
USCA1 Opinion

	




                            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                                         -2-                                          2            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.                                         -3-                                          3            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).                                         -4-                                          4            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,                                         -5-                                          5            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."                                         -6-                                          6            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,                                         -7-                                          7            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                                         -8-                                          8            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                                         -9-                                          9            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.                                         -10-                                          10            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                                                                ___ _____                                         -11-                                          11            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).                                         -12-                                          12            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)).            _____    ________                                         -13-                                          13            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                                         -14-                                          14            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.                                         -15-                                          15            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                                         -16-                                          16            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.                                         -17-                                          17            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.                                         -18-                                          18                      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)                _______                                         -19-                                          19            (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.                                   ______                                         -20-                                          20            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.            ____                                         -21-                                          21            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                                         -22-                                          22            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                                         -23-                                          23            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)).                                ______    _____                                         -24-                                          24            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                            ___ ____________________________________                                         -25-                                          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                                         -26-                                          26            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).            ________________                                         -27-                                          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                                         -28-                                          28            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.                                         -29-                                          29                                      Conclusion                                      Conclusion                                      __________                      For the  foregoing  reasons, the  judgment  of  the            district court is affirmed.                              affirmed                              ________                                         -30-                                          30
