482 F.2d 1016 (9th Cir. 1973), 73-1121, United States v. Alter

Docket Nº:73-1121.
Citation:482 F.2d 1016
Party Name:UNITED STATES of America, Appellee, v. Mark Lawrence ALTER, Appellant.
Case Date:July 23, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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482 F.2d 1016 (9th Cir. 1973)

UNITED STATES of America, Appellee,


Mark Lawrence ALTER, Appellant.

No. 73-1121.

United States Court of Appeals, Ninth Circuit.

July 23, 1973

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Susan B. Jordan, Atty. (argued), of Cummings & Jordan, San Francisco, Cal., Doron Weinberg (argued), of Stender & Lapides, San Francisco, Cal., for appellant.

Robert L. Keuch (argued), A. William Olson, Asst. Atty. Gen., Dept. of Justice, Washington, D.C., James L. Browning, Jr., U. S. Atty., David P. Bancroft, Asst. U. S. Atty., San Francisco, Cal., William M. Piatt, Dept. of Justice, Washington, D.C., for appellee.


Before MERRILL, HUFSTEDLER, and GOODWIN, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Alter appeals from a civil contempt adjudication stemming from his refusal to answer three questions asked by a special federal grand jury investigating potential violations of a potpourri of federal statutes. 1 We vacate and remand.

Of the many issues presented on appeal, we reach four:

1. Did the district court abuse its discretion by compelling Alter to respond to contempt charges without affording him a reasonable time adequately to prepare his defense and without giving him the uninhibited adversary hearing required by 28 U.S.C. § 1826(a) and Rule 42(b) of the Federal Rules of Criminal Procedure?

2. Were Alter's averments of illegal electronic surveillance of his counsel adequate to compel Government affirmation or denial under Gelbard v. United States (1972) 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179.

3. Was the Government's response to Alter's averments that the Government had placed Alter under illegal electronic surveillance sufficient to avoid an evidentiary hearing directed to the issue?

4. Was use immunity granted to Alter pursuant to 18 U.S.C. § 6002 noncoextensive with his Fifth Amendment right against self-incrimination because the immunity conferred failed to protect him from prosecution for false statements under 18 U.S.C. § 1001, based on an interview with an F.B.I. agent prior to his grand jury appearance?

Alter first appeared before the grand jury on November 13, 1972. Invoking his Fifth Amendment privilege against self-incrimination, he declined to answer several questions. On January 16, 1973, the Government applied for and was granted an order conferring on him use

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and derivative use immunity pursuant to 18 U.S.C. §§ 6002, 6003. Alter unsuccessfully objected to the immunity application on several grounds, including inter alia his lack of protection from potential prosecution based on statements he had made to the F.B.I. long before his grand jury appearance.

Alter was recalled on January 17, 1973. The grand jury forbade him to take notes and limited him to three minutes for consultation with counsel. Citing the restrictions imposed by the grand jury, he refused to answer, and a procedural skirmish followed. The grand jury had previously sought and been given secret instructions about their authority to impose restrictions on the witness. When Alter learned of these instructions, he moved the district court to disclose the special instructions and renewed his earlier motions to disclose all of the court's instructions to the grand jury and to propound his requested instructions to the grand jury. The district court disclosed the general and special instructions 2 but denied the other motions. The Government filed an affidavit at 4:45 p. m. on January 17, 1973, stating that Alter continued his refusal to cooperate and asking for the issuance of a contempt order. Oral argument continued to the conclusion of the court day.

On January 18, 1973, the grand jury again asked Alter three questions, in substance, as follows:

1. Did you acquire a passenger car registration in Illinois on February 17, 1970?

2. Did you ever visit a named San Francisco address?

3. Do you have any notion as to why identification bearing your name might have been located at that San Francisco address?

He declined to answer on several grounds, including claimed illegal electronic surveillance of himself and his counsel, his Fifth Amendment right, claimed prejudice from failure to disclose all of the court's instructions to the grand jury and refusal to give his requested instructions, a challenge to the composition of the grand jury, and the impropriety of the third question. 3 At the Government's request and over Alter's multiple objections, the court held a contempt hearing within 45 minutes after Alter's declination to respond to the three questions. The Government filed an affidavit purporting to disclaim any electronic surveillance of Alter, but it filed no response to Alter's affidavits averring illegal electronic surveillance of Alter's counsel. The district court, without an evidentiary hearing, forthwith held Alter in contempt, and this appeal followed.


The statutory authority for the contempt adjudication is 28 U.S.C. § 1826(a) which, in pertinent part, provides:

"Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify ..., the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement . . . until such time as the witness is willing to give such testimony . . . ." (Emphasis added.)

The word "summarily" evokes the concept of direct criminal contempt, 4 but

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the Supreme Court has effectively banished that impression. The Court's interpretation of section 1826(a) emerges from three cases: Gelbard v. United States (1972) 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179, decided after section 1826(a) was enacted; Shillitani v. United States (1966) 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622, and Harris v. United States (1965) 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240, both decided before the passage of section 1826(a).

The law of contempt has long been a morass because the contempt label has been pinned to highly diverse actions and offenses. Before Shillitani and Harris, confusion was rampant about the nature of contempts emerging from grand jury witnesses' refusals to respond to questions that they had been ordered to answer. Depending upon the characterization of such contempts, the recalcitrant witness might be subject (1) to summary punishment, (2) to a criminal trial, with all of the procedural safeguards usually attendant thereon, including a right to trial by jury, or (3) to civil procedures, sans jury trial, ordinarily available in civil litigation.

In Harris, an immunized grand jury witness, asserting his Fifth Amendment privilege against self-incrimination, refused to answer the grand jury's questions after the court ordered him to do so. The court held him in direct criminal contempt, invoking the summary procedure prescribed by Rule 42(a) of the Federal Rules of Criminal Procedure. The Supreme Court reversed, holding that summary contempt (Rule 42(a)) was limited to "'misbehavior"' in the "'actual presence of the court"' (382 U.S. at 164, 86 S.Ct. 352) and that the "normal procedure" for compelling a recalcitrant grand jury witness to testify was set forth in Rule 42(b) of the Federal Rules of Criminal Procedure. 5 (382 U.S. at 165-167, 86 S.Ct. 352.)

The question whether a grand jury witness' contempt was civil or criminal was not reached until Shillitani. In Shillitani two immunized grand jury witnesses, like Harris, refused to answer questions and were imprisoned until they purged themselves. Both witnesses were subjected to Rule 42(b) proceedings; both demanded and were refused trial by jury. The Supreme Court held that the contempt should be characterized as civil for the purpose of determining the right to jury trial.

Then came Gelbard, which involved three grand jury witnesses-Gelbard who appeared before a federal grand jury in California and Egan and Walsh who appeared before a Pennsylvania grand jury. Each witness claimed that illegal wiretapping infected his interrogation before the grand jury and that the infection supplied "just cause" under section 1826(a) to refuse to answer the grand jury's questions. Each was held in contempt from which appeal was taken.

The Government admitted the interceptions of Gelbard; it neither admitted nor denied interceptions affecting Egan and Walsh. The Ninth Circuit affirmed Gelbard's contempt adjudication on the ground that he had no standing to raise the issue in a preindictment proceeding. 6 However, the Third Circuit reached a contrary result, overturning the Egan and Walsh contempts. 7 The Supreme

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Court agreed with the Third Circuit. It held that wiretapping, which was illegal under 18 U.S.C. § 2515 and which could affect the interrogation of a grand jury witness, was "just cause" under 28 U.S. C.§ 1826(a) for the witness' refusal to answer the grand jury's questions after the court ordered response.

At the threshold of Gelbard, the Court said that section 1826(a) was "intended to codify the existing practice of the federal courts," citing portions of its legislative history and Shillitani (408 U.S. at 42-43 n. 1, 92 S.Ct. at 2358). The unmistakable import of these observations is that section 1826(a) has no effect upon the procedural ground rules the Court had laid in cases anteceding that the enactment of the statute-rules which expressly forbade summary proceedings for such contempts. 8

A cloud on the procedural horizon is the harmonizing of Shillitani and Harris. Neither Gelbard nor Shillitani mentions Harris, although Shillitani arose from a Rule 42(b)...

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