449 F.2d 933 (9th Cir. 1971), 71-1826, Bacon v. United States

Docket Nº:71-1826.
Citation:449 F.2d 933
Party Name:In the Matter of the Petition of Leslie BACON for Writ of Habeas Corpus, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:September 30, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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449 F.2d 933 (9th Cir. 1971)

In the Matter of the Petition of Leslie BACON for Writ of Habeas Corpus, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 71-1826.

United States Court of Appeals, Ninth Circuit.

Sept. 30, 1971

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         Benjamin Dreyfus (argued), of Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., Jennie Rhine (argued), Oakland, Cal., Jan Peterson, Seattle, Wash., for plaintiff-appellant.

         Robert L. Keuch (argued), Dept. of Justice, Robert C. Mardian, Asst. Atty. Gen., Washington, D. C., Stan Pitkin, U. S. Atty., Seattle, Wash., for defendant-appellee.

         Before HAMLEY, KOELSCH and DUNIWAY, Circuit Judges.

         DUNIWAY, Circuit Judge:

         This case is a companion to In re Bacon, 9 Cir., 1971, 446 F.2d 667 (1971) in which we affirmed a civil contempt order entered against Leslie Bacon for refusal to answer questions before a grand jury. In this appeal Bacon challenges the method by which she was brought before the grand jury, namely, her arrest and detention under a material witness arrest warrant.

         On April 22, 1971, the United States Attorney for the Western District of Washington swore out a material witness complaint before District Judge Boldt, alleging that Bacon had personal knowledge of matters material to a grand jury investigation and that a subpoena would be ineffective in securing her presence because she would flee the jurisdiction of the court and of the United States to avoid giving testimony. Relying solely on that complaint, Judge Boldt issued an order commanding the United States Marshal to arrest Bacon

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and to transport her to Seattle in his custody unless she posted bail of $100,000.00. At the same time a subpoena was issued requiring Bacon's appearance before the grand jury in Seattle on April 28.

         On April 27 agents of the Federal Bureau of Investigation, attempting to execute the arrest warrant, broke into a residence in Washington, D. C. but were unable to locate Bacon. The agents returned later the same day, and this time found Bacon on the roof of an adjoining building and took her into custody. Enroute to the F.B.I. office the agents served the subpoena on Bacon. Later they transferred her to the custody of the United States Marshal in lieu of bond in the amount set by Judge Boldt.

         On April 28, a removal hearing was held before Chief Judge Sirica in the District Court for the District of Columbia. At the hearing the court denied Bacon's motions to quash the arrest warrant and in the alternative to reduce bail. On April 29, the Court of Appeals for the District of Columbia Circuit dismissed Bacon's petition for a writ of habeas corpus, stating inter alia that Bacon would have ample opportunity to present all her issues in the District Court for the Western District of Washington before any appearance before the grand jury. Bacon v. United States, D.C.Cir., 1971, unpublished (No. 71-1312, April 29, 1971).

         Bacon was then flown to Seattle in the custody of the United States Marshal. She testified before the grand jury on April 30, May 1 and 2. On May 3 Bacon filed a petition for a writ of habeas corpus in the District Court for the Western District of Washington, again challenging the validity of her arrest and the imposition of bail. On May 6, Judge Boldt denied the petition and continued bail in the amount previously set. It is that May 6 decision that is appealed in this case.

         I. Prematurity or mootness.

          There is a substantial question whether this case has been rendered either premature or moot by the District Court's civil contempt order committing Bacon for her refusal to answer grand jury questions, affirmed in 446 F.2d 667. 1

         A. Prematurity.

         The prematurity doctrine does not apply here. Historically, it was invoked to prevent a prisoner from challenging the second of two consecutive sentences while he was still serving the first. See McNally v. Hill, 1934, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; United States ex rel. Parker v. Ragen, 7 Cir., 1948, 167 F.2d 792. This case is different. When she filed her habeas corpus petition Bacon was in custody solely because of the order she now challenges. Since that time the contempt order has added a second basis for holding Bacon, but neither the Government nor the District Court has indicated that the original order has lost its force. Bacon challenges an order under which she is presently being detained. Moreover, the historic basis for the doctrine has been rejected. See Peyton v. Rowe, 1968, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (expressly overruling McNally v. Hill); Imbler v. Oliver, 9 Cir., 1968, 397 F.2d 277; see generally Note, Developments in the Law; Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1072-1087 (1970).

         B. Mootness.

         A more substantial question is whether the District Court's civil contempt order has rendered this case moot. Recent

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decisions of the Supreme Court emphasize that the mootness doctrine should no longer be mechanically applied in habeas corpus cases. See Carafas v. La Vallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (expressly overruling Parker v. Ellis, 1960, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963), where the Court rejected the contention that the petitioner's claim was mooted by his unconditional release from custody after he had filed his petition in the District Court. In Sibron v. New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 appellant had served his sixmonth sentence and was released before he was able to present his case on appeal, but the Court nevertheless rejected a mootness contention:

"Many deep and abiding constitutional problems are encountered primarily at a level of 'low visibility' in the criminal process-in the context of prosecutions for 'minor' offenses which carry only short sentences.12 We do not believe that the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct." 392 U.S. at 52-53, 88 S.Ct. at 1897. (footnote omitted.)

         See also Ginsberg v. New York, 1968, 390 U.S. 629, 633 n. 3, 88 S.Ct. 1274, 20 L.Ed.2d 195.

         Bacon's case presents the type of low visibility incursion by government upon personal liberty referred to in Sibron. Had she not refused to answer questions before the grand jury, her detention as a material witness would have ended long before this court could entertain her case. If the District Court's contempt order is dissolved in the future and Bacon is again held solely as a material witness, the completion of her testimony could not conceivably take any more than a few days. Bacon's release at that time would again moot the case, thereby precluding her from ever obtaining a ruling on the lawfulness of the restraint imposed upon her. This is precisely the result that the Supreme Court sought to avoid in Sibron.

          Bacon's case does not fail for mootness or prematurity because it was ripe at the time she filed her petition in the District Court, 2 she remains subject to possible custody at least in part under the authority of the order that she attacks, and the possibility of her future detention under that order provides a sufficient collateral consequence. Compare Russo v. United States, 9 Cir., 1971, 448 F.2d 369 and Bratcher v. McNamara, 9 Cir., 1971, 448 F.2d 222.

         This court has released Bacon on her own recognizance, subject to certain conditions, pending her appeal in No. 71-1825. We have held that release on bail destroys "custody" for habeas corpus purposes. Matysek v. United States, 9 Cir., 1964, 339 F.2d 389. While it is not clear from the opinion who granted bail in Matysek, it must have been the lower court. Otherwise, the courts of appeals could never grant bail in a habeas corpus case because to do so would automatically oust the courts of jurisdiction.

         II. Authority of Federal Government to Arrest and Detain Grand Jury Material Witnesses.

          It is well-settled that the District Court may compel the performance of the duty of a witness to testify before a grand jury by issuing a subpoena, and by imprisonment for contempt. See Brown v. United States, 1959, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609; Blair v. United States, 1919, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979, Rules 17(g), 42, F.R.Crim.P. However, Bacon argues that the government has no power to assure the attendance of grand jury witnesses by arrest and detention before disobedience of a subpoena.

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         The Government argues that Congress conferred the power to arrest and detain Bacon as a material witness in 18 U.S.C. § 3149 and Rule 46(b) F.R.Crim.P.3 Section 3149 was enacted as part of the Bail Reform Act, and provides:

"If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpoena, a judicial officer shall impose conditions of release pursuant to section 3146. No material witness shall be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. Release may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure."

         Rule 46(b) contains similar provisions:

"(b) Bail for Witness. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and if it is shown that it may become impracticable to secure his presence by subpoena, the court or commissioner may require him to give bail for his appearance as a witness, in an amount...

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