United States v. Howard
1:18-cr-00667
N.D. Ill.May 6, 2024Background
- Defendant Gary Howard was indicted on multiple drug charges, including conspiracy, attempt, and distribution of cocaine based on alleged transactions in 2017 and 2018.
- Howard claims a public authority defense, arguing that Anthony Sabaini, a Homeland Security agent, authorized his actions as part of his work as a confidential informant.
- Howard subpoenaed Sabaini as a trial witness to support this defense.
- Sabaini, currently incarcerated for financial crimes tied to his government position and with his conviction on appeal, indicated he would invoke the Fifth Amendment if called to testify.
- The court conducted an in camera, ex parte examination of Sabaini to evaluate the validity of his Fifth Amendment claim.
- The government has evidence suggesting a potentially corrupt relationship between Howard and Sabaini, raising the risk Sabaini’s testimony could further incriminate him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sabaini can validly invoke the Fifth Amendment | The court must verify legitimacy | Sabaini faces real risk of self-incrimination | Sabaini has a legitimate basis to invoke; privilege recognized |
| Relevance of pending appeal on Sabaini’s conviction | Conviction is final; testimony should be compelled | Appeal is pending; risk persists | Pending appeal means privilege is not extinguished |
| Whether Sabaini’s prior testimony waives privilege | Prior waiver at his own trial removes privilege now | Waiver at prior trial is not waiver for this proceeding | Privilege applies to new proceeding; no waiver here |
| Whether possible cross-examination increases risk | Testimony can be limited to non-incriminating topics | Cross could touch on incriminating topics | Cross-examination creates enough risk to maintain privilege |
Key Cases Cited
- Hoffman v. United States, 341 U.S. 479 (U.S. 1951) (Fifth Amendment must be liberally construed and reasonable cause of danger is sufficient for invocation.)
- United States v. Apfelbaum, 445 U.S. 115 (U.S. 1980) (Privilege covers answers that could be a link in incriminating evidence.)
- United States v. Mabrook, 301 F.3d 503 (7th Cir. 2002) (Witness can invoke privilege if testimony may lead to vulnerability for prosecution.)
- United States v. Newton, 76 F.4th 662 (7th Cir. 2023) (Fifth Amendment generally trumps the defendant's compulsory process when privilege is invoked.)