In re Andrews

• Decision Date: 03 April 1979
• Docket Number: Misc. No. 77-346.
• Citation: 469 F. Supp. 171
• Parties: In re Grand Jury Proceedings Witness Edward Donald ANDREWS.
• Court: U.S. District Court — Western District of Michigan

469 F. Supp. 171

In re Grand Jury Proceedings Witness Edward Donald ANDREWS.

Misc. No. 77-346.

United States District Court, E. D. Michigan, S. D.

April 3, 1979.

Steven W. Reifman, Deputy Defender, Detroit, Mich., for petitioner.

James K. Robinson, U. S. Atty., and John Newcomer, Detroit, Mich., for respondent.

FACTS OF THE CASE

FEIKENS, District Judge.

In September of 1977 Andrews was subpoenaed to testify before a special grand jury sitting in this District. He refused, and upon application by the United States Attorney I issued an Order granting him immunity pursuant to 18 U.S.C. §§ 6002 and 6003 and compelling him to testify. Andrews persisted in his refusal, and on October 12, 1977 I adjudged him in contempt and placed him in the custody of the United States Marshal "until such time as he complies with the Order to testify." At that time Andrews was serving a state sentence for possession of burglars' tools, M.C.L.A. § 750.116, and I ordered the contempt sentence to be served concurrently with the state sentence.¹

Andrews remained in the State's custody until November 29, 1978 when that state sentence expired. He was immediately placed in the custody of the U.S. Marshal to continue his contempt sentence directly. He remained in Federal custody until December 22, 1978 when he was released upon application of the Government because the special grand jury before which he was to testify had ceased to sit. 28 U.S.C. § 1826.

Andrews was at liberty until January 3, 1979. On that day he was subpoenaed to testify before a newly empanelled grand jury regarding the same matters to which he had already refused to testify. Andrews again refused. I thereupon granted a second order of immunity and once again ordered him to testify. Upon his refusal, I adjudged him in contempt and remitted him to the custody of the U.S. Marshal until such time as he chose to testify, but in no event was his custody to exceed the life of the grand jury or eighteen (18) months. The witness is currently incarcerated pursuant to my January 3 order.

THE PROCEDURAL BACKGROUND OF THE CASE

On January 11 Andrews filed a motion to vacate the January 3 order on double jeopardy grounds and, in the alternative, to modify the order to provide that in no event should he be kept in custody after April 23, 1979 since on that date he claims he will have spent eighteen (18) months in custody for his refusal to testify on one subject.

To give the Government adequate time to respond and due to the press of court business, a hearing was set for February 20. (The Government responded on February 16.) At that hearing Andrews' attorney, Steven Reifman, urged two points: double jeopardy and a limit of eighteen (18) months incarceration as to any contempt sentence. He also indicated that he felt compelled to appeal my January 3 order before March 2, and he expressed a desire for a ruling from me by then. I stated that I would deny the motion in its double jeopardy aspect, but that I desired further briefs on the eighteen (18)-month issue, the briefs to be filed within one week (by February 27). No further briefs were filed, both counsel indicating informally that they had been unable to locate further relevant cases or other authority. (I did supply both parties with material from the legislative history which my own research had disclosed.) On March 2 a notice of appeal was docketed in the United States Court of Appeals for the Sixth Circuit.

The point in discussing the procedural history of this case is two-fold. First, it lays out what has transpired so far and, second, it responds to one of the points raised in the Order of Mandamus issued on March 28, 1979 (that the motion to vacate the contempt had been under advisement "for over two months.")

Under local practice, a motion is not "taken under advisement" until the parties have been heard and all briefs have been received. This did not occur until February 27. On March 2 the appeal was filed which in my opinion effectively removed the case from my consideration.² Thus, the instant matter was under advisement for about three days. Considering the requirement in § 1826(b) that the appeal be decided in thirty (30) days, I did not expect to receive the case for decision until after such further proceedings as the Court of Appeals may have determined after addressing the substantive issues at hand.

In any event, the issues raised in the February 20 hearing must now be decided.

THE DOUBLE JEOPARDY ISSUE

Turning to the double jeopardy claim, I reject it. It does not offend the Constitution to imprison a person twice for refusing to answer questions as to the same subject matter before two successive grand juries. This is because the confinement is civil in character, meant to coerce the witness, rather than criminal. Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1969); United States v. Mitchell, 556 F.2d 371, 383 (6th Cir. 1977); United States v. Alter, 482 F.2d 1016, 1021 (9th Cir. 1973); United States v. Duncan, 456 F.2d 1401, 1406-7 (9th Cir. 1972) vacated, 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed.2d 72 (1972); H.R.Rep.No.91-1549, 91st Cong., 2nd Sess. 46 (1970) reprinted in 1970 U.S. Code Cong. & Admin.News, pp. 4007, 4022. S.Rep.No.91-617, 91st Cong., 1st Sess. 148 (1969), reprinted in 1970 U.S.Code Cong. & Admin.News, p. 4007.

THE 18-MONTH LIMITATION

The weightier issue concerns the meaning to be attached to that portion of § 1826(a) which reads:

"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 or provide other information, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of —

"(1) the court proceeding, or

"(2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months."

The Government argues that the eighteen (18)-month limitation is transactional and that with each successive grand jury a new eighteen (18)-month period of incarceration is authorized. Andrews disagrees, and says that the eighteen (18)-month limit sets a ceiling on the total amount of time he may be in custody for refusing to testify as to one subject, regardless of the number of grand juries involved. Neither party cites a case directly on point, and I have found none.

LEGISLATIVE HISTORY OF § 1826(a)

On January 15, 1969, Senate Bill No. 30 was introduced by Senator McClellan as the Organized Crime Control Act of 1969. 115 Cong.Rec. 827 (1969). Section 102 of Title I contained a proposal for the creation of "special" grand juries, whose ordinary term would be eighteen (18) months, but which could be extended to thirty-six (36) months. Section 301 of Title III was the precursor of the present § 1826. It provided that witnesses who refused to testify before either a court or a grand jury could be summarily confined "until such time as the witness is willing to give such testimony." 115 Cong. Rec. 829 (1969). There was no limitation on the time the witness could be confined, although Senator McClellan thought that because the bill codified the common law of civil contempt, the confinement would be limited to the life of the grand jury. 115 Cong.Rec. 5879-80 (1969).

S. 30 was then sent to the Subcommittee on Criminal Laws and Procedures of the Senate Judiciary Committee for hearings which were held in the spring and early summer of 1969. See H.R.Rep.No.91-1549, supra, at 37. Two major concerns pertinent to this discussion emerged. Several commentators thought that the lack of any time limit on the witness' incarceration would subject Title III to constitutional attack. Hearings Before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary on the Organized Crime Control Act of 1969, United States Senate, 91st Cong., 1st Sess. 352 (remarks of Frank Hogan) (hereafter Hearings at "________"). The Department of Justice recommended that since the bill was to restate the common law, the incarceration should be limited to the life of the grand jury. Hearings, at 370-1; Hearings, at 379 (remarks of Assistant Attorney General Will Wilson). See also, S.Rep.No.91-617, supra, at 108.

Later commentators believed this limitation an improvement on the original language, but noted that an infirmity in Title III remained. That defect arose from the juxtaposition of Titles I and III which, due to the extension of the term of the grand jury from eighteen (18) to thirty-six (36) months, meant that a witness could spend up to three years in jail for refusing to testify.

Lawrence Spieser, Director of the Washington, D.C. office of the A.C.L.U. asserted:

"Moreover, Title I of the bill extends the potential life-time of a grand jury from the traditional 18 months to up to 36 months. If Title III is intended to limit confinement for the life of the grand jury, as a result of Title I, it would authorize confinement without possibility of bail for as long as 3 years — double the length of time now permitted. This is inconsistent with the accepted rationale for the court's summary civil contempt power, which has been long allowed on the theory that the confinement is coercive, not punitive, and that contemnor holds `the keys of the prison in his own pocket.' In Re Nevitt, 117 F. 448, 461 (8th Cir. 1902). It is to be contrasted with the court's power to imprison for criminal contempt. Since that is viewed as punishment, confinement is limited to 6 months unless a jury trial on the contempt charge is provided. See Frank v. United States, 37 L.W. 4437 (May 20, 1969). Where a witness is subjected to a 3

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