416 F.2d 791 (D.C. Cir. 1969), 21918, Ellis v. United States

Docket Nº:21918, 21919.
Citation:416 F.2d 791
Party Name:James H. ELLIS, Jr., Appellant, v. UNITED STATES of America, Appellee. Alfred M. WATKINS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 30, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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416 F.2d 791 (D.C. Cir. 1969)

James H. ELLIS, Jr., Appellant,


UNITED STATES of America, Appellee.

Alfred M. WATKINS, Appellant,


UNITED STATES of America, Appellee.

Nos. 21918, 21919.

United States Court of Appeals, District of Columbia Circuit.

April 30, 1969

Argued Dec. 13, 1968.

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Mr. Charles E. Kern, II (appointed by this court), for appellants, and Mr. Richard J. Hopkins, Washington, D.C., for appellant in No. 21,919. Mr. George W. Mitchell, Washington, D.C., also entered an appearance for appellant in No. 21,919.

Mr. Frederick G. Watts, Atty., Department of Justice, with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.A. Atty., were on the brief, for appellee. Mr. James A. Treanor, III, Asst. U.S. Atty., also entered an appearance for appellee in No. 21,919.

Before DANAHER, [a1] WRIGHT and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

These appellants were convicted of arson and of carrying a dangerous weapon. They seek reversal on the ground that the trial judge erred in compelling the testimony of one Izzard who had been their companion in crime.

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The prosecution called Izzard to testify at trial, whereupon the trial judge advised the witness of his privilege against self-incrimination, and asked him if he wished to take the stand. The witness responded in the negative. The prosecuting attorney asked that counsel be appointed to advise the witness. Counsel was appointed; he consulted the witness, and reviewed the transcript of the grand jury proceedings at which the witness had already testified, and he advised the witness to claim his privilege.

Thereafter a long colloquy ensued among court and counsel. The prosecutor urged that the witness should be compelled to testify based on his prior waiver of the privilege at the grand jury proceedings. He argued that there could be no prejudice if the witness merely reiterated what he had already said for the record, and that the standard for waiver under the Supreme Court decisions was that there had to be an actual, realistic possibility of harm.

Government counsel also urged that the defendants had no standing to object to the ruling on the claim of privilege of a witness, and that there could be no prejudice to the witness, if the court erroneously compelled the testimony, in view of Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), and other Supreme Court decisions. In opposition counsel for witness Izzard contended that there was some doubt in Izzard's mind as to whether he was being charged or under investigation, etc. at the time he testified before the grand jury, and thus he had not waived his privilege there, and that in any event he had not been given immunity and thus could reclaim the privilege at the subsequent proceeding.

The trial judge rejected outright the Government's contention that the waiver of privilege before the grand jury carried through to a subsequent proceeding, and subscribed to the rule announced in other circuits, even though there was no binding precedent from this court. He concluded, however, that there was no reason not to compel the testimony, since, under his reading of Murphy v. Waterfront Comm'n, supra, the witness would be protected from its subsequent use against him. 1

On appeal Government counsel invoke the doctrine that a party may not appeal because of the court's alleged error in overruling the claim of privilege of a witness who is not a party. 2 We hold that while this doctrine has vitality, it does not bar review of the action complained of here. For convenience we defer development of this ruling upholding

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appellants' standing to Part B of this opinion, since it will involve consideration of the material presented in Part A.

As to the merits, we hold (in Part A) that the trial judge erred when he required the witness to testify on the ground that the witness was protected against prejudice by virtue of Murphy v. Waterfront Comm'n. We further hold (in Part C) that there was validity in the prosecutor's contention that the claim of privilege asserted at trial should be overruled in view of the witness's voluntary testimony before the grand jury, and that the judge erred in rejecting this contention, and accordingly affirm since we see no valid basis for Izzard's disavowal of his waiver before the grand jury.

A. The trial judge's ruling compelling the witness to testify was based on an approach beyond his judicial authority.

1. As to the merits, we begin by saying we agree with the assumption of the trial judge that a witness compelled by a judge to testify over a claim of privilege will be protected under the doctrine of Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S.Ct. 1594 (1964). While the matter is not free from doubt, the thrust of Murphy and other recent Supreme Court decisions serves to protect the witness.

Appellant Murphy had been held in civil contempt for his refusal to answer questions before a state investigating commission. Murphy argued that the immunity conferred by the state immunity statute was not coextensive with his privilege, since the answers might incriminate him under federal law and lead to federal prosecution. 3 All the Justices agreed that the threat of prosecution by a coordinate sovereign whittled away at the policy underlying the privilege and concurred in holding, on different doctrinal grounds, that federal officials would not be permitted to use the testimony or initiate prosecution based on the disclosure or its fruits. 4

In Murphy the order to testify was preceded by a grant of immunity pursuant to statute. What of a case where there is compulsion by a judge in the absence of an immunity statute, by an order that erroneously overrules the witness's claim of privilege? We think the witness is protected by the approach and principle underlying Murphy. See

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also Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), both the majority opinion of Justice Whittaker (p. 355, 78 S.Ct. 311) and Justice Harlan's dissent (p. 363, 78 S.Ct. 311); and Adams v. Maryland, 347 U.S. 179, 181, 74 S.Ct. 442 (1954). 5 The Wigmore text also expresses the view that such a court ruling protects the witness. 6

2. A trial judge cannot reject a witness's claim of privilege merely on the ground that the ruling cannot hurt the witness because it will establish an immunity from subsequent prosecution.

We are not here concerned with a case where a judge has made a mistake in applying legal rules, like a case where he erroneously rules that a witness has waived his privilege. In the case before us the judge did not purport to deny that the witness had correctly presented a claim of privilege. He merely asserted that the witness would nevertheless be protected, by Murphy, against prosecution based on his testimony.

The ruling was made by an able and conscientious trial judge. We are confident it was made in good faith, and can even discern how the judge may have come to a mis-reading of Murphy. Nevertheless, his ruling was in the nature of a circular, self-fulfilling prophecy that in substance can only be viewed as a grant of immunity. That ruling was outside the scope of judicial authority.

This is an area that has been considered by Congress and where it has acted with care and particularity, limiting the power to grant immunity-- in the presence of a valid claim of privilege-- to a limited group of federal officials. 7 We

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need not consider what would be the legal situation in the absence of such a statute. 8 With that statute on the books, the power to grant immunity is plainly outside the judicial province.

This conclusion, once stated, seems obvious. But if authority is also desired, it appears, at least implicitly, in Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). Justice Frankfurter, writing for seven Justices, rejected appellant's contentions that the federal immunity statute required the court to participate in the decision as to whether immunity should be granted in a particular situation. The Court approved the approach of the district court, in construing the statute to avoid a serious constitutional question as to the role of the judiciary under the doctrine of separation of powers, and found a limited judicial role under the statute, 18 U.S.C. § 3486 (1964). 9 See 350 U.S. at 434, 76 S.Ct. at 504:

Since the Court's duty under § (c) is only to ascertain whether the statutory requirements are complied with by the grand jury, the United States Attorney, and the Attorney General, we have no difficulty in concluding that the district court is confined within the scope of 'judicial power.'

The lack of judicial authority to grant immunity from prosecution to a witness whose claim of privilege is recognized also appears in opinions of this court. See Earl v. United States, 124 U.S.App.D.C. 77, 80, 361 F.2d 531, 534 (1966), cert. denied, 388 U.S. 921, 87 S.Ct. 2121, 18 L.Ed.2d 1370 (1967); 10 In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (1962)

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(by implication).

B. Appellants have standing to object to the judge's usurpation of prerogative.

We do not entertain this appeal merely to review an erroneous ruling on a claim of testimonial privilege. Here there was a usurpation of a prerogative that Congress has withheld from the courts.

We must look to the substance and not the form of the ruling. What appears to be a mere ruling on a claim of privilege is, 'in reality and effect,' 11 an action tantamount to exchanging immunity for the witness's testimony. If the trial court had been ruling that the witness erred in presenting a claim of privilege the question would simply be whether the judge was correct. But by 'resolving...

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