U.S. v. Turner
| Decision Date | 05 January 1989 |
| Docket Number | No. 87-3070,87-3070 |
| Citation | 864 F.2d 1394 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Terry Wayne TURNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Robinson, Jacksonville, Ill., for defendant-appellant.
J. William Roberts, U.S. Atty. Office, Springfield, Ill., for plaintiff-appellee.
Before WOOD, Jr., COFFEY, and EASTERBROOK, Circuit Judges.
The sentencing of defendant Terry Wayne Turner is the only issue.
Turner was charged in a three-count indictment with conspiracy to receive, possess, and pass counterfeit federal reserve notes, in violation of 18 U.S.C. Sec. 371 (Count I); knowingly receiving counterfeit federal reserve notes, in violation of 18 U.S.C. Sec. 473 (Count II); and knowing possession and concealment of counterfeit federal reserve notes with the intent to defraud, in violation of 18 U.S.C. Sec. 472 (Count III). Pursuant to a plea agreement, Turner pleaded guilty to Counts I and III, and Count II was dismissed. The defendant was sentenced on December 7, 1987, to a term of five years' imprisonment on Count III. On Count I, Turner received a five-year term of probation consecutive to the sentence imposed on Count III.
These charges stemmed from a conspiracy to distribute counterfeit federal reserve notes. A co-conspirator printed approximately $250,000 worth of counterfeit money. Other co-conspirators, one of whom was Flynt Talkington, purchased the lot from the printer for $3,000 and circulated the notes around the country. Turner, for $300 in legal tender, purchased from Talkington counterfeit notes with a face value of $3,000. Subsequently, with two additional co-conspirators, Turner passed counterfeit notes with a face value of about $300 in Kentucky and Ohio. The defendant and his friends destroyed the balance of the counterfeit purchase.
On October 10, 1986, an Assistant United States Attorney apparently offered the defendant informal transactional immunity: if he would cooperate, he would not be indicted. The record does not indicate that a court order authorizing the grant of immunity had been sought or entered. In spite of the government's offer, when called before the grand jury on two subsequent occasions, Turner relied on his fifth amendment privilege against self-incrimination and refused to testify. The parties do not dispute that these first two grand jury appearances by the defendant were unproductive for the government. On December 2, 1986, the government withdrew its offer. Turner was indicted on June 22, 1987.
The defendant then entered into a written plea agreement with the government. This agreement provided for the defendant's pleas of guilty to Counts I and III, as amended; the dismissal of Count II; the dismissal of a separate indictment involving drug offenses; the defendant's cooperation with the government in any related investigation; and the defendant's truthful testimony before any federal grand jury or in any district court proceeding. The government agreed to make known to the sentencing court the extent of Turner's cooperation, but the government was free to make any sentencing recommendation it deemed appropriate.
Following the plea agreement, Turner appeared before the grand jury a third time. This appearance is to be distinguished from the two prior times when he refused to testify under the offer of informal immunity. There is little in the record to show what actually happened before the grand jury on this last appearance, except the government's characterization of it. Those grand jury proceedings were not made a part of this record, sealed or unsealed.
Two sentencing problems arise from the defendant's three grand jury appearances. The first problem requires us to assess Turner's actions in refusing to testify under the informal immunity offer, and the effect on his sentencing; the second requires us to determine whether Turner lived up to his plea agreement. To resolve these problems, we must closely examine the record.
Turner testified at his sentencing hearing. During cross-examination of the defendant by an Assistant United States Attorney, the following exchange took place concerning the defendant's first two grand jury appearances, at which he had refused to testify:
Q. And at that time when you were given immunity and asked to appear before the Grand Jury, you refused to testify, didn't you?
A. Yes.
Q. You refused to assist the Government in this investigation, isn't that right?
A. Yes.
Q. Now, I think you testified on direct examination that you felt remorseful and sorry that you got involved with the counterfeit money.
Isn't that right?
A. Yes.
Q. But you decided not to help the Government in the investigation, isn't that right?
A. I--I did--well, I took--went to the Grand Jury after that and told you--
Q. Mr. Turner, in October when you were given the immunity agreement, you refused to go into the Grand Jury and testify.
Do you recall that?
A. Yeah, I recall, but I recall that I didn't get it signed by a judge neither like everybody else did.
Q. Well, were you willing to cooperate at that time with the Government in the investigation?
A. If it would have been signed by a judge.
I mean, everybody else at that time had theirs signed by a judge, and I didn't. So--
(Emphasis added.) Thus, Turner explained, his refusal to testify at his first and second grand jury appearances was based on the absence of a court order authorizing the government's grant of immunity.
Shortly after this exchange, additional cross-examination took place concerning the subsequent grand jury testimony in accordance with the plea agreement:
Q. You refused to assist the Government in uncovering this criminal venture that you say you're remorseful for, isn't that right?
A. Yes.
Q. In fact, the first time that you offered any assistance whatsoever to the Government is after you had pled guilty to the offense, isn't that correct?
A. Yes.
Q. Prior to that time you had not identified where you obtained the counterfeit money from, had you?
A. Pardon?
Q. Prior to pleading guilty, you had not told the Government where you got the counterfeit money from, isn't that right?
A. Yes.
Q. Prior to pleading guilty, you didn't tell the Government how much money you had obtained from Flynt Talkington, did you?
A. Yes--or I--
Q. Had you talked with the Government at all about counterfeit money prior to pleading guilty?
A. No, I don't guess.
Later, during the same cross-examination, this further exchange occurred:
Q. Did you appear before the Grand Jury last week?
A. Yes.
Q. And did you answer whatever questions were asked of you?
A. Yes.
So Turner was of opinion that he answered whatever questions he was asked after his plea. The prosecutor put in no contrary evidence, but he was to take a different view anyway. During arguments, the Assistant United States Attorney said (emphasis added):
I would also point out to the Court that in this case we have another serious factor which I would ask the Court to consider, and that is the Defendant's lack of cooperation. He appears to be remorseful today. He claims that he is trying to clean up his act, undergo drug treatment, that he is sorry for the offenses that he committed, but I would point out to the Court that when he could have made a difference in this investigation of counterfeiting activity, when he was given the opportunity without any consequence to himself to assist the Government in its investigation, he refused to do so, not on one occasion, but on two occasions, and it's only now when the Defendant is facing a maximum penalty of twenty years that he exhibits his remorsefulness.
The Defendant testified before a Federal Grand Jury on this pass [sic] Friday. I examined him in the Grand Jury. My characterization of his testimony would be useless. He provided the Government with very little information which we could proceed upon. His testimony was of no value to the Government. True, he has appeared. He did testify, but I would recall to the Court that the Defendant also appeared earlier before the Grand Jury and refused to testify.
I would characterize his whole attitude toward the Government as being recalcitrant, stubborn and uncooperative. The Defendant has not only directed this attitude toward the United States Attorney's office, but has also directed this attitude toward the arm of the Court, the probation office.
The first part of this argument shows the emphasis placed by the government on Turner's refusal to cooperate under the offer of informal immunity. The second part of the government's argument indicates that Turner, in keeping with his plea agreement, appeared before the grand jury and testified, but not to the prosecutor's satisfaction. The government does not claim that Turner's testimony was false or misleading, that the defendant refused to answer, or that the defendant held back information.
When it came time for defense counsel to argue in mitigation, he touched upon Turner's lack of cooperation in his first two grand jury appearances.
I realize that with regard to Government cooperation that Mr. Turner was called before the Grand Jury and received a letter from the US Attorney's office offering him immunity even though the matter was never submitted to the Court or any order obtained on that. He did have the letter offer from the US Attorney. He availed himself of his right against self-incrimination, has indicated that he would have testified if he had been ordered pursuant to a grant of immunity.
After the court heard the evidence and the arguments, the district judge explained the basis for the sentence he was imposing. The judge made quite clear what disturbed him:
I just reread here a few moments ago in your file the plea agreement that you entered into with the Government. And you agreed to cooperate with the Government, to help and assist in investigations, including truthful testimony...
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