Liddy, In re

Decision Date10 October 1974
Docket NumberNo. 73-1562,73-1562
PartiesIn re Grand Jury Proceedings, George Gordon LIDDY, Appellant. District of Columbia Circuit
CourtU.S. Court of Appeals — District of Columbia Circuit

Peter L. Maroulis, Poughkeepsie, N.Y., for appellants. Thomas A. Kennelly, Washington, D.C., also entered an appearance for appellant.

Sidney M. Glazer, Asst. Sp. Prosecutor for appellee. Leon Jaworski, Sp. Prosecutor, Philip A. Lacovara, Counsel for the Sp. Prosecutor, Richard D. Weinberg, and Robert L. Palmer, Asst. Counsel to the Sp. Prosecutor, were on the brief for appellee. Archibald Cox, Sp. Prosecutor at the time the brief was filed, was on the brief for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges, sitting en banc.

WILKEY, Circuit Judge:

Appellant George Gordon Liddy seeks reversal of an order of civil contempt which the District Court entered against him on 3 April 1973. 1 The contempt order issued when Liddy persisted in asserting his Fifth Amendment privilege against self-incrimination in response to questioning before the 5 June 1972 Watergate grand jury, despite a District Court order granting him conpulsory immunity pursuant to 18 U.S.C. 6002. 2 The District Court found that there was no 'just cause' for Liddy's contumacy and, pursuant to 28 U.S.C. 1826, 3 ordered that Liddy 'be confined until such time as he is willing to testify as ordered,' with the period of confinement not to exceed the life of the grand jury including extensions, 4 but in any case not more than eighteen months.

Liddy argues that his status in relation to the grand jury was not that of an ordinary witness, and therefore that the District Court acted improperly when it granted him compulsory immunity under section 6002 and ordered him to testify. The invalidity of this order, Liddy contends, vitiates the court's subsequent civil contempt judgment. We reject Liddy's arguments and affirm the contempt order.

I. FACTUAL BACKGROUND

On 15 September 1972 the 5 June 1972 federal grand jury returned an eight count indictment charging Liddy and six other persons with offenses committed in connection with the break-in at the Democratic National Committee (DNC) headquarters in the Waterate apartment complex on 17 June 1972. Six of the counts charged Liddy with conspiracy, 5 burglary, 6 and illegal interception of oral and wire communications. 7

At his trial in District Court Liddy declined to take the witness stand on his own behalf. On 30 January 1973 the jury returned a verdict of guilty on all six charges against Liddy. 8 On 23 March 1973 the District Court sentenced Liddy to imprisonment for a term of not less than six years and eight months and not more than twenty years and imposed a fine of $40,000.

Three days after Liddy was sentenced he was summoned before the 5 June 1972 grand jury, which had returned the indictment on which his conviction was based. 9 An Assistant United States Attorney questioned Liddy regarding several aspects of the Watergate break-in. The questions related to four basic subjects: 1) Liddy's own activities in connection with the electronic surveillance and burglary of the DNC and his actions in the aftermath of the break-in; 10 2) Liddy's meetings and contacts with other persons before and after the break-in; 11 3) the involvement in or knowledge of the break-in on the part of persons other than the seven co-defendants; 12 and 4) surveillance activity directed at candidates or potential candidates for federal office in 1972. 13 In response to these questions Liddy consistently refused to answer on the ground that to do so might incriminate him. 14

At a subsequent hearing before the District Court on 26 March the Government requested that the court grant Liddy immunity under 18 U.S.C. 6002 and other him to testify before the grand jury. The transcript of Liddy's grand jury appearance was read to the court, which deferred ruling on the Government's motion until 30 March to permit Liddy's counsel to prepare an argument in opposition. At the 30 March hearing counsel for Liddy opposed the Government's motion on the basis of essentially the same arguments advanced on Liddy's behalf in this court, 5 including the contention that Liddy was a target of the grand jury's investigation and therefore could not be compelled to testify. The Government disclaimed any intention to seek further indictments against Liddy. 16 The District Court granted the Government's motion and ordered Liddy to 'appear before the Grand Jury and give testimony or provide other information which he was refused to give or provide . . . as to all matters about which he may be interrogated before said Grand Jury.' 17 The court conferred 'use and derivative use' immunity 18 upon Liddy pursuant to 18 U.S.C. 6002.

When Liddy was taken before the grand jury on 30 March, he again refused to answer questions relating to the Watergate electronic surveillance and break-in 19 on the ground of his Fifth Amendment privilege against self-incrimination. His attitude toward the grand jury interrogation was elicited by an Assistant United States Attorney in the following exchange:

Q. Well, let me ask you this question. Is there any question or any classification of subject matter that we can discuss in here, in this grand jury room, relating directly or indirectly to the events, both prior to and subsequent to, and the event itself of June 16th and 17th, 1972, which you feel you could give information about or answer questions about without invoking your self-incrimination privilege?

A. My best evaluation and my best judgment on that, without hearing a specific question - my best judgment in response to that question would be no. 20

At a hearing on 3 April 1973 the transcript of Liddy's 30 March grand jury appearance was read to the District Court. Upon the Government's motion to adjudicate Liddy in contempt, the court issued an order that provided, in pertinent part:

The Court finds that George Gordon Liddy has, without just cause, refused to testify before the grand jury as ordered by this Court on March 30, 1973. The provisions of Title 28, United States Code 1826 are thus made applicable. Pursuant to that statute, the Court this 3rd day of April, 1973,

ORDERS that Mr. Liddy be confined until such time as he is willing to testify as ordered; provided, however, that the period of confinement shall not exceed the life of the grand jury, including extensions, and shall in no case exceed eighteen (18) months . . .. 21

The court further ordered that 'that to give meaning and coercive impact to the Court's contempt powers in the interest of protecting the Court's integrity, the Court here finds it necessary to hold in abeyance the execution of Mr. Liddy's sentence under the indictment (for burglary, conspiracy, and wiretapping) pending his confinement for contempt.' 22 This appeal followed.

II. VALIDITY OF THE DISTRICT COURT'S ORDER TO TESTIFY AND RESULTING CONTEMPT JUDGMENT

Insofar as Liddy's attack on his contempt conviction rests on his Fifth Amendment privilege against self-incrimination, the Supreme Court's 1973 decision in Kastigar v. United States 23 seems fatal of his position. Kastigar resolved a challenge to the immunity clause of 18 U.S.C. 6002, which provides that when a presiding court orders a contumacious witness to testify before a grand jury, 'no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or information) may be used against the witness in any criminal case . . ..' 24 In upholding the validity of this 'use and derivative use' immunity, the Court in Kastigar stated:

We conclude that the immunity provided by 18 U.S.C. 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it. 25

Since the District Court's 30 March order to testify granted Liddy immunity under section 6002, had Liddy testified he would have been 'in substantially the same position as if (he) had claimed the Fifth Amendment privilege.' Thus, he could 'not refuse to comply with the order (to testify) on the basis of his privilege . . ..' 26 His further contumacy subjected him to a contempt judgment under 28 U.S.C. 1826.

However, Liddy argues that section 6002 immunity, as interpreted and sanctioned by Kastigar, was intended for use only when an 'ordinary witness' asserts his Fifth Amendment privilege as a ground for refusing to testify. When he appeared before the Watergate grand jury on 26 and 30 March 1973, Liddy avers, he was not an ordinary witness. Rather, his status was such that he was entitled to remain silent despite the District Court's order granting him use and derivative use immunity. Liddy characterizes his allegedly extraordinary status before the Watergage grand jury in several fashions:

A. Defendant. Since the Watergate grand jury had indicted him in September 1972, Liddy argues, he appeared before it as a 'defendant' who could exercise his "prerogative . . . not to take the stand in his own prosecution . . .." 27

B. Appellant. Since Liddy's conviction on the Watergate grand jury's indictment is still pending on appeal, he may be retried on that indictment. Liddy contends that it is therefore inappropriate for the grand jury to compel him to testify on matters that may arise during his possible retrial.

C. Target or Potential Defendant. Given 'the assertions of the Government that he was the 'arch conspirator and boss' of the criminal transactions which have been, and are still under investigation by the grand jury,' 28 Liddy argues that he is a target of the grand jury's investigation and as such cannot be compelled to give possibly incriminating evidence about himself, even...

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    ...on the record then before the Court.10 In this regard, his complaint is similar to that considered and rejected in In re Liddy, 165 U.S.App.D.C. 254, 506 F.2d 1293 (1974).11 The Patrick court held, however, that inconsistent testimony given under different grants of immunity could not be th......
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