02-1433 U.S. v. Mabrook

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“Mabrook argues that the district court should have permitted him to question Paneras about matters outside the statute of limitations. However, after conducting a hearing, the district court found that Paneras would not be insulated from state or federal prosecution if he testified. In fact, the very real possibility existed that Paneras would expose himself to conspiracy, RICO, or 18 U.S.C. § 1001 charges if he testified at Mabrook’s trial. Thus, even though Paneras had already been prosecuted for mail and wire fraud, the possibility that other charges, like conspiracy, could be brought against Paneras based on his testimony weighs heavily in determining whether the court abused its discretion. Cf. United States v. Pardo, 636 F.2d 535, 544 n.24 (D.C. Cir. 1980) (had the government suggested that the witness faced conspiracy charges, then a strong case would have been made for either granting immunity or dismissing the charges against the defendants).

“Mabrook also claims that Paneras should have taken the stand and asserted his privilege in front of the jury. However, it would have been improper for the jury to draw any inference from Paneras’s exercise of his Fifth Amendment privilege. United States v. Taylor, 154 F.3d 675, 684 (7th Cir. 1998). Mabrook disagrees, citing United States v. Hartmann, 958 F.2d 774, 789 (7th Cir. 1992), in support. However, we have never found that it is permissible for a jury to make an inference from the invocation of a witness’s assertion of the Fifth Amendment and Hartmann only references a First Circuit case stating that the jury may make an inference from the assertion of the privilege during cross-examination. United States v. Kaplan, 832 F.2d 676, 684 (1st Cir. 1987). Such was not the case here. Mabrook wanted Paneras to take the stand for the purpose of asserting his privilege and that is impermissible. Taylor, 154 F.3d at 684.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Williams, J.