25 March 1981
• Docket Number: 80-3624,Nos. 80-3343,s. 80-3343
• Parties: 7 Fed. R. Evid. Serv. 1832 UNITED STATES of America, Plaintiff-Appellee, v. Robert J. L'HOSTE et al., Defendants-Appellants. Summary Calendar. . Unit A
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 693

640 F.2d 693

7 Fed. R. Evid. Serv. 1832

UNITED STATES of America, Plaintiff-Appellee, v. Robert J. L'HOSTE et al., Defendants-Appellants.

Nos. 80-3343, 80-3624

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

March 25, 1981.

Rehearing and Rehearing En Banc Denied April 27, 1981.

Julian R. Murray, Jr., Michael H. Ellis, New Orleans, La., for defendants-appellants.

John P. Volz, U.S. Atty., Richard T. Simmons, Jr., Michael Schatzow, Robert J. Birtmann, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before GEE, RUBIN and RANDALL, Circuit Judges.

GEE, Circuit Judge:

Before us today are two appeals from orders following on our affirmance of L'Hoste's conviction and sentencing for conspiracy and racketeering. United States v. L'Hoste, 609 F.2d 796 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 104, 66 L.Ed.2d 39 (1980). Each must fail.

The first appeal arises from the denial of L'Hoste's motion for resentencing. At his original trial, L'Hoste was sentenced to terms of imprisonment totalling four years and to $35,000 in fines. The trial court declined, however, to order forfeiture of L'Hoste's involved business pursuant to the RICO statute, 18 U.S.C. § 1963(a) (1976), believing that provision to be discretionary and being concerned that the community property interest of L'Hoste's wife might be adversely affected. L'Hoste, 609 F.2d at 809-10. On appeal we determined that forfeiture was mandatory, ordering the trial court to direct it. Based in main on our observation that "the consequences of forfeiture ... may well be taken into account by the court in fashioning its sentence," id. at 813, L'Hoste sought a reduction of sentence. This the trial court denied, noting that in sentencing L'Hoste originally it had carefully considered, among other things, the possibility that on appeal the forfeiture provision might be held mandatory and that therefore the appropriateness of the sentence, it having been imposed with this contingency in mind, was unaffected by its occurrence. Advancing the above quotation from our earlier opinion and citing such authorities as our decision in United States v. Rollerson, ¹ L'Hoste attacks the denial of his motion for resentencing, claiming entitlement to a reconsideration of his sentence in the light of the forfeiture imposed upon him.

For several reasons, this attack must fail. A basic and sufficient one is that such cases as Rollerson, disapproving as insufficient mere unexplained, after-the-fact statements by a sentencing judge that the possibility that factual information upon which he relied in sentencing was erroneous would not affect the sentence he imposed, are not apposite here. There is no factual inaccuracy here and hence no occasion for a hearing at which one could be clarified. Further, the concern about Mrs. L'Hoste's property rights that the trial court voiced before the fact as its reason for denying forfeiture was allayed by our earlier opinion. L'Hoste, 609 F.2d at 812. Nor are the trial judge's observations mere after-the-fact ones: as we noted in our earlier opinion, he recognized at the time of sentencing L'Hoste that the forfeiture language of the statute could be read as mandatory, id. at 809, and therefore, necessarily, that it might be. Finally, for whatever it may be worth, the four-year sentence that L'Hoste received was scarcely a harsh one in light of the 25-year term that might have been imposed. In sum, we have no reason to question the trial judge's observation in denying resentencing that L'Hoste's sentence would have been the same regardless of the issue of forfeiture, and we do not. The denial of the motion for resentencing is affirmed.

Ray L. Condon testified as a government witness at L'Hoste's trial and conviction for public bribery, a full account of which is set out in our earlier opinion. Condon, a high-level employee of Jefferson Parish, made recommendations that resulted in the award to L'Hoste's company of sewer contracts from which it derived large profits by various improper devices and procedures. Indicted along with L'Hoste and others, Condon pled guilty and turned state's evidence as part of the plea bargain. Part of his incriminating testimony was a claim of ownership in certain equipment rental entities involved. Later, the parish sued Condon and others, seeking recovery of the losses it had sustained. When Condon's deposition was taken in that connection, ² he denied ownership in the equipment rental concerns and denied receiving remuneration from them. These and related matter from Condon's civil deposition were advanced as newly discovered evidence in L'Hoste's motion for new trial. When called to testify on that motion, Condon declined to do so on fifth amendment grounds. Following his refusal, the defense offered his deposition testimony in the civil action as the declaration against interest of an unavailable witness. When it was excluded, the defense moved that the court grant Condon immunity against the potential prosecution for perjury in L'Hoste's criminal trial. This the court refused to do. These rulings are now drawn before us.

It is settled in our circuit that trial judges lack authority to grant such immunity as was here sought. In United States v. Smith, 436 F.2d 787, 790 (5th Cir.), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971), we stated:

The short answer to this contention is that the court was without statutory authority to grant immunity from prosecution to alibi witnesses or to guarantee that their testimony could not be used against them in a later criminal prosecution. If a court is without authority to act, it cannot err in refusing to act. ³

The district court's refusal to admit Condon's deposition testimony into evidence at the new trial motion hearing was likewise correct. The legal basis for the court's ruling was Rule 804(b)(3), Federal Rules of Evidence, which provides:

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him...