Petition — Patrick v. United States
Supreme Court brief1977
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Supreme Court, U.
FILED
JAN 3 1977
No.
MICHAEL RODAK, JR., C
In the
Supreme Court of the United States
Octroser Term—1976
: 76-915
LEONARD PATRICK,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
SHERMAN C. MAGIDSON
221 North La Salle Street
Suite 1938
Chieago, Illinois 60601
312/782-5534
HARVEY M. SILETS
7 South Dearborn Street
Suite 1800
Chicago, Illinois 60603
312/236-2994
Counsel for Petitioner
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
INDEX :
PAGE
Ra eV EIS A 7 IEE DO Se TE = PE 1
I aaa aise tiniiliingn diapeiectthnapidtininasavanste 2
I cia naiaie ae 2
EO eee eT 3
IE SEES a a Se ee eS 5
Reasons for Granting the Writ _...0.0...........-.-.ccsccseceeeeseeees 8
NS RE Oe ne ea ae ee RE a
Appendix A—
Opinion of the United States Court of Appeals
BO Ge TID GI ccecesiecscctectnsncccensenectcns .....-App. 1
Appendix B—
Order Denying Petition for Rehearing
SETI TEIIIIIE cdiviiaicniciidialetibipnmendieneiapsiaesoncapeensdunpuscanenivteie App. 25
Appendix C—
Analysis of Trial Testimony Concerning the
ae TE Oe App. 26
ii
CITATIONS
Cases
PAGE
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) ... 15
Aptheker v. Secretary of State, 378 U.S. 500, 511
Se ey MIU’ wissstieincstiiaces cin ciipeeaiilsdiieeataiincilehdbaiibiabeds 11
Bloom v. Illinois, 391 U.S. 194 (1968) 0000. 15
Cameron v. Mullen, 387 F.2d 193 (D.C. Cir. 1967) ...... 11
Clark v. Uebersee Finanz-Korp., 322 U.S. 480, 489 .... 10
Counselmen v. Hitchcock, 142 U.S. 547 20 10
Griego v. United States, 298 F.2d 845 (10th Cir. 1962) 13
Kastigar v. United States, 406 U.S. 441, 453 (1972) ... 9
People v. Denson, 59 Ill. 2d 546, 322 N.E.2d 464 (1975) 11
People v. Harmon, 394 Mich. 625, 232 N.W.2d 187
EIU - scictesdnstateiadeatigaiaicaiiedenianienieneicniadiiiinenammiandiiiies 13
People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal.
TICE TUETNIED . <ichtnhalsshsdivinioladiainniiomstdidnsiadibtatiesbintenesnenes Laas 13
People v. Luther, 394 Mich. 619, 232 N.W.2d 184 (1973) 13
People v. Walker, 28 Ill. 2d 585, 192 N.E.2d 819 (1963) 11
Scales v. United States, 367 U.S. 203 —.00 10
Schwachter v. United States, 237 F.2d 640 (6th Cir.
ES RIE TTT A Een Oe ab Oo Cae 14
United Brotherhood of Carpenters and Joiners of
America v. United States, 330 U.S. 395 0... 14
United States v. Garner, 529 F.2d 962 (6th Cir. 1976) 13
United States v. Gordon, 526 F.2d 406 (9th Cir. 1975) .. 14
iii
PAGE
United States v. Hockenberry, 477 F.2d 247 (3rd Cir.
ER nore Rk aK, 1c SLL eR Or Oe 9
United States v. McClain, 531 F.2d 431 (9th Cir. 1976) 14
United States v. Nickels, 502 F.2d 1173 (7th Cir. 1974) 14
United States v. Patrick, 542 F.2d 381 (7th Cir. 1976) 1,7, 9
Statutes, Requlattons and other Authorities
pf RF ee eee nee ee 2, 3,8, 9, 10, 11
Be IE IED ihc acllacilinshacicsieitsbinsinieententensoinidengianianiialebesatitaniaticheilin 11
Be I oo peiiedaieaicisacimcsamtasinennonsssoriiennicetinanns 2, 3, 4, 6, 8
ee 2
ee ie a TI rcicctenscsecssestinicncecsnninirnicnsnennnssues 10
| ee 11
Rule 41, Federal Rules of Appellate Procedure. ........ 2
Rule 51, Supreme Court Rules 22..0...2.2....ceeeeseeeeeeeeeeneeeees 2
Internal Security Act of 1950, Section 4(f) ~.......... 10, 11
Organized Crime Control Act of 1970 000... 10
Iu the
Supreme Court of the United States
Ocroner Term—1976
No.
LEONARD PATRICK,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
Petitioner prays that a writ of certiorari be issued to
review the judgment of the United States Court of Ap-
peals for the Seventh Circuit entered in this cause on Sep-
tember 23, 1976.
OPINION BELOW
The opinion of the United States Court of Appeals for
the Seventh Circuit has been reported at 542 F.2d 381 (7th
Cir. 1976). This opinion and the denial of the petition for
rehearing en banc are printed in full as an appendix hereto.
yr
JURISDICTION
The opinion of the Court of Appeals was entered on Sep-
tember 23, 1976. A timely petition for rehearing en bane
was filed by the petitioner, but such petition was denied
on November 30, 1976. A motion for stay of mandate pur-
suant to Rule 41, Federal Rules of Appellate Procedure,
was timely filed with the Court of Appeals. This motion,
however, was denied by the United States Court of Ap-
peals for the Seventh Circuit on December 7, 1976. A mo-
tion pursuant to Rule 51, Supreme Court Rules, for stay
of mandate was subsequently filed with the Honorable Wil-
liam H. Rehnquist. This motion was denied on December
15, 1976. The jurisdiction of this Court is invoked under
Title 28 U.S.C. Section 1254(1); 62 Stat. 928.
QUESTIONS PRESENTED
1. May a witness, granted use immunity pursuant to
18 U.S.C. Sections 6002-6003, nevertheless be charged. with
perjury under the mutually inconsistent material declara-
tions provisions of Section 1623(c), Title 18, United States
Code, if his resulting testimony is materially inconsistent
with testimony given by him as a result of an earlier
grant of use immunity?
2. At a jury trial to determine whether Petitioner’s
refusal to give testimony under a grant of immunity
was contemptuous, and where it is conceded that
the defendant had a sincere belief that his and his family’s
safety and well-being were being threatened if he did
testify, was it error for the district court to withdraw the
petitioner’s defense of duress from the jury upon the
court’s own assessment that the threats-were not immedi-
ate and that petitioner failed to take sufficient steps tc avoid
subjecting himself to the dangers presented by the threats?
3
3. Was the sentence of four years imprisonment im-
posed on Petitioner for failing and refusing to testify under
a grant of immunity at the criminal trial of another ex-
cessive ? '
STATUTES INVOLVED
18 U.S.C. $1623 False Declarations before Grand Jury
or Court
(c) An indictment or information for violation of this
section alleging that, in any proceedings before
or ancillary to any court or grand jury of the
United States, the defendant under oath has know-
ingly made two or more declarations, which are
inconsistent to the degree that one of them is
necessarily false, need not specify which declara-
tion is false if—
(1) each declaration was material to the point in
question, and
(2) each declaration was made within the period
of the statute of limitations for the offense
charged under this section.
In any prosecution under this section, the falsity of a
declaration set forth in the indictment or information
shall be established sufficient for conviction by proof
that the defendant while under oath made irrecon-
cilably contradictory declarations material to the point
in question in any proceeding before or ancillary to
any court or grand jury. It shall be a defense to an
indictment or information made pursuant to the first
sentence of this subsection that the defendant at the
time he made each declaration believed the declara-
tion was true.
18 U.S.C. $6002 Immunity generally
Whenever a witness refuses, on the basis of his privi-
lege against self-incrimination, to testify or provide
other information in a proceeding before or ancillary
to—
(1)
(2)
(3)
4
a court or grand jury of the United States
an agency of the United States, or
either House of Congress, a joint committee of
the two Houses, or a committee or a subcommittee
of either House, and the person presiding over
the proceeding communicates to the witness an
order issued under this part, the witness may not
refuse to comply with the order on the basis of his
privilege against self-incrimination; but no testi-
mony or other information compelled under the
order (or any information directly or indirectly
derived from such testimony or other informa-
tion) may be used against the witness in any crim-
inal case, except a prosecution for perjury, giving
a false statement, or otherwise failing to comply
with the order.
18 U.S.C. $6003 Court and grand jury proceedings
(a)
(b)
In the case of any individual who has been or may
be ealled to testify or provide other information
at any proceeding before or ancillary to'a court
of the United States or a grand jury of the Unit-
ed States, the United States District Court for
the judicial district in which the proceeding is or
may be held shall issue, in accordance with sub-
section (b) of this section, upon the request of the
United States attorney for such district, an order
requiring such individual to give testimony or pro-
vide other information which he refuses to give or
provide on the basis of his privilege against self-
inerimination such order to become effective as
provided in Section 6002 of this part.
A United States attorney may, with the approval
of the Attorney General, the Deputy Attorney
General, or any designated Assistant Attorney
General, request an order under subsection (a)
of this section when in his judgment—
5
(1) the testimony or other information be neces-
sary to the public interest; and 7
(2) such individual has refused or is likely to re-
fuse to testify or provide other information
on the basis of his privilege against self-in-
crimination.
STATEMENT
On January 31, 1974, over objection and following earlier
claims of privilege, Leonard Patrick was immunized and
ordered to testify before the Special January, 1974, Grand
Jury for the Northern District of Illinois. On February 6,
1974, Patrick appeared before the Grand Jury and, under
compulsion of the immunity order, gave testimony con-
cerning Ronald O’Hara, a Chicago police lieutenant.
Almost immediately after Patrick’s appearance and tes-
timony before the Grand Jury, a member of Patrick’s fam-
ily was visited by O’Hara, who directed that Patrick get
in touch with him at once. The message was left that failure
to do so would ‘‘involve’’ Patrick and his family. As a
result of this incident, Patrick, obviously agitated, called
on his attorney. He asked her to report the incident to the
United States attorney, and, on her advice, left town for a
while.
Subsequently, O’Hara again visited members of Pat-
rick’s family and impliedly cautioned them concerning fur-
ther testimony by Patrick. Others had discussed with
Patrick O’Hara’s reputation as a killer, and, in this re-
gard, Patrick cautioned his family to avoid all contacts
with O’Hara. During the following period, numerous addi-
tional contacts took place, and Patrick became ‘‘very up-
tight and very shaky and very upset.’’ There were nu-
6
merous contacts with Patrick’s family members which spe-
cifically referred to the fact that Patrick’s family might
well ‘‘suffer’’ if Patrick was to give testimony.
Based on Patrick’s compelled grand jury testimony,
Ronald O’Hara was indicted on two counts of failing to re-
port on his income tax returns money allegedly received
from Patrick during the years 1968 and 1969. A third count
charging a similar offense was based on evidence indepen-
dent of that given by Patrick.
One month before his trial was scheduled to commence
O’Hara again threatened Patrick’s daughier: ‘‘Hither I
see your father before my case goes to trial or you are all
going to suffer, and you tell him that, and tell him not to
forget it.’’ Patrick took his daughter to his attorney to
report the threat.
On June 10, 1975, Patrick was again granted immunity
pursuant to Sections 6002-6003 of Title 18, United States
Code, and was called as the government’s first witness in
the trial of Ronald O’Hara. When asked questions relat-
ing to his association with O’Hara, Patrick refused to
testify. Patrick was held in civil contempt and ordered
incarcerated until such time as he purged himself of the
contempt. On June 11, 1975, Patrick was again brought
before the court, but again refused to testify. When the
two counts against O’Hara based on Patrick’s grand jury
testimony were subsequently dismissed, Patrick was
ordered released from incarceration and a rule to show
cause was entered against him.
At his contempt trial, Patrick offered substantial testi-
mony concerning the ‘‘visits’’ by O’Hara and the threats
emanating therefrom. As a result of such testimony the
Seventh Circuit specifically found that ‘‘the testimony
presented .. . indicates a sincere belief on the part of
7
Patrick that O’Hara was a dangerous person who seeming-
ly presented a threat to the safety and well-being of
Patrick and his family.’’ 542 F.2d at 387. Because of its
obvious importance, an analysis of the testimony offered
by Patrick at the contempt hearing is attached hereto as
part of the Appendix. (App. C, infra) It is important to
note that the government did not contest the accuracy of
this testimony, but only its legal impact. Despite this tes-
timony, the district court refused to submit the defense
of duress or coercion to the jury, and this ruling was af-
firmed by the Seventh Circuit.
After withdrawing the defense of coercion from the
jury’s consideration, the case was submitted to the jury
which subsequently returned a verdict of guilty. The dis-
trict court subsequently imposed a sentence of four years
imprisonment on the petitioner.
REASONS FOR GRANTING THE WRIT
I.
THE DECISION THAT SECTION 1623(c) CANNOT BE
USED TO PROSECUTE AN IMMUNIZED WITNESS
WHO SUBSEQUENTLY CHANGES HIS TESTIMONY
IN MATERIAL RESPECTS MISAPPREHENDS THE
ROLE INTENDED FOR 1623(c) AS EVIDENCED BY
ITS ENACTMENT AS PART OF THE ORGANIZED
CRIME CONTROL ACT OF 1970.
The primary issue in this case is whether the immunity
conferred on petitioner Patrick pursuant to the Federal
‘use immunity”’ statutes (18 U.S.C. §§ 6002-6003) pro-
hibited the use of testimony compelled thereby in a subse-
quent prosecution for perjury under the inconsistent state-
ments provision of 18 U.S.C. § 1623(c). Considering the
extensive role of immunity in the current prosecutorial
atmosphere and recognizing, as did the Seventh Circuit,
that this issue is one of first impression, the question pre-
sented here is most important to the ongoing enforcement
of Federal criminal law.
Section 1623(c) permits a prosecution where a witness
under oath has knowingly made two or more declarations
which are inconsistent to the degree that one of them is
necessarily false. An indictment under such section ‘‘need
not specify which declaration is false,’’ and proof of the
falsity of the declaration is sufficient solely on the estab-
lishment that the defendant has made irreconcilably con-
tradictory declarations before any court or grand jury.
It is Patrick’s contention that, despite his use immuni-
ty, he could still have been prosecuted under Section 1623
(c), if his testimony at O’Hara’s trial was materially in-
consistent with his testimony before the grand jury. Pa-
trick argued that, by permitting prosecution and convie-
tion without particularization of the alleged false state-
ment, and merely upon proof of mutually inconsistent
statements, Section 1623(c), in effect, allows the statements
to evince themselves, but does not require that they be
used to prove the falsity, one of the other. Thus, the issue
presented for review concerns whether Patrick had a right,
absent a complete grant of transactional immunity at the
O’Hara trial, to refuse to answer questions, not because his
answers would have amounted to perjury, but because they
may have provided evidence which could have been used
to prosecute him for the nonspecific perjury described by
Section 1623(c).
The Seventh Circuit rejected this argument, accepted the
governments’ concession that use of Section 1623(c) was
barred by the use immunity granted, and concluded that
the immunity statute prohibited the use of compelled testi-
mony in any respect. Kastigar v. United States, 406 U.S.
441, 453 (1972). The panel arrived at this conclusion, even
though it recognized that immunized testimony may prop-
erly be used ‘‘to establish the corpus delicti of the offense
of perjury, i.e., proving the witness made the statement.’’
542 F.2d at 385. This latter conclusion would tend to sup-
port the petitioner’s real fear, that is, the establishment
of the corpus delicti of the inconsistent statement provi-
sions of Section 1623(c). See United States v. Hocken-
berry, 477 F.2d 247, 249 (3rd Cir. 1973).
Thus, an important issue for this Court’s consideration
concerns the interpretation of the relationship between
Section 1623(c) and the immunity statutes. All that ap-
10
parently is necessary under Section 1623(c) is that the
corpus delicti, i.e., the uttering of the two inconsistent
statements, be established. The prosecutor need not allege
which statement is false and which true, nor need he prove
which statement is false and which is true. Thus, in the
limited area of Section 1623(¢c) prosecutions, the immuni-
ty statute allows on the one hand what it purports to
forbid on the other. In doing so, it would appear that it
fails to provide a witness with the protection coextensive
with his Fifth Amendment rights. If this analysis is ac-
curate, the immunity statute is unconstitutional at least
in this limited application. Counselmen v. Hitchcock, 142
U.S. 547.
In addition, this issue merits examination by the Court
in view of the fact that Section 1623(c) seems to have been
designed, properly or not, to prevent just what the Seventh
Circuit said it is now powerless to prevent, namely, change
of testimony by an immunized witness. Both the immunity
statute and Section 1623(c) were added to Title 18 as-part
of the Organized Crime Control Act of 1970. In practical
application, it is Section 1623(¢) which gives force to the
immunity statute. This section seems clearly intended to
meet those situations where the government has no proof
of the witness’s falsehoods other than the witness’s own
words. ‘‘To [interpret the statute as not applicable] would
be to impute to Congress a purpose to paralyze with one
hand what it sought to promote with the other.’’ Clark v.
Uebersee Finanz-Korp., 322 U.S. 480, 489.
In Scales v. United States, 367 U.S. 203, the petitioner
asked the Court to construe Section 4(f), of the Internal
Security Act of 1950 (64 Stat. 987, 50 U.S.C. $§ 781, et seq.)
as ‘‘a pro tanto repealer of the membership clause of the
11
Smith Act [18 U.S.C. § 2385], thereby assuring effective
immunity from thé criminal consequences of registration
[as required by Section 4(f)]....’’ 367 U.S. at 210. In
short, Scales claimed that it was necessary to construe Sec-
tion 4(f) as repealing the membership clause of the Smith
Act in order to save the constitutionality of Section 4(f).
The Court rejected this claim noting that, ‘‘if we accept
the petitioner’s argument that Section 4(f) must be read
as a partial repealer of the membership clause, we would
be led to the extraordinary conclusion that Congress also
intended to immunize under Section 4(f) what it prohibited
in these other subsections which it passed at the same
time.’’ 367 U.S. at 211 (emphasis added). See also, Ap-
theker v. Secretary of State, 378 U.S. 500, 511 note 9, 515;
Cameron v. Mullen, 387 F.2d 193 (D.C. Cireuit, 1967).
The Seventh Cireuit found support for its position in
two Illinois cases, People v. Denson, 59 Ill. 2d 546, 322 N.E.
2d 464 (1975), and People v. Walker, 28 Ill. 2d 585, 192 N.E.
2d 819 (1963), both of which viewed the problem presented
here as it affected the Illinois transactional immunity stat-
ute. It would appear that Denson and Walker would sup-
port petitioner’s position herein as opposed to the Sev-
enth Cireuit’s conclusions. Mr. Justice Schaefer, speak-
ing for the court in Walker, pointed out that the offense
of perjury by inconsistent statements, also punishable in
Illinois (38 Ill. Rev. Stat. Section 32-3), ‘‘was shown ‘in
whole or part’ by the testimony that [the witness] gave
under the statutory grant of [transactional] immunity.’’
192 N.E. 2d at 823 (emphasis added). Thus, the Illinois
transactional statute protected the witness from precisely
the problem faced by Patrick, because it forbade prosecu-
tion for any offense shown ‘‘in whole or part’’ by the im-
munized testimony.
12
Federal use immunity does not operate in this manner.
Use immunity does not proscribe prosecution for offenses
revealed by the immunized testimony. The difference be-
tween the two types of immunity statutes clearly describes
the dilemma faced by Patrick in this case. Because the
offense of inconsistent statements is revealed as soon as
the second statement is made, the offense cannot be prose-
cuted in any manner as long as the witness has been given
transactional immunity, but can be prosecuted under the
interpretation of the use immunity statutes rejected by
the Seventh Circuit.
Because of the increasingly frequent role played by the
use immunity statute in the federal criminal justice sys-
tem, it is of substantial importance that this question as
to the companion role played by Section 1623(¢) be de-
cided by the Supreme Court.
II.
THE REMOVAL FROM THE JURY'S CONSIDERA.
TION OF PATRICK’S DEFENSE OF DURESS AND
COERCION HAS ESTABLISHED A DEFINITE MEANS
OF CIRCUMVENTION OF A DEFENDANT'S FUNDA.
MENTAL RIGHT TO TRIAL BY JURY.
The district court and the Seventh Circuit have agreed
that the trial judge had a threshold responsibility of de-
termining the adequacy of proof as to the elements of the
duress defense. Thus, if the district court was not satis-
fied as to the immediacy of the threats or the sufficiency
of the steps taken to prevent the apparent danger, he was
warranted in refusing to submit the issue of duress to the
jury.
13
It is Petitioner’s position that questions concerning the
immediacy of danger and the opportunity to prevent that
danger involve subjective rather than objective considera-
tions and, as such, are proper for the jury’s determina-
tion. Thus, the jury should have been left to decide, from
evidence of O’Hara’s continued visits and threats, up to
a month before his trial was scheduled to commence,
whether the ‘‘immediacy’’ element of the duress defense
had been established to their satisfaction. Similarly, the
jury should have been allowed to decide, from evidence of
Patrick’s complaint to his attorney about O’Hara’s last
visit within a month before the O’Hara trial, whether the
preventive element had been satisfactorily established.
The ‘‘imminent’’ test adopted by the Seventh Cir-
cuit would apparently require some actual physical harm
befalling Patrick before such a defense could be con-
sidered by the jury. This is apparently so because the
Seventh Circuit specifically found ‘‘that the testimony
presented . .. indicates a sincere belief on the part of
Patrick that O’Hara was a dangerous person who seem-
ingly presented a threat to the safety and well-being of
Patrick and his family.’’
The opinion by the Seventh Circuit appears to be
in conflict with the decisions of other courts which
have taken the view that: ‘‘Whether any of the con-
ditions requisite to this defense exist is a question
of fact to be decided by the trier of fact after taking into
consideration all the surrounding circumstances.’’ People
v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110, 116
(1974); see also, People v. Harmon, 394 Mich. 625, 232
N.W.2d 187 (1975); People v. Luther, 394 Mich. 619, 232
N.W.2d 184 (1975); see also, e.g., Griego v. Umted States,
298 F.2d 845, 849 (10th Cir. 1962); United States v. Gar-
ner, 529 F.2d 962 (6th Cir. 1976).
14
The removal of the duress defense from the jury’s con-
sideration not only raises a significant question of the
role to be played by juries in contempt cases, but it also
raises fundamental questions concerning a defendant’s
right to trial by jury. As it was not Patrick’s burden to
prove duress beyond a reasonable doubt, but only to pro-
duce sufficient evidence for the jury to consider whether
the government had proved its case beyond a reasonable
doubt, traditional principles concerning the roles of judge
and jury should have been followed. See, e.g., United
Brotherhood of Carpenters and Joiners of America v. Unit-
ed States, 330 U.S. 395; Schwachter v. United States, 237
F.2d 640 (6th Cir. 1956). A decision by this Court in this
area is especially desirable in view of the increasing num-
ber of cases raising the defense of ‘‘duress.’’ E.g., United
States v. McClain, 531 F.2d 431 (9th Cir. 1976); Unjted
States v. Gordon, 526 F.2d 406 (9th Cir. 1975); United
States v. Nickels, 502 F.2d 1173 (7th Cir. 1974).
ITI,
THE SENTENCE OF FOUR YEARS IMPRISONMENT
IMPOSED ON PATRICK FOR FAILING AND REFUS-
ING TO TESTIFY AFTER A GRANT OF USE IM-
MUNITY EXCEEDS THE TRADITIONAL LIMITATION
THAT THE CONTEMPT POWER SHOULD BE EXER-
CISED TO THE “LEAST POSSIBLE POWER TO THE
END PROPOSED,” AND OTHER LIMITATIONS SUG-
GESTED BY THE STATUTES AND PRIOR DECISIONS.
Despite its conclusions that the evidence indicated a
‘sincere belief on the part of Patrick that O’Hara was a
dangerous person who seemingly presented a threat to
the safety and well-being of Patrick and his family’’, the
Seventh Circuit concluded that the sentence of four years
15
imposed on Patrick was not an abuse of discretion. This
sentence appears to be the longest yet imposed by a federal
court for the criminal contempt of failing and refusing
to testify subsequent to a grant of immunity.
Since Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821),
the judiciary has been admonished by the Supreme Court
that the contempt power must be exercised to the ‘‘leasi
possible power adequate to the end proposed.’’ 19 U.S. at
231. What the district court has done, and the Court of Ap-
peals has sanctioned, is the practical equivalent of equating
Patrick’s passive conduct to an affirmative act of perjury.’
To liken Patrick’s conduct to the crime of perjury, ignores
the substantial factual and legal issues directly and forth-
rightly raised by Patrick in challenge to the immunity
conferred upon him.
In view of the extraordinary length of this sentence
issued pursuant to a contempt citation, it is respectfully
urged that this Court review the scope of sentences in the
criminal contempt proceedings and set forth definite
guidelines for the district courts. Bloom v. Illinois, 391
U.S. 194 (1968).
1 Patrick claimed in the Court below that the district judge im-
properly considered Patrick’s immunized Grand Jury testimony in
sentencing him. It was not revealed until sentencing that the dis-
trict judge had read the grand jury testimony during the O’Hara
trial. In sum, the district judge concluded from his reading of this
testimony that Patrick was an avid witness who “took charge of
the Grand Jury to make serious accusations against Lt. O'Hara.”
He further concluded that Patrick's refusal to testify at the O'Hara
trial was an attempt to evade cross-examination and protect him-
self from a possible perjury prosecution. (Tr. 10/22/75, pp. 12, 14,
19-20, 23-5)
16
CONCLUSION
For the foregoing reasons, this Petition For Certiorari
To The United States Court Of Appeals For The Seventh
Circuit should be granted.
ee ee
Respectfully submitted,
Suerman C. Maaipson
221 North La Salle Street
Suite 1938
Chicago, Illinois 60601
312/782-5534 | A p p E N D | X
Harvey M. Srets |
7 South Dearborn Street |
Chicago, Illinois 60603
312/236-2994 ,
Counsel for Petitioner
a
a
APPENDIX A
In the
United States Court of Appeals
For the Seventh Circuit
No. 75-2014
Unirep States or AMERICA,
Petitioner-A ppellee
Leonarp Patrick,
Respondent-Appellunt
Appeal from the United States District Court for the
Northern District of Illinois, No. 75-CR-397
Prentice H. Marsuauy, Judge
Argued April 14, 1976—Decided September 23, 1976
Before Hastines, Senior Circuit Judge, Tone, Circuit
Judge, and Notanp, District Judge.*
Notanp, District Judge. This appeal arises from ap-
pellant Leonard Patrick’s conviction of the charge of
criminal contempt of court, pursuant to 18 U.S.C. §401°
* Honorable James E. Noland of the United States District Court
for the Southern District of Indiana is sitting by designation.
1 Such section provides in relevant part as follows:
§401 Power of Court
A court of the United States shall have power to punish by
fine or imprisonment, at its discretion, such contempt of its
authority, and none other, as—
od * *
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.
App. 2
and Rule 42 of the Federal Rules of Criminal Procedure.
Patrick was found guilty after a trial by jury for his re-
fusal to obey a court order directing him to answer ques-
tions during the course of a criminal trial in which he had
been granted immunity under 18 U.S.C. §$6002-6003 in
exchange for his testimony. Upon his conviction Patrick
was sentenced to a term of four years. We affirm the con-
viction below.
I,
The record herein discloses that on January 31, 1974,
Patrick was granted immunity pursuant to 18 U.S.C.
$$6002-6003 and ordered to testify before the Special
January 1974 Grand Jury for the Northern District of
Illinois. On two prior occasions Patrick had appeared
before the grand jury but had refused to testify on the
basis of his Fifth Amendment privilege against self-
incrimination. After receiving immunity Patrick appeared
before the grand jury on February 6, 1974, and gave testi-
mony concerning his knowledge of gambling activities in
the Chicago area and his past relationship with Lieutenant
Ronald O’Hara of the Chicago Police Department. Patrick
also testified before the grand jury on February 27, 1974,
and December 17, 1974, concerning the same inquiry. Pri-
marily as a result of Patrick’s testimony, O’Hara was
charged in January 1975, under a three-count indictment,
two of which counts alleged that O’Hara had failed to
report money received from Patrick on his 1968 and 1969
federal income tax returns.
The O’Hara trial commenced on June 9, 1975, before
Judge Marshall in the United States District Court for
the Northern District of Illinois. Prior to his being called
to the stand on June 10, 1975, as the government’s first
witness, Patrick was again granted immunity pursuant
to 18 U.S.C. §§6002-6003 for any testimony he might give
App. 3
at such trial. The court then ordered Patrick to testify
and advised him that no testimony compelled under such
immunity order could be used against him in any criminal
ease, except for a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the court’s
order under §$6002-6003.
After being duly sworn as a witness, Patrick stated
his name and that he resided in Chicago but refused to
answer any questions concerning his connection with gam-
bling activities during 1968-1969 and of his relationship
with O’Hara during those years. Patrick consistently jus-
tified his refusal to answer such questions by stating:
‘*T respectfully decline to answer on the ground that
my answer may tend to incriminate me and on any
other ground presented or to be presented by my
counsel.”’
Upon further inquiry by the court and a re-reading of
the immunity order, Patrick stated that he understood the
order but he continued to refuse to answer the govern-
ment’s questions. The court then found Patrick to be in
civil contempt and remanded him to the custody of the
United States Marshal.
On June 11, 1975, Patrick was returned to court and
given a chance to purge himself of civil contempt and
avoid further prosecution for criminal contempt. Again
Patrick was advised of the immunity order entered by
the court but he continued to assert the same objections
and refused to answer the government’s questions. Pat-
rick was again held pursuant to the civil contempt order
and a petition was filed for a rule to show cause why
Patrick should not be held in criminal contempt, pursuant
to Rule 42(b) of the Federal Rules of Criminal Procedure.
Trial was thereafter held upon Patrick’s plea of not
guilty, and upon conviction he was sentenced to a term
of four years.
App. 4
II.
The first issue raised by Patrick is whether immunity
conferred pursuant to 18 U.S.C. $$6002-6003 prohibits the
use of the compelled testimony in an ‘‘inconsistent decla-
rations’’ prosecution under 18 U.S.C. §1623(c)° and is,
therefore, co-extensive with the privilege against self-
incrimination under the Fifth Amendment. Patrick argues
that notwithstanding his immunization prior to testifying
before the grand jury and again prior to being called as
a witness in the O’Haia trial, he still could have been
prosecuted under $1623(c) if his testimony at trial was
materially inconsistent with his testimony before the
2 Section 1623 was enacted as part of the Organized Crime Control
Act of 1970, Pub. L. 91-452, 84 Stat. 932, and provides in_ pertinent
part as follows: '
(c) An indictment or information for violation of this section
alleging that, in any proceedings before or ancillary to any court
or grand jury of the United States, the defendant under oath has
knowingly made two or more declarations, which are inconsistent
to the degree that one of them is necessarily false, need not spec-
ify which declaration is false if—(1) each declaration was ma-
terial to the point in question, and (2) each declaration was
made within the period of the statute of limitations for the of-
fense charged under this section.
In any prosecution under this section, the falsity of a declaration set
forth in the indictment or information shall be established sufficient
for conviction by proof that the defendant while under oath made
irreconcilably contradictory declarations material to the point in ques-
tion in any proceeding before or ancillary to any court or grand jury.
It shall be a defense to an indictment or information made pursuant
to the first sentence of this subsection that the defendant at the time
he made such declaration believed the declaration was true.
App. 5
grand jury.* Therefore, Patrick alleges his assertion of
the privilege against self-incrimination was proper and
that the court erred in denying his motion to dismiss the
order to show cause on such ground. The government
responds that Patrick’s immunity would extend to protec-
tion from prosecution under $1623(c) because the use of
any immunized testimony to demonstrate Patrick’s hav-
ing made inconsistent declarations would be forbidden by
the immunity statute as interpreted in Kastigar v. United
States, 406 U.S. 441 (1972).
Our research has uncovered no cases which clearly
resolve the particular challenge brought herein to $$6002-
6003 immunity. It is well settled, however, that the grant
of use and derivative use immunity under §$6002-6003 is
co-ex‘ensive with the Fifth Amendment privilege against
self-incrimination, Kastigar v. United States, supra, 406
U.S. at 453; United States v. Cappetto, 502 F.2d 1351,
1359 (7th Cir. 1974), cert. denied, 420 U.S. 925 (1975),
and that the statute ‘‘prohibits the prosecutorial authori-
ties from using the compelled testimony in any respect,’’
* The distinguishing feature of a §1623(c) prosecution is that the
government need only demonstrate that the defendant made two or
more declarations under oath which were material to the issue in
question and were inconsistent to the degree that one of them is
necessarily false. The government need not allege nor prove which
declaration was in fact false. The primary purpose of this section was
to avoid the “two witnesses” rule of perjury prosecutions which de-
mands that the falsity of a perjured statement be established by the
testimony of two independent witnesses. See United States v. Gross,
375 F.Supp. 971, 975 (D. N.J. 1974), aff'd 511 F.2d 910, 914 (3rd
Cir.), cert. denied, 423 U.S. 924 (1975); see also 1970 U.S. Code
Cong. & Ad. News p. 4007.
This court has previously upheld the constitutionality of §1623.
See e.g. United States v. Isaacs, 493 F.2d 1124, 1155-56 (7th Cir.),
cert. denied 417 U.S. 976 (1974).
CO EE EeeV5V3oe. ae
- Se
App. 6
except a prosecution for perjury, giving a false statement,
or otherwise failing to comply with the order. Kastigar
v. United States, supra. This latter qualification recog-
nizes, for example, that if the witness commits perjury in
giving the compelled testimony, the grant of immunity
will not protect him from a perjury prosecution since no
immunity attaches to false testimony given pursuant to
the immunity order. United States v. Tramunti, 500 F.2d
1335, 1342-44 (2nd Cir. 1974).
Patrick primarily relies on the case of United States
v. Hockenberry, 474 F.2d 247 (3rd Cir. 1973), which held
that the immunity statute permits the introduction in
evidence of so much of the witness’ testimony as is essen-
tial to establish the corpus delecti of the offense of per-
jury, i.e., proving the witness made the statement. Pat-
rick thus argues that it would not be improper for the
government to use his immunized testimony in a $162.,
(c) prosecution merely for the purpose of establishing
the corpus delecti, i.e., that he made the inconsistent decla-
rations. Since the government would not have to prove
which one of the two inconsistent declarations was
false, the mere offering of proof that such declarations
were made would establish the offense. While we agree
with the court in Hockenberry that the witness’ immunized
testimony may be used to establish the fact that he com-
mitted perjury in the giving of such testimony, we do not
agree with Patrick’s assertion that such testimony could
also be used to establish the corpus delecti of an inconsis-
tent declarations prosecution. We believe such use was
not intended by Congress to come within the exception
found in §6002 that the compelled testimony may be used
in ‘‘a prosecution for perjury, giving a false statement,
or otherwise failing to comply with the order.’’ As recog-
App. 7
nized by this Court in United States v. Watkins, 505 F.2d
545 (7th Cir. 1974), this exception refers only to ‘‘future’’
perjury, false statements or non-compliance with the court
order. To interpret this perjury exception to include a
prosecution under $1623(c) for inconsistent statements,
some of which were made prior to the latest grant of
immunity, would be too broad of a reading of $6002.
The effect of inconsistent statements on immunity grants
was discussed by the Illinois Supreme Court in the recent
ease of People v. Denson, 59 Ill. 2d 546, 322 N.K.2d 464
(1975). In Denson the witness was held in contempt for
refusal to testify at trial despite her being granted im-
munity for such testimony. The witness refused to testify
on Fifth Amendment grounds arguing that such compelled
testimony could be used to show inconsistencies with her
grand jury testimony and she therefore faced the possibili-
ty of prosecution under an inconsistent declarations pro-
vision of the state perjury statute.* The court in relying
on the case of People v. Walker, 28 Til. 2d 585, 192 N.E.2d
819 (1963), held that the testimony given under the immuni-
ty order could not be used to show inconsistencies with her
grand jury testimony. Therefore, her refusal to testify
was not justifiable on Fifth Amendment grounds.
Patrick attempts to distinguish the Denson holding
on the basis that Illinois has a transactional immunity
statute, as opposed to the use immunity statute applica-
ble herein. We do not believe such distinction between
the types of immunity afforded in the Denson case and
under $$6002-6003 to be important. As recognized by the
Illinois court in Walker, perjury by inconsistent state-
ments must necessarily be shown through the use of the
‘Til. Rev. Stat., 1961, Ch. 38, Section 32-3.
App. 8
immunized testimony. We believe such use to be imprope
under Kastigar and that Congress intended immunity coy
ferred under §6002 to extend to ‘‘inconsistent declara-
tions’’ prosecutions under §$1623(c).
We therefore conclude that $$6002-6003 does not allow
use of the immunized testimony to establish the basis
for prosecution under 18 U.S.C. §1623(c) and that Pat
rick’s challenge to his immunity order on Fifth Amend-
ment grounds was improper.
ITT.
Patrick next contends that sufficient evidence was pre-
sented in support of his asserted defense of duress iv
justify having such defense submitted to the jury. At the
conclusion of the evidence the Judge ruled that insufficient
evidence had been presented to support the defense, cur-
tailed closing argument thereon, and refused to instruct
the jury as to the defense.
The parties are in agreement that a defendant is en-
titled to have the jury consider any theory of defense
which is supported by law and has some foundation in
the evidence, even though such evidence may be weak, in-
sufficient or of doubtful credibility. United States v. Leh-
man, 468 F.2d 93, 108 (7th Cir.), cert. denied, 409 U.S.
967 (1972); United States v. Vole, 435 F.2d 774, 776-77
(7th Cir. 1970). However, if the defendant fails to sus-
tain his evidentiary burden the court is duty-bound not to
instruct the jury on the defense. United States v. Cullen,
454 F.2d 386, 390 (7th Cir. 1971). Historically the courts
have struggled in attempting to formulate a quantitative
measure of the amount of evidence necessary to raise an
issue for jury consideration, but it goes without saying
App. 9
that the differing facts of each case make any meaningful
comparisons almost impossible.
Before reviewing the evidence presented below in an
attempt to determine whether Patrick satisfied his pre-
liminary burden with respect to the defense of duress,
we must initially identify the elements of such defense.
In the recent case of United States v. Nickels, 502 F.2d
1173 (7th Cir. 1974), cert. denied, 96 S.Ct. 2237 (1976),
this court was faced with a situation wherein the defen-
dant had asserted duress as a defense to the charge of
committing perjury before a grand jury. While agreeing
that duress could be a defense to such a charge, the court
held:
‘‘In any event, this Circuit follows the common law
rules that duress is a defense only if the defendant
reasonably feared immediate death or severe bodily
injury which could be avoided only by committing
the criminal act charged. United States v. Stevison,
471 F.2d 148, 147 (7th Cir. 1972), following Shannon
v. United States, 76 F.2d 490, 493 (10th Cir. 1935).’’
502 F.2d at 1177.
The Tenth Cireuit in Shannon v. United States, supra,
similarly enunciated the test as follows:
‘*Coercion which will excuse the commission of a crim-
inal act must be immediate and of such nature as to
induce a well-grounded apprehension of death or seri-
ous bodily injury if the act is not done. One who has
full opportunity to avoid the act without danger of
that kind is not entitled to an instruction submitting
that question to the jury.’’ 76 F.2d at 493.°
5 Cited with approval by this court in United States v. Cullen,
supra, 454 F.2d at 391 n. 12.
App. 10
Without attempting to fully recount the testimony pre-
sented in support of the defense of duress, we will attempt
to summarize the evidence which Patrick relies upon to
justify his refusal to answer questions at the O’Hara trial.
It is undisputed that, beginning immediately after Pat-
rick’s first immunized grand jury appearance O’Hara made
several visits to the P».rick home in an attempt to com-
municate with Patrick. On February 9, 1974, three days
after Patrick’s initial immunized appearance before the
grand jury, O’Hara appeared at the home of Patrick's
daughter, ex-wife, and aunts. When informed that Pat-
rick was not at home, O’Hara asked one of Patrick’s aunts
to tell Patrick to get in touch with him as soon as possible.
O’Hara further stated, ‘‘It’s very important that I see
him because it don’t oniy involve him, it involves his fam-
ily, too.’” When Patrick was informed of O‘Hara’s visit
he told his family that O’Hara was dangerous’ and that
they should not answer the door. The evidence suggests
that Patrick was very concerned and upset about O’Hara’s
visit and that he contacted his attorney, who thereafter
advised Patrick to leave town for the time being. Patrick’s
attorney contacted the United States Attorney’s office and
asked that O’Hara be xept away from Patrick. Patrick’s
attorney refused a government offer to provide protection
for Patrick upon the belief Patrick would not have wanted
such protection, and also upon the belief that the offer was
not bona fide.
®* Although Patrick did not actually live at this house, he visited
there daily and was in constant communication with his daughter.
This house will be generally referred to as Patrick’s home.
7 Patrick presented testimony to the effect that O'Hara had a
reputation for being a killer and quite dangerous. Patrick also sug-
gested that although he was aware that grand jury proccedings are
to be secret, O'Hara had ways of finding out the extent of Patrick's
testimony.
App. 11
Approximately one week later O’Hara made another
visit to the Patrick home and again explained that he
must get in touch with Patrick. At his February 27, 1974,
appearance before the grand jury, Patrick testified that
O’Hara had visited his home and he also gave informa-
tion he had concerning the basis for O’Hara’s reputation
as a killer. However, Patrick did not advise the grand
jury of the alleged threats made by O’Hara. Shortly
thereafter O’Hara again came to the Patrick home but
Patrick refused to answer the door. Late in the fall of
1974 O’Hara again came to the Patrick home. When in-
formed that Patrick was not at home, O’Hara allegedly
became upset and said that Patrick had better get in
touch with him or ‘‘. . . there is going to be a lot of heart-
ache for all of you.”’
Patrick again testified before the grand jury on Decem-
ber 17, 1974, and O’Hara was indicted in January 1975.
During the following May, O’Hara came to the Patrick
home and, upon being advised Patrick was not there, told
Patrick’s daughter: ‘‘Either I see your father before my
ease goes to trial or you are all going to suffer, and you tell
him not to forget it.” Upon being informed of O’Hara’s
recent visit and message, Patrick advised his attorney that
he was not anxious to testify against O’Hara. Upon being
subpoenaed to testify at the O’Hara trial on June 10, 1975,
Patrick refused to answer questions pertaining to O’Hara.
We should initially point out that the testimony pre-
sented by Patrick and others in his behalf indicate a
sincere belief on the part of Patrick that O’Hara was a
dangerous person who seemingly presented a_ threat to
the safety and well-being of Patrick and his family. Pat-
rick asserts that he was very much afraid of O’Hara and
that this fear carried over into the lives of his family
App. 12
and friends. We must point out, however, that fear, by
itself, will not legally justify or excuse a witness’ refusa!
to testify in violation of a court order. Piemonte v. United
States, 367 U.S. 556, 559 n. 2 (1961); Umited States v.
Leyva, 513 F.2d 774, 790 (5th Cir. 1975). Before Patrick
is entitled to have the jury consider O’Hara’s actions as a
defense to his refusal to obey the court’s order, he must
present evidence on all of the elements of the defense of
duress.
As the cases cited earlier indicate, the element of im-
mediacy is of crucial importance in any attempt to raise
duress as a defense to criminal charge. Although evi-
dence was presented demonstrating a reasonable appre-
hension of injury by Patrick as a result of O’Hara’s
threats, there is no evidence that such injury was present,
immediate, or impending. In light of the fact that ap-
parently no action was taken by O’Hara to carry out his
threats of the past eighteen months, we believe Patrick
failed to demonstrate the immediacy of his fear. The
record fails to disclose any evidence that O’Hara made
any attempt to contact Patrick from the time of his last
visit to the Patrick home in May until the time his trial
was to commence on June 9, 1975.
The court in the case of R. 1. Recreation Center v. Aetna
Casualty & Surety Co., 177 F.2d 603 (ist Cir. 1949), in
reaching the conclusion that no evidence had been pre-
sented on the defense of coercion, stated that ‘‘a veiled
threat of future unspecified harm .. . is not the equivalent
of an immediate threat of death or severe bodily injury.’’
Id., at 605. We believe such principle is applicable herein.
Additionally, it is our belief Patrick also failed to take
the reasonable steps available in an attempt to extricate
himself from the apparent danger. Although Patrick
App. 13
warned his family of O’Hara’s dangerous reputation and
informed his attorney of the threats, at or near the com-
mencement of the O’Hara trial he failed to take any
measures to protect himself or his family from O’Hara.
At the time of his refusal to obey the order to testify,
we believe he had an affirmative duty to inform the gov-
erment authorities and the court of the threats and of
his reluctance to testify unless adequate safeguards were
taken to protect himself and his family and prevent retali-
ation from O’Hara. At the time of his refusal to testify
Patrick made no attempt to inform the court as to his
fears, the basis therefor, and the steps he had taken to
alleviate the alleged danger so that he might comply with
the law.
As recognized in Shannon v. United States, supra, one
who has an opportunity to avoid violating the law without
subjecting himself to immediate danger may not assert
such threats as a defense and is not entitled to an in-
struction submitting such defense to the jury. 76 F.2d at
493. Under the circumstances of his case, we believe that
as a matter of law Patrick failed to take sufficient steps
to avoid subjecting himself to the alleged danger without
disobeying the order to testify.
The public is entitled to any man’s evidence concern-
ing criminal acts committed by another. Piemonte v. Unit-
ed States, supra, 367 U.S. at 559. The entire criminal
justice process could be rendered inoperable if a witness
with evidence concerning a crime could refuse to provide
such evidence based on a few vague threats of reprisal
made during the eighteen month period of time preceding
the witness’ appearance in court.
Because we believe that Patrick failed to present evi-
dence as to the immediacy of the danger to which he and
his family were subjected or that he had no other oppor-
App. 14
tunity to obey the court’s order without subjecting himself
to such danger, the court below did not err in withdrawing
the defense of duress from the jury’s consideration.
IV.
Patrick next argues the court erred in instructing the
jury as to the ‘‘willfulness’’ element of criminal contempt.
Concerning this element of the offense the jury was in-
structed as follows:
‘*An act or failure to act is ‘willfully’ done if done
voluntarily and intentionally, and with the specific in-
tent to fail to de something the law requires to be
done ; that is to say, with the purpose either to disobey
or disregard the law.”’’
The only distinction between the instruction given and
the one tendered by Patrick was the omission of the word
‘*bad’’ just preceding the word ‘‘purpose.” Similarly, ex-
cept for that slight modification, the instruction. given is
identical to the standard instruction on willfulness. See
Devitt and Blackmar, Federal Jury Practice and Instruc-
tions, §16.14 and cases cited therein. Patrick argues that
his motive in this case is crucial and therefore that ‘‘bad
purpose’’ is a necessary element of the willfulness instruc-
tion.
It is axiomatic that in determining the propriety of in-
structions they are to be viewed as a whole. United States
v. Brown, 518 F.2d 821, 826 (7th Cir.), cert. denied 423
U.S. 917 (1975); United States v. Johnson, 515 F.2d 730,
732-33 n. 7 (7th Cir. 1975). As long as the instructions
treat the issues fairly and adequately they will not be
interfered with on appeal. United States v. Isaacs, 493
F.2d 1124, 1163 (7th Cir.), cert. denied, 417 U.S. 976
(1974). The instructions given herein properly advised
App. 15
the jury that in order for Patrick to be found guilty of
criminal contempt they had to find that he acted with
specific intent and that he intentionally failed to testify
as he was directed to do. Regardless of Patrick’s motive for
his refusal to testify,* as long as such refusal was volition-
al and done with the awareness it was wrongful, the de-
gree of intent necessary for a conviction was established.
I'nited States v. Seale, 461 F.2d 345, 368 (7th Cir. 1972).
Other courts have held that the words ‘‘bad purpose’’
are not a mandatory element of a jury charge defining
wilfulness. See e.g., Cooley v. United States, 501 F.2d
1249 (9th Cir. 1974), cert. denied, 419 U.S. 1123 (1975);
United States v. Malinowski, 472 F.2d 850, 855 (3rd Cir.),
cert. denied, 411 U.S. 970 (1973). In viewing the instruc-
®In the case of United States v. Cullen, 454 F.2d 386 (7th Cir.
1971), which involved a prosecution for the willful destruction of
public records, this court discussed the problem of equating motive
with intent and stated:
In a case such as this, if the proof discloses that the prohibited
act was voluntary, and that the defendant actually knew, or
reasonably should have known, that it was a public wrong, the
burden of proving the requisite intent has been met; proof of
motive, good or bad, has no relevance to that issue. 454 F.2d at
392.
Similarly, the Fourth Circuit stated as follows in the case of United
States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397
U.S. 910 (1970) :
To read the term “willfully” to require a bad purpose would be
to confuse the concept of intent with that of motive. The
statutory requirement of willfulness is satisfied if the accused
acted intentionally, with knowledge that he was breaching the
statute .. . |[W]hatever motive may have led them to do the
act is not relevant to the question of the violation of the statute,
but is rather an element proper for the judge’s consideration in
sentencing. 417 F.2d at 1004.
App. 16
tions given herein, we believe the jury was properly ad-
vised that the crime of criminal contempt requires a specific
intent to consciously disregard an order of the court. In
light of the insufficiency of evidence to support the defense
of duress, the Judge acted properly in restricting Patrick’s
attempt to argue his motive for refusing to testify as
ordered. We find no error in the instructions as given be-
low.
V.
With regard to Patrick’s contention that the District
Judge should have disqualified himself sua sponte in this
cause, Patrick alleges the Judge’s reading and considera-
tion of his grand jury testimony caused the Judge to form
such an adverse personal opinion of Patrick that it was
incumbent upon him to have disqualified herein.
The record reflects that Judge Marshall did afford
Patrick an opportunity to request trial before another
judge but such opportunity was not accepted. Similarly,
at no time during the proceedings below did Patrick
advise the court of any desire for a different judge or
of any dissatisfaction with his impartiality.’ Patrick
argues, however, that such bias did not become appareut
until the sentencing proceedings when the Judge advised
Patrick that he had read the transcripts of his grand jury
testimony and was distressed at his open refusal to testify
in a similar manner at the O’Hara trial.
* If Patrick had made a verified motion for a change of judge pur-
suant to 28 U.S.C. §144 alleging facts sufficient to show bias, Judge
Marshall would have been required to grant such motion even though
he believed the allegations therein to be false. Berger v. United
States, 255 U.S. 22, 35-36 (1921); United States v. Sciuto, 531
F.2d 842, 845 (7th Cir. 1976).
App. 17
The law is well settled that one must raise the disqualifi-
cation of the judge at the earliest moment after knowledge
of the facts demonstrating the basis for such disqualifica-
tion. Satterfield v. Edenton-Chowan Board of Education,
530 F.2d 567, 574-75 (4th Cir. 1975); Duplan Corporation
v. Deering Milliken, Inc., 400 F.Supp. 497, 505-06 (D.S.C.
1975); Hall v. Burkett, 391 F.Supp. 237, 241 (W.D. Okl.
1975). We believe it was incumbent upon Patrick to have
raised his contentions concerning any bias on the part
of Judge Marshall as soon as the basis for such a belief
surfaced during the sentencing proceedings. Such objec-
tion would have allowed the Judge an opportunity to re-
spond to Patrick’s present allegation.
In the recent case of United States vy. Jeffers, 532 F.2d
1101 (7th Cir. 1976), this court discussed many of the
cases in which a defendant has argued the judge was im-
properly biased by reason of some prior judicial connec-
tion with the defendant. Therein the principle was recog-
nized the judge is presumed to be impartial and it was
further noted that unless facts are presented alleging
‘‘nersonal’’ as opposed to ‘‘ judicial” bias, the judge need
not recuse himself. Jd. at 1112; see also l/nited States v.
Mitchell, 377 F. Supp. 1312, 1320 (D.D.C. 1974), aff’d.
sub nom. Mitchell v. Sirica, 502 F.2d 375 (D.C. Cir. 1974),
cert. denied, 418 U.S. 955 (1974).
Under 28 U.S.C. §455(b)(1) the judge is to disqualify
himself ‘‘{Wjhere he has a personal bias or prejudice
concerning a party,...’’ It has been held that under this
statute such decision ‘‘is a matter confined to the con-
sideration and discretion of the judge himself.’’ Shadid v.
Oklahoma City, 494 F.2d 1267, 1268 (10th Cir. 1974). In
the case of United States v. Seiffert, 501 F.2d 974 (5th
Cir. 1974), it was recognized that merely prior knowledge
App. 18
by the judge of facts concerning a party is not in itself
sufficient to require disqualification. Id. at 978. Moreover,
facts learned by a judge in his judicial capacity cannot be
the basis for disqualification. United States v. Bernstein,
533 F.2d 775, 785 (2d Cir. 1976).”°
It appears that the Judge’s initial exposure to the grand
jury testimony occurred upon Patrick’s refusal to testify
during the course of the O’Hara trial. However, Patrick
himself made use of his grand jury testimony at his own
trial by offering into evidence a transcript of the testi-
mony of February 27, 1974, and December 17, 1974, and in
questioning various witnesses therefrom in order to sup-
port his defense. We believe that in light of the principles
recognized in Jeffers and the entire circumstances of the
proceedings below, the Judge’s exposure to Patrick’s
grand jury testimony does not establish improper bias
herein and the Judge did not err in presiding over the
trial and sentencing proceedings below.
VI.
In a claim similar to the one raised immediately above,
Patrick next argues that the Judge’s consideration of his
grand jury testimony in imposing the sentence herein was
an impermissible use of immunized testimony. The record
reflects that at the sentencing proceedings below the Judge
indicated to Patrick he had read the transcripts of his
grand jury testimony and had come to the conclusion that
In Bernstein the court said:
The rule of law, without belaboring the point, is that what a
judge learns in his judicial capacity—whether by way of guilty
pleas of codefendants or alleged coconspirators, or by way of
pretrial proceedings, or both—is a proper basis for judicial ob-
servations, and the use of such information is not the kind of
matter that results in disqualification. 533 F.2d at 785.
App. 19
Counsel for Patrick disagreed with the Judge’s analysis
of the grand jury proceedings but made no objection as to
his having read Patrick’s testimony. After further discus-
sion, sentence was imposed. Patrick argues that use of
immunized testimony in determining the severity of punish-
ment violates the clear command of Kastigar that such
testimony not be used against a witness ‘‘in any respect.’’
Kastigar v. United States, supra, 406 U.S. at 453.
The government responds by citing many cases stating
that the grant of immunity precludes any assertion by the
witness of his Fifth Amendment privilege. See e.g. Maness
v. Meyers, 419 U.S. 449, 462 n. 10 (1975); In Re Michael-
son, 511 F.2d 882, 889-90 (9th Cir.), cert. denied, 421 U.S.
978 (1975). It argues the privilege against self-incrimina-
tion extends only to testimony which could subject the
witness to criminal prosecution and does not protect him
once criminality has been established by a conviction.”
11 The government relies primarily on the case of United States v.
Swift, 186 F. 1002, 1011, 1017-18 (N.D. Ill. 1911) and other cases
discussed therein. See also Marcus v. Meyers, supra, wherein the
Supreme Court stated:
This Court has always broadly construed its [Fifth Amendment
privilege] protection to assure that an individual is not compelled
to produce evidence which later may be used against him as an
accused in a criminal action. (Citations omitted). The protection
does not merely encompass evidence which may lead to criminal
conviction, but includes information which would furnish a link
in the chain of evidence which an individual reasonably believes
could be used against him in a criminal prosecution. 419 U.S.
at 461.
The government also relies on cases recognizing the very broad dis-
cretion the judge possesses as to the type of information he may use
in sentencing, sec, ¢e.g., United States v. Tucker, 404 U.S. 443, 447
(1972) ; United States v. Marines, 535 F.2d 552, 554 (10th Cir.
1976) ; United States v. Johnson, 507 F.2d 826, 828-30 (7th Cir.
1974), cert. denied, 421 U.S. 949 (1975), and analogies by citing
‘ (Footnote continued)
App. 20
Therefore, the government contends any consideration by
Judge Marshall of Patrick’s grand jury testimony was
not improper since such testimony was not used as evi-
dence either to prosecute or convict him.
We believe the case of United States v. Wilson, 488
F.2d 1231 (2nd Cir. 1973), rev’d on other grounds, 421
U.S. 309 (1975), is of help in resolving the present claim
of Patrick. In Wilson, the appellants had been convicted
of criminal contempt for refusing to testify at the trial
of an accomplice, despite their having been immunized
pursuant to 18 U.S.C. §$§6002-6003. At the time of their
refusal to testify the appellants had not yet been finally
sentenced on their own guilty pleas and they argued that
any admission by them of the details of the robbery might
weigh against them at their own sentencing. Since the
judge presiding over the accomplice’s trial was also going
to impose sentence upon appellant Wilson, Wilson con-
tended the danger of adverse use of the compelled testi-
mony at sentencing precluded his grant of immunity from
being co-extensive with his Fifth Amendment privilege.
The Second Cireuit held that the appellants had failed to
properly preserve the issue for appeal and did not resolve
whether the potential use of the compelled testimony in
sentencing would be forbidden. 488 F.2d at 1233 n. 5. The
Court rejected appellant’s arguments by stating as fol-
lows:
(Footnote continued)
various cases which hold that for sentencing purposes a judge may
consider evidence obtained in violation of the defendant’s rights under
the Fourth Amendment, provided the illegally seized evidence was not
gathered for the purpose of improperly influencing the defendant’s
sentencing. See, e.g., United States v. Schipani, 435 F.2d 26, 28
(2nd Cir. 1970), cert. denied, 401 U.S. 983 (1971); Verdugo v.
United States, 402 F.2d 599, 610-12 (9th Cir. 1968), cert. denied,
402 U.S. 961 (1971).
ja
App. 21
‘*But neither Wilson nor Bryan followed what we
deemed [sic] to be proper procedure in raising the
issve of ‘forbidden use.’ If appellant Wilson doubted
the ability of Judge Lasker to put out of his mind
Wilson’s statements at Anderson’s trial, he should
nevertheless have testified as ordered, but requested
a different judge for sentencing on the robbery charge.
Similarly, if Bryan genuinely feared an increased
sentence on his guilty plea as a result of testifying
in the Anderson case, he, too, should have given the
evidence, then asked that proper precautions be taken
(e.g., sealing the record) to insure that Judge Cooper
would not be privy to the statements made under grant
of immunity. Both were, however, required to obey
the mandate of 18 U.S.C. §6002 that ‘the witness may
not refuse to comply with the order on the basis of
his privilege against self-incrimination .. .’’ 488 F.2d
at 1233 (Citations and footnotes omitted)
Although the Wilson case was later reversed by the Su-
preme Court on other grounds, the issue of whether the
possible use of compelled testimony in se. tencing is for-
bidden by Kastigar and the Fifth Amendment was not
presented to or resolved by the Court. 421 U.S. at 311-12
n. 3.
Although we agree with Patrick that the facts herein
are distinguishable from those in Wilson in that Patrick
was apparently unaware of the Judge’s consideration of
the grand jury testimony until the time of his sentencing,
we believe the principle enunciated in Wilson in valid. Even
if we assume the Judge’s consideration of Patrick’s grand
jury testimony was improper, as soon as it became known
to Patrick that such testimony had been considered in de-
termining the sentence we believe Patrick had an obliga-
tion to take the proper steps to protect his rights. If he
had sought a change of judge for sentencing purposes as
App. 22
discussed in Wilson, either his Fifth Amendment privilege
would have been protected or he would have properly pre-
served his claim for appeal.
Furthermore, as discussed above, Patrick should not be
allowed to complain about the Judge’s exposure to his
grand jury testimony in light of his own use of portions
thereof as a part of his defense. In light of the Second
Cireuit’s holding in Wilson, and the circumstances under
which Judge Marshall was exposed to the immunized testi-
mony herein, we do not believe Patrick is now entitled
to object to the use of such testimony in his sentencing.
VIL.
As to the final issue of whether the four year sentence
imposed herein was excessive, we must initially point out
that neither 18 U.S.C. §401 nor Rule 42 of the Federal
Rules of Criminal Procedure set forth a maximum sen-
tence for criminal contempt. In light of the absence of
such statutory limitation, the severity of the sentence to
be imposed is within the sound discretion of the district
court. Green v. United States, 356 U.S. 165, 188 (1958).
While the Supreme Court has imposed upon the appellate
courts the responsibility of insuring that this discretion
is not abused, Cheff v. Schnackenburg, 384 U.S. 373, 380
(1966), great reliance is to be placed on the district
court’s decision. United States v. United Mine Workers
of America, 330 U.S. 258, 303 (1947); United States v.
Seale, 461 F.2d 345, 355 (7th Cir. 1972).
Patrick argues since over half of the states have limited
the imprisonment for criminal contempt to one year or
less, see Bloom v. Illinois, 391 U.S. 194, 206-07 n. 8 (1968),
and a witness who refuses to testify before a grand jury
may not generally be imprisoned for more than eighteen
months under 28 U.S.C. §1826, the sentencing discretion
was abused in this case. Patrick also contends that even
App. 23
if the testimony concerning O’Hara’s threats do not legal-
ly excuse his refusal to testify at trial, such evidence
should have justified a shorter sentence being imposed.
Although this court in appropriate cases has reduced
or modified sentences imposed for criminal contempt,”
we are unable to find the sentence imposed herein was an
abuse of discretion. In the case of United States v. Thomp-
son, 214 F.2d 545 (2nd Cir. 1954), the Second Circuit af-
firmed a sentence for criminal contempt of four years for
the defendant’s failure to respond to a surrender order.
Similarly, in the case of United States v. Sternman, 435
F.2d 913 (6th Cir. 1970), the Sixth Circuit affirmed a sen-
tence of three years for witness’ refusal to testify before
the grand jury. Furthermore, in attempting to compare
Patrick’s conduct herein with offenses other than criminal
contempt, we find that the offenses of perjury and ob-
struction of a criminal investigation** each provide for
terms of imprisonment up to five years. In light of the
above authority four years is not per se an excessive sen-
tence for criminal contempt.
It must be emphasized that this case does not involve
merely a witness’ refusal to testify before a grand jury
concerning his knowledge of criminal activity. Patrick
made serious accusations before the grand jury concern-
ing illegal conduct on the part of O’Hara, which testimony
apparently was the primary basis for O’Hara’s indict-
ment,”® but Patrick later refused to provide the same testi-
12 See United States v. Bukowski, 435 F.2d 1094 (7th Cir. 1970),
cert. denied, 401 U.S. 911 (1971); United States ex rel. Robson v.
Malone, 412 F.2d 848 (7th Cir. 1969).
13 18 U.S.C. §1621.
1418 U.S.C. §1510.
15 Apparently the two counts against O’Hara based on Patrick’s
testimony were dismissed by the government upon Patrick’s refusal
to testify at trial.
App. 24
mony at O’Hara’s trial. Where an individual has been
indicted primarily as a result of a witness’ grand jury
testimony, the effects on the criminal justice system can
be damaging when courts are not given the power to im-
pose severe sanctions for subsequent contumacious conduct
on the part of the witness. For example, if Patrick’s
accusations were false, he subjected O’Hara to a criminal
indictment and its resulting expense and embarrassment
without giving O’Hara the opportunity to confront such
allegations and obtain the proper vindication. If, in fact,
Patrick’s allegations were true, he caused the fruitless ex-
pense of considerable time and energy by the government
in initiating criminal charges against O’Hara as well as
deprived the citizens of an opportunity to successfully pros-
ecute an individual guilty of criminal conduct. We believe
the punishment in a case such as this should be great
than in cases where a witness has merely refused to test ‘
before a grand jury.
A reviewing court cannot normally determine frem an
appellate record the seriousness of a defendant’s trans-
gressions, United States v. Seale, supra, 461 F.2d at 355,
and we conclude there is no basis for finding an abuse of
the sentencing discretion herein.
Therefore, the judgment of the district court is hereby
AFFIRMED.
A true copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
App. 25
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
December 7, 1976.
Before
Hon. Joun S. Hastines, Senior Circuit Judge
Hon. Pumip W. Tone, Circuit Judge
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
No. 75-2014 v.
LEONARD PATRICK,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 75 CR 397
Judge Marshall
The opinion in this case was entered on September 23,
1976. Since that time the defendant-appellant requested
and was granted thirty (30) days in which to file a motion
for a rehearing in banc. This petition was subsequently
denied on November 30, 1976.
The defendant-appellant was convicted of criminal con-
tempt in a jury trial and this court gave thorough con-
sideration to all the issues raised on appeal. We have con-
cluded that this request for a stay of mandate is being
made simply to avoid incarceration for the convicted ap-
pellant. Therefore,
IT IS ORDERED that the defendant-appellant’s request
for stay of mandate is hereby DENIED.
App. 26
APPENDIX C
Factual Analysis of Evidence of Duress and Coercion
On February 6, 1974, Patrick appeared before the Grand
Jury and, under compulsion of the immunity order, gave
testimony concerning Ronald O’Hara, a Chicago Police
lieutenant.
On the Saturday night following (Tr. 51, 55, 113), an un-
identified man appeared at the home of Patrick’s daughter,
ex-wife and aunts. The man asked Lillian DeChristopher,
Patrick’s 73-year old aunt, if Patrick was home. Upon
her response that he was not, the man asked where he
could get in touch with Patrick. When Mrs. DeChristopher
replied she did not know, the man said: ‘‘It’s very impor-
tant that I see him because it don’t only involve him, it
involves his family, too.’’ He then turned to leave, saying
as he did so: ‘*Tell Leonard when he gets home to get in
touch with Ronnie O’Hara.’’ After leaving the doorway,
the man walked back and forth in front of house for a few
minutes. (Tr. 52, 54)
Sharon Patrick, respondent’s daughter, returned home
from work shortly after this incident. Almost immediately
after Sharon’s arrival, Mrs. DeChristopher told her that
O’Hara had been to the house looking for Patrick. She
also told Sharon that O’Hara had said it was very impor-
tant that he speak to Patrick and, if he did not, there
would be ‘‘a lot of trouble for the whole family.’’ (Tr.
1 Patrick did not live at this home. However, he visited the home
daily and was in constant communication with his daughter. (Tr.
51) This home is sometimes hereafter referred to as the “Patrick
home.”
App. 27
113-14, 55, 57) Sharon immediately called her father, (Tr.
57, 114) She told him about her conversation with Lillian.
Patrick responded that O’Hara was dangerous, that Sharon
should not answer the door and that he would talk to her
later about the incident. (Tr. 114-15)
Patrick had earlier, at the end of 1973 or the begirning
of 1974, had conversations concerning his appearances
before the Grand Jury and O’Hara with Leonard Yaras.
(Tr. 89-90) The initial conversation was prompted by
Patrick’s telling Yaras that O’Hara was being investi-
gated by the federal government. When Patrick appeared
puzzled by Yaras’ response that he was glad to hear about
the investigation, Yaras explained that O’Hara believed
‘‘he had a license to kill people because he had a badge.”’
(Tr. 90-91) Patrick asked Yaras why he said this, and
Yaras replied that he had been told by Joseph Russo that
O’Hara had shot a man in the head on Russo’s sister’s
front lawn after the man had been wounded and was laying
on the lawn; when Russo’s sister started to scream, O’Hara
pointed his pistol at her and told her to get back in her
house or he would blow her head off. (Tr. 92) At this
same time, Yaras told Patrick about an argument he had
had with O’Hara in 1966.° (Tr. 93-4) When Yaras finished,
Patrick told him he would not have believed these things
if Yaras had not told him about them. (Tr. 95)
* Respondent offered to corroborate Yaras’ testimony with testi-
mony by Russo. (Tr. 62-8)
3 Respondent also offered to prove, through Yaras, that he had
told Patrick in 1974 about a 1966 altercation with O’Hara in which
O’Hara reached for a pistol. (Tr. 125) The offer was rejected (Tr.
126; see Tr. 94), even though government counsel, during cross-
examination, attempted to show the lack of basis for Yaras’ com-
munication to Patrick that O’Hara was a dangerous man. (Tr. 105)
a
App. 28
At the end of January or beginning of February, 1974,
Patrick told Yaras the Grand Jury had asked him ques-
tions about O’Hara and that he was ‘‘kind of distraught.’’
Yaras told Patrick he would be ‘‘awfully careful about
getting into anything concerning Mr. O’Hara because he
might get hurt.’’ (Tr. 95) Patrick said that his testimony
before the Grand Jury was secret, and Yaras replied that
O’Hara had a lot of friends and he would not doubt that
Patrick’s testimony would ‘‘leak back’’ to O’Hara. (Tr.
96)
Patrick went to his daughter’s house on Sunday, Febru-
ary 10th, the day following O’Hara’s initial visit. Lillian
and Sharon again told Patrick what had happened the
previous evening. (Tr. 57-8; 115) Patrick told his daugh-
ter not to open the door or talk to O’Hara in the future,
and that he would talk to her later. At the time Patrick
was ‘‘very upset, extremely upset, really nervous and
upset, and you could hardly talk to him. He just didn’t
know what to do for us.’’ (Tr. 115) Patrick left the house
after this conversation. (Tr. 58, 60, 115)
Earlier that morning, Patrick had called Yaras. He was
frantic and stuttering. He told Yaras to get over to his
house and to bring a pistol with him, if he had one. Yaras
drove to Patrick’s house where he met Patrick, who came
out as soon as Yaras pulled up. When Yaras asked Pat-
rick what was wrong, Patrick replied that O’Hara had
been to his home and had threatened his aunt, saying that
‘if he kept going, that Mr. Patrick and his family were
all going to be in big trouble.’’ (Tr. 97, 107) Patrick then
directed Yaras to drive to the residence of Anna Lavin,
Patrick’s attorney. (Tr. 97-8)
Patrick had also called Miss Lavin earlier that morn-
ing, and had told her he had to see her right away. Miss
App. 29
Lavin asked if the matter could wait until the following
day, and Patrick said it could not, it was urgent. Miss
Lavin then instructed Patrick to meet her at her apart-
ment building. Patrick said he would be there in about
ten minutes. (Tr. 129-30) When Patrick did not arrive in
ten minutes, Miss Lavin went down to the lobby of her
building where she saw Patrick and Yaras. Patrick ap-
peared agitated. (Tr. 131) He wanted to move away from
the lobby windows. (Tr. 99) At Miss Lavin’s suggestion
the three sat in the north end of the lobby. Patrick told
Miss Lavin that O’Hara had been looking all over for him,
and had finally come to his home the previous evening.
Patrick also told Miss Lavin that O’Hara had said to Mrs.
DeChristopher that he wanted Patrick to get in touch with
him and something to the effect that ‘‘he better get in
touch with me or he’ll be sorry.’’ (Tr. 131)
Miss Lavin told Patrick she would report the incident
to the government, and Patrick concurred. Then, either
Patrick said, or Miss Lavin suggested, that Patrick not
go home in the meantime. Miss Lavin suggested that
Patrick go to a motel. Patrick complained that O’Hara,
with his police connections, could find him anyplace. Miss
Lavin then suggested that Patrick leave the city and regis-
ter under another name, to give her time to speak to the
United States Attorney. (Tr. 132; 99-100) During the
conversation Patrick complained that O’Hara had a right
to carry a gun and he could not, that he (Patrick) had no
way of protecting himself. It was this complaint which
prompted Miss Lavin to suggest that Patrick stay in a
motel. (Tr. 132-3, 99)
Miss Lavin then arranged for Patrick to call her at two
o’clock the following day. (Tr. 132)
App. 30
Yaras drove back to Patrick’s apartment. On the way,
Patrick asked Yaras to get the name of Russo’s sister, her
phone number and her address. When they arrived at
Patrick’s apartment, Yaras drove around the block to
make sure no one was there, and he then pulled up on the
front lawn. Patrick went directly into his apartment and
returned in about fifteen minutes with his suitcase. (Tr.
100-101)
From the apartment, Yaras drove Patrick to the air-
port. On the way, Patrick asked Yaras to watch out for
his family and to keep in touch with him concerning de-
velopments that resulted from Miss Lavin’s conference
with the United States Attorney’s Office. Yaras left Pat-
rick at the entrance to either the Eastern or Northwest
Orient terminal. He saw Patrick go inside the terminal,
and then he left. (Tr. 101)
Later that day Patrick called his daughter Sharon, told
her he was going out of town, and said that if anything
happened she should call Yaras. (Tr. 116)
Anna Lavin called Peter Vaira, the Chief of the Chicago
Strike Force, as soon as she arrived at her office on Mon-
day morning, February 11. An appointment was made
for 11 a.m. She met with Vaira at that time; to the best
of her recollection, her office associate, Edward Calihan,
was present during this meeting. During the meeting she
asked Vaira to ‘‘please tell your witness to stop bothering
my client.’’ (Tr. 134) She did not ‘‘think [she] had to
identify his witness as Ronnie O’Hara because we both
know [sic] of whom [she] was speaking.’’ (Tr. 134) She
then repeated to Vaira substantially what Patrick had
told her the previous day and again asked Vaira to tell
O’Hara to stay away from her client. Vaira said: ‘‘Do
you want me to get a United States Marshal to accompany
App. 31
him?’’? (Tr. 134) Miss Lavin told Vaira she did not think
Patrick would want that, and she thought that would give
the illusion that Patrick was a government informant,
which he was not. (Tr. 134-5) She did not regard Vaira’s
offer as a bona fide offer to protect Patrick and, as a con-
sequence, never communicated this offer to Patrick. (Tr.
143, 147)
During Patrick’s absence, some time around the middle
of February, his son-in-law, Earl Singer, as was his prac-
tice, had occasion to be at the Patrick home. While Singer
was in the house, O’Hara rang the doorbell. One of the
aunts answered the door. O’Hara asked if Patrick was
home. Upon being told that Patrick was not home O’Hara
asked again: ‘‘Are you sure he’s not home?’’ When the
aunt replied that he was not, O’Hara said: ‘‘Will vou tell
Mr. Patrick to get a hold of me, that it not only concerns
him but it regards the balance of his family as well.’’ (Tr.
71-3)
Two days later, Singer saw O’Hara driving in the
vicinity of the Patrick home. He saw O’Hara again a
couple of days later in the vicinity of the Patrick home.
Patrick was not in town on either occasion. (Tr. 73)
Yaras saw Patrick somewhere around the 15th or 17th
of February. (Tr. 101) At that time he gave Patrick
a large manila envelope containing Russo’s sister’s name,
address and phone number and several clippings about
O’Hara. (Tr. 102)
Patrick reappeared before the grand jury on February
27. At that time he told the grand jury that O’Hara
had been to his family’s house and that O’Hara had a
reputation as a killer. Upon request of the Department
of Justice attorney, he furnished the grand jury with
Russo’s sister’s name, address and telephone number.
App. 32
(See R. 38-39) At either this grand jury appearance, or
a subsequent one, Miss Lavin, who accompanied Patrick
to all grand jury appearances and who stood in the hall-
way outside of the grand jury room while Patrick testified,
again requested Mr. Vaira to keep O’Hara away from Mr.
Patrick.* (Tr. 135-6)
In late February or early March, Singer was at the
Patrick home with Patrick. The doorbell rang. Patrick
showed unusual nervousness. Singer went to the door,
looked through the peephole, and recognized O’Hara.
Without opening the door he went back to Patrick and told
him O’Hara was at the door. Patrick said not to answer
the door, that O’Hara was a killer who could harm the
family. Patrick was very nervous at this time. He made
Singer nervous. (Tr. 75-6)
One evening in the late fall or very early winter of
1974, O’Hara came to the Patrick house again. When
Sharon Patrick answered the doorbell he told her he was
looking for her father. Sharon said he was not home.
O’Hara replied: ‘‘Well, what’s going on? Is he trying
to duck me? If he is, tell him to cut it out, otherwise
there is going to be a lot of heartache for all of you.’’
Although disturbed by this, Sharon said she would give
her father the message and closed the door. (Tr. 116)
Later that night Patrick called his daughter. She told
him O’Hara had come to the house, was looking for him,
and had said that, if he didn’t reach him, they were
* Because Miss Lavin recalled advising Vaira that O’Hara had
been in contact with Patrick’s daughter Sharon (Tr. 136), it is most
probable that this conversation between Miss Lavin and Mr. Vaira
occurred on December 17, 1974. (See, infra, App. 33)
App. 33
all going to have a lot of heartache. Patrick became
angry that Sharon had answered the door when he had
previously told her not to do so. (Tr. 117)
Patrick testified before the grand jury again on Decem-
ber 17.2. He was accompanied by Anna Lavin. As previ-
ously recited (see, supra, App. 32, note 4), Miss Lavin
advised Vaira that O’Hara had been to see Patrick.
O’Hara was indicted in January, 1975. Two counts of
the three-count indictment (G.Ex. 4) charged, generally,
that O’Hara failed to report as income certain monies
received in 1968 and 1969 from Patrick and one Benny
Epstein, deceased. This indictment was assigned to Judge
Marshall for trial. (R. 3, 4)
In May 1975, O’Hara again came to the Patrick house.
(Tr. 117) When Sharon automatically opened the door,
O’Hara said he wanted to talk to her father. Sharon told
O’Hara that her father wasn’t there. O’Hara said:
‘*Rither I see your father before my case goes to trial
or you are all going to suffer, and you tell him that, and
tell him not to forget it.’’ (Tr. 117-18)
Patrick called his daughter that night, as he always did.
She told him O’Hara had been there and what he had said.
Patrick told her not to open the door again under any
circumstances, to keep her car in the garage, and to let
someone know where she was at all times. (Tr. 118-19)
Patrick also told her he wanted her to see Miss Lavin
with him within the next few days. (Tr. 119) Subsequent
5 As a result of Patrick’s three immunized grand jury appearances,
the Internal Revenue Service commenced proceedings against Patrick
to collect substantial taxes which it claimed he owed as a result of
wagering activities. See Patrick v. United States, 524 F.2d 1109
(7th Cir. 1975).
App. 34
to this phone conversation, Sharon observed that her father
was ‘‘very uptight and very shaky and very upset * * * *”’
(Tr. 121)
Patrick and his daughter met with Miss Lavin at the
end of May.® or beginning of June. Sharon told Miss
Lavin what had occurred during O’Hara’s last visit. (Tr.
120, 137)
On June 5, Miss Lavin met with Mr. Henderson, one
of the prosecutors in the O’Hara case. She ‘‘indicated
that Mr. Patrick was not too enthusiastic about testifying.’’
(Tr. 138) ‘ Henderson said that Patrick was not that im-
portant as the government had O’Hara on the third count.
Subsequently, Miss Lavin agreed to accept service of a
subpoena for Patrick. One of the prosecutors asked if
Patrick would consent to being ‘‘pre-tried’’ for the case.
After checking with Patrick, Miss Lavin told the prose-
cutors he would not, but she would like to speak to them.
Later that day she saw Mr. Henderson and told him the
government should prepare for the contingency that Patrick —
would assert the Fifth Amendment and refuse to testify.
(Tr. 140) Henderson said something about Patrick’s go-
ing to jail, and Miss Lavin replied ‘‘there are worse things
than going to jail.’’ At that point, Assistant Department
of Justice Attorney Ward joined them and Miss Lavin
repeated her earlier conversation with Henderson. (Tr.
140)
® Yaras and Calihan were present but were not parties to the con-
versation which took place at this meeting. (Tr. 117, 119-20)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.