U.S. v. Yurasovich
| Decision Date | 26 July 1978 |
| Docket Number | No. 78-1066,78-1066 |
| Citation | 580 F.2d 1212 |
| Parties | UNITED STATES of America v. Milan YURASOVICH, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert McClenahan, Janavitz, Janavitz & Kanfoush, Pittsburgh, Pa., for appellant.
Blair A. Griffith, U. S. Atty., Joel B. Strauss, Bruce A. Antkowiak, Faye M. Gardner, Asst. U. S. Attys., Pittsburgh, Pa., for appellees.
Before ADAMS, WEIS and GARTH, Circuit Judges.
Milan Yurasovich, the appellant in this case, pleaded guilty to two counts of a four count federal indictment for mail offenses, but after his sentencing he refused to testify at a trial of his co-defendant on the ground that his testimony could lead to additional criminal liability. The trial judge ruled that Yurasovich's guilty plea had dissipated his Fifth Amendment privilege, and held Yurasovich in contempt. The issue before us is whether this contempt conviction can stand.
From the record, it appears that Yurasovich was involved with Harold Sonnenberg, and perhaps with an individual named Jenkins, in a scheme to use stolen and forged mailbox keys to rifle mailboxes and to dispose of their contents. Some time before In April 1977, Yurasovich and Sonnenberg were indicted once again, this time on four federal charges arising from the use of the mailbox keys: (1) unauthorized possession of mailbox keys with the intent to use such keys improperly; (2) possession of forged mailbox keys with the intent to use such keys improperly; (3) possession of stolen letters; and (4) stealing mail with the intent to obstruct correspondence. The federal indictment contained no conspiracy count.
the events at issue here, Yurasovich and Sonnenberg were indicted in state court on two counts: for burglary and for receiving stolen property. Yurasovich pleaded guilty to the receiving stolen property count, but after a trial, Sonnenberg was acquitted of both charges. The record does not reveal the fate of the burglary charge that was lodged against Yurasovich.
On December 5, 1977, after Yurasovich had pleaded guilty to two counts of the federal indictment, and the day before Sonnenberg's trial, the United States Attorney in Pittsburgh, subpoenaed Yurasovich. A somewhat lengthy recapitulation of the developments concerning that subpoena is necessary to place this case in proper factual context.
At approximately the same time that the Pittsburgh subpoena was presented, Yurasovich was served by Postal Inspector Egan with a subpoena to appear before a federal grand jury in Chicago, which was investigating mail theft schemes there that were similar to those that had been executed in Pittsburgh. The next day, at a discussion in the chambers of the trial judge, Hon. Maurice Cohill of the Western District of Pennsylvania, Yurasovich indicated that, in view of the Chicago investigation and the possibility of future state and federal conspiracy charges in Pittsburgh, and on the advice of counsel, he wished to invoke the Fifth Amendment.
A colloquy then ensued among Judge Cohill, Yurasovich and the United States Attorney. The United States Attorney stated that in examining Yurasovich he would attempt to "develop . . . facts which go to an integral criminal scheme" to steal mail. 1 Apparently the goal of the United States Attorney was to establish that Sonnenberg had an "unlawful purpose" in possessing the mailbox keys at issue. Judge Cohill, in reply, explained that he intended to order Yurasovich to answer questions "with respect to the charges that were contained in that indictment that you plead (sic) guilty to, the two counts and in addition the two counts that were dismissed." 2 Yurasovich rejoined that his counsel had advised him not to testify. The trial judge concluded the proceedings by admonishing Yurasovich to consult his attorney again.
The next day, the discussion in chambers resumed, this time with Mr. McClenahan, Yurasovich's lawyer, present. The district judge expressed the view that testimony "as to the incidents which he plead guilty here and (those) I dismissed" would not be incriminating since future prosecutions would be barred by the double jeopardy clause. 3 In reply, Yurasovich's counsel asserted that answers to questions concerning the activities to which he pleaded guilty "could lead to information from which (Yurasovich) could be indicted for other charges in Chicago, in Pittsburgh, anywhere," 4 and noted apprehension about the possible scope of cross-examination.
After a recess, the trial judge advised Yurasovich that he would be permitted to invoke the Fifth Amendment, "with respect to any questions (by the prosecutor) you haven't been convicted on," and to decline Yurasovich again expressed his concern about the potential effects of his responses on possible indictments in Chicago, 7 and stated that he had been advised by his attorney that his answers could be used to "squeeze" him in Illinois. 8
to answer questions by defense counsel "about something that is not related to this trial." 5 Nonetheless, stated the trial judge, Yurasovich would be required to answer "any questions" the prosecutor propounded "with respect to" the four offenses contained in the indictment. 6
At that point, Judge Cohill, addressing Yurasovich, ordered:
I am directing you right now to answer Any questions in front of the jury that Mr. Strauss asks you with respect to the two offenses, the two counts you plead guilty to, or the two counts which were dismissed against you.
Now are you telling me that you intend not to obey That order ?
Yurasovich: Yes sir, I'm going to exercise my right to the Fifth Amendment. (emphasis added) 9
The trial judge thereupon declared that Yurasovich had placed himself in contempt, and Yurasovich was not required to take the witness stand. Despite the absence of Yurasovich's testimony, Sonnenberg was adjudged guilty of all four mail offenses. After a subsequent hearing, Yurasovich was convicted of criminal contempt by Judge Cohill, and sentenced to six months' imprisonment for this separate offense. Yurasovich now appeals his conviction for contempt.
Two questions are thus presented to us: First, was the trial court's order invalid under the Fifth Amendment? Second, if so, was Yurasovich's refusal to testify specific enough to allow him to take advantage of the order's invalidity?
The privilege against self-incrimination embodies the decision of our society to opt for an adversarial rather than an inquisitorial system of justice. The principle adopted is that "it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with assistance of enforced disclosures by the accused." 10 As Justice Powell remarked in Kastigar v. United States, the principle against self-incrimination . 11
At issue here is an order that directly implicates the core of the Fifth Amendment. For if Yurasovich's contentions are correct, his contempt conviction is punishment for refusal to give testimony which could be used against him in an on-going investigation of criminal activities in Chicago.
A quarter century ago, in Hoffman v. United States, 12 the Supreme Court declared that the privilege "not only extends to answers that would in themselves support a conviction under a federal criminal statute, but likewise embraces answers which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime." 13 To support a contempt Judged by such standards, the line of questioning to which Yurasovich was ordered to respond trenched upon areas protected by the Fifth Amendment.
citation for a refusal to testify on Fifth Amendment grounds, the Court declared, it must be "Perfectly clear from a careful consideration of all the circumstances in the case, that the witness (who invokes the privilege) is mistaken, and that the answer(s) cannot Possibly have such a tendency to incriminate." 14 In the intervening years, the Court has consistently adhered to the precepts laid down in Hoffman. 15
Initially, we note that the trial court apparently engaged in an inaccurate analysis of the problem before it. In the hearing on Yurasovich's contempt citation, the trial judge stated:
With respect to the Fifth Amendment promise of immunity, certainly any statement made here that would be attempted to be used against him in Chicago would be subject to suppression because of the Court here making an order compelling the defendant to testify. We hold as a matter of law that Mr. Yurasovich was in criminal contempt of this Court. . . . 16
The argument that subsequent suppression is an adequate protection of the Fifth Amendment rights of a witness compelled to testify was explicitly rejected by a unanimous Supreme Court in Maness v. Meyers, 17 Chief Justice Burger there stated:
In the present case the City Attorney argued that if petitioner's client produced the magazines, he was amply protected because in any ensuing criminal action he could always move to suppress . . . . Laying to one side possible waiver problems that might arise if the witness followed that course, Cf. Rogers v. United States, 340 U.S. 367 (71 S.Ct. 438, 95 L.Ed. 344) (1951), we nevertheless cannot conclude that it would afford adequate protection. Without something more "he would be compelled to surrender the very protection which the privilege is designed to guarantee." Hoffman v. United States, supra at 486, 71 S.Ct. at 818.
Whatever deference is due a trial judge in normal circumstances is thus severely undercut by the fact that the trial court's evaluation of...
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