362 U.S. 610 (1960), 164, Levine v. United States

Docket Nº:No. 164
Citation:362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989
Party Name:Levine v. United States
Case Date:May 23, 1960
Court:United States Supreme Court

Page 610

362 U.S. 610 (1960)

80 S.Ct. 1038, 4 L.Ed.2d 989



United States

No. 164

United States Supreme Court

May 23, 1960

Argued March 22, 1960




Subpoenaed to testify before a federal grand jury, petitioner refused, on grounds of possible self-incrimination, to answer questions relevant to the grand jury's inquiry. The grand jury sought the aid of the district judge, who heard arguments on the subject, ruled that petitioner would be accorded immunity as extensive as the privilege he had asserted, and ordered him to answer the questions. After returning to the grand jury room, petitioner persisted in his refusal, and he was again brought before the district judge, who addressed the same questions to him in the presence of the grand jury, explicitly directed him to answer them, and, upon his refusal to do so, adjudged him guilty of criminal contempt and sentenced him to imprisonment for one year. During these proceedings, everyone was excluded from the courtroom except petitioner, his counsel, the grand jury, government counsel, the judge and the court reporter, but no objection to the exclusion of the general public was made at any stage of the proceedings.

Held: in the circumstances of this case, exclusion of the public from the courtroom when petitioner was adjudged guilty of criminal contempt and sentenced did not invalidate his conviction. Pp. 611-620.

(a) A proceeding for criminal contempt under Rule 42 (a) of the Federal Rules of Criminal Procedure is not a "criminal prosecution" within the meaning of the Sixth Amendment, which explicitly guarantees the right to a "public trial" only for "criminal prosecutions." P. 616.

(b) It was not error for the judge to clear the courtroom initially when the grand jury appeared before him for the second time seeking his assistance in compelling petitioner to testify, and, in light of the presence of petitioner's counsel and his failure to object to the continued exclusion of the public, failure of the judge to reopen the courtroom to the general public on his own motion before adjudging petitioner in contempt and sentencing him did not violate the Due Process Clause of the Fifth Amendment. Pp. 616-620.

267 F.2d 335 affirmed.

Page 611

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This is a prosecution for contempt arising from petitioner's refusal to answer a series of questions propounded to him by a federal grand jury. In every respect but one, this case is a replica of Brown v. United States, 359 U.S. 41, and, as to all common issues, it is controlled by that case. In Brown, however, we expressly declined to decide the effect of claimed "secrecy" upon proceedings culminating in the petitioner's sentencing for contempt, "because the record does not show this to be the fact." 359 U.S. at 51, note 11. Here, it appears that the contemptuous conduct, the adjudication of guilt, and the imposition of sentence all took place after the public had been excluded from the courtroom in what began and was continued as "a Grand Jury proceeding." The effect of this continuing exclusion in the circumstances of the case is the sole question presented.

On the morning of April 18, 1957, pursuant to a subpoena, petitioner appeared as a witness before a federal grand jury in the Southern District of New York engaged in investigating violations of the Interstate Commerce Act. He was asked six questions relevant to the grand jury's investigation. After consultation with his attorney, who was in an anteroom, he refused to answer them on the ground that they might tend to incriminate him. He persisted in this refusal after having been directed to answer by the foreman of the grand jury and advised by

Page 612

government counsel that applicable statutes gave him complete immunity from prosecution concerning any matter as to which he might testify. See 49 U.S.C. § 305(d).

Later that day the grand jury, government counsel, petitioner, and his attorney appeared before Judge Levet, sitting in the District Court for the Southern District of New York, the grand jury having sought

the aid and assistance of the Court, in a direction to a witness, Morry Levine, who has this morning appeared before the Grand Jury and declined to answer certain questions that have been put to him.

The record of the morning's proceedings before the grand jury was read. After argument by counsel, the judge ruled that the adequate immunity conferred by statute deprived petitioner of the right to refuse to answer the questions put to him. Petitioner was ordered to appear before the grand jury on April 22, and was directed by the court then to answer the questions.

On the morning of April 22, petitioner appeared before the grand jury. The questions were again put to him, and he again refused to answer. Once again, the grand jury, government counsel, petitioner and his counsel went before Judge Levet, for "the assistance of the Court in regard to the witness Morry Levine." At this time, the record shows the following:

The Court: Will those who have no other business in the courtroom please leave now? I have a Grand Jury proceeding.

[80 S.Ct. 1041]

The Clerk: The Marshal will clear the court room.

(Court room cleared by the Marshals.)

Petitioner, his counsel, the grand jury, government counsel, and the court reporter remained. Petitioner objected to further participation by the court in the process of

Page 613

compelling his testimony, except according to the procedures prescribed by Rule 42(b) of the Federal Rules of Criminal Procedure. That provision, which relates to contempts generally, excluding those "committed in the actual presence of the court" as to which the judge certifies "that he saw or heard the conduct constituting the contempt," provides in effect for a conventional trial. In petitioner's view, the court was compelled to regard his contempt, if any, as having already been committed out of the presence of the court, through petitioner's disobedience before the grand jury that morning of the court's order of April 18.

The judge, however, did not treat petitioner's renewed refusal to answer the grand jury's questions as a definitive contempt. He chose to proceed just as he had two weeks earlier in the case of Brown, reviewed here as Brown v. United States, supra, 359 U.S. 41. The morning's grand jury proceedings, showing petitioner's refusals to answer, were read, and petitioner was ordered by the judge to take the stand. The court indicated it was proceeding as "[t]he Court and the Grand Jury" "in accordance with Rule 42(a)," which relates to the procedure in cases of contempt "committed in the actual presence of the court." Over objection, the court then put to petitioner the six questions which he had refused to answer when propounded by the grand jury. Petitioner again refused to answer these questions on the claim of the privilege against self-incrimination. In answer to a question by the court, he stated that he would continue to refuse on that ground should the grand jury again put the questions to him. Government counsel asked that petitioner be adjudged in contempt "committed in the physical presence of the Judge." The court asked for reasons "why I should not so adjudicate this witness in contempt." Petitioner's counsel made three

Page 614

points: (1) that the procedures had not been in accordance with "the requirements of due process"; (2) that the procedures had not followed the requirements of Rule 42(b) of the Federal Rules of Criminal Procedure; and (3) that, on the merits of the charge, the statutory immunity was not sufficiently extensive to deprive petitioner of his privilege not to answer. No reference was made to the exclusion of the general public from the proceedings. Petitioner was adjudicated in contempt and, after submission by counsel of views regarding sentence, one year's imprisonment was imposed. The conviction was affirmed by the Court of Appeals, 267 F.2d 335, and we granted certiorari, 361 U.S. 860, limiting our grant to the question left open in Brown v. United States, namely, whether the "secrecy" of the proceedings offended either the Due Process Clause of the Fifth Amendment of the Constitution or the public trial requirement of the Sixth Amendment.

The course of proceeding followed by the District Court in this case for compelling petitioner's testimony was the one approved in Brown. Specifically, it was established by that case that, after petitioner had disobeyed the court's direction to answer the grand jury's questions before that body, it was proper for the court, upon application of the grand jury, (1) to disregard any contempt committed outside its presence; (2) to put the questions directly to petitioner in the court's presence as well as in the presence of the grand jury; and (3) to punish summarily under Rule 42(a) as a contempt committed "in the actual presence of the court" petitioner's refusal thereupon to answer.

[80 S.Ct. 1042] It was surely not error for the judge initially to have cleared the courtroom on April 22 when the grand jury appeared before him for the second time seeking his "assistance . . . in regard to the witness Morry Levine."

Page 615

The Secrecy of grand jury proceedings is enjoined by statute (see 18 U.S.C. § 1508, and Federal Rules of Criminal Procedure 6(d) and (e)), and a necessary initial step in the proceedings was to read the record of the morning's grand jury proceedings. The precise question involved in this case, therefore, is whether it was error, once the courtroom had been properly, indeed necessarily, cleared, for petitioner's contempt, summary conviction, and sentencing to occur without inviting the general...

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