United States v. Winter

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 94-2302

UNITED STATES OF AMERICA,

Appellee,

v.

HOWARD T. WINTER,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Thornton E. Lallier for appellant.

George W. Vien, Assistant United States Attorney, with whom

Geoffrey E. Hobart, Assistant United States Attorney, and Donald

K. Stern, United States Attorney, were on brief for the United

States.

November 22, 1995

STAHL, Circuit Judge. Appellant Howard T. Winter
STAHL, Circuit Judge.

refused to testify in a former codefendant's criminal trial

despite a grant of immunity. The United States District

Court for the District of Massachusetts adjudged Winter in

criminal contempt under Fed. R. Crim. P. 42(a) and imposed a

six-month sentence consecutive to one under which he was

already incarcerated. In this appeal, Winter challenges

certain aspects of the summary contempt proceedings and the

resulting sentence. We affirm.

I.
I.

Factual Background and Prior Proceedings
Factual Background and Prior Proceedings

In January 1992, a grand jury returned a multiple-

count indictment against Winter and two codefendants, Gennaro

Farina and Kenneth Schiavo. In May 1993, Winter and Farina

each pleaded guilty to the indictment, received the mandatory

minimum sentence of ten years imprisonment, and were

accordingly incarcerated. In September 1994, after futile

efforts to interview Winter, the government obtained an

immunity order pursuant to 18 U.S.C. 6002 and 6003 to

compel his testimony in the criminal trial against his former

codefendant, Schiavo.

Schiavo's trial began on November 14, 1994. During

the following two days, on November 15 and 16, 1994, the

district court held a contempt hearing because Winter

indicated that he would refuse to testify despite the

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immunity order. At the hearing, Winter stated that his

refusal to testify was based upon the Fifth Amendment of the

United States Constitution and "other reasons." After the

court explained to Winter that, because of the immunity

order, the Fifth Amendment was not a valid basis to refuse to

testify, Winter proffered his non-Fifth-Amendment reasons for

his refusal, to wit: (1) that his previous counsel told him

that his guilty plea would not in any way affect Schiavo, and

that, if Winter had known he might be forced to testify

against Schiavo, he would not have so pled; and, (2) because

he had consistently maintained to the government his resolute

unwillingness to testify against Schiavo, the government was

being "vindictive" by forcing him to choose between

testifying or suffering a contempt judgment. Winter also

implied that he feared for his own safety should he testify

against Schiavo.1

During the second day of the contempt hearing,

Richard Egbert, Winter's counsel during his guilty plea

proceedings, testified as to Winter's understanding that a

guilty plea would not have an adverse effect on Schiavo.

Egbert further stated that he told Winter that, in his

1. Winter's only statement suggesting this fear was the
following: "When [the government] sent me to Louisburg, . .
. they leaked the rumor out that I had rolled over, with one
intention, to try and get me killed when I was doing my time
down there." At the time Winter made this statement, the
court was in the process of explaining immunity protections
and did not pursue his apparent claim of fear.

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opinion, it was unlikely the government would attempt to

force Winter to testify against Schiavo. Egbert also

testified that Winter entered his guilty plea without a plea

agreement or any other agreement with the government.

The district court found that, despite Winter's

claimed misunderstanding of what could happen, the government

never promised that it would not immunize and call him to

testify against Schiavo, nor did Egbert tell him that. The

court found that the government's conduct leading up to and

including its efforts to secure Winter's testimony did not

violate due process. The court further found that Winter's

testimony would be probative of material issues in Schiavo's

trial, and because of an earlier suppression ruling, was not

cumulative to other evidence.

Throughout the contempt proceedings, the district

court made clear that it was operating under Fed. R. Crim. P.

42(a)2 which provides for summary disposition of criminal

contempt. The court did state, however, that it "would

2. Rule 42(a), pertaining to summary disposition of criminal
contempt, provides:

A criminal contempt may be punished
summarily if the judge certifies that the
judge saw or heard the conduct
constituting the contempt and that it was
committed in the actual presence of the
court. The order of contempt shall
recite the facts and shall be signed by
the judge and entered of record.

Fed. R. Crim. P. 42(a).

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consider reducing the contempt or eliminating it entirely,

should [Winter] decide to testify." In making this

statement, the court expressly relied upon United States v.

Wilson, 421 U.S. 309, 312 (1975). The court repeated several

times its offer to purge Winter of contempt and any sentence

imposed because of it if he decided to testify before the

close of the government's case in the Schiavo trial. After

Winter refused to obey its direct order to testify, the court

held him in contempt and summarily sentenced him to six

months imprisonment.

After hearing argument by counsel, the district

court decided during the contempt hearing that Winter's

sentence would run consecutively to his prior sentence

because imposition of a concurrent term would "provide[] no

incentive whatsoever" for him to testify. In making this

determination, the court stated, "my goal is not to punish,

my goal is to get testimony which is relevant." At the

request of Winter's counsel, after the imposition of the

contempt sentence, the court deferred entry of the judgment

to the close of the Schiavo trial, explaining, "my hope,

although I think it's elusive at this point, is still that

[Winter] will testify." The court left the door open for

Winter to justify at some later time, through his counsel,

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his recalcitrance.3 Despite this opportunity, Winter

proffered nothing more to explain his refusal to testify.

Winter never testified in the Schiavo trial;

nonetheless, on December 1, 1994, the jury found Schiavo

guilty on some but not all counts against him in the

superseding indictment. On December 12, 1994, the district

court issued a written order and entered judgment against

Winter for criminal contempt. Accordingly, Winter received a

six-month prison sentence to be served consecutively to his

prior sentence. This appeal followed.

II.
II.

Discussion
Discussion

On appeal, Winter raises a number of arguments to

challenge his contempt conviction. First, he reasserts his

non-Fifth-Amendment grounds for refusing to testify. Second,

he argues that the court's contempt sanction was of a civil

rather than criminal nature and should have been vacated upon

completion of Schiavo's trial. Third, Winter contends that

the district court failed to afford him an opportunity to

document his fear of testifying against Schiavo. Finally,

Winter argues that imposition of the contempt sentence

3. Specifically, the court stated to Winter's counsel: "I
know this has all come up very suddenly for you, Mr. Cullen.
If there is something that you haven't told me about . . .
which you think would be relevant, I will listen to it at the
time you find out about it."

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violated the Double Jeopardy Clause of the United States

Constitution.

A. Standard of Review -- Plain Error

Winter failed to raise these arguments, except for

the first, before the district court. Thus, the arguments

raised for the first time on appeal are forfeited and

reversible only if Winter establishes "plain error." United

States v. Alzanki, 54 F.3d 994, 1003 (1st Cir. 1995),

petition for cert. filed, 64 U.S.L.W. 3298 (U.S. Oct. 16,

1995) (No. 95-619); United States v. Taylor, 54 F.3d 967,

972-73 (1st Cir. 1995). Under this standard, an appellant

bears the burden of establishing: (1) "error," i.e., a

"[d]eviation from a legal rule"; (2) that the error is

"plain" or "obvious"; and (3) that the plain error affected

"substantial rights." United States v. Olano, 113 S. Ct.

1770, 1777-78 (1993); see Fed. R. Crim. P. 52(b). Even if an

appellant establishes plain error affecting substantial

rights, the decision to correct that error lies within the

sound discretion of this court. Olano, 113 S. Ct. at 1776,

1778; see United States v. Marder, 48 F.3d 564, 571 (1st

Cir.), cert. denied, 115 S. Ct. 1441 (1995).

B. The Government's Conduct and the Propriety of the

Immunity Order

Winter reasserts on appeal his claim that, because

government agents always knew he would refuse to testify,

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they sought his immunity for the vindictive purpose of

"setting him up" to commit perjury or contempt. Winter

further contends that because he had already pleaded guilty,

there was no criminal liability left for the government to

immunize him from; and because the immunity conferred no real

benefit upon him, it was an "illusory" grant that could not

form the basis of a contempt finding.

We review the district court's contempt finding for

abuse of discretion. In re Grand Jury Proceedings (Doe), 943

F.2d 132, 136 (1st Cir. 1991) (per curiam). We review

factual findings in contempt proceedings for clear error.

Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 15 (1st Cir. 1991).

To the extent Winter's arguments raise pure questions of law,

our review is plenary.

First, we note that the record reveals the district

court's utmost solicitude in addressing these concerns. The

court held the contempt hearing in part to determine if there

was any overreaching conduct by the government in obtaining

the immunity order or in negotiating Winter's earlier guilty

plea. Despite a full exploration of Winter's contentions,

which included calling Winter's former counsel to testify,

the court found no evidence of misconduct. Rather, the court

found that the government had legitimate reasons to seek

Winter's highly relevant testimony because the evidence in

the Schiavo trial contained repeated references to Winter's

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participation in criminal activities with Schiavo. We find

no error in the court's finding that the government did not

act out of vindictiveness in seeking the immunity order and

Winter's testimony. Cf. In re Poutre, 602 F.2d 1004, 1006

(1st. Cir. 1979) (noting the impermissibility of "calling a

witness for the sole purpose of extracting perjury" but

finding no evidence of such government misconduct).

Next, we note the tortured logic of Winter's

argument that his recalcitrance was justified because he had

no criminal liability to barter for the immunity. Winter's

argument suggests that he had a right to keep silent --

despite the absence of Fifth-Amendment privilege concerns --

simply because he had nothing to gain by the grant of

immunity. This contention, however, cannot be reconciled

with the duty of every citizen to testify in aid of law

enforcement. Piemonte v. United States, 367 U.S. 556, 559

n.2 (1961); see also Kastigar v. United States, 406 U.S. 441,

443-44 (1972). "If two persons witness an offense -- one

being an innocent bystander and the other an accomplice who

is thereafter imprisoned for his participation -- the latter

has no more right to keep silent than the former." Piemonte,

367 U.S. at 559 n.2 (dicta). Thus, even assuming -- as

Winter contends -- that his guilty plea dispensed with the

need for an immunity order, we fail to see how he was harmed

by the immunity's added protection when he otherwise would

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have a duty to testify. Winter apparently believed that his

earlier guilty plea would relieve him of all obligations with

respect to his activity with Schiavo. That mistaken belief,

however, is not a basis upon which to excuse his refusal to

testify.

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C. The Nature of the Contempt Sanction

Winter argues that his contempt sanction was of a

civil rather than criminal nature because the district court

expressed a goal to compel testimony rather than to punish,

and repeated its offer to purge Winter of the contempt

sentence should he testify. Winter contends that, because

the judgment was effectively for civil contempt, it should

have been vacated once its coercive effect ceased, i.e., at

the end of Schiavo's trial when he was no longer able to

comply with the order.

The determination of whether a contempt order is

civil or criminal is a question of law and the district

court's characterization of the sanction is not binding upon

this court. See Hicks ex rel. Feiock v. Feiock, 485 U.S.

624, 630 (1988). Winter, however, neither raised this

argument in the district court, nor moved in district court

to vacate his contempt sentence on this basis. Because

Winter did not afford the district court an opportunity to

address this issue, he has forfeited his right to complain

here on this basis. See United States v. Taylor, 54 F.3d

967, 971 (1st Cir. 1995) (noting that policy behind

forfeiture rule is to allow trial court to timely correct the

problem, and to prevent "sandbagging"). In light of this

forfeiture, we review the proceedings for plain error under

the principles set forth in Section II. A., above. Cf. In re

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Grand Jury Proceedings, 875 F.2d 927, 932 (1st Cir. 1989)

(reviewing for plain error due process objections to criminal

contempt proceedings that were not raised in trial court).4

To address Winter's contention, we discuss the pertinent

caselaw, below.

The distinction between civil and criminal contempt

is important because each requires different procedures.

Generally, a court may impose civil contempt sanctions

pursuant to the minimal procedures of notice and an

opportunity to be heard; the reason for this is that the

civil contemnor may avoid the sanction by obeying the court's

4. We note that Winter's counsel at the contempt hearing
implicitly conceded the appropriateness of the criminal
nature of the proceedings when arguing against the
consecutive imposition of the contempt sentence.
Specifically, counsel requested:

I prefer that . . . [Winter] be ordered
to start serving [the] sentence for
contempt immediately. . . . That's what
would happen on civil contempt. . . .
That is, if he was held in civil contempt
and refused to testify, it would not be
counted toward his time on his sentence
[for Bureau of Prisons purposes].

Viewing these statements in light of the record as a whole,
however, we do not find that they amount to an actual
"waiver" of Winter's right to argue that his contempt
sanction was civil. See Olano, 113 S. Ct. at 1777

(explaining that actual waiver, as distinct from forfeiture,
extinguishes any "error" under Rule 52(b) such that plain
error review is inapplicable); cf. United States v. Rivera,

872 F.2d 507, 509 (1st Cir.) (finding plain error rule
applicable where evidence was insufficient to establish
defendant's waiver of double jeopardy defense), cert. denied,

493 U.S. 818 (1989).

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order. International Union, United Mine Workers of America

(UMWA) v. Bagwell, 114 S. Ct. 2552, 2557 (1994). In

contrast, "`criminal contempt is a crime in the ordinary

sense,'" id. at 2556 (quoting Bloom v. Illinois, 391 U.S.

194, 201 (1968)), and criminal contempt sanctions may be

imposed only if the court provides certain constitutional

protections. Id. at 2556-57; Hicks, 485 U.S. at 632.

However, "direct contempts," i.e., those occurring in the

court's presence, "may be immediately adjudged and sanctioned

summarily." International Union, UMWA, 114 S. Ct. at 2557

n.2. In such cases, the distinction between civil and

criminal contempt for the purposes of required procedures, in

general, is not germane. Id. (citing United States v.

Wilson, 421 U.S. 309, 316 (1975));5 see Wilson, 421 U.S. at

315-19 (upholding summary criminal contempt adjudication

where immediate response to direct contempt was necessary to

"prevent a breakdown of the proceedings"). As explained

below, Winter's contumacious conduct constituted direct

contempt.

Winter cites Shillitani v. United States, 384 U.S.

364 (1966), to support his argument that the nature of his

contempt sanction was civil instead of criminal. In

5. The civil/criminal contempt distinction in direct
contempt cases becomes relevant if the criminal contempt is
"serious" and adjudication requires a jury trial.
International Union, UMWA, 114 S. Ct. at 2557 n.2 (citing

Bloom v. Illinois, 391 U.S. 194, 209-210 (1968)).

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Shillitani, the trial court ordered the contemnors imprisoned

for two years or until they testified before a grand jury.

Id. at 366-68. The trial court had stated that the sentence

was not intended to punish, but to secure testimony. Id. at

368. Under the conditional nature of the imprisonment, the

contemnors had an unqualified right to be released if they

chose to testify; because the contemnors were not otherwise

incarcerated, they literally "carried the keys of their

prison in their own pockets." Id. (internal quotations and

citations omitted). Although the parties and courts below

had referred to the contempt as criminal instead of civil,

the Supreme Court declared that the label affixed to the

proceeding was not determinative. Id. Instead, the Court

looked to the character and purpose of the sentence and found

that it was "clearly intended to operate in a prospective

manner -- to coerce rather than to punish." Id. at 369-70.

The Court concluded that the obviously coercive goal of the

imprisonment rendered the contempt proceeding civil, and thus

the contemnors had to be released when the rationale for

their imprisonment vanished, i.e., when the grand jury was

discharged. Id. at 371-72; see also Hicks, 485 U.S. at 638

n.9.

In Hicks, the Supreme Court reaffirmed Shillitani's

teaching that the "civil" or "criminal" label attached either

to the contempt proceeding or to the corresponding relief is

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not controlling. Hicks, 485 U.S. at 631. In Hicks, an

indirect contempt case, a state judge found a parent in

contempt for failure to comply with a child-support order.

Id. at 626-27. The main issue in Hicks was whether the state

contempt proceeding was civil or criminal for the purposes of

determining the applicability of federal constitutional

protections. Id. at 630. To guide in this analysis, Hicks

instructed that "the critical features are the substance of

the proceeding and the character of the relief that the

proceeding will afford." Id. Imprisonment for contempt is

for a remedial purpose, and thus civil, if the court

conditions the contemnor's release upon compliance with its

order. Id. at 631-32, 634. Such imprisonment is for

punitive purposes (to vindicate the court's authority), and

hence criminal, if the court imposes an unconditional

determinate sentence "retrospectively for a `completed act of

disobedience.'" International Union, UMWA, 114 S. Ct. at

2558 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S.

418, 443 (1911));6 Hicks, 485 U.S. at 631-33.

Hicks further explains that the classification of

contempt proceedings as civil or criminal does not "turn

simply on what their underlying purposes are perceived to

6. International Union, UMWA, 114 S. Ct. at 2555-57,

involving the civil/criminal classification of contempt fines
against a union for a labor injunction violation, is also an
indirect contempt case.

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be," because, "[i]n contempt cases, both civil and criminal

relief have aspects that can be seen as either remedial or

punitive or both." Id. at 635; see also International Union,

UMWA, 114 S. Ct. at 2557 (recognizing contempt sentences'

dual purpose of punishment and coercion). In order to draw a

conclusion about whether a contempt proceeding is criminal or

civil, a court must examine "the character of the relief

itself," id. at 636, and "[t]he critical feature that

determines whether the remedy is civil or criminal in nature

is . . . whether the contemnor can avoid the sentence imposed

on him, or purge himself of it, by complying with the terms

of the original order." Id. at 635 n.7; see also id. at 640

("If the relief imposed here is in fact a determinate

sentence with a purge clause, then it is civil in nature."

(citing Shillitani, 384 U.S. at 370 n.6)).

In adjudicating Winter's contempt, the district

court relied heavily, if not solely, upon United States v.

Wilson, 421 U.S. 309 (1975). In Wilson, the Supreme Court

considered a case almost factually identical to Winter's.

Defendants who were already incarcerated on guilty-plea

convictions received immunity but refused to testify in an

ongoing criminal trial against a former codefendant. Id. at

312. After conducting summary criminal contempt proceedings

pursuant to Fed. R. Crim. P. 42(a), the court sentenced the

defendants to six months imprisonment, consecutive to their

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previously imposed sentences. Id. Despite his imposition of

a definite imprisonment term, the district judge "made it

clear that he would consider reducing the contempt sentences,

or eliminating them completely, if [the defendants] decided

to testify." Id.

Wilson did not squarely involve the issue of the

distinction between civil and criminal contempt. Rather, the

primary issue in Wilson was whether, under the facts of the

case, summary proceedings under Rule 42(a) were proper

instead of disposition upon notice and hearing under Rule

42(b).7 See generally id. Because summary adjudication of

7. In his reply brief to this court, Winter argues, for the
very first time, that because his attorney had not been
provided with reasonable time to prepare a defense in the
criminal contempt proceeding, the district court violated
Fed. R. Crim. P. 42(b). This contention ignores the fact
that Rule 42(b)'s notice provision, which encompasses the
"reasonable time" requirement, does not apply when a court,
as here, proceeds under Rule 42(a). See Fed. R. Crim. P.

42(b).
Winter also suggests in his reply brief, for the
first time, that the district court erred in proceeding under
Rule 42(a) instead of Rule 42(b). Our review of this
argument, such as it is, is for plain error because Winter
did not first present it to the district court.
Winter's refusal to testify constituted
contemptuous conduct because, like the contumacious behavior
of the Wilson defendants, it was an "intentional

obstruction[] of court proceedings that literally disrupted
the progress of the trial and hence the orderly
administration of justice." Wilson, 421 U.S. at 315-16.

Unlike a refusal to testify before a grand jury, Winter's
refusal to testify in Schiavo's ongoing criminal trial
threatened a "breakdown of the proceedings" that required the
immediate remedial tool of Rule 42(a). See id. at 319. This

conclusion is bolstered by the court's specific finding that
Winter's testimony would be highly relevant to material
issues in Schiavo's trial.

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indirect contempt is impermissible, Wilson was clearly a

"direct contempt" case, see International Union, UMWA, 114 S.

Ct. at 2557 n.2, 2560; similarly, it is beyond dispute that

Winter's conduct constituted a direct contempt, which was

adjudicated as such. See supra, note 7.

The Wilson Court upheld the judge's use of the

summary criminal contempt provision. In approving this

procedure, the Court acknowledged the dual purpose of the

contempt sanction:

The face-to-face refusal to comply with
the court's order itself constituted an
affront to the court, and when that kind
of refusal disrupts and frustrates an
ongoing proceeding, as it did here,
summary contempt must be available to
vindicate the authority of the court as

well as to provide the recalcitrant

witness with some incentive to testify.

Winter insists that because the government obtained
a guilty verdict on some of the counts against Schiavo,
"[t]he case never broke down," and thus, Wilson is

inapposite. This 20/20 hindsight, however, was not available
at the time Winter refused to testify -- in the middle of
trial. See United States v. North, 621 F.2d 1255, 1262 n.11

(3d Cir. 1979) (en banc) (noting, for purposes of seeking
contemnor's testimony, that the fact that defendant was
eventually convicted without the testimony is irrelevant),
cert. denied, 449 U.S. 866 (1980). We therefore find, under

the facts of this case -- so strikingly similar to those in
Wilson -- that the district court did not abuse its

discretion in deciding to proceed under Rule 42(a) rather
than Rule 42(b) when faced with Winter's direct contempt.
See Wilson, 421 U.S. at 319 (noting that appellate courts may

curb abuses of discretion of Rule 42(a) authority "without
unduly limiting the power of the trial judge to act swiftly
and firmly to prevent contumacious conduct from disrupting
the orderly progress of a criminal trial"). Because the
court did not abuse its discretion in proceeding under Rule
42(a), there is no reversible error.

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Whether such incentive is necessary in a

particular case is a matter the Rule

wisely leaves to the discretion of the

trial court.

Wilson, 421 U.S. at 316-17 (emphasis added) (footnote and

citation omitted); see also id. at 319 ("In an ongoing trial,

with the judge, jurors, counsel and witnesses all waiting,

Rule 42(a) provides an appropriate remedial tool to

discourage witnesses from contumacious refusals to comply

with lawful orders essential to prevent a breakdown of the

proceedings."). In the context of approving the summary

contempt procedures and other contexts, the Wilson Court

favorably noted "the careful trial judge['s]" offer to

consider reducing the defendants' contempt sentences should

they later agree to testify. See id. at 312, 315 n.7, 317

n.9. Although the issue was not directly before it, the

Wilson Court did not hint that the judge's offer to reduce or

eliminate the sentences automatically converted the sanction

from criminal to civil. To the contrary, the Court

acknowledged the need for the criminal rather than civil

contempt sanction, under the facts of the case, in noting

that Shillitani's admonition to first consider the

feasibility of coercing testimony through civil contempt has

little weight when the contemnor is already imprisoned; and

in such cases, the threat of incarceration provides little

incentive to testify. Id. at 317 n.9; see also United States

v. McVeigh, 896 F. Supp. 1549, 1555 (W.D. Okla. 1995)

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(proceeding under criminal contempt provision because

defendant's incarcerated status rendered civil contempt

proceedings "futile" (citing, inter alia, Wilson, 421 U.S. at

317 n.9)).

We must now determine how Shillitani/Hicks and

Wilson interact under the facts of the instant case. Because

the district court promised to purge Winter of the contempt

sentence if he should testify, and because the court at one

point expressly stated that its goal was not to punish but to

obtain relevant testimony, Shillitani and Hicks would seem,

at first glance, to command a civil characterization of the

proceedings. However, Shillitani and Hicks are factually

distinct from Wilson and the instant case; that dissimilarity

is dispositive here. In Shillitani, the contemnors were not

already incarcerated when subjected to the contempt sentence,

and their refusal to testify was before a grand jury rather

than at an ongoing trial.8 Shillitani, 384 U.S. at 368-69.

Hicks was an indirect contempt case that involved neither an

8. In determining whether or not to follow the procedure of
Rule 42(a) or Rule 42(b), it is significant whether the
contemnor is called to a grand jury or an ongoing trial.
Because a grand jury's schedule is generally flexible when
encountered with a recalcitrant witness, any delay due to
Rule 42(b) proceedings is usually less disruptive than such
delay during a trial. Wilson, 421 U.S. 318-19.

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already-incarcerated contemnor nor a failure to testify at a

proceeding.9 See Hicks, 485 U.S. at 626-27.

In contrast, Wilson and this case involved already-

incarcerated contemnors who refused to testify at an ongoing

criminal trial, and whose direct contempt threatened a

"breakdown of the proceedings." Wilson, 421 U.S. at 319. In

Wilson, the Supreme Court specifically endorsed the use of

criminal contempt proceedings in cases where, as here, a

civil sanction would have no coercive effect because of the

incarcerated status of the contemnor. Wilson, 421 U.S. at

317 n.9. Thus, from the outset of Winter's contempt hearing,

the district court expressly relied upon Wilson for guidance

in conducting its summary criminal contempt proceedings under

Fed. R. Crim. P. 42(a). The court also stated that it was

following the lead of "the wise trial judge . . . in

[Wilson]" by generously offering to purge Winter of the

contempt should he decide to testify. In its written order

and findings on contempt, the court cited Wilson, 421 U.S. at

317 n.9, in acknowledging that "[a]lthough lesser sanctions

should ordinarily be invoked when equal to the task, anything

less than criminal contempt would pose no serious deterrent

to an individual already incarcerated." It is clear,

9. Similarly, International Union, UMWA, involving the

classification of serious contempt fines for violations of a
labor injunction (indirect contempt), is significantly
factually distinct from this case. International Union,

UMWA, 114 S. Ct. at 2555-56.

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therefore, that the district court was aware of the

alternative of civil contempt proceedings, but felt that the

coercive component of such proceedings would be woefully

inadequate.

Winter would have this court hold that, even under

Wilson-like facts, a court's promise to purge triggers the

Shillitani/Hicks contempt-classification principles, such

that the contempt sanction must be characterized as civil.

We decline to do so. Otherwise, a trial judge faced with an

incarcerated, recalcitrant witness during an ongoing trial

would have to choose between a civil contempt sanction with

little or no coercive value, or a determinate criminal

sentence with no possibility of purging the sentence should

the contemnor testify. Under either choice, the judge cannot

fashion a contempt sanction to provide a meaningful incentive

to testify. If we were to hold that an offer to purge, under

the facts of this case, automatically converts the contempt

sanction from criminal to civil, we would effectively strip

the trial judge of the recognized discretion under Rule 42(a)

to provide an incentive to testify. See Wilson, 421 U.S. at

316-17. It would be poor policy to preclude the district

judge from exercising such discretion by imposing an

unwavering rule that an incarcerated criminal contemnor

cannot be given an opportunity to comply with an order and

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purge the contempt, even if the court wishes to provide such

opportunity.

While the district court may have indicated its

preference not to punish Winter and its fading hope that he

would testify, it rejected as ineffective any procedure other

than summary criminal contempt under Rule 42(a). Winter's

incarcerated status and his disruption of the Schiavo trial

required this procedure in order to both vindicate the

court's authority and provide some incentive to testify. The

criminal nature of the contempt sanction is further evidenced

by an aspect of the relief, stemming from a request by

Winter's counsel: the court's unusual procedural device of

delaying entry of the final contempt judgment -- although

sentence had been imposed -- until after Schiavo's trial,

when there was no longer an opportunity for Winter to comply.

Thus, although the proceeding at one time had a coercive

component, the contempt judgment, once entered,

retrospectively punished Winter for a "'completed act of

disobedience,'" which is typical of criminal contempt.

International Union, UMWA, 114 S. Ct. at 2558 (quoting

Gompers, 221 U.S. at 443).10 The deferred entry of the

10. To the extent the contempt sanction lost all remedial
purpose by the time the judgment issued, the procedures
required for punitive, criminal sanctions were
constitutionally adequate. See supra, note 7; see also

United States v. Michaud, 928 F.2d 13, 15 n.1 (1st Cir. 1991)

(noting both conditional and unconditional aspects of
sentence, but finding that even assuming contempt proceedings

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contempt judgment also furthered the twin goals of

vindication and coercion in these contempt proceedings.11

The issue of whether the district court's contempt

proceedings were civil or criminal in nature is complicated

here because the court so strongly expressed a coercive goal.

However, the particular facts of this case maintain the

criminal nature of the contempt sanction, despite the court's

discretionary choice under Rule 42(a) to provide an incentive

to testify. See also United States v. North, 621 F.2d 1255,

1263-1265 & n. 16 (3d Cir.) (en banc) (stating in dicta that

defendant's contempt sentence, even if partly conditional

upon compliance, would retain its criminal nature and thus

continue after completion of the underlying trial (citing,

inter alia, Wilson, 421 U.S. at 312)), cert. denied, 449 U.S.

866 (1980). Therefore, we find no error -- certainly no

"plain" error -- in the district court's criminal contempt

proceeding and disposition. Winter's attempt to use the

court's generous offer to purge as a means of

recharacterizing the contempt proceedings from criminal to

civil is unavailing. We find it appropriate to add the

were criminal, defendant received the required procedural
protections).

11. Because the district court held Winter in contempt and
imposed sentence at the time of the hearing, the delayed
judgment does not constitute an impermissible summary
adjudication after trial, when due process would require
notice and a hearing. See International Union, UMWA, 114 S.

Ct. at 2560 (citing Taylor v. Hayes, 418 U.S. 488 (1974)).

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Supreme Court's observation in the factually-similar Wilson

case:

[A]s this case demonstrates, a
contumacious refusal to answer not only
frustrates the [trial] inquiry but can
destroy a prosecution. Here it was a
prosecution; the same kind of
contumacious conduct could, in another
setting, destroy a defendant's ability to
establish a case.

Wilson, 421 U.S. at 316.

D. Opportunity to Document Fear

Winter argues that the district court abused its

discretion in finding him in contempt because he tried to

explain to the court his fear for his own safety, but was not

given an opportunity to document that fear. Because Winter

raises this argument for the first time on appeal, we review

for plain error.

We note first that Winter is factually wrong in his

assertion that he was denied an opportunity to establish his

fear. While it is true that the district court apparently

cut short any further testimony on the possible claim of

fear, the court did expressly give Winter, through counsel,

the opportunity to lodge any new facts or arguments to

justify his recalcitrance. See supra notes 1, 3. During the

twenty-six days from the close of the hearing until the entry

of judgment, Winter did not take advantage of this

opportunity to document his fear; he cannot now complain of

that failure. See In re Grand Jury Proceedings (Doe), 943

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25

F.2d at 136 (noting with disapproval a contemnor's failure to

submit favorable proffer during a twenty-four hour extended

filing period).

Moreover, as Winter admits, even if he had fully

elucidated his fear of testifying against Schiavo, "it has

been widely held that a witness' fear of reprisal against

himself or his family does not constitute just cause for

refusing to testify." In re Grand Jury Proceeding (Doe), 13

F.3d 459, 461 (1st Cir. 1994); see also Piemonte, 367 U.S. at

559 n.2 (noting in dicta that "fear of reprisal offers an

immunized prisoner no more dispensation from testifying than

it does any innocent bystander without a record"). Indeed, a

reticent witness' fear for personal safety is potentially

relevant only in sentence-mitigation. See United States v.

Gomez, 553 F.2d 958, 959 (1st Cir. 1977) (citing Harris v.

United States, 382 U.S. 162 (1965)). Hence, although proof

of a legitimate fear for his safety would not have justified

Winter's refusal to testify in any event, it might have

factored only in mitigation of the six-month contempt

sentence had he taken advantage of the district court's

generous offer to elaborate upon the grounds for his

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reticence.12 We discern no error based on this argument to

the proceedings below.

E. Double Jeopardy

Winter's final argument is that the prohibition

against double jeopardy invalidates the contempt sentence

both because of its very imposition and because of its

consecutive nature. Again, our review is for plain error

because Winter failed to make this argument below. See

United States v. Rivera, 872 F.2d 507, 509 (1st Cir.)

(reviewing defendant's double jeopardy argument for plain

error because he failed to raise it in trial court), cert.

denied, 493 U.S. 818 (1989); cf. United States v. Papadakis,

802 F.2d 618, 621 (2d Cir. 1986) (declining to reach

appellant's claim, raised for the first time on appeal, that

double jeopardy barred criminal contempt prosecution), cert.

denied, 479 U.S. 1092 (1987).

Winter appears to concede in his opening brief to

this court that the Double Jeopardy Clause generally does not

bar a contempt conviction for the refusal to answer questions

related to a criminal offense for which the defendant has

12. At oral argument before this panel, the government
stated that Winter had refused an offer to enroll in the
federal witness protection program. Assuming this
representation is true, we note our repeated admonition that
a witness may not at the same time refuse to testify because
of fear for his or her own safety, and reject offers of
protection from that potential danger. See In re Grand Jury

Proceeding (Doe), 13 F.3d at 462-63 (listing cases).

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27

already been convicted. In his reply brief, however, Winter

changes his tune and asserts that the principles of double

jeopardy are violated here because "the contempt sentence

relates to the same or similar activity . . . to which Winter

had previously pleaded guilty." Winter additionally argues

that imposing the six-month sentence consecutively to, rather

than concurrently with, his ongoing sentence violates the

Double Jeopardy Clause because it "materially altered the

terms and conditions of his existing incarceration." To this

end, Winter asserts without elaboration that the additional

six-month consecutive sentence disqualifies him "for certain

programs and treatments inside the prison."

Winter cites United States v. Bynoe, 562 F.2d 126,

128 (1st Cir. 1977), as support for his contention that the

Double Jeopardy Clause bars the purported "material

alteration" of his existing sentence by the added contempt

sentence. In Bynoe, the district court vacated its previous

order to suspend the defendant's sentence -- even though the

defendant had begun to serve probation -- and imposed a "more

severe" disposition because of perceived misrepresentations

by the defense. 562 F.2d at 127-28. We found that the

prohibition against double jeopardy precluded this increased

punishment for the very same crime. Id. at 129. Thus, Bynoe

merely reiterates the rule that double jeopardy bars "an

increase in sentence after the defendant has commenced

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serving his punishment." 562 F.2d at 128; see also United

States v. Benefield, 942 F.2d 60, 66 (1st Cir. 1991) (holding

that sentencing court may not amend a sentence to run

consecutively once defendant began serving it as a concurrent

sentence) (citing Bynoe and other cases)).

It is beyond dispute, however, that the district

court imposed Winter's contempt sentence for disobedience of

its direct order -- an offense completely independent of the

charges under which he was already incarcerated.13

Moreover, it was within the court's discretion to impose the

sentence consecutively instead of concurrently in order to

preserve the incentive value of the contempt citation. In no

way did the court attempt to alter or increase Winter's prior

sentence as proscribed by Bynoe and Benefield.14 Thus,

Winter's contention that he is twice punished for the crimes

to which he pleaded guilty or that the consecutive sentence

impermissibly increased a prior-imposed punishment is

unavailing.

III.
III.

13. Winter cites no authority, and we have found none, in
support of his assertion that his contempt judgment for
refusing to testify about crimes to which he has already
pleaded guilty constitutes double jeopardy.

14. The purported administrative changes to the manner in
which Winter's sentence is served in prison because of the
added sentence are within the Bureau of Prison's domain. Any
complaint of constitutional magnitude that Winter might have
regarding the Bureau of Prison's treatment of him given the
added sentence is not properly before us in this appeal.

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Conclusion
Conclusion

For the foregoing reasons, the judgment of the

district court is affirmed.
affirmed

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