Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 CR 271--George W. Lindberg, Judge.
Before Coffey, Easterbrook, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge.
Mohammed Mabrook was convicted of mail and wire fraud after he convinced his friends and associates to invest over one million dollars in a business he knew was failing. He now appeals arguing that the district court abused its discretion in making the various contested trial rulings; and that it erred in imposing sentence. We disagree and affirm.
Mabrook owned Global Chemical, a small company in the business of selling a chlorine substitute for swimming pools, Oxydyne. Mabrook hired Ioanis Paneras to be the company's national sales manager. Paneras, a con man, quickly began attracting business using false claims, documents, and promises. Mabrook was using the same methods to lure investors.
Mabrook convinced three individuals to invest over one million dollars in Global Chemical using false purchase orders and financial statements and exploiting friendships and associations. Once he had the money, he needed to quell concerns about the investments. Mabrook repeatedly assured the men that the Oxydyne shipments would be sent, but that he first had to wait for EPA approval.
Eventually the house of cards began to fall. Paneras was convicted of defrauding the distributors he recruited, and for other crimes as well. He began giving the government information about Global Chemical and Mabrook. Mabrook was eventually convicted after a jury trial, and although Paneras did not testify at trial, the evidence Paneras gave to the authorities was instrumental in Mabrook's conviction.
A. The District Court Did Not Abuse Its Discretion at Trial
1. No Sixth Amendment Violation
Mabrook argues that the district court denied him a fair trial when it allowed Paneras, who had already been convicted for mail and wire fraud, to assert his Fifth Amendment privilege, a finding we review for an abuse of discretion. United States v. Kaufmann, 985 F.2d 884, 898 (7th Cir. 1993). When a potential witness indicates that he will likely invoke his privilege against self-incrimination, the district court should ensure that the witness cannot possibly incriminate himself. If a witness's testimony may make him vulnerable to prosecution, the trial court may allow him to invoke his privilege and refuse to testify. Gleason v. Welborn, 42 F.3d 1107, 1109 (7th Cir. 1994). In deciding whether the district court abused its discretion in denying Mabrook's request to call Paneras as a witness and allowing Paneras to invoke the Fifth Amendment, we must remain mindful that Mabrook's Sixth Amendment right to the compulsory process does not trump Paneras's Fifth Amendment right against self-incrimination. Id.
First, Mabrook argues that the district court should have permitted him to question Paneras about matters outside the statute of limitations. However, after conducting a hearing, the district court found that Paneras would not be insulated from state or federal prosecution if he testified. In fact, the very real possibility existed that Paneras would expose himself to conspiracy, RICO, or 18 U.S.C. § 1001 charges if he testified at Mabrook's trial. Thus, even though Paneras had already been prosecuted for mail and wire fraud, the possibility that other charges, like conspiracy, could be brought against Paneras based on his testimony weighs heavily in determining whether the court abused its discretion. Cf. United States v. Pardo, 636 F.2d 535, 544 n.24 (D.C. Cir. 1980) (had the government suggested that the witness faced conspiracy charges, then a strong case would have been made for either granting immunity or dismissing the charges against the defendants).
Mabrook also claims that Paneras should have taken the stand and asserted his privilege in front of the jury. However, it would have been improper for the jury to draw any inference from Paneras's exercise of his Fifth Amendment privilege. United States v. Taylor, 154 F.3d 675, 684 (7th Cir. 1998). Mabrook disagrees, citing United States v. Hartmann, 958 F.2d 774, 789 (7th Cir. 1992), in support. However, we have never found that it is permissible for a jury to make an inference from the invocation of a witness's assertion of the Fifth Amendment and Hartmann only references a First Circuit case stating that the jury may make an inference from the assertion of the privilege during cross-examination. United States v. Kaplan, 832 F.2d ...