U.S. v. Underwood

• Decision Date: 06 June 1988
• Docket Number: No. 89-1315,89-1315
• Citation: 880 F.2d 612
• Parties: UNITED STATES of America, Appellee, v. Peter UNDERWOOD, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 612

880 F.2d 612

2 Fed.Sent.R. 90

UNITED STATES of America, Appellee, v. Peter UNDERWOOD, Defendant, Appellant.

No. 89-1315.

United States Court of Appeals First Circuit.

Heard June 6, 1988.

Decided July 24, 1989.

John A. MacFadyen, for defendant, appellant.

James H. Leavey, Providence, R.I., Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for U.S.

Before BREYER, REINHARDT, ^* and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

Peter Underwood appeals from his conviction for contempt of court, a conviction that rests upon his refusal to testify at the trial of Stuart Newton and Thomas Gilbert, whom, in July 1983, Underwood allegedly helped to smuggle drugs. Underwood says that the Fifth Amendment protects his refusal to testify at that trial because his testimony might be used against him in his own drug-smuggling case, which prosecution was taking place at about the same time, before the same judge. Underwood feared that the judge would use his testimony against him, either in deciding whether to accept his guilty plea, or in sentencing him.

In our view, because the government gave Underwood immunity, the Fifth Amendment did not give Underwood the right to refuse to testify at the Newton/Gilbert trial; hence, his contempt conviction is lawful. We believe, however, that the sentence of three years' imprisonment that the court imposed on Underwood is unlawfully long. We will therefore require the district court to impose a new sentence, which, in light of analogous Sentencing Guidelines, may not exceed six months.

I. Background

To understand the legal arguments in this case, one must consider both the drug charges the government brought against Underwood, and its separate effort to have Underwood testify against Newton and Gilbert. We shall discuss the two proceedings separately.

A. The Drug Case against Underwood

In June 1988 the Government charged Underwood with having participated in a drug smuggling scheme to import about 20,000 pounds of hashish into Rhode Island in July 1983. The indictment, in four counts, charged Underwood with possessing and importing marijuana, and conspiring to do both. 21 U.S.C. Secs. 841(a)(1), 952, 960(a)(1). The following are the key procedural events:

1. October 18, 1988. The government and Underwood, appearing before Judge Torres, asked him to accept a plea agreement providing (a) that Underwood would plead guilty to conspiracy to import marijuana (and he would also plead guilty to a separate information charging him with failure to file a tax return for 1983, under 26 U.S.C. Sec. 7203); (b) that the court would dismiss the three other charges; and (c) that the court would impose a specific sentence of three years (less any time imposed on the related tax charge) for conspiracy to 2. December 15, 1988. The court listened to the reasons why the parties wished to enter the plea agreement. They included Underwood's fairly minor role in the July 1983 smuggling, consisting of unloading the ship; his crime-free life since 1983; and his early offer to plead guilty, knowing that other potential witnesses in the case were out of the country. The court read the presentence report. It then decided to reject the plea agreement as too lenient, and it reinstated Underwood's plea of not guilty. Fed.R.Crim.P. 11(e)(2), (4) (court may reject plea bargain).

import. See Fed.R.Crim.P. 11(e)(1)(A), (C) ("charge" and "sentence" bargaining). The court, as Fed.R.Crim.P. 11(e)(2) allows, "defer[red] its decision" about whether or not to accept the plea agreement, "until there [was] ... an opportunity to consider the presentence report."

3. January 5, 1989. The parties returned to Judge Torres with a new plea agreement, an agreement that effectively would allow Judge Torres to sentence Underwood to five years' imprisonment. Underwood would plead guilty to one count charging importation of marijuana, a count that carried a statutory maximum penalty of five years, and that also provided for a special parole term of up to life, 21 U.S.C. Sec. 960(b)(2), (c) (1982), and the court would dismiss the remaining charges. Underwood also agreed to plead guilty to the charge of failure to file a tax return, and the government agreed that any sentence imposed for the tax offense would run concurrently with the sentence for the drug charge. See Fed.R.Crim.P. 11(e)(1)(A), (C).

The court then said it had learned that Underwood had participated in two earlier marijuana smuggling operations, in 1981 and 1982, and asked the parties why this information was not included in the presentence report. The court indicated that it might ask for a supplementary presentence report covering this prior conduct. It also said it wanted to be certain that Underwood's sentence was fair in comparison to the sentences given to others involved in the 1983 smuggling, who would be sentenced the following Monday, January 9. The court continued the plea hearing until January 9.

4. January 9, 1989. Underwood, pursuant to the plea agreement, entered a conditional plea of guilty to the importation count. The court deferred its decision whether or not to accept the plea agreement, until it received a supplementary presentence report focusing on Underwood's participation in 1981 and 1982 drug smuggling. Fed.R.Crim.P. 11(e)(2). The court set a new hearing date of March 16, 1989 for its determination whether to accept the plea, and for possible sentencing.

5. The events leading to the contempt charge occurred between January 9 and March 16, 1989.

6. March 16, 1989. The court rejected the plea agreement. Underwood withdrew his guilty plea, reinstated his plea of not guilty, and began to prepare for trial.

B. The Effort to Compel Underwood's Testimony

In January 1989, Judge Torres was also conducting the trial of Stuart Newton and Thomas Gilbert, who allegedly were major figures in the July 1983 smuggling operation. The government had said, during Underwood's various plea hearings, that it probably would not call Underwood as a witness at Newton's and Gilbert's trial. Nonetheless, it did so, during the very time that Judge Torres was considering whether to accept Underwood's second proposed plea agreement. The key events are as follows:

1. January 13, 1989. The government subpoenaed Underwood to testify at Newton's trial. Underwood moved to quash the subpoena.

2. January 18, 1989. The government, because Underwood objected to testifying on Fifth Amendment grounds, asked Judge Torres to grant Underwood immunity from all future use of his testimony against him, as set forth in 18 U.S.C. Secs. 6002, 6003. Judge Torres did so. Underwood explained that, despite the immunity, he still thought that his testimony might be used against 3. February 27, 1989. The court, after an appropriate charge and hearing, found Underwood guilty of criminal contempt for having refused to testify, under 18 U.S.C. Sec. 402.

him. He feared that Judge Torres, who would hear the testimony since he was presiding over Newton's and Gilbert's trial, would inevitably use it against him in deciding whether to accept his plea agreement, or in sentencing him. He also feared that the prosecutor in charge of Newton's and Gilbert's trial, who was also handling his own case, might use his testimony against him in later proceedings. Judge Torres, after mentioning the possibility of later recusal, and noting that Underwood's testimony would probably reveal no more about Underwood's crimes than the judge already knew, concluded that the Fifth Amendment did not give Underwood a right to refuse to testify. He ordered Underwood to obey the subpoena. Underwood, citing the Fifth Amendment, refused. The court then held Underwood in civil contempt and ordered him incarcerated.

4. March 16, 1989. On the same day that Judge Torres rejected the second proposed plea agreement, see p. 614, supra, the court sentenced Underwood to three years imprisonment on the contempt charge, a sentence that Underwood began to serve in mid-April 1989. Underwood now appeals from the judgment embodying this contempt conviction and the three-year sentence.

II. The Contempt Conviction

A. Underwood's basic legal argument is that the district court's order that he must testify violates the Constitution's Fifth Amendment. The Supreme Court has written that a witness invoking the Fifth Amendment's privilege against compulsory self-incrimination

may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him.

Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984) (quoting Maness v. Meyers, 419 U.S. 449, 473, 95 S.Ct. 584, 598, 42 L.Ed.2d 574 (1975) (White, J., concurring in result)); see In re Kave, 760 F.2d 343, 354-55 (1st Cir.1985) (privilege protects witness against any "reasonable possibility" of use of testimony against him). Underwood points out that, not only would the prosecutor hear his self-incriminating testimony, but also Judge Torres himself would hear his compelled testimony just prior to reaching a decision whether to accept his plea and, perhaps, sentencing him. Judge Torres, in Underwood's view, could not avoid using Underwood's answers against him in making these determinations, at least subconsciously. Underwood says that, if Judge Torres would not grant his motion to quash the subpoena, he should at least have recused himself from all further proceedings in Underwood's drug case, and promised Underwood that he would do so "at that time," i.e., on January 18, so that Underwood would be "assured" that his testimony would not be used against him. See Murphy, 465 U.S. at 429, 104 S.Ct. at 1143.

The peculiar circumstances of this case lead us to reject this argument. We find it unpersuasive, as a matter of law, because of the combined effect of the following...