In re Tierney
| Decision Date | 03 August 1972 |
| Docket Number | No. 72-2333,72-3999. Summary Calendar.,72-2333 |
| Citation | 465 F.2d 806 |
| Parties | In re Kenneth TIERNEY. In re Paschal MORAHAN. In re Daniel CRAWFORD. In re Mathias REILLY. In re Thomas LAFFEY. |
| Court | U.S. Court of Appeals — Fifth Circuit |
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Edward J. Polk, Dallas, Tex., William C. Cunningham, c/o Center for Constitutional Rights, Doris Peterson, James Reif, Frank Durkan, New York City, Benjamin E. Smith, New Orleans, La., for appellants.
Frank D. McCown, Eldon B. Mahon, U. S. Attys., Fort Worth, Tex., Robert L. Keuch, William Piatt, Internal Sec. Div., Dept. of Justice, Washington, D. C., for appellee.
Before BELL, DYER and CLARK, Circuit Judges.
On Suggestion for Hearing En Banc August 1, 1972.
ON SUGGESTION FOR HEARING EN BANC
No Judge in regular active service on the Court having requested that the Court be polled on hearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Hearing En Banc is denied.
These cases are consolidated for appeal. Appellants are incarcerated under adjudications of civil contempt for failing to testify before a federal grand jury after having been accorded use immunity under 18 U.S.C.A. §§ 6002, 6003.1 The incarceration is pursuant to 28 U.S.C.A. § 1826.2 The appeals are subject to the statutory thirty day requirement of 28 U.S.C.A. § 1826(b). The record and briefs were filed on short notice in order to comply with the statute. For reasons stated in our order of July 25, 1972, we extended the expiration date of the thirty day period in No. 72-2333 from July 26, 1972 to August 4, 1972, which is the statutory expiration date in No. 72-2399. Order attached as Appendix "A".
There are six assignments of error. They are common to each appellant. The two principal assignments center on (1) the alleged refusal of the district court to permit appellants to consult with counsel while being questioned before the Grand Jury, and (2) the contention that use immunity was insufficient protection under the Fifth Amendment privilege against self-incrimination because of the possibility of prosecution in Great Britain. Two additional assignments are (1) that because the government failed to negate sufficiently a claim of electronic surveillance, appellants were justified in refusing to testify; and (2) that the Department of Justice failed to follow its guidelines in applying to the district court for orders to compel appellants to testify. The other assignments of error go to the conduct of the proceedings in the district court: (1) that appellants were not afforded adequate notice and a meaningful opportunity to prepare for the hearings on the applications of the government for the compulsory testimony orders and for the subsequent contempt proceedings; and (2) the trial judge demonstrated such partiality as to require his disqualification under due process standards and the federal supervisory power. We affirm.
The facts of record disclose that appellants appeared before the grand jury in Fort Worth, Texas, in response to subpoenas. They are residents of New York and were accompanied by counsel upon their arrival in Fort Worth. Tierney was the first of the five appellants to be called before the grand jury. The pattern of his conduct before the grand jury and the general proceedings thereafter with respect to each appellant are similar to the extent that we may consider all as being in the same factual posture for the purpose of considering the issues presented by the appeals.
Several questions were propounded to Tierney. The only one answered was as to the correctness of his name. Each question concerned a matter relevant to the investigation.3 They had to do with whether the witness (and this applies to each of appellants) had purchased firearms on certain dates and at certain places, whether they had used the driver's license of any other individual for the purpose of identification in purchasing firearms, whether their own driver's license had been loaned to others for that purpose, and whether they had any knowledge of any person or persons in this country who were engaged in the illegal purchase of weapons and explosives. Tierney sought permission to consult with attorneys before answering the questions and permission was granted or taken, depending on how one reads the transcript of the event. In either case, after conferring with his attorneys, he refused to answer each question, claiming protection under the First, Fourth, Fifth, Sixth, and Ninth Amendments to the Constitution and the United States Code.
At this stage, as to each appellant in turn, there was a proffer of immunity as required under § 6003, supra. After hearing, immunity was granted to each of the appellants by the district court in written orders.
Each appellant was then instructed to answer the questions propounded by the grand jury. Each, in turn, refused. The government moved to have them adjudicated in civil contempt and, after hearings, such a result ensued. Bail was denied by the district court and by this court. These appeals followed.
The first assignment of error rests on the contention that appellants were denied their Sixth Amendment right to effective assistance of counsel and their Fifth Amendment right to due process of law through the denial to them of their right to consult with counsel before answering questions propounded to them before the grand jury. The difficulty with the position of appellants is that the record does not make out a denial of counsel.
Appellants were in fact permitted to consult with counsel during their appearances before the grand jury with respect to the questions propounded. This opportunity was granted by the foreman of the grand jury on request from each of the appellants, and we do not perceive that the district court has ruled to the contrary. Such remarks as the district court made with regard to consultation with counsel were in the beginning of the proceedings and were directed to preventing an abuse of the privilege of consultation. The court was specific in stating that appellants were not to leave the grand jury room without permission from the foreman. It was implicit, of course, and in practice it developed, that appellant could leave for consultation upon being granted permission by the foreman. The record is clear that permission was freely granted by the foreman although not after each question. There was some reluctance to let Tierney leave the grand jury room to consult counsel but none whatever as to the other four appellants. Each was granted permission by the foreman to so consult, and usually after two and at no time after more than three questions had been propounded.
It goes without saying that the district court had the power to prevent a breakdown in the grand jury proceedings by frequent departures from the grand jury room for frivolous reasons and with intent to frustrate the proceedings. On the other hand, the privilege of consulting with counsel can be accommodated to the grand jury proceedings as was done through cooperation between the witness and the foreman of the grand jury.4
In sum, we need not reach the question of a right, and if a right, the extent thereof, of a witness before a grand jury who has been granted immunity to consult with counsel outside the presence of the grand jury. It is sufficient to say that here appellants were not denied the right to consult with counsel. They were accorded such a right and, after consultation, refused in every instance to answer.
The next assignment of error concerns the extent of the reach of use immunity as provided under § 6002, supra. The position of appellants is that they are entitled to protection under the Fifth Amendment from possible incrimination as to crimes under the laws of Great Britain through answers given to the questions propounded to them before the grand jury. Their position is that use immunity is insufficient to afford them protection from such foreign prosecution. Whether the reach of the Fifth Amendment is such as to protect against foreign prosecution is an open question and we need not reach it in this case. The question was presented to the Supreme Court in Zicarelli v. New Jersey State Commission of Investigation, 1972, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234, but was not answered. There the court concluded that Zicarelli could be adequately safeguarded from foreign prosecution by limitations on the questions to be propounded to him. No substantial risk of foreign prosecution was posed. We are of a like view in these cases but for a different reason. We adhere to the reason given in denying appellant Tierney's motion for bail.
Our view then and now is that because of the secrecy of the grand jury proceedings no substantial risk of foreign prosecution is posed. Rule 6(e), F.R.Crim.P., provides for this secrecy.5 The same court which grants immunity is the court which prevents violation of the secrecy. The government represented that it could not violate the secrecy, even under the first sentence of allowing it to disclose matters in the performance of its duties, without a court order. This is answer enough to the contention of appellants that the government might disclose their testimony.
The Tenth Circuit rejected a similar claim on the following reasoning, which we find to be apt, although the appeal was later ordered dismissed as being moot. In re Parker, 10 Cir., 1969, 411 F.2d 1067, vacated and remanded for dismissal as being moot, Parker v. United States, 1970, 397 U.S. 96, 90 S.Ct. 819, 25 L.Ed.2d 81.
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