In re Weir, Misc. No. 344.
| Court | United States District Courts. 9th Circuit. United States District Court (Southern District of California) |
| Writing for the Court | H. Peter Young, Venice, Cal., for respondent |
| Citation | 377 F. Supp. 919 |
| Parties | In re Grand Jury Proceedings, James Frederick WEIR, Jr. |
| Docket Number | Misc. No. 344. |
| Decision Date | 05 March 1974 |
377 F. Supp. 919
In re Grand Jury Proceedings, James Frederick WEIR, Jr.
Misc. No. 344.
United States District Court, S. D. California.
March 5, 1974.
H. Peter Young, Venice, Cal., for respondent.
ORDER ADJUDICATING CIVIL CONTEMPT
TURRENTINE, District Judge.
I. BACKGROUND
This is a civil contempt proceeding, pursuant to 28 U.S.C. § 1826(a), to determine whether just cause exists for Mr. Weir's refusal to answer questions put to him by the Federal grand jury.
On June 14, 1973, Mr. Weir was brought before a federal grand jury to answer questions regarding possible violations of the United States' narcotics laws. Mr. Weir refused to answer any questions and the government thereupon moved that this court immunize witness Weir pursuant to the "use and derivative use" immunity statute, 18 U.S.C. §§ 6002, 6003.
Mr. Weir, who throughout these proceedings has been most ably represented, requested leave of this court to prepare an opposition to the government's motion for immunity and order to testify. This court granted Mr. Weir's counsel such time whereupon counsel submitted a series of documents designed both to test the government's motion for an order to testify and to discover certain materials if in the possession of the government.
Mr. Weir opposed the government on four grounds: 1. that the immunity conferred by § 6002 was not coextensive with the Fifth Amendment privilege since it still would leave him liable to prosecution for having made prior false statements to government officials, 18 U.S.C. § 1001; 2. that since Weir is himself a target of the grand jury's investigation, any immunity would violate his Fifth Amendment rights in that the grand jury would be unable to ignore his immunized testimony in reaching its decision whether to indict; 3. that the immunity order would not protect him from the "substantial possibility" of prosecution by Mexican authorities; and 4. that the grand jury appearance and questioning were products of involuntary statements made to Mexican officials.
This court was unpersuaded by Mr. Weir's arguments and granted him use immunity. With respect to the discovery motions, the government acceeded to some and this court denied others. The specific nature of each motion and this court's ruling is made plain below since the motions were renewed at the contempt hearing and this order is fruit of that contempt hearing.
On November 1, 1973, Mr. Weir again refused to answer notwithstanding the immunity and the government moved that this court hold Mr. Weir in civil contempt for disobeying the court's order to reply to questions asked originally on June 14 and repeated on November 1.
This court scheduled for December 17, later continued to February 11, a "show cause" hearing in order to provide Mr. Weir's counsel with notice and a reasonable time to prepare a defense, i. e. to show "just cause" for refusing to respond.
II. CONTEMPT HEARING
In response to this court's order to show cause, Mr. Weir filed several discovery motions and, as "just cause," raised the same points raised at the immunity stage plus the argument that the contempt sanction was totally unnecessary because the government had adequate and less drastic alternatives to reach the desired end. Furthermore, at the hearing Mr. Weir's counsel argued that Mr. Weir had a deep moral revulsion against testifying against his friends and that no sanction would shake that conviction. Therefore, Mr. Weir's counsel continued, to impose civil contempt would be punitive and unlawful. At the conclusion of the hearing, the parties stipulated that Mr. Weir would not testify if so ordered despite immunity and that this court was to impose or withhold civil contempt in accordance with its resolution of the issues presented without need of requiring Mr. Weir to go through the empty gesture of appearing before the grand jury and again refusing to respond. Despite the stipulation, this court gave Mr. Weir one
A. Discovery Motions
The discovery motions fall into three broad categories: 1. those related to providing Mr. Weir with a copy of a transcript of his grand jury appearance; 2. those related to the allegedly coerced statement made to Mexican officials; and 3. those related to electronic surveillance.
1. Transcript
This court ordered that a copy of the transcript be made available in chambers to Mr. Weir and his counsel at their convenience but refused to provide Mr. Weir with a copy. As this court reasoned in In re Alvarez, 351 F.Supp. 1089 (S.D.Cal.1972), "often those providing information to the grand jury are `mules' who have been apprehended in possession of drugs. They are subject to pressure and threats of retaliation from dealers for whom they work and against whom indictments are sought." Not providing a witness with a copy of his grand jury appearance encourages him to testify freely and protects him from his partners in crime, if any there be. See In the Matter of Biaggi, 478 F. 2d 489 (2d Cir. 1973). This court believes that its order allowing Mr. Weir and his counsel to view the transcript in chambers adequately affords Mr. Weir the opportunity to refresh his recollection before re-appearing and to correct any mistakes he may have inadvertently made. Consequently, our original order stands.
2. Mexican Confession
With regards to the motions related to the allegedly coerced statement in Mexico, our decision below with respect to the availability of that allegation as a defense in this contempt proceeding makes clear our ruling here denying such motion as premature and irrelevant.
3. Electronic Surveillance
Finally, Mr. Weir's motion regarding allegedly illegal electronic surveillance raises issues resolved in this Circuit by United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). As was definitively stated in Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L. Ed.2d 179 (1972), 18 U.S.C. § 2515, provides grand jury witnesses with a defense to contempt charges brought on the basis of their refusal to obey court orders to testify. § 2515 bars the use as evidence before official bodies of the contents and fruits of illegal electronic interceptions. We are quick, however, to note that the Supreme Court expressly stated that it did not reach any of the constitutional issues tendered as to the right of a grand jury witness to rely upon the Fourth Amendment as a basis for refusing to...
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...the Court in Eldridge v. Weinberger, supra, at 525-527, specifically rejected this argument in the context of a social security case. 377 F. Supp. 919 See also Richardson v. Wright, supra, at 223-226 (Brennan, J., dissenting); Elliot v. Weinberger, supra. A prior hearing always imposes some......
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...971, 980 (6th Cir. 1968), cert. denied sub nom. Strang v. United States, 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969), In re Weir, 377 F.Supp. 919, 925 (S.D.Cal.), aff'd, 495 F.2d 879 (9th Cir.), cert. denied sub nom. Weir v. United States, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 ......
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Gilboe, In re, No. 767
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IN RE GRAND JURY PROCEEDINGS, YANAGIHARA GR. JURY, Misc. No. 22638.
...nontestimonial and therefore unprivileged, the nature of the order sought in this case is authorized under 28 U.S.C. § 1826. In re Weir, 377 F.Supp. 919 (S.D.Cal.1974), aff'd, 495 F.2d 879 (9th Cir.1974), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974); Matter of Fred R. Wi......
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Mattern v. Weinberger, Civ. A. No. 72-2522.
...the Court in Eldridge v. Weinberger, supra, at 525-527, specifically rejected this argument in the context of a social security case. 377 F. Supp. 919 See also Richardson v. Wright, supra, at 223-226 (Brennan, J., dissenting); Elliot v. Weinberger, supra. A prior hearing always imposes some......
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United States v. Shober, Crim. No. 78-312.
...971, 980 (6th Cir. 1968), cert. denied sub nom. Strang v. United States, 395 U.S. 906, 89 S.Ct. 1746, 23 L.Ed.2d 219 (1969), In re Weir, 377 F.Supp. 919, 925 (S.D.Cal.), aff'd, 495 F.2d 879 (9th Cir.), cert. denied sub nom. Weir v. United States, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 ......
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Gilboe, In re, No. 767
...with In re Parker, 411 F.2d 1067, 1070 (10 Cir.1969), vacated as moot sub nom. Parker v. United States, 317 U.S. 96 (1970); In re Weir, 377 F.Supp. 919, 924 (S.D.Cal.), aff'd, 495 F.2d 879 (9 Cir.1974) (holding that privilege does not 3 Of the five factors set forth in United States v. Flan......
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IN RE GRAND JURY PROCEEDINGS, YANAGIHARA GR. JURY, Misc. No. 22638.
...nontestimonial and therefore unprivileged, the nature of the order sought in this case is authorized under 28 U.S.C. § 1826. In re Weir, 377 F.Supp. 919 (S.D.Cal.1974), aff'd, 495 F.2d 879 (9th Cir.1974), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974); Matter of Fred R. Wi......