Mark Mosley, Petitioner-appellant, v. United States of America, Respondent-appellee, 25 F.3d 1053 (7th Cir. 1994)

ORDER

Petitioner appeals from a district court order denying his August 1991 motion to reconsider a May 1990 contempt finding imposed pursuant to 28 U.S.C. § 1826.

In 1989, petitioner was convicted of cocaine distribution. The record shows that just prior to his arrest, petitioner escaped with $20,000 in government funds paid to petitioner by an undercover agent. At sentencing the judge declined to require petitioner to immediately repay the $20,000; but she made restitution a condition of the supervised release following 97 months' incarceration.

Later, the court granted immunity to petitioner (who was then a federal prisoner) and called him to testify before a grand jury regarding the identity of his confederate, the source of the cocaine, and the location of the missing money and other matters regarding the illegal trafficking of drugs. Petitioner refused to testify on the basis that he feared for the safety of his family. On May 3, 1990, the district court found petitioner in civil contempt and committed him to the custody of the United States Marshal until such time as he obeyed the order to testify before the grand jury, or until the term of the grand jury expired, but in no event for more than 18 months. During the period he served for contempt, petitioner was to receive no credit for the federal sentence he had been serving. No appeal was taken from this order.

On August 1, 1991, 15 months after the commitment for civil contempt, petitioner filed a motion for reconsideration²  of the contempt order. On September 30, 1991, the Special April 1990 Grand Jury expired.³  On December 23, 1991, the district court denied petitioner's motion and petitioner now appeals. Because the civil contempt order provided that time served would not be credited against the interrupted criminal sentence, the propriety of the contempt order is not moot.

Petitioner argues that the prosecutor's decision to call him before a grand jury was vindictive because the prosecutor was angry that the original sentencing judge did not demand that petitioner return the $20,000 immediately. We agree with the district court that there is nothing in the record indicating such vindictiveness. In fact, attempting to recover $20,000 of government funds and further investigating the large-scale drug dealings petitioner had been involved with are legitimate objectives of the government. See United States v. Long, 823 F.2d 1209 (7th Cir. 1987). Moreover, this ground was not raised at the time of the contempt hearing; instead, at that time petitioner pointed only to a vague fear for his family's safety.

Accordingly, the decision of the district court is AFFIRMED.