Baker v. Eisenstadt

• Decision Date: 23 February 1972
• Docket Number: No. 71-1399.,71-1399.
• Citation: 456 F.2d 382
• Parties: I. Charles BAKER, Petitioner-Appellant, v. Thomas S. EISENSTADT, Sheriff of Suffolk County, Respondent-Appellee.
• Court: U.S. Court of Appeals — First Circuit

456 F.2d 382 (1972)

I. Charles BAKER, Petitioner-Appellant, v. Thomas S. EISENSTADT, Sheriff of Suffolk County, Respondent-Appellee.

No. 71-1399.

United States Court of Appeals, First Circuit.

Heard January 5, 1972.

Decided February 23, 1972.

COPYRIGHT MATERIAL OMITTED

Kevin M. Keating, Boston, Mass., with whom Monroe L. Inker, Crane, Inker & Oteri, and Charlotte Anne Perretta, Boston, Mass., were on brief, for appellant.

Walter H. Mayo, III, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., James P. Kiernan, Terence P. O'Malley, Asst. Attys. Gen., and Danielle deBenedictus, Deputy Asst. Atty. Gen., were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellant, now in confinement under sentences for contempt of the Massachusetts Supreme Judicial Court, appeals the denial of his petition for habeas corpus and the dismissal of his complaint by the district court.

1. The Facts

During the summer and fall of 1971, an investigation into the alleged misconduct of two judges of the Massachusetts Superior Court took place, part of which involved appellant's being interviewed, first, by Commonwealth investigators, and, second, by the Chief Justice of the Superior Court. Subsequently, the Supreme Judicial Court (hereinafter "Court") appointed special counsel who on October 4, 1971, presented an information¹ based on statements made by one Michael Raymond and others. The charges were summarized by the Court in its final opinion disposing of the matter as follows:

"In essence, Raymond stated that in 1962 he made payments to I. Charles Baker appellant, a surety bail bondsman, upon Baker\'s representation that he could insure a favorable judicial result in Raymond\'s cases. Baker further stated, according to Raymond, that the arrangement for disposition of his matters was to be made through Judge DeSaulnier. From June of 1962 until the final disposition, Raymond was represented by Mr. Richard G. Crotty of Worcester, who was an intimate social friend of Judge DeSaulnier. Raymond\'s cases came before Judge Vincent R. Brogna in September, 1962. After several continuances, and after a partial restitution agreement had been reached with the victims of Raymond\'s larcenies, Raymond was given a suspended sentence and placed on probation. Following his final court appearance on September 28, Raymond and Baker met Judge DeSaulnier in a public place known as the Darbury Room. Raymond\'s matter was referred to, and Judge DeSaulnier expressed his pleasure in `doing business\' with Raymond." In the Matter of DeSaulnier and another, 1972 Mass.Adv.Sh. 65, 66, 279 N.E.2d 296.

On October 5, 1971, the day after the information was presented charging judicial misconduct, appellant and his brother, both licensed bail bondsmen, were indicted by the Middlesex County Grand Jury for larceny, the counts covering the period from November 20, 1967, to July 31, 1971, and for conspiracy to commit larceny, beginning in 1968.

Appellant, subpoenaed to testify at a hearing to be held on November 15, 1971, inquiring into the charges of judicial misconduct, moved to quash the subpoena, asserting that his Fourth, Fifth, and Fourteenth Amendment rights would be violated were he to be compelled to testify. In the course of considerable subsequent negotiation, amendments to the Commonwealth's original grant of immunity were prepared in an attempt to satisfy appellant's Fifth Amendment claim. A written stipulation, offered by the Middlesex County District Attorney, and assented to by the Massachusetts Attorney General, reached its final form on November 29, as reproduced in the margin.² At the same time the Court issued its "Finding and Rulings", 1971 Mass.Adv.Sh. 1689, 276 N.E.2d 278, denying appellant's claim of privilege "with respect to any examination or cross-examination concerning events prior to January 1, 1965, subject to appellant's establishing by counsel that there is, as to any particular question, a significant risk of incrimination not hitherto brought to the court's attention" Id. at 1693, 276 N.E.2d at 281.

Appellant, as will be more fully detailed later, refused to testify upon being recalled to the stand the same day. Forty-five substantive questions were asked, appellant refusing to answer each and being held in contempt for forty-three refusals. He was sentenced to five months imprisonment for each of twelve refusals, the sentences to run concurrently, with disposition reserved as to the remaining contempts.

Appellant immediately sought habeas corpus relief in the district court and also admission to bail. Upon denial of the latter motion, he appealed to us. Being then persuaded that the Commonwealth's stipulation met even the rigorous standard of transactional immunity in all material respects, we saw no more than speculative merit in appellant's objections and affirmed the denial of bail on December 1, 1971. Later the same day, appellant was again brought before the Court. Counsel for appellant, though speaking "in mitigation of any punishment for contempt", argued that the contempt was civil and that appellant could purge himself at any time. The Court noted that the hearing had not ended, that appellant was at liberty to testify, but referred to counsel's suggestion that appellant could purge himself as "your words, not mine". Previously, the Court had been similarly non-committal when counsel had suggested that the contempt was civil. Appellant did not offer to testify. Sentence was then pronounced on twenty-three of the remaining thirty-one judgments of contempt, the sentences being for six months each, divided into four groups, the sentence for each group to begin "on and after" that for the prior group. The aggregate time to be served is twenty-nine months.

Appellant asserts first that no contempt was committed, since the Commonwealth's stipulation did not grant immunity coextensive with the Fifth Amendment. Secondly, he contends that if any contempt was committed, the sanction imposed by the court was coercive, the sentence being civil and expiring with the termination of the proceeding. Thirdly, if indeed the contempt judgments were criminal, he asserts that error was committed in resorting to summary punishment, without notice and hearing. Finally, he urges that the twenty-nine month aggregate sentence, being multiple punishment for a single contempt, places him in double jeopardy, constitutes cruel and unusual punishment, and violates his right to trial by jury.

II. The Grant of Immunity

In our earlier decision denying bail we saw no substantial possibility that appellant could successfully challenge the efficacy of the Commonwealth's grant of immunity. We have since received no additional indication from appellant enlightening us as to how, if he had testified, he would have incriminated himself. The testimony was limited by order of the Court, both as to direct and cross-examination, to events prior to January 1, 1965. The statute of limitations has run on all crimes committed before that date, except such crimes as murder or treason which are in no way suggested by or related to the Court's proceeding. In the unlikely event that questions threatened to trench on any such area, the privilege could be asserted, under the Court's specific reservation. Moreover, no testimony or fruits thereof would be introduced in any criminal proceeding against appellant.

Despite the clear wording of the stipulation, appellant disputes the latter point. We observe that the danger of distinguishing tainted fruits from independently derived sources is in this case exceedingly remote, both because of the time period and subject matter covered by the proferred questions and the Court's order, and because, presumably, appellant's prior responses to the Chief Justice of the Superior Court would have furnished any leads, if leads existed. To speculate, as to new leads, that the Court would permit direct examination to transcend the boundaries it defined would be to assault its integrity. And, while the determination of relevance in fixing the scope of cross-examination is within the sound discretion of the court, there are limits, including particularly the substantial rights of a party, Commonwealth v. Granito, 326 Mass. 494, 496, 95 N.E.2d 539 (1950), and, in this case, confinement to events prior to 1965.³ Finally, the stipulation protects appellant from any prosecution for prior perjury which his testimony might otherwise justify.

The most expansive view of a constitutionally adequate grant of immunity is that it must give the witness protection from exposure to future criminal proceedings "as fully and extensively as he would be secured by availing himself of the privilege accorded by the constitution." In re Emery's Case, 107 Mass. 172, 185 (1871). Had appellant not been granted immunity and had he chosen to remain silent as to events prior to 1965, he would not thereby have had a better chance of escaping prosecution under the indictment for larceny and conspiracy allegedly occurring in 1968 and the years following. The two sets of events noted were largely independent of each other and evidence related to one would have had little relevance in any prosecution for the other. What appellant sought in return for his testimony was to be put in a better position than if he had remained silent as to events prior to 1965. He wished, as his counsel acknowledged, a blanket immunity from the most recent prosecution even though it related to wholly separate and subsequent transactions not implicated in the testimony sought to be elicited by the grant of immunity. Since by order of the court, the questioning was to be confined to events prior to 1965, since the statute of limitation had run on all conceivably relevant crimes committed during that period, since no testimony or fruits could be introduced in any criminal proceeding, and since no prosecution for...