UNITED STATES v. MONTELEONE No. 86-1307.
804 F.2d 1004 (1986)
UNITED STATES of America, Plaintiff-Appellee, v. John MONTELEONE, Defendant-Appellant.
United States Court of Appeals, Seventh Circuit.
Rehearing and Rehearing Denied November 18, 1986.
John A. Franke, Organized Crime & Racketeering Sec., Milwaukee, Wis., for plaintiff-appellee.
Before WOOD, CUDAHY, and FLAUM, Circuit Judges.
Rehearing and Rehearing En Banc Denied November 18, 1986.
FLAUM, Circuit Judge.
In August and again in November of 1983 John Monteleone refused to answer questions put to him before a federal grand jury in Milwaukee, Wisconsin. Since his second refusal followed a judicial grant of immunity, he was held in civil contempt and lived out the life of the grand jury in jail. He was later convicted of criminal contempt based on the same refusal to testify, and now appeals that conviction. His principal argument in this court is that he should have been warned during the immunity and civil contempt proceedings that he could face additional prison time under a criminal conviction based on the same conduct. We find that no such warning is required, and for the reasons set forth below we affirm his conviction.
In August of 1977 a bomb was discovered in an automobile in Milwaukee. On November 13, 1979 John Monteleone appeared before a federal grand jury investigating the attempted bombing and refused to answer questions, asserting his Fifth Amendment privilege against self-incrimination. The government did not pursue his testimony further at that time.
Monteleone was again called before a federal grand jury in 1983. This grand jury was investigating possible obstruction of justice charges in connection with Monteleone's 1979 refusal to testify on the attempted bombing. When Monteleone first appeared on August 2, 1983 he refused to testify, again asserting his Fifth Amendment privilege. The government filed a petition under 18 U.S.C. § 6002 requesting that he be immunized from prosecution. At a hearing on October 5, District Judge Terence T. Evans granted the petition and ordered Monteleone to testify, advising him in open court that further refusal could result in his being "held in contempt." He also stated that the government could ask him to "find [Monteleone] in contempt and punish him accordingly." No explicit reference to civil or criminal contempt was made.
Monteleone next appeared before the grand jury on November 1, 1983. He read a brief statement indicating that he had refused to testify in 1979 solely on the advice of his attorney, but refused to answer any questions despite acknowledging that he had been immunized by Judge Evans. The government immediately asked that Monteleone be held in civil contempt and incarcerated under 28 U.S.C. § 1826. At a hearing that same day Judge Evans ruled that Monteleone's prepared statement did not comply with his obligation to testify, held him in contempt and sent him to jail, informing him that he could "purge himself of contempt at such time as he convinces me that he is willing to appear before the grand jury and answer questions as asked."
On January 17, 1984 the government brought Monteleone once more to the grand jury room. The prosecutor reminded him that he had already been held in civil contempt and noted that his refusal to testify "[could] also be considered a crime as well as a civil matter." Monteleone again declined to answer any questions. Three days later the grand jury's term expired and Monteleone was released. He had served two months and three weeks on his civil contempt citation.
On March 28, 1985 the government applied under Rule 42(b), Fed.R.Crim.P., for issuance of a notice of prosecution for criminal contempt against Monteleone based on his refusals to testify in November of 1983 and January of 1984. Notice was entered in the district court by Judge Thomas J. Curran. The case was tried to a jury on a record consisting largely of transcripts of Monteleone's appearances before the grand jury and before Judge Evans. The jury found Monteleone guilty, and Judge Curran sentenced him to a term of four years' imprisonment.
Presenting a question of first impression in this Circuit, Monteleone asserts
In his briefs in this court Monteleone refers to Judge Evans' failure to warn him "at the time the court imposed the coercive sanction of civil committment for the life of the grand jury ..." The government correctly points out that at the time Monteleone was actually held in civil contempt (November 1, 1983) he had already committed the criminal act of refusing to testify despite immunity; a "warning" delivered at that point would be ineffective because it was then beyond Monteleone's power to erase his criminal conduct by agreeing to testify. See United States v. Petito,
In support of his argument Monteleone cites two cases from the Ninth Circuit: Daschbach v. United States,
Like Yates, Daschbach concerned witnesses at criminal trials who refused to answer particular questions. Each of the three witnesses concerned was held in civil contempt and incarcerated for the remainder of the trial, whereupon they were
As the Petito court observed, 671 F.2d at 72 n. 4, Daschbach does much to amplify the Yates court's concern about confusion and the explicit nature of the notice needed to cure it. The Daschbach court reviewed the remarks made by the trial court at the time it held the various witnesses in civil contempt. The trial court at several points drew a distinction between coercive and punitive sanctions and emphasized that coercive measures were the court's only concern at that time. Nevertheless the appellate panel held that the witnesses had not received "positive notification" of the possibility of definite criminal penalties as required by Yates,
254 F.2d at 692. This followed the court's notation that, at one point in the civil contempt proceedings, the trial court had stated that "[t]he question of punishment for violating any order of the Court has not been considered." Id.
The Yates and Daschbach cases prescribe a rule that a witness held in civil contempt for refusing to testify must be unequivocally advised by the court that the civil sanction he will receive does not preclude later criminal sanctions based on the same conduct. While we are sympathetic to the concerns that prompted the announcement of this rule in Yates, we do not believe that the Due Process clause requires such a warning. Accordingly we respectfully decline to follow those cases.
As a matter of policy we have little quarrel with the notion that "positive notification" of the possibility of subsequent criminal sanctions will lessen confusion. It would be commendable to include such notice in immunization procedures because it would advance the interests of all parties concerned. A witness' interests would be served by assuring that he was fully aware of all of the consequences of his actions. The interests of the government in coercing the witness to testify and of the court in coercing the witness to obey its order would be advanced because the weight of the coercion would increase as the witness became aware of further undesirable consequences.
That a practice is advisable, though, does not mean it is required by law. It might well lessen confusion to post criminal penalties in prominent places in which particular laws could be violated, and this is occasionally, though rarely, done. An example may be found as near to hand as the "franked" envelopes used by this court and other government agencies, which advise the user of a specific penalty if they are used for private purposes. There is, of course, no general requirement that all penalties be posted in places and manners that would do the most good.
Where courts or court rules have required affirmative warnings to defendants of the consequences of their actions, it has not been simply because some of those consequences are not readily apparent. Most often affirmative warnings are required when rights are about to be waived, such as Fifth Amendment rights to avoid self-incrimination and to have counsel present during custodial interrogation, see Miranda v. Arizona,
Monteleone asserts that he was more likely to be misled because of the potential for two terms of incarceration imposed by the same authority for the same conduct, admittedly not a common situation outside the area of contempt, and suggests that this confusion was aggravated by Judge Evans' reference to "punish[ing] him accordingly" in his discussion of civil (i.e. coercive) contempt. While we agree that such confusion is more likely in this situation, it does not follow that the court (or any other officer) is obligated to take affirmative steps to avoid it. Whether Monteleone was confused about the consequences of his actions is not relevant to his guilt, or (more specifically) to the state of mind necessary to convict.
The maxim that "ignorance of the law is no excuse" is one that we have termed "time worn." Wilson v. Health and Hospital Corporation of Marion County,
Monteleone has raised several additional issues for our consideration.
Monteleone's blanket assertion that a jury should never be told of a defendant's invocation of the Fifth Amendment and his reliance on Miranda,
Absent any direct Fifth Amendment concern the references were admissible unless their probative value was "substantially outweighed" by prejudicial or confusing effect. Rule 403, Fed.R.Evid. The balancing of these factors is committed to the broad and sound discretion of the trial court, and will not be overturned by this court unless that discretion is abused. United States v. Peters,
Monteleone also contends that the trial judge erred in refusing to instruct the jury on a defense of reliance in good faith on the advice of counsel that he had complied with Judge Evans' order by reading the brief statement he had prepared. He asserts that this belief was supported by his knowledge of the scope of the grand jury's investigation, which he thought had been covered by the statement. Although Judge Evans specifically ordered him to "give testimony,"
We dealt with an argument similar to Monteleone's in United States v. Ray,
683 F.2d at 1126-1127.
It makes no difference that Ray relied on a defense based on his own interpretation of the order, while Monteleone's defense depends on alleged reliance on advice of counsel.
Monteleone finally argues that the four-year sentence he received was excessive. While as a general matter this court will not review the size of a sentence absent unusual circumstances, Monteleone correctly points out that we bear a "special responsibility" in reviewing criminal contempt sentences due to the absence of any maximum penalty in either 18 U.S.C. § 401 or Rule 42, Fed.R.Crim.P. See Green v. United States,
Addressing the record before the district court at sentencing, Monteleone directs our attention to a number of positive factors, mostly concerning his involvement with his family, business and community. The government's sentencing presentation centered around Monteleone's involvement with and activities in support of organized crime, and included lengthy testimony at an evidentiary hearing by an immunized informant under federal witness protection. Monteleone has not argued that any of this evidence was improperly admitted or considered. In passing sentence the district judge took note of the points in Monteleone's favor, but also commented extensively on the important institutional role of the grand jury in the criminal process and of Monteleone's part in disrupting that process, as well as his association with "people of very unsavory standing in our society." He further expressed a specific desire to deter future disobedience in similar situations.
We reject Monteleone's suggestion that his sentence, the same as was imposed in the Patrick case, should be reduced because his offense was "less serious" than Patrick's. Comparing sentences imposed for different criminal acts by different judges is a poor method for determining whether discretion has been properly exercised, as it suggests that greater discretion is lodged with the first judge than with the second. It is more apt to note that Monteleone's sentence (like Patrick's, see 542 F.2d at 393 n. 14) was within the five year statutory limit for those convicted of obstructing a criminal investigation under 18 U.S.C. § 1510, a crime analytically similar to Monteleone's conduct. Legislative sentence limitations are more properly, though again not conclusively, considered in determining the limits of sentencing discretion in contempt cases because they are intended as principles of general application.
Monteleone misconstrues our dictum in Patrick, 542 F.2d at 393, that "[we] believe the punishment in a case such as [Patrick's] should be greater than in cases where a witness has merely refused to testify before a grand jury." That statement cannot be read as a general limitation on contempt sentences, which like all sentences are individually considered decisions. Monteleone was sentenced on a record that included more than just his contemptuous conduct. We bear in mind Justice Harlan's admonition in Green, 356 U.S. at 188, 78 S.Ct. at 645, that "[t]he answer to those who see in the contempt power a potential instrument of oppression lies in assurance of its careful use and supervision, not in imposition of artificial limitations on the power."
Finding no error in John Monteleone's conviction or sentence, we AFFIRM the judgment of the district court.
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