Appeal from the United States District Court for the Eastern District of Wisconsin. No. 85 CR 40--Thomas J. Curran, Judge.
Wood, Jr., Cudahy, and Flaum, Circuit Judges.
In August and again in November of 1983 John Monteleone refused to answer questions put to him before a federal grand jury in Milwaukee, Wisconsin. Since his second refusal followed a judicial grant of immunity, he was held in civil contempt and lived out the life of the grand jury in jail. He was later convicted of criminal contempt based on the same refusal to testify, and now appeals that conviction. His principal argument in this court is that he should have been warned during the immunity and civil contempt proceedings that he could face additional prison time under a criminal conviction based on the same conduct. We find that no such warning is required, and for the reasons set forth below we affirm his conviction.
In August of 1977 a bomb was discovered in an automobile in Milwaukee. On November 13, 1979 John Monteleone appeared before a federal grand jury investigating the attempted bombing and refused to answer questions, asserting his Fifth Amendment privilege against self-incrimination. The government did not pursue his testimony further at that time.
Monteleone was again called before a federal grand jury in 1983. This grand jury was investigating possible obstruction of justice charges in connection with Monteleone's 1979 refusal to testify on the attempted bombing. When Monteleone first appeared on August 2, 1983 he refused to testify, again asserting his Fifth Amendment privilege. The government filed a petition under 18 U.S.C. § 6002 requesting that he be immunized from prosecution. At a hearing on October 5, District Judge Terence T. Evans granted the petition and ordered Monteleone to testify, advising him in open court that further refusal could result in his being "held in contempt." He also stated that the government could ask him to "find [Monteleone] in contempt and punish him accordingly." No explicit reference to civil or criminal contempt was made.
Monteleone next appeared before the grand jury on November 1, 1983. He read a brief statement indicating that he had refused to testify in 1979 solely on the advice of his attorney, but refused to answer any questions despite acknowledging that he had been immunized by Judge Evans. The government immediately asked that Monteleone be held in civil contempt and incarcerated under 28 U.S.C. § 1826. At a hearing that same day Judge Evans ruled that Monteleone's prepared statement did not comply with his obligation to testify, held him in contempt and sent him to jail, informing him that he could "purge himself of contempt at such time as he convinces me that he is willing to appear before the grand jury and answer questions as asked."
On January 17, 1984 the government brought Monteleone once more to the grand jury room. The prosecutor reminded him that he had already been held in civil contempt and noted that his refusal to testify "[could] also be considered a crime as well as a civil matter." Monteleone again declined to answer any questions. Three days later the grand jury's term expired and Monteleone was released. He had served two months and three weeks on his civil contempt citation.
On March 28, 1985 the government applied under Rule 42(b), Fed.R.Crim.P., for issuance of a notice of prosecution for criminal contempt against Monteleone based on his refusals to testify in November of 1983 and January of 1984. Notice was entered in the district court by Judge Thomas J. Curran. The case was tried to a jury on a record consisting largely of transcripts of Monteleone's appearances before the grand jury and before Judge Evans. The jury found Monteleone guilty, and Judge Curran sentenced him to a term of four years' imprisonment.
Presenting a question of first impression in this Circuit, Monteleone asserts that his due process rights were violated by Judge Evans' failure to advise him during the civil contempt proceedings that his recalcitrance could also result in separate and additional criminal penalties. He argues that a witness is unlikely to make the distinction between the coercive nature of civil contempt and the "penalty" of criminal contempt, and that without a specific warning a witness in his position is led to believe that the civil sanction is the full penalty for his refusal to testify.*fn1
In his briefs in this court Monteleone refers to Judge Evans' failure to warn him "at the time the court imposed the coercive sanction of civil committment for the life of the grand jury . . ." The government correctly points out that at the time Monteleone was actually held in civil contempt (November 1, 1983) he had already committed the criminal act of refusing to testify despite immunity; a "warning" delivered at that point would be ineffective because it was then beyond Monteleone's power to erase his criminal conduct by agreeing to testify. See United States v. Petito, 671 F.2d 68 (2d Cir.), cert. denied, 459 U.S. 824, 74 L. Ed. 2d 60, 103 S. Ct. 56 (1982).*fn2 At oral ...