United States v. Dozier, Crim. No. 80-2-B.

• Decision Date: 16 July 1982
• Docket Number: Crim. No. 80-2-B.
• Citation: 543 F. Supp. 880
• Parties: UNITED STATES of America v. Gilbert L. DOZIER.
• Court: U.S. District Court — Middle District of Louisiana

543 F. Supp. 880

UNITED STATES of America v. Gilbert L. DOZIER.

Crim. No. 80-2-B.

United States District Court, M. D. Louisiana.

July 16, 1982.

James S. Lemelle, Asst. U. S. Atty., Baton Rouge, La., for plaintiff.

James E. Boren, Lennie Perez, Boren, Holthaus & Perez, Baton Rouge, La., Thomas B. Rutter, Philadelphia, Pa., for defendant.

POLOZOLA, District Judge:

In January of 1980, a federal grand jury for the Middle District of Louisiana returned a five count indictment against the defendant, Gilbert L. Dozier. Count One of the indictment charged that Dozier had violated the Racketeer Influenced and Corrupt Organizations (RICO) statute, 18 U.S.C. § 1962(c). Counts Two through Five charged the defendant with a violation of the Hobbs Act, 18 U.S.C. § 1951.¹ On September 23, 1980, a jury returned a verdict finding Dozier guilty on all counts except Count Four. After post-trial motions were denied, the Court sentenced Dozier to five years imprisonment and a fine of $25,000 for the RICO conviction and to a consecutive five-year term of imprisonment on Count Two. In addition, the Court suspended the imposition of sentence as to imprisonment only on Count Three and placed Dozier on probation for a period of five years which probation was to commence upon Dozier's release from prison. Imposition of sentence on Count Five was suspended. The Court also suspended execution of the sentence pending appeal.

Thereafter, the defendant filed a timely appeal with the Fifth Circuit Court of Appeals. While this appeal was pending, Dozier filed a motion with the district court alleging juror misconduct on the part of the jury which convicted Dozier.² Attached to this motion was a letter allegedly written on February 28, 1982 by Ida L. Sanders, a juror who served on the trial jury.³ While Dozier's motion was pending, the United States filed a Motion to Revoke Appeal Bond and To Revoke the Probation of the Defendant, Gilbert L. Dozier. Dozier was arrested and placed in jail pending a probation revocation hearing.⁴ In its motion to revoke Dozier's bond and probation, the United States charged that Dozier violated the terms of his bond and probation by committing certain criminal acts against the United States in violation of 18 U.S.C. § 371 and 2, 18 U.S.C. § 1503, and 18 U.S.C. § 1341.⁵ More specifically, the government's motion charged:⁶

A. From on or about November 1, 1981, and continuously thereafter up to and including the date of the filing of this motion, the defendant, Gilbert L. Dozier, willfully and knowingly did combine, conspire, confederate and agree together with persons known and unknown to commit the following offenses against the United States:

1. To corruptly endeavor to influence, obstruct and impede the due administration of justice in violation of Title 18, United States Code, Section 1503 and 2, and

2. To devise a scheme and artifice to defraud the United States District Court for the Middle District of Louisiana, the United States of America and the citizens of the United States of America, by placing or causing to be placed in an authorized depository for mail matter, a letter dated February 28, 1982, addressed to Mr. Camille F. Gravel, Jr., 780 North, Baton Rouge, Louisiana, in violation of Title 18, United States Code, Section 1341 and 2.

The government's motion then sets forth eleven overt acts which were allegedly committed by Dozier and others working in concert with him. These acts generally charge that Dozier, acting with others whom he paid substantial sums of money, influenced a juror to write a letter to Dozier's attorneys and to the trial judge which would falsely allege juror misconduct during the course of the trial.

The government further charged in its motion that Dozier violated his probation by asking Huey Martin to burglarize the office of Ron Menville and to have an unknown person killed.⁷

In response to the government's charges, Dozier filed a motion to stay and a motion to dismiss.⁸ On June 18, 1982, the Court, for written reasons to be assigned, denied each of these motions.⁹ The Court now assigns reasons for its decision to deny Dozier's motions to stay and to dismiss. Furthermore, in accordance with Rule 32.1(a)(2) of the Federal Rules of Criminal Procedure and the guidelines set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court hereby assigns written reasons in support of the Court's decision to revoke the defendant's probation.

I. DEFENDANT'S MOTION TO STAY

Dozier filed a motion to stay the probation revocation proceeding until "the underlying allegations of criminal conduct by the defendant are finally resolved". In the alternative, Dozier requested the Court to grant him "judicial use and derivative use immunity as to the defendant's testimony at the revocation hearing." The government filed an opposition to defendant's motion. As noted earlier, defendant's motion to stay and in the alternative for a grant of judicial use immunity must be denied.

Prior to analyzing the jurisprudence on this issue, two points must be emphasized by the Court. First, it is clear that the Court fully advised the defendant and his counsel prior to the probation revocation hearing that no adverse inference would be drawn by the Court if the defendant chose to remain silent. In other words, the Court carefully and clearly advised the defendant that he had a right to remain silent during the probation revocation hearing, and if he chose not to testify or present any evidence, the Court would not infer any evidence of guilt as a result of the defendant's refusal to testify or present evidence. At the hearing Dozier chose not to testify. The Court did not draw any adverse inference against Dozier as a result of his refusal to testify when the Court rendered its decision to revoke Dozier's probation. Second, there was absolutely no evidence presented by the defendant, nor could any have been presented, which would in any way show that the government was unlawfully attempting to gather evidence at the probation revocation hearing for use at a criminal prosecution which the government might initiate in the future.

Furthermore, the Court must note that both the Court and the government had a strong interest in the prompt resolution of the charges against Dozier which were contained in the probation revocation complaint. Prior to the government's charges, Dozier had filed a motion seeking to have the Court interview the jury which convicted him to determine if a new trial should be granted for alleged jury misconduct. In support of this motion, Dozier attached the letter written by Mrs. Sanders, the very same letter which the government charges that Dozier illegally and unlawfully obtained. The Court postponed a decision on Dozier's motion seeking juror interviews pending a resolution of the government's probation revocation charges against Dozier. Thus, a prompt resolution of the validity of the government's claim that Dozier unlawfully obtained Mrs. Sanders' letter was required. The decision by the Court to balance the interest of the government against the interest of Dozier insofar as the validity of the Sanders letter was concerned does not rise to the level of an impermissible burden on the exercise of Dozier's constitutional rights.

Many cases have held that parallel criminal and civil trials or investigations do not raise questions of constitutional magnitude with respect to the privilege against self-incrimination. The most recent case decided by the Fifth Circuit Court of Appeals on this issue is Hoover v. Knight, 678 F.2d 578 (5 Cir. 1982).¹⁰ In the Hoover case, the issue before the Court for determination was "the question of whether the appellee's fifth amendment privilege against self-incrimination was unconstitutionally impaired by the refusal of the hearing examiner to postpone the administrative hearing pending the outcome of a related criminal prosecution." Hoover, p. 580. After carefully analyzing the jurisprudence, the Fifth Circuit Court of Appeals concluded that the failure to postpone the administrative hearing where the party refused to testify pending a resolution of related criminal charges, did not violate the defendant's privilege against compelled self-incrimination. The Court recognized that the appellee "was faced with difficult choices to make regarding the manner of litigating her cases", but concluded that she "had the right to assert her constitutional privilege, and did so." Hoover, p. 582. The Court also reviewed the jurisprudence which supported its decision and stated:

As in the instant case, these fifth amendment issues frequently arise when parallel criminal, civil or administrative proceedings are pending. In Luman v. Tanzler, 411 F.2d 164 (5th Cir. 1969), cert. den., 396 U.S. 929, 90 S.Ct. 264, 24 L.Ed.2d 227 (1969), a police officer was suspended from the Jacksonville, Florida, Police Department for conduct prejudicial to the "efficiency, good name and reputation" of the department. Related state criminal charges were thereafter filed against the officer. He sought to have his administrative hearing continued in view of the pending state criminal proceedings. Upon the police department's refusal to postpone the administrative hearing, the officer sought an injunction in federal court. The Fifth Circuit Court of Appeals held that the police department's refusal to postpone the administrative hearing did not infringe any of the officer's constitutional rights. It was said that "At the administrative hearing the officer will have a free choice to admit, deny, or refuse to answer. This is full vindication of the fifth amendment privilege against self-incrimination." Luman v. Tanzler, 411 F.2d at 167.

In Diebold v. Civil Service Commission of St. Louis County, 611 F.2d 697 (8th Cir. 1979), a public employee was dismissed from his job

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