U.S. v. Winter

• Decision Date: 15 September 1995
• Docket Number: No. 94-2302,94-2302
• Citation: 70 F.3d 655
• Parties: UNITED STATES of America, Appellee, v. Howard T. WINTER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 655

70 F.3d 655

UNITED STATES of America, Appellee, v. Howard T. WINTER, Defendant, Appellant.

No. 94-2302.

United States Court of Appeals, First Circuit.

Heard Sept. 15, 1995.

Decided Nov. 22, 1995.

Thornton E. Lallier, Amesbury, MA, for appellant.

George W. Vien, Assistant United States Attorney, with whom Geoffrey E. Hobart, Assistant United States Attorney, and Donald K. Stern, United States Attorney, were on brief, Boston, MA, for the United States.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

STAHL, Circuit Judge.

Appellant Howard T. Winter refused to testify in a former codefendant's criminal trial despite a grant of immunity. The United States District Court for the District of Massachusetts adjudged Winter in criminal contempt under Fed.R.Crim.P. 42(a) and imposed a six-month sentence consecutive to one under which he was already incarcerated. In this appeal, Winter challenges certain aspects of the summary contempt proceedings and the resulting sentence. We affirm.

I. Factual Background and Prior Proceedings

In January 1992, a grand jury returned a multiple-count indictment against Winter and two codefendants, Gennaro Farina and Kenneth Schiavo. In May 1993, Winter and Farina each pleaded guilty to the indictment, received the mandatory minimum sentence of ten years imprisonment, and were accordingly incarcerated. In September 1994, after futile efforts to interview Winter, the government obtained an immunity order pursuant to 18 U.S.C. Secs. 6002 and 6003 to compel his testimony in the criminal trial against his former codefendant, Schiavo.

Schiavo's trial began on November 14, 1994. During the following two days, on November 15 and 16, 1994, the district court held a contempt hearing because Winter indicated that he would refuse to testify despite the immunity order. At the hearing, Winter stated that his refusal to testify was based upon the Fifth Amendment of the United States Constitution and "other reasons." After the court explained to Winter that, because of the immunity order, the Fifth Amendment was not a valid basis to refuse to testify, Winter proffered his non-Fifth-Amendment reasons for his refusal, to wit: (1) that his previous counsel told him that his guilty plea would not in any way affect Schiavo, and that, if Winter had known he might be forced to testify against Schiavo, he would not have so pled; and, (2) because he had consistently maintained to the government his resolute unwillingness to testify against Schiavo, the government was being "vindictive" by forcing him to choose between testifying or suffering a contempt judgment. Winter also implied that he feared for his own safety should he testify against Schiavo. ¹

During the second day of the contempt hearing, Richard Egbert, Winter's counsel during his guilty plea proceedings, testified as to Winter's understanding that a guilty plea would not have an adverse effect on Schiavo. Egbert further stated that he told Winter that, in his opinion, it was unlikely the government would attempt to force Winter to testify against Schiavo. Egbert also testified that Winter entered his guilty plea without a plea agreement or any other agreement with the government.

The district court found that, despite Winter's claimed misunderstanding of what could happen, the government never promised that it would not immunize and call him to testify against Schiavo, nor did Egbert tell him that. The court found that the government's conduct leading up to and including its efforts to secure Winter's testimony did not violate due process. The court further found that Winter's testimony would be probative of material issues in Schiavo's trial, and because of an earlier suppression ruling, was not cumulative to other evidence.

Throughout the contempt proceedings, the district court made clear that it was operating under Fed.R.Crim.P. 42(a) ² which provides for summary disposition of criminal contempt. The court did state, however, that it "would consider reducing the contempt or eliminating it entirely, should [Winter] decide to testify." In making this statement, the court expressly relied upon United States v. Wilson, 421 U.S. 309, 312, 95 S.Ct. 1802, 1804, 44 L.Ed.2d 186 (1975). The court repeated several times its offer to purge Winter of contempt and any sentence imposed because of it if he decided to testify before the close of the government's case in the Schiavo trial. After Winter refused to obey its direct order to testify, the court held him in contempt and summarily sentenced him to six months imprisonment.

After hearing argument by counsel, the district court decided during the contempt hearing that Winter's sentence would run consecutively to his prior sentence because imposition of a concurrent term would "provide[ ] no incentive whatsoever" for him to testify. In making this determination, the court stated, "my goal is not to punish, my goal is to get testimony which is relevant." At the request of Winter's counsel, after the imposition of the contempt sentence, the court deferred entry of the judgment to the close of the Schiavo trial, explaining, "my hope, although I think it's elusive at this point, is still that [Winter] will testify." The court left the door open for Winter to justify at some later time, through his counsel, his recalcitrance. ³ Despite this opportunity, Winter proffered nothing more to explain his refusal to testify.

Winter never testified in the Schiavo trial; nonetheless, on December 1, 1994, the jury found Schiavo guilty on some but not all counts against him in the superseding indictment. On December 12, 1994, the district court issued a written order and entered judgment against Winter for criminal contempt. Accordingly, Winter received a six-month prison sentence to be served consecutively to his prior sentence. This appeal followed.

II. Discussion

On appeal, Winter raises a number of arguments to challenge his contempt conviction. First, he reasserts his non-Fifth-Amendment grounds for refusing to testify. Second, he argues that the court's contempt sanction was of a civil rather than criminal nature and should have been vacated upon completion of Schiavo's trial. Third, Winter contends that the district court failed to afford him an opportunity to document his fear of testifying against Schiavo. Finally, Winter argues that imposition of the contempt sentence violated the Double Jeopardy Clause of the United States Constitution.

A. Standard of Review--Plain Error

Winter failed to raise these arguments, except for the first, before the district court. Thus, the arguments raised for the first time on appeal are forfeited and reversible only if Winter establishes "plain error." United States v. Alzanki, 54 F.3d 994, 1003 (1st Cir.1995), petition for cert. filed, 64 U.S.L.W. 3298 (U.S. Oct. 16, 1995) (No. 95-619); United States v. Taylor, 54 F.3d 967, 972-73 (1st Cir.1995). Under this standard, an appellant bears the burden of establishing: (1) "error," i.e., a "[d]eviation from a legal rule"; (2) that the error is "plain" or "obvious"; and (3) that the plain error affected "substantial rights." United States v. Olano, 507 U.S. 725, ---- - ----, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993); see Fed.R.Crim.P. 52(b). Even if an appellant establishes plain error affecting substantial rights, the decision to correct that error lies within the sound discretion of this court. Olano, 507 U.S. at ----, ----, 113 S.Ct. at 1776, 1778; see United States v. Marder, 48 F.3d 564, 571 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 1441, 131 L.Ed.2d 320 (1995).

B. The Government's Conduct and the Propriety of the Immunity Order

Winter reasserts on appeal his claim that, because government agents always knew he would refuse to testify, they sought his immunity for the vindictive purpose of "setting him up" to commit perjury or contempt. Winter further contends that because he had already pleaded guilty, there was no criminal liability left for the government to immunize him from; and because the immunity conferred no real benefit upon him, it was an "illusory" grant that could not form the basis of a contempt finding.

We review the district court's contempt finding for abuse of discretion. In re Grand Jury Proceedings (Doe), 943 F.2d 132, 136 (1st Cir.1991) (per curiam ). We review factual findings in contempt proceedings for clear error. Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 15 (1st Cir.1991). To the extent Winter's arguments raise pure questions of law, our review is plenary.

First, we note that the record reveals the district court's utmost solicitude in addressing these concerns. The court held the contempt hearing in part to determine if there was any overreaching conduct by the government in obtaining the immunity order or in negotiating Winter's earlier guilty plea. Despite a full exploration of Winter's contentions, which included calling Winter's former counsel to testify, the court found no evidence of misconduct. Rather, the court found that the government had legitimate reasons to seek Winter's highly relevant testimony because the evidence in the Schiavo trial contained repeated references to Winter's participation in criminal activities with Schiavo. We find no error in the court's finding that the government did not act out of vindictiveness in seeking the immunity order and Winter's testimony. Cf. In re Poutre, 602 F.2d 1004, 1006 (1st. Cir.1979) (noting the impermissibility of "calling a witness for the sole purpose of extracting perjury" but finding no evidence of such government misconduct).

Next, we note the tortured logic of Winter's argument that his recalcitrance was justified because he had no criminal liability to barter for the immunity. Winter's argument suggests that he had a right to keep silent--despite the absence of Fifth-Amendment privilege concerns--simply because he had nothing to gain by the grant of...