Grand Jury Subpoena, In re

• Decision Date: 30 July 1984
• Docket Number: No. 83-2509,83-2509
• Citation: 739 F.2d 1354
• Parties: In re Matter of GRAND JURY SUBPOENA. Appeal of Jay Kenton SAMUELSON.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1354

739 F.2d 1354

In re Matter of GRAND JURY SUBPOENA.

Appeal of Jay Kenton SAMUELSON.

No. 83-2509.

United States Court of Appeals,

Eighth Circuit.

Submitted May 18, 1984.

Decided July 30, 1984.

Michael L. Pritzker, Ltd., Michael L. Pritzker, Marcia L. Smith, Chicago, Ill., for appellant.

Rodney S. Webb, U.S. Atty., Gary Annear, First Asst. U.S. Atty., Fargo, N.D., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and FAGG, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

The petitioner, Jay Kenton Samuelson, appeals from a finding of, and sentence for, civil contempt. We affirm.

I. Facts

In 1981, the petitioner was convicted of various federal crimes and was sentenced to prison for those violations. In August of 1983, while still serving his sentence, a writ of habeas corpus ad testificandum was issued for the defendant's appearance before a grand jury which was meeting in Fargo, North Dakota on September 9, 1983. The grand jury was interested in finding out who the petitioner's drug suppliers had been.

On September 8, the petitioner requested a court-appointed attorney. An attorney was appointed, but was able to confer only briefly with the petitioner the evening before his grand jury appearance. The next day the petitioner appeared before the grand jury. He was asked if he knew four individuals. The petitioner refused, on the basis of his constitutional rights, to answer these questions. As a result, the government made a motion in federal district court, which requested an order compelling the petitioner to testify.

At a hearing on the motion, the petitioner's attorney objected to the proceeding on the basis that there had been inadequate time to prepare a response to the motion. The attorney also informed the court that he felt inexperienced in the areas of criminal law and grand jury procedure. Nevertheless, the attorney asserted, as a response to the motion, petitioner's rights to effective assistance of counsel, due process of law, equal protection of the laws, and the petitioner's right against self-incrimination. The attorney asked the court for time in order to determine the possible implications of a continued refusal to testify. This request was denied and the district court ¹ ordered the petitioner to testify.

The petitioner was brought before the grand jury once again, asked the same questions, and again refused to testify on the bases of constitutional rights. On September 10, the petitioner was brought before the district court which adjudged him to be in contempt. The district court ordered that the petitioner be imprisoned until he saw fit to purge himself of contempt by testifying before the grand jury. The petitioner appeals from this finding and order.

II. Discussion.

a. The ineffectiveness of counsel claim.

The petitioner argues that appointment of counsel on short notice, counsel's total unfamiliarity with the facts surrounding the petitioner's criminal conviction, and counsel's unfamiliarity with the area of criminal law, precluded the possibility of effective assistance of counsel. We disagree.

It is clear that in a civil contempt proceeding, the petitioner was entitled to the basic requirements of due process both at the hearing on the motion to compel and at the contempt hearing. That is, the petitioner was entitled to notice, an opportunity to be heard, and counsel. United States v. Anderson, 553 F.2d 1154, 1155 (8th Cir.1977); Fisher v. Marubeni Cotton Corp., 526 F.2d 1338, 1343 (8th Cir.1975). It is also clear that, while a witness is not entitled to have counsel present in the room where the grand jury hearing is taking place, witnesses are entitled to have their counsel outside the room and to consult with their counsel whenever necessary. United States v. Mandujano, 425 U.S. 564, 581, 96 S.Ct. 1768, 1778, 48 L.Ed.2d 212 (1976). Finally, the right to counsel is the right to "effective assistance of counsel." Strickland v. Washington, --- U.S. ----, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), quoting, McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); United States v. Cronic, --- U.S. ----, ----, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657 (1984), quoting, McMann, 397 U.S. at 771 n. 14, 90 S.Ct. at 1449 n. 14.

When a petitioner claims that external circumstances have precluded effective assistance of counsel, as opposed to claiming that counsel's performance was ineffective, we look to the total circumstances surrounding the proceedings to determine whether the claim has merit. As a threshold matter, there is a presumption that counsel has been competent. Cronic, --- U.S. at ----, 104 S.Ct. at 2046; Rachlin v. United States, 723 F.2d 1373, 1379 (8th Cir.1983). Thus, the burden rests on the petitioner to demonstrate that there has been a constitutional violation. Cronic, --- U.S. at ----, 104 S.Ct. at 2046; United States v. Sheehy, 670 F.2d 798, 799 (8th Cir.1982).

In viewing the totality of the proceedings we weigh, among other factors, the time afforded to counsel, the gravity of the charge, and the complexity of possible defenses. Sheehy, 670 F.2d at 799; Freeman v. Mabry, 570 F.2d 813, 815 n. 4 (8th Cir.), cert. denied, 439 U.S. 845, 99 S.Ct. 142, 58 L.Ed.2d 146 (1978), quoting, Wolfs v. Britton, 509 F.2d 304, 309 (8th Cir.1975). See Note, Ineffective Assistance of Counsel as Grounds for Habeas Relief in the Eighth Circuit, 16 C.U.L.Rev. 1065, 1073-74 (1983). We also consider counsel's experience. See United States v. Easter, 539 F.2d 663, 666 (8th Cir.1976). However, these factors "are relevant to an evaluation of a lawyer's effectiveness in a particular case, but neither separately nor in combination do they provide a basis for concluding that competent counsel" was unable to provide a petitioner with effective representation. Cronic, --- U.S. at ----, 104 S.Ct. at 2049. Indeed, a petitioner must show that the presence of one or more of these factors resulted in prejudice. See Cronic, --- U.S. at ----, 104 S.Ct. 2048-49 n. 31; Sheehy, 670 F.2d at 799.

The petitioner argues that the short notice on which counsel was appointed affected counsel's ability to render effective representation. Late appointment of counsel does not justify a presumption that counsel was ineffective. Cronic, --- U.S. at ----, 104 S.Ct. at 2048; see also Chambers v. Maroney, 399 U.S. 42, 53-54, 90 S.Ct. 1975, 1982-1983, 26 L.Ed.2d 419 (1970); Sheehy, 670 F.2d at 799, 800; Freeman, 570 F.2d at 815, and we are unable to see how the petitioner was prejudiced by the timing of the appointment. Assuming, as we must, that counsel was competent, it must be remembered that the petitioner was called before the grand jury so that he could be questioned about events which had given rise to his criminal conviction. Counsel and petitioner were both informed of this purpose. It does not require a great deal of time to determine that the double jeopardy clause of the Fifth Amendment ² would prohibit any further prosecution against the defendant for crimes he had been tried for and convicted of already. U.S. Const. amend. V. It must also be remembered that the only questions the defendant had been asked, at the time that the hearings on the motion to compel and contempt took place, were whether he knew four individuals. An attorney should be able to determine that knowing another person, in and of itself, is not a crime.

The petitioner also argues that his attorney was unfamiliar with the area of criminal law, and that this factor contributed to counsel's ineffectiveness. Unfamiliarity with an area of the law does not justify a presumption of ineffectiveness any more than does late appointment of counsel. Cronic, --- U.S. at ----, 104 S.Ct. at 2050; Easter, 539 F.2d at 666. Further, a competent attorney need not be schooled in the area of criminal law in order to know that the Fifth Amendment's double jeopardy clause prohibits more than one conviction for the same crime, nor to know that acquaintance with another individual is not a crime. We do not think the petitioner was prejudiced by his attorney's alleged unfamiliarity with criminal law.

Finally, the petitioner argues that counsel's total unfamiliarity with his previous conviction, in connection with the two factors discussed above, rendered counsel's assistance ineffective. This contention might have some merit save for the fact that, because of petitioner's refusal to respond to preliminary and legally innocent questions, the grand jury never got around to asking him any questions relating to his previous conviction. Further, when we review counsel's actual performance at the hearing on the motion to compel, we are convinced that the petitioner did receive adequate representation. Counsel tendered every defense which possibly could have been available to the petitioner. Thus, we conclude that the petitioner was not denied the effective assistance of counsel.

b. The denial of due process claim.

The petitioner contends that there was insufficient notice for the contempt hearing, and that at the contempt hearing he was denied a meaningful opportunity to present his defense. Thus, he was denied due process of law. We disagree.

A petitioner is entitled to reasonable notice of a charge and an opportunity to be heard in defense before a punishment can be imposed. Groppi v. Leslie, 404 U.S. 496, 502, 92 S.Ct. 582, 586, 30 L.Ed.2d 632 (1972); In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682 (1948); Anderson, 553 F.2d at 1155; Fisher, 526 F.2d at 1342. However:

The determination of what constitutes a reasonable time is committed to the sound discretion of the district court and will, of course, vary with the circumstances.... If there is a need for resolution of factual disputes, or if the legal issues are complex, more time will be needed for preparation than might otherwise be the case.

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