United States Court of Appeals,

Eleventh Circuit.

No. 94-2963.

UNITED STATES of America, Plaintiff-Appellant,

v.

Charles HOLLOWAY; Donna Holloway, Defendants-Appellees.

Feb. 6, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 92-263-CR-T-23A), Steven D. Merryday,

Judge.

Before HATCHETT and BIRCH, Circuit Judges, and GODBOLD, Senior

Circuit Judge.

HATCHETT, Circuit Judge:

In this criminal appeal, the district court dismissed an

indictment because an assistant United States Attorney, at the

taking of depositions in a civil matter, assured the appellees that

no criminal prosecutions would be brought against them. We affirm.

FACTS

On March 8, 1991, the Pasco County Sheriff's Office, the

United States Customs Service (Customs Service), and the United

States Internal Revenue Service (IRS), pursuant to a lawful search

warrant, searched a residence in Brooksville, Florida, and seized

cocaine, marijuana residue, and numerous firearms. Charles and

Donna Holloway, owners of the residence, were present during the

search. No arrests were made on that day. On March 21, 1991, the

United States Attorney for the district filed a forfeiture action

against the Holloways. The complaint alleged that two parcels of

property which the Holloways owned were used, or intended to be

used, to commit or facilitate the distribution of narcotics in
violation of 21 U.S.C. §§ 841 and 846.

On April 9, 1991, the Hernando County State Attorney's Office

(the state) filed criminal charges against the Holloways. In June

1991, the state, at the request of the United States Attorney,

dismissed its case against the Holloways to allow for a federal

criminal prosecution. On April 3, 1991, the United States Attorney

instituted a federal grand jury investigation into the Holloways'

alleged violation of narcotics, firearms, and tax laws. Customs

Service Special Agent Ty Arnold and a special agent from the IRS

were assigned to handle the civil and criminal investigations. In

January 1992, Agent Arnold was reassigned, and Agent Jeffrey Crane

succeeded him.

On March 3, 1992, approximately one year after the execution

of the search warrant, the assistant United States attorney (the

AUSA) assigned to the civil forfeiture case served the Holloways

with written interrogatories. On March 16, 1992, the AUSA filed a

motion for summary judgment in that case. Attached to the summary

judgment motion was an affidavit from Agent Crane that detailed

evidence that the Holloways were involved in the distribution of

marijuana and cocaine and that the seized premises were used to

facilitate the illegal activities. On April 15, 1992, the

Holloways answered the complaint and returned the written

interrogatories to the government. Two weeks later, on April 29,

1992, the Holloways, with their attorney, Dominic Baccarella,

appeared at the United States Attorney's Office to be deposed on

matters concerning the civil forfeiture case. When the Holloways

and Baccarella arrived, the AUSA, a court reporter, and Agent Crane
 *

Approximately one month later, the Holloways terminated

Baccarella as their counsel. 

were seated in the conference room. Baccarella, who was aware that

Agent Crane was investigating the Holloways' alleged criminal

activity, was surprised by Agent Crane's presence at the

deposition. Baccarella asked the AUSA why Crane was present, and

the AUSA explained that Agent Crane was assisting her in the

government's civil forfeiture case. Baccarella threatened to abort

the deposition proceeding and leave with his clients. In response

to Baccarella's threatened action, the AUSA requested that

Baccarella accompany her to the hallway, outside the presence of

the Holloways, the court reporter, and Agent Crane. When

Baccarella and the AUSA returned to the room, Agent Crane asked the

AUSA whether he could remain at the deposition; the AUSA told

Agent Crane that he could remain. The AUSA also permitted Charles

and Donna Holloway to be deposed in the presence of each other. In

addition to providing testimony, the Holloways turned over personal

records at the deposition session.*

 Thereafter, the government

used the deposition testimony and personal records to obtain an

indictment against the Holloways.

PROCEDURAL HISTORY

On September 8, 1992, a federal grand jury in the Middle

District of Florida indicted the Holloways (hereinafter

"appellees") on a five-count indictment for federal narcotics and

firearm violations. The indictment charged the appellees with:

Count I, conspiring to possess with intent to distribute cocaine

and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846;
Count II, possession with intent to distribute marijuana in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count III,

possession with intent to distribute cocaine in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Counts IV and V,

possessing a firearm while being a convicted felon in violation of

18 U.S.C. § 922(g). The indictment also sought the forfeiture of

the real property that was the subject of the civil forfeiture

action. On October 6, 1992, the grand jury returned a superseding

indictment adding three additional counts to the original

indictment. Counts VI, VII, and VIII each charged the appellees

with filing false income tax returns in violation of 26 U.S.C. §

7206(1).

On September 29, 1992, appellees filed a motion to suppress

evidence. On February 25, 1993, a magistrate judge, after

conducting an evidentiary hearing, recommended that appellees'

motion be denied. The district court adopted the magistrate

judge's recommendation. On December 27, 1993, appellees filed a

joint motion to dismiss the superseding indictment, asserting for

the first time that they had been promised immunity from

prosecution on the day of their depositions. On January 4, 1994,

the United States Attorney filed a response denying appellees'

allegations. In February 1994, the district court held a nine-day

evidentiary hearing on appellees' motion.

On July 13, 1994, the district court issued an order

dismissing the superseding indictment. The court found that on

April 29, 1992, the AUSA assured Baccarella while in the hallway

that no criminal prosecution would be brought. Because of the
AUSA's assurances to Baccarella, the district court concluded that

the appellees were entitled to "use" immunity. Based on this

determination, the district court dismissed the indictment and

permanently enjoined the government from using any testimonial or

documentary evidence obtained at the deposition or derived

therefrom in any future criminal prosecution. The government filed

this appeal.

CONTENTIONS

The government contends that the district court clearly erred

in determining that the AUSA assured appellees through their

counsel that they would not be criminally prosecuted. In the

alternative, the government argues that it was improper for the

district court to dismiss the indictment because the court made no

finding of flagrant abuse or misconduct.

In response, appellees assert that they presented sufficient

evidence that the AUSA promised their counsel that no prosecution

was forthcoming, and the district court correctly found that the

appellees relied on this promise to their detriment. Appellees

also assert that the government's conduct was sufficiently

egregious to warrant dismissal of the indictments.

ISSUES

On appeal, we address the following issues: (1) whether the

district court clearly erred in determining that the government

assured appellees through their counsel that they would not be

criminally prosecuted; and (2) whether the district court abused

its discretion in dismissing the grand jury indictment without

prejudice.
DISCUSSION

A. The district court's factual determination

 The district court determined that the government, prior to

the appellees' production of documents, assured appellees that it

would not seek a criminal prosecution. We review the district

court's factual findings for clear error. Anderson v. Bessemer

City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518

(1985). "If the district court's account of the evidence is

plausible in light of the record viewed in its entirety, the court

of appeals may not reverse it even though convinced that had it

been sitting as trier of fact, it would have weighed the evidence

differently." Anderson, 470 U.S. at 565, 105 S.Ct. at 1507.

The government argues that the district court clearly erred in

finding that the AUSA assured the appellees through their counsel,

Baccarella, that no prosecution was forthcoming. Specifically, the

government disputes the district court's factual findings with

respect to the sequence of events at the appellees' deposition and

the content of the AUSA's conversation with Baccarella. At the

evidentiary hearing, the AUSA testified that shortly before the

deposition began Baccarella threatened to cancel the deposition

because she requested that the appellees be deposed outside each

other's presence. In an attempt to prevent Baccarella from

leaving, the AUSA testified that she requested that Baccarella join

her in the hallway to discuss whether both appellees could remain

in the conference room. The AUSA also testified that while in the

hallway with Baccarella, Baccarella asked about the status of the

criminal investigation regarding the appellees, at which time she
replied, "I don't know."

Baccarella testified that the discussion regarding whether the

appellees could be deposed in each other's presence occurred after

he returned from the hallway with the AUSA and that Agent Crane's

presence prompted his threatened action. Baccarella also testified

that when he and the AUSA went out into the hallway, he stated,

"I'm here for a civil case ... I'll be damned if I'm going to let

my clients testify to anything that you might want to get into

that's criminal." He testified that the AUSA replied, "[W]e're not

going anywhere criminally with this thing ... this is a civil case

and I want to take their deposition and [Agent Crane is] only here

to help me."

 The district court credited Baccarella's testimony, and we

must rely on the district court's credibility determinations. See

Amadeo v. Zant, 486 U.S. 214, 223, 108 S.Ct. 1771, 1777, 100

L.Ed.2d 249 (1988) (a federal appellate court "must give due regard

... to the opportunity of the trial court to judge [ ] the

credibility of witnesses"). Because the determination of whether

the AUSA assured Baccarella that no criminal prosecution would

ensue is a factual one, we must affirm the district court unless we

are left with "the definite and firm conviction that a mistake has

been committed." United States v. United States Gypsum Co., 333

U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The

following facts are undisputed: Baccarella questioned the presence

of Agent Crane immediately upon entering the conference room. At

that time, Baccarella knew that Agent Crane was investigating the

alleged criminal conduct of the appellees. Baccarella subsequently
threatened to leave with the appellees. As a result of

Baccarella's threatened action, the AUSA requested Baccarella to

accompany her to the hallway. When Baccarella and the AUSA

returned from the hallway, Agent Crane asked whether he could

remain at the deposition. The AUSA told Agent Crane that he could

remain. A short time later, the appellees were deposed.

 We find that Agent Crane's question concerning his presence

at the deposition supports the district court's finding that

Baccarella, prior to going into the hallway with the AUSA, was

adamant that he and the appellees would not proceed with the

deposition because of Crane's presence. Because the appellees did

proceed with the deposition, it is plausible that (1) the AUSA

assured Baccarella that no criminal prosecution would be brought,

(2) this assurance was communicated to the appellees, and (3) the

appellees relied on this assurance when they testified and produced

documents at the deposition. Where two permissible views of the

evidence exist, "the factfinder's choice between them cannot be

clearly erroneous." Anderson, 470 U.S. at 574, 105 S.Ct. at 1511.

The government argues that the district court's finding is

implausible when viewed in light of the following. First, the

written interrogatories appellees served after the alleged

assurance was made indicate that Baccarella expected that an

indictment was forthcoming. Second, Baccarella never memorialized

the government's assurance that no prosecution would be

forthcoming. Finally, the appellees waited over fifteen months

after their original indictment to seek enforcement of this alleged

assurance. We are puzzled that appellees after being promised that
they would not be criminally prosecuted would wait fifteen months

after the indictment before seeking a dismissal of the indictment

on this basis. We, however, cannot conclude based on the above

facts that the district court's finding constitutes clear error.

B. District court's dismissal of the indictment

 Because sufficient evidence supports the district court's

factual findings, we now address whether the district court

properly dismissed the grand jury indictment. The government

argues that the district court improperly dismissed the indictment

because the court made no findings of flagrant abuse or egregious

prosecutorial misconduct. We find no merit to this argument.

"Federal courts possess the power and duty to dismiss federal

indictments obtained in violation of the Constitution or laws of

the United States." United States v. Pabian, 704 F.2d 1533, 1536

(11th Cir.1983). The Fifth Amendment provides that "[n]o person

... shall be compelled in any criminal case to be a witness against

himself." U.S. Const. amend. V. The Fifth Amendment's privilege

against compulsory self-incrimination may be invoked "when acting

as a witness in any investigation, to give testimony which might

tend to show that [the witness] had committed a crime." Counselman

v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110

(1892). "Its sole concern is to afford protection against being

"forced to give testimony leading to the infliction of penalties

affixed to ... criminal acts.' " Kastigar v. United States, 406

U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212 (1972) (quoting

Ullmann v. United States, 350 U.S. 422, 438-39, 76 S.Ct. 497, 507,

100 L.Ed. 511 (1956)). In accordance with the Fifth Amendment's
privilege against self-incrimination which prohibits prosecutorial

authorities from using compelled testimony in any respect, we

affirm the district court's dismissal of the grand jury indictment.

See Kastigar, 406 U.S. at 453, 92 S.Ct. at 1661.

CONCLUSION

For the reasons stated in this opinion, the district court is

affirmed.

AFFIRMED.