United States v. Weinberg

• Citation: 439 F.2d 743
• Decision Date: 18 January 1971
• Docket Number: No. 26903. Misc. No. 5484-5487.,26903. Misc. No. 5484-5487.
• Parties: UNITED STATES of America, Appellee, v. Lee WEINBERG, Appellant. UNITED STATES of America, Appellee, v. David Alfred SCHEFFLER, Appellant. UNITED STATES of America, Appellee, v. Teri Ann VOLPIN, Appellant. UNITED STATES of America, Appellee, v. Karen DUNCAN, Appellant. UNITED STATES of America, Appellee, v. Pamela DONALDSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

439 F.2d 743 (1971)

UNITED STATES of America, Appellee, v. Lee WEINBERG, Appellant.

UNITED STATES of America, Appellee, v. David Alfred SCHEFFLER, Appellant.

UNITED STATES of America, Appellee, v. Teri Ann VOLPIN, Appellant.

UNITED STATES of America, Appellee, v. Karen DUNCAN, Appellant.

UNITED STATES of America, Appellee, v. Pamela DONALDSON, Appellant.

No. 26903. Misc. Nos. 5484-5487.

United States Court of Appeals, Ninth Circuit.

January 18, 1971.

Kenneth Cloke, Barrett Litt, John M. Pratt, H. Peter Young, Venice, Cal., for appellants.

Richard K. Burke, U. S. Atty., John Wilkes, Asst. U. S. Atty, Tucson, Ariz., for appellee.

Before CHAMBERS, HAMLEY and HUFSTEDLER, Circuit Judges.

HAMLEY, Circuit Judge:

In the fall of 1970 a grand jury was convened at Tucson, Arizona to inquire into the matters referred to in the margin.¹ The five appellants were subpoenaed by the United States to testify before the grand jury. Each refused to answer most of the questions asked of them before the grand jury. Each was then called before a district judge then sitting in Tucson, granted immunity pursuant to 18 U.S.C. § 2514, and ordered to "testify and answer the questions asked by the grand jury."

Each of the appellants was then returned to the grand jury room and the United States Attorney asked each of them substantially the same questions as on their first appearances before that body. Each appellant was permitted, if he or she wished, to leave the jury room and confer with his or her attorney in the corridor. Some of the appellants followed this course after almost every question; others followed this course sparingly.

All refused to answer almost all of the questions asked of them. While there was some variation in the reasons given for refusing to answer, the reasons most frequently stated were that such refusal was pursuant to the witnesses' constitutional rights under the First, Fourth, Fifth, Sixth and Ninth Amendments, the right to privacy; and because the questions were vague, broad, compound and irrelevant.

Immediately after each refused to answer questions this second time, the witness was ordered to show cause at once, in district court, why he or she should not be adjudged and held in civil contempt.² Hearings were immediately held, appellants' motions for continuances being in each case denied. At each hearing, the court reporter who took down the grand jury proceedings was called to testify concerning the questions asked and the responses received.

After the reporter testified concerning six to twelve of the questions and responses, the district court terminated his testimony. Each appellant personally, or through counsel, made it clear that he or she would continue to refuse to answer these questions. Counsel for appellants then presented oral argument in support of the various reasons why appellants had declined to answer the questions. In general, the district court declined to rule upon the various objections, holding that the grant of immunity foreclosed the only objection which appellants could properly advance at that time. In each case the district court then adjudicated the witness to be in civil contempt and ordered his or her immediate commitment. These decrees and commitments are summarized below.³

Each of the appellants appealed and we have consolidated the appeals for purposes of briefing and disposition. By order of this court entered on January 5, 1971, we expedited the appeals in order that they may be disposed of within thirty days from the filing of such appeal, as required by 28 U.S.C. § 1826(b). Appellants' motion for reconsideration of the order of January 5, 1971, insofar as it expedites the appeal, is denied. Appellants' motion for leave to file a supplement to the opening brief in lieu of a reply brief, is granted, and their supplemental brief has been received and considered.

All of the appellants argue that they were deprived of the notice and hearing requirements of the Due Process Clause of the Fifth Amendment, when the individual civil contempt proceedings were conducted immediately after the respective appellants had refused to obey the court's order to testify.

Under the circumstances of this case, as described above, we believe each appellant, and his or her attorney, had ample notice that contempt proceedings would be held in the event of refusal to answer the questions, and ample notice of the issues which would be relevant thereto. While there was practically no advance notice of the time of the several contempt hearings, the record indicates that counsel were able to, and did present, vigorously and in some detail, the principal arguments which they renew on this appeal.

Under all of the circumstances we hold that appellants were not deprived of due process with regard to these contempt proceedings. See Licata v. United States, 429 F.2d 1177, 1180 (9th Cir. 1970), vacated as moot, 400 U. S. 938, 91 S.Ct. 239, 27 L.Ed.2d 243.⁴ The same considerations which justify the holding of civil contempt proceedings, absent the safeguards of indictment and jury (Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966)), warrant reasonable expedition of such proceedings both in the district court and on appeal.

All of the appellants assert that they were deprived of their rights under the Due Process Clause and Rule 6(d), Federal Rules of Civil Procedure, because they were not given adequate notice of the proceedings during which they were granted immunity and ordered to testify, and were thus deprived of a full and fair hearing.

At these hearings, which preceded the contempt hearings, the Government asked that appellants be granted immunity under 18 U.S.C. § 2514, and that, after such immunity were granted, that they be ordered to answer, before the grand jury, the questions propounded to them. Both requests were granted by the court.

The leading case prescribing the procedure to be followed in proceedings under 18 U.S.C. § 2514 for the granting of immunity and the directing of a witness to answer questions before the grand jury, is In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (1962). As there indicated, while such a proceeding is by its nature preliminary and summary, an application by the Government for such relief, and supporting documents, should normally be served in accordance with the Federal Rules of Civil Procedure.

Rule 6(d) provides for five days notice, which was not given here. But Rule 6(d) also provides that a different period may be fixed by the court. In effect, that is what happened here; the district court denied appellants' motion for a continuance and ordered that the section 2514 proceeding be had almost immediately after the respective appellants had refused to testify before the grand jury.

Under the circumstances of this case, we do not believe that appellants were prejudiced by the expedition thus ordered. They could not have been prejudiced by the grant of immunity because such a grant is for the benefit of the witness. As for the direction to testify, the issues appropriate for consideration in a section 2514 proceeding are exceedingly limited, as pointed out in In re Bart. Examination of the record indicates that counsel were prepared for, and did, make a vigorous presentation on these issues, and on many other issues which were irrelevant or premature. We conclude that the section 2514 procedures did not infringe upon appellants' due process rights, or their rights under the Federal Rules of Civil Procedure.

All of the appellants contend that the district court violated their rights under the First Amendment by refusing to inquire into the constitutional propriety of grand jury questions delving into appellants' political beliefs, conversations and associations and into political meetings, assemblies and activities in which they participated.

In presenting argument on this question, appellants urge: (1) the questions they refused to answer impinged upon their rights under the First Amendment and (2) assuming that some or all of such questions were proper under the First Amendment, and consistent with the right of privacy, the district court should at least have so determined, in advance of appellants' last appearance before the grand jury, so that they would then have known what was being required of them.

Turning to the first problem we must, at the outset, limit our inquiry to the questions generally similar to those which were propounded, as testified to by the court reporter, when the individual appellants were returned to the district court on the orders to show cause why they should not be held in contempt. This is necessary because the contempt adjudication and commitments were referenced to the refusal to answer questions testified to by the reporter, and generally similar questions. If questions not generally similar to those testified to by the reporter were asked at appellants' last grand jury appearance, we do not know what they were or why appellants refused to answer them, and in any event, appellants have not been penalized for refusing to answer them.

Of the questions testified to at the district court proceedings, only a few seem to fall in the general area relevant to the contention now under discussion. We summarize them in the margin.⁵

This court recently recognized the right of a newspaper reporter, on First Amendment grounds, to refuse to answer questions pertaining to the sources of information he used in his news reporting, and his right to refuse to appear before the grand jury to submit to such questioning. Caldwell v. United States, 434 F.2d 1081 (9th Cir. 1970).

It will be noted, however, that Caldwell sought, and was granted, safeguards for the future exercise of the First Amendment right of free press, and was not complaining that his First Amendment rights had been infringed in the past. Likewise, appellants' only possible First Amendment complaint must be with...