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United States v. Gracia

February 14, 1985

UNITED STATES OF AMERICA, APPELLEE,
v.
JOSE GRACIA, JR., ALBERTO PEREZ, AND RAMON SAUL SANCHEZ, DEFENDANTS-APPELLANTS



Author: Pratt

Before VAN GRAAFEILAND, PIERCE, and PRATT, Circuit Judges.

GEOREGE C. PRATT, Circuit Judge:

These appeals are from judgments in three cases heard in the United States District Court for the Southern District of New York, in which defendants Jose Julio Gracia, Jr., Alberto Perez, and Ramon Saul Sanchez were separately convicted and sentenced for criminal contempt for refusing to testify, under grants of use immunity, before a grand jury investigating crimes allegedly committed by the terrorist group "Omega 7". Gracia was found guilty in a bench trial before Charles L. Brieant, Judge, and was given a split sentence of five years' imprisonment, to serve four months followed by four years' probation. Perez was found guilty in a jury trial before Robert W. Sweet, Judge, and was sentenced to four years' imprisonment. Sanchez was found guilty in a jury trial before David N. Edelstein, Judge, and was sentenced to nine years' imprisonment. We affirm the convictions of all three defendants as well as the sentences of Gracia and Perez, but we modify Sanchez's sentence by reducing it from nine years to four years.

I. BACKGROUND

The criminal contempt charges against Gracia, Perez, and Sanchez arose out of their refusals to testify before the 1982 Additional Grand Jury Number Two for the Southern District of New York, which was investigating crimes allegedly committed by anti-Castro Cuban exiles in the terrorist group, Omega 7. According to the government's brief, Omega 7 has been responsible for at least thirty bombings, two murders, injuries to New York City police officers, threats to kill and maim, and "untold" property damage. The federal crimes under investigation by Grand Jury Number Two included the attempted murder of Cuba's ambassador to the United Nations, assaults on foreign officials, interstate transportation of explosives, destruction of foreign government property located in the United States, and conspiracy.

Gracia was subpoenaed and appeared before the grand jury on October 14, 1982. He was asked the following questions but refused to answer any of them, claiming his fifth amendment privilege against self-incrimination:

Q: Were you recruited to participate in Omega 7 activities by Pedro Ramon?

Q: Did you participate in the surveillance of Raul Roa, the Cuban Ambassador to the United Nations prior to the attempt on his life in 1980?

Q: Do you know who built the bomb that was placed under Ambassador Roa's car on March 5, 1980?

Q: To your knowledge, who attached the bomb to the underside of Ambassador Roa's car?

At this point Gracia announced that he intended to refuse to answer every question the prosecutor might ask him. The prosecutor then read to Gracia an order signed by Judge Charles E. Stewart, Jr., which granted Gracia use immunity under 18 U.S.C. §§ 6002 and 6003, but Gracia still refused to answer. Judge Stewart then found Gracia in civil contempt and ordered him confined for the lesser of eighteen months or the life of the grand jury. 28 U.S.C. § 1826(a).

Sanchez appeared before the grand jury on October 19, 1982, and was asked substantially the same questions that has been put to Gracia. The results were similar: Sanchez refused to answer any question, he was given use immunity, he still refused to testify, and he was then found in civil contempt, in this instance by Judge Edelstein. The scenario was played a third time in early November 1982 with Perez, who was found in civil contempt by Judge Irving Ben Cooper. For their civil contempts Sanchez and Perez, like Gracia, were ordered confined for the lesser of eighteen months or the life of the grand jury.

Imprisonment for civil contempt failed to soften Gracia's determination not to answer questions, and, after seventeen months of incarceration, he was indicted for criminal contempt under 18 U.S.C. § 401 for disobeying the court's order to testify. At his one-day bench trial Gracia stipulated to the facts constituting the criminal contempt, and also acknowledged that he had disobeyed the court order "for reasons which, after consulting with counsel, he realizes do not constitute a legal defense to this case but which, he understands, may be brought to the court's attention in mitigation of sentence, should he be found guilty."

Gracia was found guilty, and at sentencing his attorney urged the court to take into account the facts that Gracia's decision not to testify was a matter of conscience, that Gracia was not motivated by greed or selfish interests, that Gracia disputed any government claim that he was or had been a member of Omega 7, and that Gracia sincerely believed that his refusal to testify was in the best interests of the United States and Cuba. On June 11, 1984, Judge Brieant sentenced Gracia to five years' imprisonment, suspending all but four months and providing for four years' probation. A special condition of probation permitted the probation officer to designate suspected terrorists with whom Gracia could not associate.

Sanchez also remained adamant in refusing to testify even after some seventeen months of imprisonment for civil contempt, and he, too, was indicted for criminal contempt. At his jury trial before Judge Edelstein, Sanchez stipulated to all the facts establishing the elements of the crime, and his retained counsel chose to make neither an opening statement nor a summation. At the conclusion of the two-day trial Sanchez was found guilty. On June 14, three days after Gracia's sentencing, Judge Edelstein sentenced Sanchez to nine years' imprisonment.

Perez, equally obdurate, served eighteen months for civil contempt before his indictment for criminal contempt. At his jury trial before Judge Sweet, Perez stipulated to the essential facts of the crime but testified himself, explaining that he had disobeyed Judge Edelstein's order because he feared that Castro's agents would retaliate against members of his family, especially those still living in Cuba. Perez was found guilty after a two-day trial and, on June 21, 1984, was sentenced by Judge Sweet to four years' imprisonment.

II. DISCUSSION

Although defendants raise issues unique to their separate cases, all three contend that the criminal contempt statute, 18 U.S.C. § 401, is unconstitutional because it fails to prescribe a maximum sentence. We address ...


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