United States v. Terry Wayne Turner

864 F.2d 1394, 1989 U.S. App. LEXIS 285, 1989 WL 1059

• Court: Court of Appeals for the Seventh Circuit
• Decided: January 5, 1989
• Docket: 87-3070
• Status: Published

Opinions

PER CURIAM.

The sentencing of defendant Terry Wayne Turner is the only issue.

I

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?

A. Yes.

Q. You refused to assist the Government in this investigation, isn’t that right?

A. Yes.

Q. Now, I think you testified on direct examination that you felt remorseful and sorry that you got involved with the counterfeit money.

Isn’t that right?

A. Yes.

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.

Do you recall that?

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?

A. Yes.

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?

A. Yes.

Q. Prior to that time you had not identified where you obtained the counterfeit money from, had you?

A. Pardon?

Q. Prior to pleading guilty, you had not told the Government where you got the counterfeit money from, isn’t that right?

A. Yes.

Q. Prior to pleading guilty, you didn’t tell the Government how much money you had obtained from Flynt Talkington, did you?

A. Yes — or I—

Q. Had you talked with the Government at all about counterfeit money prior to pleading guilty?

A. No, I don’t guess.

Later, during the same cross-examination, this further exchange occurred:

Q. Did you appear before the Grand Jury last week?

A. Yes.

Q. And did you answer whatever questions were asked of you?

A. Yes.

So Turner was of opinion that he answered whatever questions he was asked after his plea. The prosecutor put in no contrary-evidence, but he was to take a different view anyway. During arguments, the Assistant United States Attorney said (emphasis added):

I would also point out to the Court that in this case we have another serious factor which I would ask the Court to consider, and that is the Defendant’s lack of cooperation. He appears to be remorseful today. He claims that he is trying to clean up his act, undergo drug treatment, that he is sorry for the offenses that he committed, but I would point out to the Court that when he could have made a difference in this investigation of counterfeiting activity, when he was given the opportunity without any consequence to himself to assist the Government in its investigation, he refused to do so, not on one occasion, but on two occasions, and it’s only now when the Defendant is facing a maximum penalty of twenty years that he exhibits his remorsefulness.

The Defendant testified before a Federal Grand Jury on this pass [sic] Friday. I examined him in the Grand Jury. My characterization of his testimony would be useless. He provided the Government with very little information which we could proceed upon. His testimony was of no value to the Government. True, he has appeared. He did testify, but I would recall to the Court that the Defendant also appeared earlier before the Grand Jury and refused to testify.

I would characterize his whole attitude toward the Government as being recalcitrant, stubborn and uncooperative. The Defendant has not only directed this attitude toward the United States Attorney’s office, but has also directed this attitude toward the arm of the Court, the probation office.

The first part of this argument shows the emphasis placed by the government on Turner’s refusal to cooperate under the offer of informal immunity. The second part of the government’s argument indicates that Turner, in keeping with his plea agreement, appeared before the grand jury and testified, but not to the prosecutor’s satisfaction. The government does not claim that Turner’s testimony was false or misleading, that the defendant refused to answer, or that the defendant held back information.

When it came time for defense counsel to argue in mitigation, he touched upon Turner’s lack of cooperation in his first two grand jury appearances.

I realize that with regard to Government cooperation that Mr. Turner was called before the Grand Jury and received a letter from the US Attorney’s office offering him immunity even though the matter was never submitted to the Court or any order obtained on that. He did have the letter offer from the US Attorney. He availed himself of his right against self-incrimination, has indicated that he would have testified if he had been ordered pursuant to a grant of immunity.

After the court heard the evidence and the arguments, the district judge explained the basis for the sentence he was imposing. The judge made quite clear what disturbed him:

I just reread here a few moments ago in your file the plea agreement that you entered into with the Government. And you agreed to cooperate with the Government, to help and assist in investigations, including truthful testimony before any Federal Grand Jury and United States District Court proceeding, and in exchange for that the Government was going to do a whole lot of things, dismissing counts, not prosecute Randy Rex Turner and make known to me how much your cooperation involved today at the time of sentencing right now.

You reneged on your bargain. That’s a signed contract and the day I took your plea, I turned to the last page of it, and I had you look at it, come up here and I asked you, is that your signature, and you said yes, it was. You didn’t live up to your bargain. You didn’t cooperate, and you didn’t testify the first two times before that Federal Grand Jury. So, your immunity was withdrawn, and, you know, all of this kind of goes back full circle to the two times when the Court in Morgan County had to issue bench warrants to get you in, to get you in before that Court.

Well, I can certainly say this to you, Mr. Turner. In my twenty-one years as a Judge, I recall very, very few cases of the Defendant who has committed as many aggravating acts prior to his sentencing in the offense that he’s in Court for. I’ve had plenty with [records] as long as your arm before that offense. I’m not talking about that. I’m talking about the involvement here and your lack of cooperation, your lack of living up to your agreement with the Government and the plea agreement that you asked me to accept here in Court, and I did.

Well, we simply can’t tolerate this, and here Mr. Robinson argues very eloquently concerning rehabilitation and acknowl-edgement of errors, et cetera, but it comes so late and so little.

(Emphasis added.) Sentence was then imposed without further clarification from the Assistant United States Attorney or defense counsel.

II

The district court apparently based the sentence on two considerations in addition to the nature of the crime and Turner’s personal history: the refusal to cooperate under the “informal immunity” and the limited utility of the testimony Turner finally gave before the grand jury. Turner contends that both of these are forbidden considerations, so that we must vacate the sentence.

Let us start with the first. If the district court believed that Turner was under a legal obligation to testify in response to the proffered “informal immunity”, he was under a misapprehension that would require resentencing. See United States v. Kerley, 838 F.2d 932, 940-41 (7th Cir.), modified on other grounds, 838 F.2d 941 (1988). Only a formal grant of immunity under 18 U.S.C. § 6003 strips a suspect of his privilege (by eliminating the possibility of incrimination) and requires testimony. Pillsbury Co. v. Conboy, 459 U.S. 248, 261, 103 S.Ct. 608, 616, 74 L.Ed.2d 430 (1983); United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 1244, 79 L.Ed.2d 552 (1984). Turner was not under such compulsion and was entitled to deem the threat of prosecution real until the United States took the steps legally required to dissipate it. So when Turner balked before the grand jury the first two times he was called, he was asserting a valid privilege against self-incrimination.

We do not construe the district judge’s remarks as expressing the view that Turner lacked a privilege to do what he did. We read them, rather, as expressing concern about Turner’s decision not to cooperate voluntarily. Though he had the privilege, he did not need to assert it. The prosecutor’s failure to obtain a grant of immunity meant that Turner could not be compelled to testify; it does not mean that Turner could not be invited to testify, and then rewarded (by a lower sentence) for his cooperation. We held in United States v. Murphy, 768 F.2d 1518, 1532 (7th Cir.1985), that informal offers of immunity are simply invitations to waive the privilege on terms the witness finds sufficient, and as invitations are not problematic. Giving testimony under a grant of immunity is not “cooperation” of any kind; it is knuckling under to a threat of force. Talking when there is no such compulsion is genuine cooperation.

Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), holds that cooperation may be rewarded with a lower sentence, implying that noncoopera-tors lawfully may receive a higher sentence than cooperators. A sentencing differential is implicit in every plea bargain and explicit in most; differentials — whether called “rewards” for cooperation or “penalties” for truculence — are common. If the defendant waives a constitutional right (that is, relinquishes it without compulsion), he may receive a sentencing discount. If he stands on his rights, he gets a higher sentence. E.g., Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). The record in this case does not suggest any kind of disposition other than the usual offer of lenience for waiver — and the standard sentencing differential if there is no cooperation. So although Roberts does not explicitly address a sentencing discount for waiving the privilege, its principle — that cooperation may be taken into account — is applicable. If it were not, we would have to hold plea bargains unconstitutional. Roberts sustained a higher sentence on account of a defendant’s refusal to name his confederates; our case involves a higher sentence on account of refusal to testify at all (testimony that presumably would have entailed, among other things, identifying confederates); there is no difference in principle, since in either case the accused had a constitutional privilege to keep silent to the extent the requested information would have brought his own crimes to light.

The sentencing differential is problematic only if the district judge gives the defendant a higher sentence than the one he would have received had the prosecutor never invited the waiver of the constitutional rights. See United States v. Long, 823 F.2d 1209, 1211-12 (7th Cir.1987). Some of the district judge’s language suggests a penalty relative to the sentence that would have been appropriate had the prosecutor not offered a deal in the first place— though the sentence, five years for a counterfeiting offense, is not unusually long. Turner might have requested a remand so that the district judge could explain more adequately how he was taking noncooperation into account in devising a sentence. Yet Turner has not asked for this relief, probably because he is not entitled to it in light of the terms of the initial bargain with the government.

The district judge recognized that Turner had not “merely” refused to testify; he had promised to testify and then balked. Reneging on one's promise is a basis of punishment independent of the assertion of the privilege, a basis on which the sentence legitimately may be augmented relative to the sentence that would have been imposed had the prosecutor never initiated discussions. Turner does not seriously deny that he reneged; he contends only that he had a reason to do so. Yet the reason is not satisfactory. He promised to cooperate; refusing to talk because the prosecutor has not obtained an order compelling testimony is refusal to cooperate. All cooperation means is testifying when there is no legal obligation to do so. So Turner did break his promise. That, coupled with the lack of a request for a remand to determine the appropriate benchmark sentence, leads us to conclude that there is no need for a remand on this score. See also United States v. Kovic, 830 F.2d 680, 689-91 (7th Cir.1987), and United States v. Zabic, 745 F.2d 464, 475-76 (7th Cir.1984), both concluding that a district court does not err by denying to uncooperative defendants a sentencing credit they could have received if they had cooperated. Under Roberts, district courts properly may give defendants an incentive to be forthcoming. 445 U.S. at 557-58, 100 S.Ct. at 1362-63.

The district court also may have acted on the prosecutor’s representation that Turner had not supplied useful information to the prosecution even after pleading guilty. The prosecutor called the testimony “useless”, said that Turner provided “very little” information and that his “whole attitude ... [was] recalcitrant, stubborn and uncooperative”, and so on. Turner contends that this led to the imposition of sentence on the basis of inaccurate information, but we do not see how. The prosecutor is entitled to his opinion; the view may not be well-advised, but that is a different problem. Perhaps Turner told the grand jury everything he knew, and the prosecutor was simply annoyed to learn that he had caught a small fish. But we do not know this. Turner did not present the district court, or us, with the transcript of the grand jury appearance, so we cannot assess the accuracy of the prosecutor’s appraisal; it was Turner’s responsibility, as appellant, to provide this court with the basis of a decision in his favor. (We do not know whether Turner has a transcript of his testimony; at all events he does not contend that he wants this transcript but has been unable to obtain it.) Moreover, Turner did not dispute the prosecutor’s characterization in the district court, which was his appropriate forum. Having bypassed the opportunity to challenge the government’s view, Turner is in no position to ask us to assume that the judge and prosecutor are wrong, and then to argue that the sentence should be vacated on the basis of the assumption. Turner did not point out, either to the district court or to us, how his testimony was either forthcoming or useful. Perhaps Turner could have made a record, but he didn’t. E.g., United States v. Warner, 855 F.2d 372, 374 (7th Cir.1988) (citing cases); United States v. Carter, 720 F.2d 941, 945 (7th Cir.1983).

*

Too, we doubt that disagreements of this sort concern “inaccurate” information. We do not have a dispute about the facts; we have a dispute about the right way to characterize the facts (“recalcitrant” and the like). We are not aware of any case that even suggests that an appellate court may set aside a sentence because of a judge’s characterization (or mischaracterization) of undisputed facts. If the judges of this panel had considered the facts of this case, any one of us might have characterized them differently, but these differences are distinct from inaccurate information. The seminal case in the area, United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), talks about setting aside a sentence imposed on the basis of “misinformation of constitutional magnitude” — by which it meant reliance on an invalid conviction. Turner’s situation looks neither like the use of “misinformation” (as opposed to disputed characterizations of agreed-on information) nor like a problem of “constitutional magnitude”. The Supreme Court has never vacated a sentence (other than a capital sentence) because of reliance on mistaken beliefs about the facts, unless there was an independent constitutional reason why this kind of fact was a sort that could not be relied upon. As we observed in United States ex rel. Villa v. Fairman, 810 F.2d 715, 718-19 (7th Cir.1987) (citations omitted):

Inaccurate information standing alone does not require resentencing. [A defendant] is entitled to procedures good enough to produce accurate decisions over the run of cases; the Constitution does not ensure perfect accuracy. The Supreme Court has emphasized that sentencing judges may receive and use the widest selection of information, some of which, such as hearsay, poses risks of inaccuracy. The Court has held that “misinformation of constitutional magnitude” may not be used in imposing sentence, but it has never held that all mistakes of fact are “misinformation of constitutional magnitude.”

To say that the Constitution precludes the use of any inaccurate information in sentencing is to require appellate courts to retry all presentations during sentencing, something they are not suited to do and do not do with respect to the evidence received at the trial on the merits. Why would the veracity of testimony during the trial be left to the trier of fact, while appellate courts play a greater role supervising sentencing? “The Constitution is satisfied if the defendant has an opportunity at trial to challenge testimony claimed to be false and to object to other evidence; the Constitution does not ensure that all proper objections will be sustained and that no witnesses will lie.” Villa, 810 F.2d at 719. Evidence and argument are more freely admissible at sentencing than at trial; this implies a lesser, not a greater, role for appellate review of the accuracy of claims made. Moreover, as the Court has “repeatedly stated, ‘the Constitution entitles a criminal defendant to a fair trial, not a perfect one.’ ” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460 (1986), quoting from Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).

If Turner and his lawyer thought that the prosecutor mischaracterized his degree of cooperation or the utility of the information he supplied, they could — and should— have said so. The prosecutor spoke first; Turner’s lawyer spoke at greater length than the prosecutor yet did not dispute his characterization beyond remarking that Turner would have testified sooner had he been given formal immunity; Turner, offered the right of allocation, expressed only remorse for his deeds. “[Turner] and his counsel had ample opportunity at the sentencing hearing to voice any objections or corrections to any information ... mentioned by the judge, but neither did although both addressed the court.” United States v. Gomez, 797 F.2d 417, 421 (7th Cir.1986). The judge then accepted the prosecutor’s view. This is a usual consequence of failure to contest an adversary’s characterization. Turner and his lawyer did not inform the district judge that they disagreed with his understanding of affairs. Disagreement was expressed in this court for the first time. The process leading to the imposition of sentence therefore was adequate under the Constitution and other prevailing rules. The sentence was well within the statutory limits, and it is therefore not subject to review. E.g., United States v. Plain, 856 F.2d 913 (7th Cir.1988); United States v. Nesbitt, 852 F.2d 1502, 1521-22 (7th Cir.1988); United States v. Bush, 820 F.2d 858, 862 (7th Cir.1987).

Turner’s appellate counsel has made a presentation significantly more complete, and therefore more persuasive, than the one offered to the sentencing judge. Fed. R.Crim.P. 35(b), as it applies to crimes committed before November 1, 1987, gives Turner one last chance to approach the district judge upon the filing of the proper motion. We are confident that Judge Mills will receive this presentation with an open mind and alter Turner’s sentence if he should be persuaded that the one-sided arguments he heard at sentencing led to an inappropriate disposition.

AFFIRMED.

United States v. Harris, 558 F.2d 366 (7th Cir.1977), does not stand for the contrary proposition. The court said, id. at 375 (citations omitted): "As a general rule, we would agree that sentence relief should be foreclosed where a defendant, who is not denied access to the pre-sentence report, ‘has not directly and specifically denied the truth of hearsay information’ and the only denial of record is that of counsel on appeal.” We excused the absence of an objection in Harris because counsel incompetently had neglected to read the presentence report, which contained internal inconsistencies and some very serious, unanswered factual allegations. Our case does not involve inept counsel or unawareness of the government’s position (which was stated in open court), and as we discuss in the following text does not involve a dispute about "facts”.