USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
_____________________
No. 94-2302
UNITED STATES OF AMERICA,
Appellee,
v.
HOWARD T. WINTER,
Defendant, Appellant.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Thornton E. Lallier for appellant.
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George W. Vien, Assistant United States Attorney, with whom
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Geoffrey E. Hobart, Assistant United States Attorney, and Donald
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K. Stern, United States Attorney, were on brief for the United
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States.
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November 22, 1995
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STAHL, Circuit Judge. Appellant Howard T. Winter
STAHL, Circuit Judge.
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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.
I.
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Factual Background and Prior Proceedings
Factual Background and Prior Proceedings
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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. 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
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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
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1. Winter's only statement suggesting this fear was the
following: "When [the government] sent me to Louisburg, . .
. they leaked the rumor out that I had rolled over, with one
intention, to try and get me killed when I was doing my time
down there." At the time Winter made this statement, the
court was in the process of explaining immunity protections
and did not pursue his apparent claim of fear.
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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
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2. Rule 42(a), pertaining to summary disposition of criminal
contempt, provides:
A criminal contempt may be punished
summarily if the judge certifies that the
judge saw or heard the conduct
constituting the contempt and that it was
committed in the actual presence of the
court. The order of contempt shall
recite the facts and shall be signed by
the judge and entered of record.
Fed. R. Crim. P. 42(a).
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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.
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Wilson, 421 U.S. 309, 312 (1975). The court repeated several
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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,
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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.
II.
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Discussion
Discussion
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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
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3. Specifically, the court stated to Winter's counsel: "I
know this has all come up very suddenly for you, Mr. Cullen.
If there is something that you haven't told me about . . .
which you think would be relevant, I will listen to it at the
time you find out about it."
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violated the Double Jeopardy Clause of the United States
Constitution.
A. Standard of Review -- Plain Error
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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
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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,
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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, 113 S. Ct.
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1770, 1777-78 (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, 113 S. Ct. at 1776,
_____
1778; see United States v. Marder, 48 F.3d 564, 571 (1st
___ ______________ ______
Cir.), cert. denied, 115 S. Ct. 1441 (1995).
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B. The Government's Conduct and the Propriety of the
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Immunity Order
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Winter reasserts on appeal his claim that, because
government agents always knew he would refuse to testify,
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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
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F.2d 132, 136 (1st Cir. 1991) (per curiam). We review
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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
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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
immunity. This contention, however, cannot be reconciled
with the duty of every citizen to testify in aid of law
enforcement. Piemonte v. United States, 367 U.S. 556, 559
________ _____________
n.2 (1961); see also Kastigar v. United States, 406 U.S. 441,
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443-44 (1972). "If two persons witness an offense -- one
being an innocent bystander and the other an accomplice who
is thereafter imprisoned for his participation -- the latter
has no more right to keep silent than the former." Piemonte,
________
367 U.S. at 559 n.2 (dicta). Thus, even assuming -- as
Winter contends -- that his guilty plea dispensed with the
need for an immunity order, we fail to see how he was harmed
by the immunity's added protection when he otherwise would
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have a duty to testify. Winter apparently believed that his
earlier guilty plea would relieve him of all obligations with
respect to his activity with Schiavo. That mistaken belief,
however, is not a basis upon which to excuse his refusal to
testify.
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C. The Nature of the Contempt Sanction
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Winter argues that his contempt sanction was of a
civil rather than criminal nature because the district court
expressed a goal to compel testimony rather than to punish,
and repeated its offer to purge Winter of the contempt
sentence should he testify. Winter contends that, because
the judgment was effectively for civil contempt, it should
have been vacated once its coercive effect ceased, i.e., at
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the end of Schiavo's trial when he was no longer able to
comply with the order.
The determination of whether a contempt order is
civil or criminal is a question of law and the district
court's characterization of the sanction is not binding upon
this court. See Hicks ex rel. Feiock v. Feiock, 485 U.S.
___ ______________________ ______
624, 630 (1988). Winter, however, neither raised this
argument in the district court, nor moved in district court
to vacate his contempt sentence on this basis. Because
Winter did not afford the district court an opportunity to
address this issue, he has forfeited his right to complain
here on this basis. See United States v. Taylor, 54 F.3d
___ ______________ ______
967, 971 (1st Cir. 1995) (noting that policy behind
forfeiture rule is to allow trial court to timely correct the
problem, and to prevent "sandbagging"). In light of this
forfeiture, we review the proceedings for plain error under
the principles set forth in Section II. A., above. Cf. In re
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Grand Jury Proceedings, 875 F.2d 927, 932 (1st Cir. 1989)
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(reviewing for plain error due process objections to criminal
contempt proceedings that were not raised in trial court).4
To address Winter's contention, we discuss the pertinent
caselaw, below.
The distinction between civil and criminal contempt
is important because each requires different procedures.
Generally, a court may impose civil contempt sanctions
pursuant to the minimal procedures of notice and an
opportunity to be heard; the reason for this is that the
civil contemnor may avoid the sanction by obeying the court's
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4. We note that Winter's counsel at the contempt hearing
implicitly conceded the appropriateness of the criminal
nature of the proceedings when arguing against the
consecutive imposition of the contempt sentence.
Specifically, counsel requested:
I prefer that . . . [Winter] be ordered
to start serving [the] sentence for
contempt immediately. . . . That's what
would happen on civil contempt. . . .
That is, if he was held in civil contempt
and refused to testify, it would not be
counted toward his time on his sentence
[for Bureau of Prisons purposes].
Viewing these statements in light of the record as a whole,
however, we do not find that they amount to an actual
"waiver" of Winter's right to argue that his contempt
sanction was civil. See Olano, 113 S. Ct. at 1777
___ _____
(explaining that actual waiver, as distinct from forfeiture,
extinguishes any "error" under Rule 52(b) such that plain
error review is inapplicable); cf. United States v. Rivera,
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872 F.2d 507, 509 (1st Cir.) (finding plain error rule
applicable where evidence was insufficient to establish
defendant's waiver of double jeopardy defense), cert. denied,
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493 U.S. 818 (1989).
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order. International Union, United Mine Workers of America
____________________________________________________
(UMWA) v. Bagwell, 114 S. Ct. 2552, 2557 (1994). In
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contrast, "`criminal contempt is a crime in the ordinary
sense,'" id. at 2556 (quoting Bloom v. Illinois, 391 U.S.
___ _____ ________
194, 201 (1968)), and criminal contempt sanctions may be
imposed only if the court provides certain constitutional
protections. Id. at 2556-57; Hicks, 485 U.S. at 632.
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However, "direct contempts," i.e., those occurring in the
____
court's presence, "may be immediately adjudged and sanctioned
summarily." International Union, UMWA, 114 S. Ct. at 2557
__________________________
n.2. In such cases, the distinction between civil and
criminal contempt for the purposes of required procedures, in
general, is not germane. Id. (citing United States v.
___ ______________
Wilson, 421 U.S. 309, 316 (1975));5 see Wilson, 421 U.S. at
______ ___ ______
315-19 (upholding summary criminal contempt adjudication
where immediate response to direct contempt was necessary to
"prevent a breakdown of the proceedings"). As explained
below, Winter's contumacious conduct constituted direct
contempt.
Winter cites Shillitani v. United States, 384 U.S.
__________ _____________
364 (1966), to support his argument that the nature of his
contempt sanction was civil instead of criminal. In
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5. The civil/criminal contempt distinction in direct
contempt cases becomes relevant if the criminal contempt is
"serious" and adjudication requires a jury trial.
International Union, UMWA, 114 S. Ct. at 2557 n.2 (citing
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Bloom v. Illinois, 391 U.S. 194, 209-210 (1968)).
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Shillitani, the trial court ordered the contemnors imprisoned
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for two years or until they testified before a grand jury.
Id. at 366-68. The trial court had stated that the sentence
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was not intended to punish, but to secure testimony. Id. at
___
368. Under the conditional nature of the imprisonment, the
contemnors had an unqualified right to be released if they
chose to testify; because the contemnors were not otherwise
incarcerated, they literally "carried the keys of their
prison in their own pockets." Id. (internal quotations and
___
citations omitted). Although the parties and courts below
had referred to the contempt as criminal instead of civil,
the Supreme Court declared that the label affixed to the
proceeding was not determinative. Id. Instead, the Court
___
looked to the character and purpose of the sentence and found
that it was "clearly intended to operate in a prospective
manner -- to coerce rather than to punish." Id. at 369-70.
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The Court concluded that the obviously coercive goal of the
imprisonment rendered the contempt proceeding civil, and thus
the contemnors had to be released when the rationale for
their imprisonment vanished, i.e., when the grand jury was
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discharged. Id. at 371-72; see also Hicks, 485 U.S. at 638
___ ________ _____
n.9.
In Hicks, the Supreme Court reaffirmed Shillitani's
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teaching that the "civil" or "criminal" label attached either
to the contempt proceeding or to the corresponding relief is
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not controlling. Hicks, 485 U.S. at 631. In Hicks, an
_____ _____
indirect contempt case, a state judge found a parent in
contempt for failure to comply with a child-support order.
Id. at 626-27. The main issue in Hicks was whether the state
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contempt proceeding was civil or criminal for the purposes of
determining the applicability of federal constitutional
protections. Id. at 630. To guide in this analysis, Hicks
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instructed that "the critical features are the substance of
the proceeding and the character of the relief that the
proceeding will afford." Id. Imprisonment for contempt is
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for a remedial purpose, and thus civil, if the court
conditions the contemnor's release upon compliance with its
order. Id. at 631-32, 634. Such imprisonment is for
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punitive purposes (to vindicate the court's authority), and
hence criminal, if the court imposes an unconditional
determinate sentence "retrospectively for a `completed act of
disobedience.'" International Union, UMWA, 114 S. Ct. at
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2558 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S.
_______ _________________________
418, 443 (1911));6 Hicks, 485 U.S. at 631-33.
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Hicks further explains that the classification of
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contempt proceedings as civil or criminal does not "turn
simply on what their underlying purposes are perceived to
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6. International Union, UMWA, 114 S. Ct. at 2555-57,
___________________________
involving the civil/criminal classification of contempt fines
against a union for a labor injunction violation, is also an
indirect contempt case.
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be," because, "[i]n contempt cases, both civil and criminal
relief have aspects that can be seen as either remedial or
punitive or both." Id. at 635; see also International Union,
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UMWA, 114 S. Ct. at 2557 (recognizing contempt sentences'
____
dual purpose of punishment and coercion). In order to draw a
conclusion about whether a contempt proceeding is criminal or
civil, a court must examine "the character of the relief
itself," id. at 636, and "[t]he critical feature that
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determines whether the remedy is civil or criminal in nature
is . . . whether the contemnor can avoid the sentence imposed
on him, or purge himself of it, by complying with the terms
of the original order." Id. at 635 n.7; see also id. at 640
___ ___ ____ ___
("If the relief imposed here is in fact a determinate
sentence with a purge clause, then it is civil in nature."
(citing Shillitani, 384 U.S. at 370 n.6)).
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In adjudicating Winter's contempt, the district
court relied heavily, if not solely, upon United States v.
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Wilson, 421 U.S. 309 (1975). In Wilson, the Supreme Court
______ ______
considered a case almost factually identical to Winter's.
Defendants who were already incarcerated on guilty-plea
convictions received immunity but refused to testify in an
ongoing criminal trial against a former codefendant. Id. at
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312. After conducting summary criminal contempt proceedings
pursuant to Fed. R. Crim. P. 42(a), the court sentenced the
defendants to six months imprisonment, consecutive to their
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previously imposed sentences. Id. Despite his imposition of
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a definite imprisonment term, the district judge "made it
clear that he would consider reducing the contempt sentences,
or eliminating them completely, if [the defendants] decided
to testify." Id.
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Wilson did not squarely involve the issue of the
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distinction between civil and criminal contempt. Rather, the
primary issue in Wilson was whether, under the facts of the
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case, summary proceedings under Rule 42(a) were proper
instead of disposition upon notice and hearing under Rule
42(b).7 See generally id. Because summary adjudication of
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7. In his reply brief to this court, Winter argues, for the
very first time, that because his attorney had not been
provided with reasonable time to prepare a defense in the
criminal contempt proceeding, the district court violated
Fed. R. Crim. P. 42(b). This contention ignores the fact
that Rule 42(b)'s notice provision, which encompasses the
"reasonable time" requirement, does not apply when a court,
as here, proceeds under Rule 42(a). See Fed. R. Crim. P.
___
42(b).
Winter also suggests in his reply brief, for the
first time, that the district court erred in proceeding under
Rule 42(a) instead of Rule 42(b). Our review of this
argument, such as it is, is for plain error because Winter
did not first present it to the district court.
Winter's refusal to testify constituted
contemptuous conduct because, like the contumacious behavior
of the Wilson defendants, it was an "intentional
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obstruction[] of court proceedings that literally disrupted
the progress of the trial and hence the orderly
administration of justice." Wilson, 421 U.S. at 315-16.
______
Unlike a refusal to testify before a grand jury, Winter's
refusal to testify in Schiavo's ongoing criminal trial
threatened a "breakdown of the proceedings" that required the
immediate remedial tool of Rule 42(a). See id. at 319. This
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conclusion is bolstered by the court's specific finding that
Winter's testimony would be highly relevant to material
issues in Schiavo's trial.
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indirect contempt is impermissible, Wilson was clearly a
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"direct contempt" case, see International Union, UMWA, 114 S.
___ _________________________
Ct. at 2557 n.2, 2560; similarly, it is beyond dispute that
Winter's conduct constituted a direct contempt, which was
adjudicated as such. See supra, note 7.
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The Wilson Court upheld the judge's use of the
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summary criminal contempt provision. In approving this
procedure, the Court acknowledged the dual purpose of the
contempt sanction:
The face-to-face refusal to comply with
the court's order itself constituted an
affront to the court, and when that kind
of refusal disrupts and frustrates an
ongoing proceeding, as it did here,
summary contempt must be available to
vindicate the authority of the court as
__
well as to provide the recalcitrant
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witness with some incentive to testify.
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____________________
Winter insists that because the government obtained
a guilty verdict on some of the counts against Schiavo,
"[t]he case never broke down," and thus, Wilson is
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inapposite. This 20/20 hindsight, however, was not available
at the time Winter refused to testify -- in the middle of
trial. See United States v. North, 621 F.2d 1255, 1262 n.11
___ _____________ _____
(3d Cir. 1979) (en banc) (noting, for purposes of seeking
contemnor's testimony, that the fact that defendant was
eventually convicted without the testimony is irrelevant),
cert. denied, 449 U.S. 866 (1980). We therefore find, under
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the facts of this case -- so strikingly similar to those in
Wilson -- that the district court did not abuse its
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discretion in deciding to proceed under Rule 42(a) rather
than Rule 42(b) when faced with Winter's direct contempt.
See Wilson, 421 U.S. at 319 (noting that appellate courts may
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curb abuses of discretion of Rule 42(a) authority "without
unduly limiting the power of the trial judge to act swiftly
and firmly to prevent contumacious conduct from disrupting
the orderly progress of a criminal trial"). Because the
court did not abuse its discretion in proceeding under Rule
42(a), there is no reversible error.
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Whether such incentive is necessary in a
_________________________________________
particular case is a matter the Rule
_________________________________________
wisely leaves to the discretion of the
_________________________________________
trial court.
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Wilson, 421 U.S. at 316-17 (emphasis added) (footnote and
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citation omitted); see also id. at 319 ("In an ongoing trial,
___ ____ ___
with the judge, jurors, counsel and witnesses all waiting,
Rule 42(a) provides an appropriate remedial tool to
discourage witnesses from contumacious refusals to comply
with lawful orders essential to prevent a breakdown of the
proceedings."). In the context of approving the summary
contempt procedures and other contexts, the Wilson Court
______
favorably noted "the careful trial judge['s]" offer to
consider reducing the defendants' contempt sentences should
they later agree to testify. See id. at 312, 315 n.7, 317
___ ___
n.9. Although the issue was not directly before it, the
Wilson Court did not hint that the judge's offer to reduce or
______
eliminate the sentences automatically converted the sanction
from criminal to civil. To the contrary, the Court
acknowledged the need for the criminal rather than civil
contempt sanction, under the facts of the case, in noting
that Shillitani's admonition to first consider the
__________
feasibility of coercing testimony through civil contempt has
little weight when the contemnor is already imprisoned; and
in such cases, the threat of incarceration provides little
incentive to testify. Id. at 317 n.9; see also United States
___ ___ ____ _____________
v. McVeigh, 896 F. Supp. 1549, 1555 (W.D. Okla. 1995)
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19
(proceeding under criminal contempt provision because
defendant's incarcerated status rendered civil contempt
proceedings "futile" (citing, inter alia, Wilson, 421 U.S. at
_____ ____ ______
317 n.9)).
We must now determine how Shillitani/Hicks and
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Wilson interact under the facts of the instant case. Because
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the district court promised to purge Winter of the contempt
sentence if he should testify, and because the court at one
point expressly stated that its goal was not to punish but to
obtain relevant testimony, Shillitani and Hicks would seem,
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at first glance, to command a civil characterization of the
proceedings. However, Shillitani and Hicks are factually
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distinct from Wilson and the instant case; that dissimilarity
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is dispositive here. In Shillitani, the contemnors were not
__________
already incarcerated when subjected to the contempt sentence,
and their refusal to testify was before a grand jury rather
than at an ongoing trial.8 Shillitani, 384 U.S. at 368-69.
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Hicks was an indirect contempt case that involved neither an
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____________________
8. In determining whether or not to follow the procedure of
Rule 42(a) or Rule 42(b), it is significant whether the
contemnor is called to a grand jury or an ongoing trial.
Because a grand jury's schedule is generally flexible when
encountered with a recalcitrant witness, any delay due to
Rule 42(b) proceedings is usually less disruptive than such
delay during a trial. Wilson, 421 U.S. 318-19.
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already-incarcerated contemnor nor a failure to testify at a
proceeding.9 See Hicks, 485 U.S. at 626-27.
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In contrast, Wilson and this case involved already-
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incarcerated contemnors who refused to testify at an ongoing
criminal trial, and whose direct contempt threatened a
"breakdown of the proceedings." Wilson, 421 U.S. at 319. In
______
Wilson, the Supreme Court specifically endorsed the use of
______
criminal contempt proceedings in cases where, as here, a
civil sanction would have no coercive effect because of the
incarcerated status of the contemnor. Wilson, 421 U.S. at
______
317 n.9. Thus, from the outset of Winter's contempt hearing,
the district court expressly relied upon Wilson for guidance
______
in conducting its summary criminal contempt proceedings under
Fed. R. Crim. P. 42(a). The court also stated that it was
following the lead of "the wise trial judge . . . in
[Wilson]" by generously offering to purge Winter of the
______
contempt should he decide to testify. In its written order
and findings on contempt, the court cited Wilson, 421 U.S. at
______
317 n.9, in acknowledging that "[a]lthough lesser sanctions
should ordinarily be invoked when equal to the task, anything
less than criminal contempt would pose no serious deterrent
to an individual already incarcerated." It is clear,
____________________
9. Similarly, International Union, UMWA, involving the
___________________________
classification of serious contempt fines for violations of a
labor injunction (indirect contempt), is significantly
factually distinct from this case. International Union,
_____________________
UMWA, 114 S. Ct. at 2555-56.
____
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therefore, that the district court was aware of the
alternative of civil contempt proceedings, but felt that the
coercive component of such proceedings would be woefully
inadequate.
Winter would have this court hold that, even under
Wilson-like facts, a court's promise to purge triggers the
______
Shillitani/Hicks contempt-classification principles, such
________________
that the contempt sanction must be characterized as civil.
We decline to do so. Otherwise, a trial judge faced with an
incarcerated, recalcitrant witness during an ongoing trial
would have to choose between a civil contempt sanction with
little or no coercive value, or a determinate criminal
sentence with no possibility of purging the sentence should
the contemnor testify. Under either choice, the judge cannot
fashion a contempt sanction to provide a meaningful incentive
to testify. If we were to hold that an offer to purge, under
the facts of this case, automatically converts the contempt
sanction from criminal to civil, we would effectively strip
the trial judge of the recognized discretion under Rule 42(a)
to provide an incentive to testify. See Wilson, 421 U.S. at
___ ______
316-17. It would be poor policy to preclude the district
judge from exercising such discretion by imposing an
unwavering rule that an incarcerated criminal contemnor
cannot be given an opportunity to comply with an order and
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purge the contempt, even if the court wishes to provide such
opportunity.
While the district court may have indicated its
preference not to punish Winter and its fading hope that he
would testify, it rejected as ineffective any procedure other
than summary criminal contempt under Rule 42(a). Winter's
incarcerated status and his disruption of the Schiavo trial
required this procedure in order to both vindicate the
court's authority and provide some incentive to testify. The
criminal nature of the contempt sanction is further evidenced
by an aspect of the relief, stemming from a request by
Winter's counsel: the court's unusual procedural device of
delaying entry of the final contempt judgment -- although
sentence had been imposed -- until after Schiavo's trial,
when there was no longer an opportunity for Winter to comply.
Thus, although the proceeding at one time had a coercive
component, the contempt judgment, once entered,
retrospectively punished Winter for a "'completed act of
disobedience,'" which is typical of criminal contempt.
International Union, UMWA, 114 S. Ct. at 2558 (quoting
___________________________
Gompers, 221 U.S. at 443).10 The deferred entry of the
_______
____________________
10. To the extent the contempt sanction lost all remedial
purpose by the time the judgment issued, the procedures
required for punitive, criminal sanctions were
constitutionally adequate. See supra, note 7; see also
___ _____ _________
United States v. Michaud, 928 F.2d 13, 15 n.1 (1st Cir. 1991)
_____________ _______
(noting both conditional and unconditional aspects of
sentence, but finding that even assuming contempt proceedings
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contempt judgment also furthered the twin goals of
vindication and coercion in these contempt proceedings.11
The issue of whether the district court's contempt
proceedings were civil or criminal in nature is complicated
here because the court so strongly expressed a coercive goal.
However, the particular facts of this case maintain the
criminal nature of the contempt sanction, despite the court's
discretionary choice under Rule 42(a) to provide an incentive
to testify. See also United States v. North, 621 F.2d 1255,
___ ____ _____________ _____
1263-1265 & n. 16 (3d Cir.) (en banc) (stating in dicta that
defendant's contempt sentence, even if partly conditional
upon compliance, would retain its criminal nature and thus
continue after completion of the underlying trial (citing,
inter alia, Wilson, 421 U.S. at 312)), cert. denied, 449 U.S.
_____ ____ ______ _____ ______
866 (1980). Therefore, we find no error -- certainly no
"plain" error -- in the district court's criminal contempt
proceeding and disposition. Winter's attempt to use the
court's generous offer to purge as a means of
recharacterizing the contempt proceedings from criminal to
civil is unavailing. We find it appropriate to add the
____________________
were criminal, defendant received the required procedural
protections).
11. Because the district court held Winter in contempt and
imposed sentence at the time of the hearing, the delayed
judgment does not constitute an impermissible summary
adjudication after trial, when due process would require
notice and a hearing. See International Union, UMWA, 114 S.
___ _________________________
Ct. at 2560 (citing Taylor v. Hayes, 418 U.S. 488 (1974)).
______ _____
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Supreme Court's observation in the factually-similar Wilson
______
case:
[A]s this case demonstrates, a
contumacious refusal to answer not only
frustrates the [trial] inquiry but can
destroy a prosecution. Here it was a
prosecution; the same kind of
contumacious conduct could, in another
setting, destroy a defendant's ability to
establish a case.
Wilson, 421 U.S. at 316.
______
D. Opportunity to Document Fear
________________________________
Winter argues that the district court abused its
discretion in finding him in contempt because he tried to
explain to the court his fear for his own safety, but was not
given an opportunity to document that fear. Because Winter
raises this argument for the first time on appeal, we review
for plain error.
We note first that Winter is factually wrong in his
assertion that he was denied an opportunity to establish his
fear. While it is true that the district court apparently
cut short any further testimony on the possible claim of
fear, the court did expressly give Winter, through counsel,
the opportunity to lodge any new facts or arguments to
justify his recalcitrance. See supra notes 1, 3. During the
___ _____
twenty-six days from the close of the hearing until the entry
of judgment, Winter did not take advantage of this
opportunity to document his fear; he cannot now complain of
that failure. See In re Grand Jury Proceedings (Doe), 943
___ ____________________________________
-25-
25
F.2d at 136 (noting with disapproval a contemnor's failure to
submit favorable proffer during a twenty-four hour extended
filing period).
Moreover, as Winter admits, even if he had fully
elucidated his fear of testifying against Schiavo, "it has
been widely held that a witness' fear of reprisal against
himself or his family does not constitute just cause for
refusing to testify." In re Grand Jury Proceeding (Doe), 13
_________________________________
F.3d 459, 461 (1st Cir. 1994); see also Piemonte, 367 U.S. at
___ ____ ________
559 n.2 (noting in dicta that "fear of reprisal offers an
immunized prisoner no more dispensation from testifying than
it does any innocent bystander without a record"). Indeed, a
reticent witness' fear for personal safety is potentially
relevant only in sentence-mitigation. See United States v.
___ _____________
Gomez, 553 F.2d 958, 959 (1st Cir. 1977) (citing Harris v.
_____ ______
United States, 382 U.S. 162 (1965)). Hence, although proof
______________
of a legitimate fear for his safety would not have justified
Winter's refusal to testify in any event, it might have
factored only in mitigation of the six-month contempt
sentence had he taken advantage of the district court's
generous offer to elaborate upon the grounds for his
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reticence.12 We discern no error based on this argument to
the proceedings below.
E. Double Jeopardy
___________________
Winter's final argument is that the prohibition
against double jeopardy invalidates the contempt sentence
both because of its very imposition and because of its
consecutive nature. Again, our review is for plain error
because Winter failed to make this argument below. See
___
United States v. Rivera, 872 F.2d 507, 509 (1st Cir.)
______________ ______
(reviewing defendant's double jeopardy argument for plain
error because he failed to raise it in trial court), cert.
_____
denied, 493 U.S. 818 (1989); cf. United States v. Papadakis,
______ ___ _____________ _________
802 F.2d 618, 621 (2d Cir. 1986) (declining to reach
appellant's claim, raised for the first time on appeal, that
double jeopardy barred criminal contempt prosecution), cert.
_____
denied, 479 U.S. 1092 (1987).
______
Winter appears to concede in his opening brief to
this court that the Double Jeopardy Clause generally does not
bar a contempt conviction for the refusal to answer questions
related to a criminal offense for which the defendant has
____________________
12. At oral argument before this panel, the government
stated that Winter had refused an offer to enroll in the
federal witness protection program. Assuming this
representation is true, we note our repeated admonition that
a witness may not at the same time refuse to testify because
of fear for his or her own safety, and reject offers of
protection from that potential danger. See In re Grand Jury
___ ________________
Proceeding (Doe), 13 F.3d at 462-63 (listing cases).
________________
-27-
27
already been convicted. In his reply brief, however, Winter
changes his tune and asserts that the principles of double
jeopardy are violated here because "the contempt sentence
relates to the same or similar activity . . . to which Winter
had previously pleaded guilty." Winter additionally argues
that imposing the six-month sentence consecutively to, rather
than concurrently with, his ongoing sentence violates the
Double Jeopardy Clause because it "materially altered the
terms and conditions of his existing incarceration." To this
end, Winter asserts without elaboration that the additional
six-month consecutive sentence disqualifies him "for certain
programs and treatments inside the prison."
Winter cites United States v. Bynoe, 562 F.2d 126,
_____________ _____
128 (1st Cir. 1977), as support for his contention that the
Double Jeopardy Clause bars the purported "material
alteration" of his existing sentence by the added contempt
sentence. In Bynoe, the district court vacated its previous
_____
order to suspend the defendant's sentence -- even though the
defendant had begun to serve probation -- and imposed a "more
severe" disposition because of perceived misrepresentations
by the defense. 562 F.2d at 127-28. We found that the
prohibition against double jeopardy precluded this increased
punishment for the very same crime. Id. at 129. Thus, Bynoe
___ _____
merely reiterates the rule that double jeopardy bars "an
increase in sentence after the defendant has commenced
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28
serving his punishment." 562 F.2d at 128; see also United
___ ____ ______
States v. Benefield, 942 F.2d 60, 66 (1st Cir. 1991) (holding
______ _________
that sentencing court may not amend a sentence to run
consecutively once defendant began serving it as a concurrent
sentence) (citing Bynoe and other cases)).
_____
It is beyond dispute, however, that the district
court imposed Winter's contempt sentence for disobedience of
its direct order -- an offense completely independent of the
charges under which he was already incarcerated.13
Moreover, it was within the court's discretion to impose the
sentence consecutively instead of concurrently in order to
preserve the incentive value of the contempt citation. In no
way did the court attempt to alter or increase Winter's prior
sentence as proscribed by Bynoe and Benefield.14 Thus,
_____ _________
Winter's contention that he is twice punished for the crimes
to which he pleaded guilty or that the consecutive sentence
impermissibly increased a prior-imposed punishment is
unavailing.
III.
III.
____
____________________
13. Winter cites no authority, and we have found none, in
support of his assertion that his contempt judgment for
refusing to testify about crimes to which he has already
pleaded guilty constitutes double jeopardy.
14. The purported administrative changes to the manner in
which Winter's sentence is served in prison because of the
added sentence are within the Bureau of Prison's domain. Any
complaint of constitutional magnitude that Winter might have
regarding the Bureau of Prison's treatment of him given the
added sentence is not properly before us in this appeal.
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29
Conclusion
Conclusion
__________
For the foregoing reasons, the judgment of the
district court is affirmed.
affirmed
________
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