448 F.2d 369 (9th Cir. 1971), 71-2046, In re Russo

Docket Nº:71-2046.
Citation:448 F.2d 369
Party Name:In the Matter of Grand Jury Witness, Anthony RUSSO, Jr. Anthony RUSSO, Jr., Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 17, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 369

448 F.2d 369 (9th Cir. 1971)

In the Matter of Grand Jury Witness, Anthony RUSSO, Jr. Anthony RUSSO, Jr., Appellant,

v.

UNITED STATES of America, Appellee.

No. 71-2046.

United States Court of Appeals, Ninth Circuit.

Aug. 17, 1971

Page 370

Joseph A. Ball (argued), of Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, Cal., for appellant.

Robert L. Keuch (argued), Garvin Lee Oliver, Dept. of Justice, Robert C. Mardian, Asst. Atty. Gen., Washington, D. C., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee.

Before KOELSCH and CARTER, Circuit Judges, and BEEKS, [*] District Judge.

JAMES M. CARTER, Circuit Judge.

This is an appeal from an order of the district court holding Russo, a witness before the grand jury, in civil contempt for failure to answer questions, 28 U.S.C. § 1826, after being granted immunity under 18 U.S.C. § 2514.

Russo raises procedural questions allegedly invalidating the judgment, and also contends that subsequent to the refusal to answer, the grand jury has indicted one Ellsberg, who was the subject of most of the questions, and that the proceeding is now moot. We affirm.

We note preliminarily that notice of appeal was filed on July 2, 1971. 28 U. S.C. § 1826(b) requires the appeal to be determined within 30 days, i. e. by August 1, a Sunday. Appellant's brief was filed July 27, 1971 and appellee's brief was handed to members of the panel on August 2, 1971, the day argument was scheduled and heard. On August 2, we entered our order affirming the judgment with a statement that an opinion would be filed. Appellant has raised no question as to the 30 day period.

I.

The Claimed Procedural Defects

Appellant claims he received inadequate notice of both the immunity application,

Page 371

and the contempt proceedings. Appellant had been subpoenaed to appear and appeared before the Grand Jury on June 23, 1971. He then refused to testify, claiming his privilege against self incrimination. The same day the United States Attorney filed an application to grant appellant immunity pursuant to 18 U.S.C. § 2514 and the district court so ordered.

Appellant was present with his counsel at the time the order was made. Counsel stated he had no objection to the grant of immunity; but that if appellant, the witness, claimed his privilege and refused to testify, counsel stated he wished an opportunity to be heard, and asked for at least 24 hours continuance before he made his argument. Accordingly, and with the apparent approval of counsel, appellant was ordered to appear before the grand jury at 2 P.M. of that day, June 23, 1971 and the time for hearing counsel's contentions and argument was set for June 25, 1971 at 2 P.M.

The arguments were heard on June 25, 1971 and appellant's contentions overruled. The United States Attorney reported that appellant had refused to answer questions and with the approval of appellant's counsel a contempt hearing was set for one week later, July 2, 1971 at 2 P.M.

At the hearing on July 2, 1971 appellant contended he was entitled to a jury trial and that since the grand jury had returned an indictment against Ellsberg, subsequent to appellant's appearance before the grand jury on June 23, 1971, the grand jury had no further right to question appellant.

The trial court ordered appellant to answer the specific questions he had been asked and, when he refused, sentenced him in civil contempt and committed him to the custody of the Attorney General until such time as he purged himself of contempt, by answering the questions or until the current term and any extended terms of the grand jury shall have expired, whichever shall first occur.

A. Notice

(1) The Grant of Immunity

Appellant contends that under the Fed.Rules of Civil Procedure he was entitled to five days notice of the application for the grant of immunity. Although Rule 6(d), Fed.Rules of Civil Procedure, provides for five days notice, the Rule also provides that a different period may be fixed by the court. United States v. Weinberg (9 Cir. 1971) 439 F.2d 743. This court has upheld the holding of an immunity...

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