466 F.2d 1059 (9th Cir. 1972), 26479, Bursey v. United States

Docket Nº:26479.
Citation:466 F.2d 1059
Party Name:Sherrie BURSEY and Brenda Joyce Presley, Appellants, v. UNITED STATES of America, Appellee.
Case Date:June 30, 1972
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1059

466 F.2d 1059 (9th Cir. 1972)

Sherrie BURSEY and Brenda Joyce Presley, Appellants,

v.

UNITED STATES of America, Appellee.

No. 26479.

United States Court of Appeals, Ninth Circuit.

June 30, 1972

Rehearing Denied Oct. 5, 1972.

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Arne Werchick (argued), Richard J. Massa, Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., for appellants.

Robert C. Mardian, Asst. Atty. Gen., James L. Browning, Jr., U.S. Atty., N.D. Cal., Robert L.Keuch, Garvin Lee Oliver, Victor C. Woerheide, Jr., Jerome K. Heilbron, Attys., U.S. Dept. of Justice, Washington, D.C., for appellee.

Before MERRILL, KOELSCH, and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Bursey and Presley, who are members of the staff of The Black Panther newspaper, were held in contempt when they refused to answer certain questions propounded by a federal grand jury. Throughout the grand jury proceedings and the proceedings before the district court, the witnesses consistently asserted the First and Fifth Amendments as the bases upon which they refused to answer the grand jury's inquiries. The appeal presents searching questions about the impact of the First and Fifth Amendments in the context of federal grand jury investigations.

The grand jury investigation, of which this appeal is an outgrowth, was triggered by a speech given by David Hilliard, Chief of Staff of the Black Panther Party, during Moratorium Day demonstrations on November 15, 1969. Hilliard delivered the speech in a public park in San Francisco before a large crowd. The speech was televised and widely reported by the news media across the country. In the course of the speech, Hilliard said, "We will kill Richard Nixon." The investigation began as an effort to determine the identity of the persons, if any, to whom Hilliard referred when he said "We" will kill the President. Later, the investigations expanded to include an exploration of potential interference with the armed forces and a general probe of the affairs of the Black Panther Party. As the focus of the inquiry expanded, the subject matter of the investigation has been variously described in the proceedings below as possible violations of 18 U.S.C. §§ 2, 371, 871, 1751, 2387, "and related statutes." (18 U.S.C. §§ 2 (general aiding

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and abetting statute), 371 (general conspiracy statute), 871 (threats against President and successors to the Presidency), 1751 (presidential assassination, kidnapping, and assault), 2387 (interference with armed forces); "related statutes" were never specifically identified.)

The Hilliard speech was printed in full in the November 22, 1969, issue of The Black Panther, a weekly publication that is an official organ of the Black Panther Party. Hilliard's statement about killing the President was quoted in an article by Ora Williams entitled "No Justice in Amerikka" that was published in the December 27, 1969, issue of The Black Panther. The Hilliard speech was reprinted in full in the same paper on January 3, 1970. On February 6, 1970, Life magazine printed an article about the Panthers illustrated by several photographs of Party members.

Bursey and Presley first appeared before the grand jury on December 10, 1969, at which time they were questioned primarily about the publication of Hilliard's speech in the November 22 issue and about the internal operations of the Panther newspaper. Each answered a few questions and refused to answer the remainder.

On February 25, 1970, they were recalled before the grand jury. At this session, the inquiry focused on the publication of the newspaper issues dated November 22, December 27, and January 3, and on the photographs published in Life on February 6. Both witnesses declined to respond to questions relating to the internal management of the paper and to the identification of the persons pictured in Life. Both witnesses were also asked if they had any information about a plot to kill the President or the Vice-President and the acquisition of weapons for that purpose. Bursey answered that she had no such information. Presley declined to answer.

On March 4, 1970, the United States Attorney for the Northern District of California filed applications requesting that Bursey and Presley be granted immunity pursuant to 18 U.S.C. § 2514 and be ordered to testify to matters being investigated by the grand jury. Both applications described the subject matter of the investigation as follows:

"This grand jury was inquiring into matters involving presidential assassination and assault, threats to assassinate the President of the United States, and attempts or conspiracies to commit these offenses and to cause others to commit such offenses, in violation of Title 18, United States Code, Section 1751, and also Title 18, United States Code, Sections 2 and 371."

In support of the applications, the Government attached letters from Assistant Attorney General Wilson dated February 13, 1970, authorizing the United States Attorney to seek immunity for these witnesses. The letters stated in part:

"This is with regard to your request to seek a grant of immunity for Brenda Joyce Presley [and Sherrie Bursey] in connection with the grand jury investigation relating to possible violations of Title 18, United States Code, Section 1751 by members of the Black Panther Party . . . ."

In opposition to the application, Presley submitted an affidavit stating that if she were recalled and asked questions about a plan or conspiracy to kill the President and Vice-President and about the acquisition of weapons, she would answer responsively, denying any such knowledge.

Hearings on the applications were held on April 3 and 17, 1970. On May 6, 1970, the court issued an order granting Bursey and Presley immunity under 18 U.S.C. § 2514 and requiring them to answer certain questions which they had been asked by the grand jury on February 25, 1970. The order specifically excluded from the questions to be answered those relating to the identity of persons in the Life photographs, and it expressly referred to the questions asked by the grand jury on February 25, 1970.

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On May 13, 1970, Bursey and Presley were again called before the grand jury. Presley was asked whether she knew anything of a conspiracy to kill the President or Vice-President or to acquire weapons for that purpose. She answered "No." Presley was also asked about the possession of weapons by Panthers. She answered that she had never heard any discussion of weapons by Panthers, but she refused to answer a question about her seeing weapons at a Black Panther Party meeting. Both Bursey and Presley were again asked questions relating to the publication and distribution of the November 22, December 27, and January 3 issues of the newspaper which contained the Hilliard "threat" 1 against the President. Both witnesses responded that they worked for the Panther paper, but they refused to answer any questions concerning its internal operations. Presley also admitted that she was a member of the Black Panther Party.

Immediately following the May 13 grand jury session, a hearing was held before the district court at which the grand jury sought to have Bursey and Presley ordered to answer the propounded questions and cited for contempt if they refused. At the instigation of counsel for Bursey and Presley, the court deemed the hearing a reopening of the application for immunity, and it allowed the witnesses to put in evidence to establish their First Amendment privileges. The witnesses testified in detail about their activities on The Black Panther. Both said that they sometimes gathered news and prepared articles as reporters and that they regularly edited articles prepared by others and assisted in the various phases of publication, including layout and typesetting.

On May 20 the district court issued a protective order declaring that the witnesses "shall not be required to reveal confidential information received, developed or maintained by them as professional journalists" unless and until the Government shows "a compelling and overriding national interest . . . requiring" their testimony.

The May 2, 1970, issue of The Black Panther contained an article entitled "To My Black Brothers in Viet Nam," signed by Eldridge Cleaver, Minister of Information of the Black Panther Party. Among the more inflammatory passages of this article is the following:

"Either quit the Army now or start destroying it from the inside. Anything else is a compromise and a form of treason against your own people. Stop killing the Vietnamese people. You need to start killing the racist pigs who are over there with you giving you orders. Kill General Abrams and his staff, all his officers. Sabotage supplies and equipment or turn them over to the Vietnamese people."

Presley reappeared before the grand jury on May 21, 1970. She testified in detail about her activities on the paper, especially in connection with the issues of November 22, December 27, January 3, and May 2. She explained that her only activities relating to the challenged articles in those issues were editing, typesetting, and proofreading. She testified that John Seale, Masai Hewitt, Sam Napier, Emory Douglas, and David Hilliard had worked on the paper and she said what each did. However, she refused to name the people who regularly worked on the paper or who worked on specific issues.

Both witnesses were recalled by the grand jury on June 4, 1970. Presley again refused to name specific individuals and to identify the roles each played...

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