Appeal from the United States District Court for the Central District of Illinois, Springfield Division. No. 87-CR-30061-Richard Mill, Judge.
Wood, Jr., Coffey, and Easterbrook, Circuit Judges.
Per Curiam. The sentencing of defendant Terry Wayne Turner is the only issue.
Turner was charged in a three-count indictment with conspiracy to receive, possess, and pass counterfeit federal reserve notes, in violation of 18 U.S.C. § 371 (Count I); knowingly receiving counterfeit federal reserve notes, in violation of 18 U.S.C. § 473 (Count II); and knowing possession and concealment of counterfeit federal reserve notes with the intent to defraud, in violation of 18 U.S.C. § 472 (Count III). Pursuant to a plea agreement, Turner pleaded guilty to Counts I and III, and Count II was dismissed. The defendant was sentenced on December 7, 1987, to a term of five years' imprisonment on Count III. On Count I, Turner received a five-year term of probation consecutive to the sentence imposed on Count III.
These charges stemmed from a conspiracy to distribute counterfeit federal reserve notes. A co-conspirator printed approximately $250,000 worth of counterfeit money. Other co-conspirators, one of whom was Flynt Talkington, purchased the lot from the printer for $3,000 and circulated the notes around the country. Turner, for $300 in legal tender, purchased from Talkington counterfeit notes with a face value of $3,000. Subsequently, with two additional co-conspirators, Turner passed counterfeit notes with a face value of about $300 in Kentucky and Ohio. The defendant and his friends destroyed the balance of the counterfeit purchase.
On October 10, 1986, an Assistant United States Attorney apparently offered the defendant informal transactional immunity: if he would cooperate, he would not be indicted. The record does not indicate that a court order authorizing the grant of immunity had been sought or entered. In spite of the government's offer, when called before the grand jury on two subsequent occasions, Turner relied on his fifth amendment privilege against self-incrimination and refused to testify. The parties do not dispute that these first two grand jury appearances by the defendant were unproductive for the government. On December 2, 1986, the government withdrew its offer. Turner was indicted on June 22, 1987.
The defendant then entered into a written plea agreement with the government. This agreement provided for the defendant's pleas of guilty to Counts I and III, as amended; the dismissal of Count II; the dismissal of a separate indictment involving drug offenses; the defendant's cooperation with the government in any related investigation; and the defendant's truthful testimony before any federal grand jury or in any district court proceeding. The government agreed to make known to the sentencing court the extent of Turner's cooperation, but the government was free to make any sentencing recommendation it deemed appropriate.
Following the plea agreement, Turner appeared before the grand jury a third time. This appearance is to be distinguished from the two prior times when he refused to testify under the offer of informal immunity. There is little in the record to show what actually happened before the grand jury on this last appearance, except the government's characterization of it. Those grand jury proceedings were not made a part of this record, sealed or unsealed.
Two sentencing problems arise from the defendant's three grand jury appearances. The first problem requires us to assess Turner's actions in refusing to testify under the informal immunity offer, and the effect on his sentencing; the second requires us to determine whether Turner lived up to his plea agreement. To resolve these problems, we must closely examine the record.
Turner testified at his sentencing hearing. During cross - examination of the defendant by an Assistant United States Attorney, the following exchange took place concerning the defendant's first two grand jury appearances, at which he had refused to testify:
Q. And at that time when you were given immunity and asked to appear before the Grand Jury, you refused to testify, didn't you?
Q. You refused to assist the Government in this investigation, isn't that right?
Q. Now, I think you testified on direct examination at you felt remorseful and sorry that you got involved with the counterfeit money.
Q. But you decided not to help the Government in the investigation, isn't that right?
A. I-I did-well, I took-went to the Grand Jury after that and told you-
Q. Mr. Turner, in October when you were given the immunity agreement, you refused to go into the Grand Jury and testify.
A. Yeah, I recall, but I recall that I didn't get it signed by a judge neither like everybody else did.
Q. Well, were you willing to cooperate at that time with the Government in the investigation?
A. If it would have been signed by a judge.
I mean, everybody else at that time had theirs signed by a judge, and I didn't. So -
(Emphasis added.) Thus, Turner explained, his refusal to testify at his first and second grand jury appearances was based on the absence of a court order authorizing the government's grant of immunity.
Shortly after this exchange, additional cross-examination took place concerning the subsequent grand jury testimony in accordance with the plea agreement:
Q. You refused to assist the Government in uncovering this criminal venture that you say you're remorseful for, isn't that right?
Q. In fact, the first time that you offered any assistance whatsoever to the Government is after you had pled guilty to the offense, isn't that correct?
Q. Prior to that time you had not identified where you obtained the counterfeit money from, had you?
Q. Prior to pleading guilty, you had not told the Government where you got the counterfeit money from, isn't that right?
Q. Prior to pleading guilty, you didn't tell the Government how much money you had obtained from Flynt Talkington, did you?
Q. Had you talked with the Government at all about counterfeit money prior ...