Goldberg v. United States, No. 601

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: FRIENDLY, , and OAKES and TIMBERS, Circuit
• Citation: 472 F.2d 513
• Parties: In the Matter of Samuel Louis GOLDBERG, Appellant, v. UNITED STATES of America, Respondent.
• Decision Date: 17 January 1973
• Docket Number: No. 601,Docket 73-1046.

472 F.2d 513 (1973)

In the Matter of Samuel Louis GOLDBERG, Appellant,
v.
UNITED STATES of America, Respondent.

No. 601, Docket 73-1046.

United States Court of Appeals, Second Circuit.

Argued January 15, 1973.

Decided January 17, 1973.

H. Elliot Wales, New York City, for appellant.

472 F.2d 514

Walter S. Rowland, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y., of counsel), for respondent.

Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.

FRIENDLY, Chief Judge:

On June 2, 1972, a Special Agent of the FBI filed a complaint before a United States magistrate in the Southern District of New York seeking the arrest of Samuel Louis Goldberg and Herbert Brand for possessing treasury bills known to have been stolen from a bank, in violation of 18 U.S.C. § 2113(c). Apparently Goldberg was shortly thereafter arrested and arraigned. On January 9, 1973, Goldberg was called to testify before a grand jury in the same district, which was investigating possible violations of federal law on that subject, and was asked in substance the questions set forth in the margin.¹ Relying on his Fifth Amendment privilege, he refused to answer. By papers unchallenged as to regularity, the United States Attorney for the Southern District of New York, with the approval of the Assistant Attorney General in charge of the Criminal Division, requested, pursuant to 18 U.S.C. § 6003,² an order compelling Goldberg to testify before the grand jury and granting him "use immunity" under 18 U.S.C. § 6002,³ and Judge Bonsal signed such an order. The order was read to Goldberg in the presence of counsel, and he was advised as to the scope of the immunity granted. Upon Goldberg's return to the grand jury, he again declined to answer the questions; after being advised of the possible penalties for non-compliance, and being instructed by the foreman to answer, Goldberg continued to refuse on the ground of his privilege against self-incrimination. Accompanied by counsel,

472 F.2d 515

he again refused when similarly instructed by the judge. The latter then found Goldberg guilty of civil contempt and sentenced him, pursuant to 28 U.S. C. § 1826, to the custody of the Attorney General for the term of the grand jury, not to exceed 18 months, or until such time as he was willing to answer. Having been ordered to surrender on January 15, 1973, at 4 P.M., Goldberg appealed to this court. We heard the appeal on the morning of January 15 and stayed the surrender pending decision. We now affirm and direct surrender on January 19 at 4 P.M

Goldberg's argument is that, despite the breadth of the words "whenever a witness refuses . . . to testify" in section 6002, and "any individual" in section 6003, Congress did not mean to include as a proper subject of an order to testify a person who was already the subject of a criminal complaint for the transaction into which the grand jury was inquiring; or that, if it did, this would be unconstitutional despite the Court's decision in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

We see no basis for the former argument. Title II of the Organized Crime Control Act of 1970, 84 Stat. 922, 926-932, enacting the new immunity provisions, did not simply provide for the grant of "use immunity" in addition to that of "transactional immunity," in which event it could be argued that the latter might be required when questions were being addressed to a person already the target of a criminal complaint, but repealed all the previous transactional immunity statutes. The wording of the statutory provisions contains no suggestion of a limitation of the kind advanced by appellant; although he points to the word "witness" in § 6002, it seems clear that this includes a witness before the grand jury, which Goldberg surely is, even if he is also a potential defendant at a later trial.

There is nothing in the legislative history that would justify narrowing the broad language used. Indeed, such history as there is points somewhat the other way. The immunity provisions of the Organized Crime Control Act were derived from an earlier bill, H.R. 11157, 91st Cong., 1st Sess. (1969), entitled the "Federal Immunity of Witnesses Act," which had been drafted by the National Commission on Reform of the Federal Criminal Laws, established by Congress in 1966, and transmitted to Congress in the Commission's second interim report of March 17, 1969. During hearings on the earlier bill, the Assistant Attorney General in charge of the Criminal Division cited to the House Judiciary Committee as a typical situation for the grant of immunity "where there is an employee who, as an agent of a principal, is familiar with the entire transaction and the investigation is directed at that particular agent and we decide as a matter of policy that it is...