Bonk, In re

• Decision Date: 29 October 1975
• Docket Number: No. 75--1925,75--1925
• Citation: 527 F.2d 120
• Parties: In re Charles Stanley BONK, a witness before the special March 1974 Grand Jury, Respondent-Appellant. . Heard and
• Court: U.S. Court of Appeals — Seventh Circuit

Page 120

527 F.2d 120

In re Charles Stanley BONK, a witness before the special

March 1974 Grand Jury, Respondent-Appellant.

No. 75--1925.

United States Court of Appeals, Seventh Circuit.

Heard and Decided Oct. 29, 1975.

Opinion Released Nov. 21, 1975.

Stay Denied Nov. 11, 1975. See

96 S.Ct. 350.

Thomas A. Foran, Chicago, Ill., for respondent-appellant.

Samuel K. Skinner, U.S. Atty., Chicago, Ill., for appellee.

Before CUMMINGS, STEVENS and TONE, Circuit Judges.

CUMMINGS, Circuit Judge.

In February 1975 a 17-count indictment was returned against respondent by the Special March 1974 Grand Jury after he refused to testify before that body, relying on his privilege against self-incrimination. Twelve counts of the indictment alleged that respondent, who was a member of the Cook County Board of Commissioners and chairman of its Zoning Committee, extorted payments from two lawyers with respect to zoning changes, in violation of the Hobbs Act (18 U.S.C. § 1951). The remaining five counts charged respondent with filing false income tax returns in violation of 26 U.S.C. § 7206(1). The extortion charges occurred between December 1968 and November 1972, and the income tax charges related to the calendar years 1968 through 1972. On June 6, 1975, after a jury trial at which he did not take the stand, respondent was acquitted of all 17 counts.

During Bonk's trial the Grand Jury that indicted him continued its investigation into official corruption with respect to the Cook County Board of Commissioners. Prior to his trial, Bonk was advised by the Government that it would again seek to obtain his testimony before the Grand Jury whether or not he was acquitted.

Pursuant to subpoena, Bonk appeared before the Grand Jury on July 24, 1975 and refused to answer any questions because of his Fifth Amendment privilege against self-incrimination. Therefore, on August 1, 1975, acting under 18 U.S.C. §§ 6002 and 6003, ¹ the Government petitioned for an immunity grant for respondent. After considering briefs and oral argument, the district court filed a memorandum opinion and order on September 22, 1975, overruling Bonk's objections to the immunity petition, granting the immunity order requested by the Government and compelling him to testify.

On September 24, 1975, Bonk appeared before the Grand Jury and answered 81 questions put to him but declined to answer nine questions on the ground that they concerned transactions covered by the indictment and for which he had been found not guilty. For purposes of this appeal, the Government and Bonk agree that the nine questions involved matters for which he had been acquitted.

On September 29, 1975, pursuant to 28 U.S.C. § 1826, ² the Government petitioned the district court to order Bonk's confinement for refusal to comply with the court's previous order compelling his testimony before the Grand Jury. After a lengthy hearing, he was held in civil contempt and ordered confined for refusal to answer the aforesaid nine questions. While on bond, Bonk appealed from the order of confinement on October 2, 1975. After considering briefs and hearing argument, we entered an order of affirmance on October 29, 1975, in time to comply with the 30-day appeal period provided in 28 U.S.C. § 1826(b). ³ Our reasons for affirmance follow:

It is well settled that every citizen has a duty to testify before a grand jury and cannot avoid a subpoena on the ground that his testimony might be embarrassing or cause economic or social injury. United States v. Calandra, 414 U.S. 338, 345, 94 S.Ct. 613, 38 L.Ed.2d 561. Of course, a grand jury witness may refuse to answer questions violating his privilege against self-incrimination unless he is granted immunity coextensive with that privilege. United States v. Calandra, supra, 414 U.S. at 346, 94 S.Ct. 613; Kastigar v. United States, 406 U.S. 441, 448, 92 S.Ct. 1653, 32 L.Ed.2d 212. In view of these principles, Congress enacted Title II of the Organized Crime Control Act of 1970 (18 U.S.C. § 6001 et seq.) authorizing the Attorney General or his delegate to seek immunity for a grand jury witness when he decides in the public interest that 'full disclosure * * * by the witness is of greater importance than the possibility of punishing (him) for some crime in the past.' McCarthy v. Arndstein, 266 U.S. 34, 42, 45 S.Ct. 16, 17, 69 L.Ed. 158. Once immunity is conferred, the witness must testify. If he refuses, the court may hold him in civil contempt and order his confinement for up to eighteen months or the term of the grand jury. 18 U.S.C. § 1826 (note 2 supra). This case involves the construction and constitutionality of this statutory scheme.

Bonk initially contends that the statute does not authorize a grant of immunity to an acquitted defendant to require his testimony about events at issue in his criminal trial. However, neither the statutory language (note 1 supra) nor its legislative history supports his contention. To the contrary, Sections 6002 and 6003 apply to 'a witness,' 'the witness' and 'any individual.' Likewise, the legislative history shows that immunization is to apply to anyone with information about a crime. Hearings on H.R. 11157 and H.R. 12041 before Subcommittee No. 3 of House Committee on the Judiciary, 91st Cong., 1st Sess. 40-43 (1970). See In re Liddy, 165 U.S.App.D.C. 254, 506 F.2d 1293 (1974; en banc); Goldberg v. United States, 472 F.2d 513 (2d Cir. 1973). Excluding even an acquitted defendant from the ambit of the immunity statute would undercut a primary function of witness immunity: compelling persons suspected of knowledge of criminal activity to yield information that will aid the grand jury in its investigation of such activity. The Supreme Court noted this purpose in Kastigar, supra, 406 U.S. at 446, 92 S.Ct. at 1657:

'The existence of (immunity) statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.'

Bonk next contends that the grant of immunity in this case is not coextensive with his privilege against self-incrimination. Any general attack on the constitutionality of the statute is foreclosed by the Supreme Court's decision in Kastigar v. United States, supra, holding that the immunity provided by 18 U.S.C. § 6002 is coextensive with the Fifth Amendment privilege. ⁴ As the Court there stated (406 U.S. at 462, 92 S.Ct. at 1666):

'We conclude that the immunity provided by 18 U.S.C. § 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it.'

The nub of Bonk's complaint is that in this case he was ordered to testify about illegal events before a grand jury which believes he was involved in them. A petit jury, however, found him not guilty. Therefore he contends that if he denies the transactions, testifying consistently with his acquittal, he will be subjected to a possible perjury prosecution. Admittedly, under the grant of immunity, the Government cannot use Bonk's subsequent grand jury testimony as a basis for future prosecutions against him unless he should perjure himself. However, the Fifth Amendment does not protect perjury; ⁵ it is therefore permissible for Congress to except that offense from the scope of the immunity afforded by 18 U.S.C. § 6002. United States v. Tramunti, 500 F.2d 1334, 1342--1343 (2d Cir. 1974), certiorari denied, 419 U.S. 1079, 95 S.Ct. 667, 42 L.Ed.2d 673, see United States v. Bryan, 339 U.S. 323, 338, 70 S.Ct. 724, 94 L.Ed. 884; Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 56 L.Ed. 128.

Further, it is premature for Bonk to claim that his testimony before the grand jury will lead to a prosecution for perjury. Bonk can presumably avoid a perjury indictment by answering these nine questions truthfully, whether or not his answers are consistent with the June 1975 acquittal verdict. Kronick v. United States, 343 F.2d 436, 441 (9th Cir. 1965). As the Government conceded at the oral argument, the doctrine of collateral estoppel would adequately prevent a successful perjury prosecution of Bonk if the ultimate facts involved in the perjury case had been determined at his prior trial. ⁶ See United States v. Nash, 447 F.2d 1382 (4th Cir. 1970). Therefore, we cannot accept Bonk's argument that compelling these answers will assuredly violate his constitutional right against self-incrimination.

In effect, Bonk's argument that he cannot be questioned by a grand jury about crimes of which he has been acquitted is a request that we establish a new exception to the rule that every citizen has a duty to testify. United States v. Calandra, supra, 414 U.S. at 345, 94 S.Ct. 613. Bonk concedes that he does not come within any of the established exceptions. See Kastigar v. United States, supra, 406 U.S. at 444, 92 S.Ct. 1653; Blair v. United States, 250 U.S. 273, 281, 39 S.Ct. 468, 63 L.Ed. 979; 8 Wigmore on Evidence, §§ 2192, 2197. We perceive no ground for creating a new exception in this case. See United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 41 L.Ed.2d 1039.

Bonk also contends that he cannot be compelled to testify before a biased grand jury. As evidence of bias, he cites the prior indictment and claims that this same grand jury will be predisposed to disbelieve him if he testifies consistently with his acquittal. Even assuming that Bonk, as a witness, has a right to be questioned only by an impartial grand jury, ⁷ we do not believe that in this case Bonk has met the burden of showing the 'essential unfairness' of the body. Beck v. Washington, 369 U.S. 541, 558, 82 S.Ct. 955, 8 L.Ed.2d 98. The fact of a prior indictment by the same grand jury is not conclusive. See Estes v. United States, 335 F.2d 609 (5th Cir. 1964), certiorari denied, 379 U.S. 964, 85 S.Ct....