Appeal from the United States District Court for the Eastern District of Wisconsin. No. 91 CR 210 Thomas J. Curran, Judge.
Before BAUER, CUDAHY, and EVANS, Circuit Judges.
Manuel Hurtado and Julio Ortiz were arrested on September 7, 1991, in connection with a distribution of heroin charge. Ortiz, however, was released by the arresting officers shortly after being stopped. Hurtado was less fortunate; he was taken into custody.
Three days after the arrest, on September 10, 1991, Ortiz and Hurtado were charged in an indictment alleging conspiracy to possess heroin with intent to distribute and the actual distribution of 5 ounces of heroin. An arrest warrant was issued for Ortiz, but Hurtado, who was still in custody, immediately faced the music. A few months later, Hurtado pled guilty to the conspiracy charge. He was sentenced to serve a term of 62 months.
Meanwhile, Ortiz remained on the lam until he was apprehended on the outstanding warrant almost three years later in August of 1994. His case proceeded to trial in the fall of 1994 and Hurtado, still serving his sentence, was produced in court to offer testimony on the government's behalf. The government secured an order immunizing Hurtado and compelling his testimony in connection with the prosecution of Ortiz. Hurtado was ordered by the district judge, under 18 U.S.C. sec. 6002, to answer questions and otherwise provide evidence without asserting his privilege against self-incrimination. After answering a few questions, Hurtado generally refused to talk, and he left the stand without fully complying with the order of the district judge. Although Hurtado did not help the government, he didn't do much good for Ortiz either, as the jury found him guilty of both the conspiracy and substantive heroin charges in the indictment.
With its victory over Ortiz secured, the government again turned its fire on Hurtado by filing an application for notice of prosecution for criminal contempt pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. The notice sought to bring Hurtado to heel for his disobedience of the court's order to give testimony during Ortiz's trial. The district court entered a notice of prosecution for criminal contempt and an order to show cause requiring Hurtado to answer the charge and demonstrate why he should not be punished. Hurtado waived his right to a jury trial on the issue and stipulated that the court could enter a finding of criminal contempt under 18 U.S.C. sec. 401(3). Hurtado was then adjudged guilty of criminal contempt and later he and Ortiz were sentenced, with Ortiz catching a term of 78 months and Hurtado drawing a 37-month term to run consecutive to the time he still owed on the underlying heroin conspiracy conviction. Ortiz and Hurtado both appeal, raising narrow issues for our review. Hurtado only challenges the sentence he received for contempt, and Ortiz only complains about the denial of a motion to suppress evidence seized at the time of his original arrest back in September of 1991. We turn first to the issue raised by Hurtado.
Although the potential for the issuance of a criminal contempt citation lurks in every case, they are not the usual grist of the district court. They are, in fact, rare proceedings indeed, which explains why everyone here -- the prosecutor, Hurtado's attorney, and the judge -- were a bit uncertain about how the law was to be applied. When Hurtado declined to testify as ordered (he did respond to some questions, and in one answer, much to the delight of the government we suspect, he actually said he knew Julio Ortiz and recognized him in court) he was told he faced the potential of a charge of criminal contempt. Hurtado's lawyer and the prosecutor thought the potential penalty "might be up to six months" but the judge said it could be limitless and that "this type of offense is not governed by the guidelines." Hurtado, a Mexican with a sixth-grade education who didn't speak English (he had an interpreter), was, it appears, totally befuddled.
When Hurtado admitted the charge and consented to the entry of the finding of contempt, he and his lawyer had the following exchange:
Counsel: Manuel, do you remember that the judge told you just a few moments ago that he does not believe that this case is governed by the sentencing guidelines?
Counsel: Do you remember me telling you that I disagree with the judge and I believe that this case is governed by the guidelines?
Hurtado: Yes, you told me.
The attorney then told Hurtado that the judge had given him "an opportunity to write a brief in an attempt to convince him that the guidelines apply." Hurtado said "yes" to a question which asked if he understood that there is "no guarantee that I will be able to convince the judge that the guidelines apply."
Hurtado's lawyer must have done some persuasive convincing because two months later, when the case returned to court for sentencing, everyone assumed the guidelines applied. Applying the guidelines resulted in a sentencing range of 37 to 46 months. A 37-month sentence was selected.
The federal sentencing guidelines do not specify a base offense level for criminal contempt. But the guidelines, nevertheless, apply to the charge. This, of course, is not to be confused with summary criminal contempt where a judge may punish quickly a contemptuous act committed in her presence. See Rule 42(a) of the Federal Rules of Criminal Procedure. As we noted earlier, the proceedings here were under Rule 42(b).
Chapter 2 of the guidelines, the chapter relating to offense conduct, contains part J, which concerns offenses involving the administration of justice. Section 2J1.1 deals with "contempt," but it's not helpful for it simply says "[a]pply sec. 2X5.1 (Other Offenses)." Section 2X5.1 tells the sentencing judge that "[i]f the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline." The government and Hurtado part company on the question of what is the "most analogous" offense to Hurtado's conduct of criminal contempt. Hurtado argued that the "most analogous" offense was "Failure to Appear by Material Witness" under sec. 2J1.5, which carries a base offense level of 6 (a 3-level increase can be ordered if a "substantial interference with the administration of justice" occurs) when the failure to appear relates to a felony. The government argued that Hurtado's conduct was an obstruction of justice -- in the prosecution of Ortiz -- and therefore sec. 2J1.2 was the most analogous provision. The correct application ...