Appeals from the United States District Court for the Central District of Illinois, Springfield Division. Nos. 85-CR-30060-Richard J. Mills, Judge.
Before POSNER and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
FLAUM, Circuit Judge. Defendants Schwener and Ryan were each placed in civil contempt for refusing to testify before a federal grand jury. Each defendant failed to purge himself of the civil contempt, and each was subsequently convicted of criminal for the same refusal to testify. They now appeal their convictions, arguing, inter alia, that the criminal contempt proceedings against them were barred by the double jeopardy clause and by res judicata. We affirm the defendants' convictions.
The facts as to each defendant are similar. In December, 1983, defendant Schwener pleaded guilty to cocaine trafficking and related tax charges in federal court, and was sentenced to seven years imprisonment. The plea agreement specifically stated that Schwener understood his testimony would later be asked for by a grand jury. In January, 1984, Schwener was ordered to testify before a federal grand jury about his knowledge of drug trafficking. The order granted Schwener federal statutory use immunity, under which his testimony before the grand jury could not be used to prosecute him except for "perjury, giving a false statement, or otherwise failing to comply with the order." 18 U.S.C. § 6002 (1982).
Schwener appeared before the grand jury but refused to identify all of his drug suppliers, claiming that he feared retribution against himself and his family. On January 27, 1984, the court placed Schwener in civil contempt under 28 U.S.C. § 1826 for this refusal to testify. The contempt order mandated that he be jailed until he testified or until the term of the grand jury expired, whichever occurred first. The term of the grand jury expired on June 7, 1985, and on that day Schwener, having failed to testify, was indicted for criminal contempt under 18 U.S.C. § 401(3). After Schwener's motion to dismiss the indictment was denied, he pleaded guilty. He was sentenced to two years imprisonment, to run consecutively with his previous sentence.
In July, 1984, defendant Ryan pleaded guilty in Illinois state court to unlawful delivery of a controlled substance and was sentenced to six years imprisonment. In October of 1984, Ryan was ordered to appear before a federal grand jury and testify about certain alleged drug trafficking activities. Like Schwener, Ryan had received federal statutory use immunity pursuant to 18 U.S.C. § 6002 but nevertheless refused to testify before the grand jury; the record does not show for what reason. Ryan was placed in civil contempt under 28 U.S.C. § 1826 and jailed until he testified or until the term of the grand jury expired, whichever occurred first. On June 7, 1985, although the term of the grand jury had not yet expired, Ryan was indicted for criminal contempt under 18 U.S.C. § 401(3). After his motion to dismiss the indictment was denied, Ryan pleaded guilty and was sentenced to two years imprisonment, to be served consecutively with his prior sentence.
Schwener and Ryan, together and separately, raise a number of objections to their convictions. We consider the arguments made by both defendants first.
First, Schwener and Ryan both argue that the imposition of civil and criminal penalties for their refusals to testify before the grand jury violates the double jeopardy clause of Fifth Amendment. Schwener also invokes "res judicata or collateral estoppel" to challenge his conviction. Second, Schwener and Ryan argue that the government was precluded from indicting them for criminal contempt until the term of their civil contempt sentences ended. We reject both of these arguments.
The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. Amend. V. However, "Congress may impose both a criminal and civil sanction in respect to the same act or omission; for the double clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." United States v. One Assortment of 89 Firearms, 465 U.S. 354, 359 (1984) (emphasis added) (quoting Helvering v. Mitchell, 303 U.S. 391, 399, 82 L. Ed. 917, 58 S. Ct. 630 (1938)). Thus, the Supreme Court has held on several different occasions that the imposition of civil and criminal contempt sanctions for the same conduct does not violate the double jeopardy clause. See Yates v. United States, 355 U.S. 66, 74, 2 L. Ed. 2d 95, 78 S. Ct. 128 (1957); Rex Trailer Co. v. United States, 350 U.S. 148, 150-51, 100 L. Ed. 149, 76 S. Ct. 219 (1956); United States v. United Mine Workers of America, 330 U.S. 258, 298-99, 91 L. Ed. 884, 67 S. Ct. 677 (1947).*fn1
Similarly, sanctions for civil and criminal contempt that arise out of the same conduct do not violate the double jeopardy rule against "successive prosecution and cumulative punishment for a greater and lesser included offense," Brown v. Ohio, 432 U.S. 161, 169, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977), ...