United States Court of Appeals,
Eleventh Circuit.
No. 94-2963.
UNITED STATES of America, Plaintiff-Appellant,
v.
Charles HOLLOWAY; Donna Holloway, Defendants-Appellees.
Feb. 6, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 92-263-CR-T-23A), Steven D. Merryday,
Judge.
Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior
Circuit Judge.
HATCHETT, Circuit Judge:
In this criminal appeal, the district court dismissed an
indictment because an assistant United States Attorney, at the
taking of depositions in a civil matter, assured the appellees that
no criminal prosecutions would be brought against them. We affirm.
FACTS
On March 8, 1991, the Pasco County Sheriff's Office, the
United States Customs Service (Customs Service), and the United
States Internal Revenue Service (IRS), pursuant to a lawful search
warrant, searched a residence in Brooksville, Florida, and seized
cocaine, marijuana residue, and numerous firearms. Charles and
Donna Holloway, owners of the residence, were present during the
search. No arrests were made on that day. On March 21, 1991, the
United States Attorney for the district filed a forfeiture action
against the Holloways. The complaint alleged that two parcels of
property which the Holloways owned were used, or intended to be
used, to commit or facilitate the distribution of narcotics in
violation of 21 U.S.C. §§ 841 and 846.
On April 9, 1991, the Hernando County State Attorney's Office
(the state) filed criminal charges against the Holloways. In June
1991, the state, at the request of the United States Attorney,
dismissed its case against the Holloways to allow for a federal
criminal prosecution. On April 3, 1991, the United States Attorney
instituted a federal grand jury investigation into the Holloways'
alleged violation of narcotics, firearms, and tax laws. Customs
Service Special Agent Ty Arnold and a special agent from the IRS
were assigned to handle the civil and criminal investigations. In
January 1992, Agent Arnold was reassigned, and Agent Jeffrey Crane
succeeded him.
On March 3, 1992, approximately one year after the execution
of the search warrant, the assistant United States attorney (the
AUSA) assigned to the civil forfeiture case served the Holloways
with written interrogatories. On March 16, 1992, the AUSA filed a
motion for summary judgment in that case. Attached to the summary
judgment motion was an affidavit from Agent Crane that detailed
evidence that the Holloways were involved in the distribution of
marijuana and cocaine and that the seized premises were used to
facilitate the illegal activities. On April 15, 1992, the
Holloways answered the complaint and returned the written
interrogatories to the government. Two weeks later, on April 29,
1992, the Holloways, with their attorney, Dominic Baccarella,
appeared at the United States Attorney's Office to be deposed on
matters concerning the civil forfeiture case. When the Holloways
and Baccarella arrived, the AUSA, a court reporter, and Agent Crane
were seated in the conference room. Baccarella, who was aware that
Agent Crane was investigating the Holloways' alleged criminal
activity, was surprised by Agent Crane's presence at the
deposition. Baccarella asked the AUSA why Crane was present, and
the AUSA explained that Agent Crane was assisting her in the
government's civil forfeiture case. Baccarella threatened to abort
the deposition proceeding and leave with his clients. In response
to Baccarella's threatened action, the AUSA requested that
Baccarella accompany her to the hallway, outside the presence of
the Holloways, the court reporter, and Agent Crane. When
Baccarella and the AUSA returned to the room, Agent Crane asked the
AUSA whether he could remain at the deposition; the AUSA told
Agent Crane that he could remain. The AUSA also permitted Charles
and Donna Holloway to be deposed in the presence of each other. In
addition to providing testimony, the Holloways turned over personal
records at the deposition session.* Thereafter, the government
used the deposition testimony and personal records to obtain an
indictment against the Holloways.
PROCEDURAL HISTORY
On September 8, 1992, a federal grand jury in the Middle
District of Florida indicted the Holloways (hereinafter
"appellees") on a five-count indictment for federal narcotics and
firearm violations. The indictment charged the appellees with:
Count I, conspiring to possess with intent to distribute cocaine
and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846;
*
Approximately one month later, the Holloways terminated
Baccarella as their counsel.
Count II, possession with intent to distribute marijuana in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count III,
possession with intent to distribute cocaine in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Counts IV and V,
possessing a firearm while being a convicted felon in violation of
18 U.S.C. § 922(g). The indictment also sought the forfeiture of
the real property that was the subject of the civil forfeiture
action. On October 6, 1992, the grand jury returned a superseding
indictment adding three additional counts to the original
indictment. Counts VI, VII, and VIII each charged the appellees
with filing false income tax returns in violation of 26 U.S.C. §
7206(1).
On September 29, 1992, appellees filed a motion to suppress
evidence. On February 25, 1993, a magistrate judge, after
conducting an evidentiary hearing, recommended that appellees'
motion be denied. The district court adopted the magistrate
judge's recommendation. On December 27, 1993, appellees filed a
joint motion to dismiss the superseding indictment, asserting for
the first time that they had been promised immunity from
prosecution on the day of their depositions. On January 4, 1994,
the United States Attorney filed a response denying appellees'
allegations. In February 1994, the district court held a nine-day
evidentiary hearing on appellees' motion.
On July 13, 1994, the district court issued an order
dismissing the superseding indictment. The court found that on
April 29, 1992, the AUSA assured Baccarella while in the hallway
that no criminal prosecution would be brought. Because of the
AUSA's assurances to Baccarella, the district court concluded that
the appellees were entitled to "use" immunity. Based on this
determination, the district court dismissed the indictment and
permanently enjoined the government from using any testimonial or
documentary evidence obtained at the deposition or derived
therefrom in any future criminal prosecution. The government filed
this appeal.
CONTENTIONS
The government contends that the district court clearly erred
in determining that the AUSA assured appellees through their
counsel that they would not be criminally prosecuted. In the
alternative, the government argues that it was improper for the
district court to dismiss the indictment because the court made no
finding of flagrant abuse or misconduct.
In response, appellees assert that they presented sufficient
evidence that the AUSA promised their counsel that no prosecution
was forthcoming, and the district court correctly found that the
appellees relied on this promise to their detriment. Appellees
also assert that the government's conduct was sufficiently
egregious to warrant dismissal of the indictments.
ISSUES
On appeal, we address the following issues: (1) whether the
district court clearly erred in determining that the government
assured appellees through their counsel that they would not be
criminally prosecuted; and (2) whether the district court abused
its discretion in dismissing the grand jury indictment without
prejudice.
DISCUSSION
A. The district court's factual determination
The district court determined that the government, prior to
the appellees' production of documents, assured appellees that it
would not seek a criminal prosecution. We review the district
court's factual findings for clear error. Anderson v. Bessemer
City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518
(1985). "If the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the court
of appeals may not reverse it even though convinced that had it
been sitting as trier of fact, it would have weighed the evidence
differently." Anderson, 470 U.S. at 565, 105 S.Ct. at 1507.
The government argues that the district court clearly erred in
finding that the AUSA assured the appellees through their counsel,
Baccarella, that no prosecution was forthcoming. Specifically, the
government disputes the district court's factual findings with
respect to the sequence of events at the appellees' deposition and
the content of the AUSA's conversation with Baccarella. At the
evidentiary hearing, the AUSA testified that shortly before the
deposition began Baccarella threatened to cancel the deposition
because she requested that the appellees be deposed outside each
other's presence. In an attempt to prevent Baccarella from
leaving, the AUSA testified that she requested that Baccarella join
her in the hallway to discuss whether both appellees could remain
in the conference room. The AUSA also testified that while in the
hallway with Baccarella, Baccarella asked about the status of the
criminal investigation regarding the appellees, at which time she
replied, "I don't know."
Baccarella testified that the discussion regarding whether the
appellees could be deposed in each other's presence occurred after
he returned from the hallway with the AUSA and that Agent Crane's
presence prompted his threatened action. Baccarella also testified
that when he and the AUSA went out into the hallway, he stated,
"I'm here for a civil case ... I'll be damned if I'm going to let
my clients testify to anything that you might want to get into
that's criminal." He testified that the AUSA replied, "[W]e're not
going anywhere criminally with this thing ... this is a civil case
and I want to take their deposition and [Agent Crane is] only here
to help me."
The district court credited Baccarella's testimony, and we
must rely on the district court's credibility determinations. See
Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100
L.Ed.2d 249 (1988) (a federal appellate court "must give due regard
... to the opportunity of the trial court to judge [ ] the
credibility of witnesses"). Because the determination of whether
the AUSA assured Baccarella that no criminal prosecution would
ensue is a factual one, we must affirm the district court unless we
are left with "the definite and firm conviction that a mistake has
been committed." United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The
following facts are undisputed: Baccarella questioned the presence
of Agent Crane immediately upon entering the conference room. At
that time, Baccarella knew that Agent Crane was investigating the
alleged criminal conduct of the appellees. Baccarella subsequently
threatened to leave with the appellees. As a result of
Baccarella's threatened action, the AUSA requested Baccarella to
accompany her to the hallway. When Baccarella and the AUSA
returned from the hallway, Agent Crane asked whether he could
remain at the deposition. The AUSA told Agent Crane that he could
remain. A short time later, the appellees were deposed.
We find that Agent Crane's question concerning his presence
at the deposition supports the district court's finding that
Baccarella, prior to going into the hallway with the AUSA, was
adamant that he and the appellees would not proceed with the
deposition because of Crane's presence. Because the appellees did
proceed with the deposition, it is plausible that (1) the AUSA
assured Baccarella that no criminal prosecution would be brought,
(2) this assurance was communicated to the appellees, and (3) the
appellees relied on this assurance when they testified and produced
documents at the deposition. Where two permissible views of the
evidence exist, "the factfinder's choice between them cannot be
clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511.
The government argues that the district court's finding is
implausible when viewed in light of the following. First, the
written interrogatories appellees served after the alleged
assurance was made indicate that Baccarella expected that an
indictment was forthcoming. Second, Baccarella never memorialized
the government's assurance that no prosecution would be
forthcoming. Finally, the appellees waited over fifteen months
after their original indictment to seek enforcement of this alleged
assurance. We are puzzled that appellees after being promised that
they would not be criminally prosecuted would wait fifteen months
after the indictment before seeking a dismissal of the indictment
on this basis. We, however, cannot conclude based on the above
facts that the district court's finding constitutes clear error.
B. District court's dismissal of the indictment
Because sufficient evidence supports the district court's
factual findings, we now address whether the district court
properly dismissed the grand jury indictment. The government
argues that the district court improperly dismissed the indictment
because the court made no findings of flagrant abuse or egregious
prosecutorial misconduct. We find no merit to this argument.
"Federal courts possess the power and duty to dismiss federal
indictments obtained in violation of the Constitution or laws of
the United States." United States v. Pabian, 704 F.2d 1533, 1536
(11th Cir.1983). The Fifth Amendment provides that "[n]o person
... shall be compelled in any criminal case to be a witness against
himself." U.S. Const. amend. V. The Fifth Amendment's privilege
against compulsory self-incrimination may be invoked "when acting
as a witness in any investigation, to give testimony which might
tend to show that [the witness] had committed a crime." Counselman
v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110
(1892). "Its sole concern is to afford protection against being
"forced to give testimony leading to the infliction of penalties
affixed to ... criminal acts.' " Kastigar v. United States, 406
U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972) (quoting
Ullmann v. United States, 350 U.S. 422, 438-39, 76 S.Ct. 497, 507,
100 L.Ed. 511 (1956)). In accordance with the Fifth Amendment's
privilege against self-incrimination which prohibits prosecutorial
authorities from using compelled testimony in any respect, we
affirm the district court's dismissal of the grand jury indictment.
See Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661.
CONCLUSION
For the reasons stated in this opinion, the district court is
affirmed.
AFFIRMED.
United States v. Holloway
Court: Court of Appeals for the Eleventh Circuit
Date filed: 1996-02-06
Citations: 74 F.3d 249
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