U.S. v. Remini, 1502
| Decision Date | 18 June 1992 |
| Docket Number | D,No. 1502,1502 |
| Citation | 967 F.2d 754 |
| Parties | UNITED STATES of America, Appellee, v. George REMINI, Defendant-Appellant. ocket 92-1033. |
| Court | U.S. Court of Appeals — Second Circuit |
John L. Pollok, New York City (Hoffman & Pollok, Susan C. Wolfe, Michael Rosen, of counsel), for defendant-appellant.
Laura A. Ward, Brooklyn, N.Y., Asst. U.S. Atty. E.D. New York (Andrew J. Maloney, U.S. Atty. E.D. New York, Peter A. Norling, Emily Berger, Asst. U.S. Attys., of counsel), for appellee.
Before: FEINBERG and CARDAMONE, Circuit Judges, LARIMER, District Judge. *
George Remini appeals from a judgment of conviction entered in January 1992 in the United States District Court for the Eastern District of New York, John R. Bartels, J., after a jury found Remini guilty of criminal contempt in violation of 18 U.S.C. § 401(3). Judge Bartels sentenced Remini to 16 months imprisonment, three years supervised release, a fine of $30,000 and a special assessment of $50. Remini challenges his conviction on the grounds that: the district court applied the wrong definition of willfulness in charging the jury and in admitting and excluding evidence; the court expressed open hostility to defense counsel during summation and thereby deprived the defense of a fair trial and of effective assistance of counsel; at the time he was ordered to testify, Remini was inadequately immunized for his testimony; at sentencing, the court erroneously applied the guideline base offense level for Obstruction of Justice instead of for Failure to Appear by a Material Witness; and at sentencing, the court erroneously denied Remini a two-level reduction for acceptance of responsibility. Remini is presently on $1 million bail pending appeal.
For the reasons given below, we affirm.
Remini's indictment and conviction resulted from his refusal to testify in November 1989 at the trial of United States v. Thomas Gambino, 89 Cr. 431, in the Eastern District of New York, Jack B. Weinstein, J. The indictment in that case charged Gambino with giving false, evasive and misleading testimony to a grand jury, in violation of 18 U.S.C. § 1503. During the trial, Judge Weinstein ruled that literally true but evasive and misleading testimony would support prosecution of Gambino for obstruction of justice. When the government called Remini to testify, Remini moved to quash the trial subpoena, claiming that the government intended to ask him questions derived from illegal electronic surveillance. He also claimed that his immunity order was inadequate under the Fifth Amendment because the government had maintained the position in the Gambino trial that literally true but misleading answers given under an immunity order would be subject to prosecution. Judge Weinstein denied Remini's motion to quash.
After the court had immunized Remini pursuant to 18 U.S.C. § 6002 and directed him to answer questions, he refused to testify, asserting that he wished to litigate his opposition to the subpoena on appeal. The court advised him that if he persisted in refusing to testify without just cause, he would be subject to immediate incarceration for civil contempt and to a prosecution for criminal contempt. Remini persisted and the court ordered him confined for civil contempt. He was released from custody after the government rested its case in the Gambino trial, which ultimately resulted in an acquittal.
In January 1991, a grand jury indictment was filed, charging Remini with criminal contempt for his failure to testify at the Gambino trial. Remini moved to dismiss the indictment on the ground that exculpatory evidence--that he had acted on advice of counsel--had been withheld from the grand jury. He also repeated his claims that he received inadequate immunity at the Gambino trial and that illegal electronic surveillance had led to his subpoena. In an opinion filed in May 1991, Judge Bartels denied the motion in its entirety, finding that exculpatory evidence had not been withheld from the grand jury since advice of counsel is not a defense to contempt, and rejecting the claims of inadequate immunity and of illegal surveillance as well.
Consistent with his earlier ruling, Judge Bartels precluded Remini at trial from either arguing or presenting evidence of good faith reliance on advice of counsel. The court also granted the government's application to redact the portions of the transcript of the Gambino trial in which Remini stated that he relied on advice of counsel, and ruled that Remini could not comment upon the redacted portions or "[t]here is no point in redacting."
After the government had presented its case, the court refused to permit Remini to present evidence that would show that Remini believed in good faith that he was complying with the contempt statute and had intended to demonstrate that on appeal. The court concluded that these exhibits were irrelevant because whether Remini intended to violate the statute "is immaterial, if he intended knowingly and consciously to violate [J]udge Weinstein's order." The defense subsequently rested without presenting evidence and summations followed. The court instructed the jury that "willfully" means that the defendant understood the court order and consciously refused to obey it, adding that it would not be a defense if the defendant acted on the advice of counsel. The court then denied defense counsel's motion for a mistrial based on the manner in which the court had addressed him during his summation. In June 1991, the jury found Remini guilty as charged.
Remini's sentencing hearing was held in January 1992. Section 2J1.1 of the Guidelines, which applies to violations of 18 U.S.C. § 401, states that the court should apply § 2X5.1. Section 2X5.1 states that the court is to apply "the most analogous offense guideline." The Probation Department concluded in its Presentence Report that the most analogous Guideline was U.S.S.G. § 2J1.2, for Obstruction of Justice, and the government agreed with the Presentence Report. Remini, on the other hand, contended that the appropriate Guideline was § 2J1.5, for Failure to Appear by a Material Witness.
The court agreed with the Probation Department and the government and applied section 2J1.2, the Guideline for Obstruction of Justice. The court had earlier determined that "[t]here was an intent to obstruct justice," basing this determination on a taped conversation that the government had presented to the court in which John Gotti told a third party that he had instructed his lawyers to Judge Bartels found specifically that "the electronic intercepted conversations between John Gotti and Mr. Remini indicates a lack of good faith on the part of Mr. Remini." The judge did reject, however, the Probation Department and government recommendation of a three-level increase under U.S.S.G. § 2J1.2(b)(2) for substantial interference with the administration of justice as well as their recommendation of an upward departure under U.S.S.G. § 5K2.9. Judge Bartels also denied Remini a two-level reduction in his sentence for acceptance of responsibility. Remini's base offense level was therefore 12, which produced a guideline imprisonment range of 10 to 16 months. As noted above, the court sentenced Remini to 16 months imprisonment, three years supervised release, a fine of $30,000 and a special assessment of $50.
The trial court ruled that the intent element of criminal contempt is satisfied by proof of willful disobedience of a court order and that good faith reliance on advice of counsel does not constitute a defense to such willful disobedience. As discussed above, the court accordingly redacted as irrelevant the arguments of Remini's counsel at the Gambino trial and excluded other evidence showing why Remini refused to testify at that trial. At the end of Remini's trial, the court charged the jury that
[t]he fourth element of the offense of contempt is that the defendant acted knowingly and willfully.... In order to be guilty of criminal contempt, therefore, it is essential that the defendant acted with a specific intent and that he willfully disobeyed or disregarded the order of the court. * * *
It is not a defense to the offense of contempt that the defendant acted on the advice of an attorney....
Good faith is only a defense ... where the defendant has made a reasonable effort to comply with a court order but has failed because of the indefiniteness of the order or some other inability to do so. It is not a defense where the defendant has refused to comply with the order he is charged with violating.
Appellant claims that good faith reliance on advice of counsel is a defense to criminal contempt and that willfulness is negated by a good faith refusal to testify. He therefore argues that the district court's charge on willfulness was erroneous. Remini cites two circuit court cases in support of the proposition that "[w]illfullness, for the purpose of criminal contempt, does not exist where there is a '[g]ood faith pursuit of a plausible though mistaken alternative.' " United States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir.1974) (citation omitted); Waste Conversion, Inc. v. Rollins Environmental Services (NJ), Inc., 893 F.2d 605, 609 (3d Cir.1990) (in banc) (citation omitted). Appellant also cites the Supreme Court's recent decision in Cheek v. United States, --- U.S. ----, 111 S.Ct. 604, 610-11, 112 L.Ed.2d 617 (1991), which held that a good faith misunderstanding of the law is a defense in a tax prosecution, and argues that Cheek compels the definition of willfulness that he has set forth.
We do not find these arguments persuasive. W...
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