Melickian v. U.S.

• Decision Date: 04 January 1977
• Docket Number: No. 76-1811,76-1811
• Parties: In re Contempt Proceedings against Zaven MELICKIAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 416

547 F.2d 416

In re Contempt Proceedings against Zaven MELICKIAN, Appellant, v. UNITED STATES of America, Appellee.

No. 76-1811.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 8, 1976.

Decided Jan. 4, 1977.

James M. Martin, St. Louis, Mo., for appellant.

David M. Rosen, Asst. U. S. Atty., St. Louis, Mo., for appellee; Barry A. Short, U. S. Atty., St. Louis, Mo., on brief.

Before GIBSON, Chief Judge, and HEANEY and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

On August 18, 1976, Zaven Melickian appeared before a federal grand jury investigating possible violations of federal gambling laws and refused to answer the questions asked of him. Melickian was granted use immunity pursuant to 18 U.S.C. §§ 6002-6003 on September 15, 1976. After the immunity order was entered, Melickian returned to the grand jury room and again refused to answer any questions. The United States Attorney then filed motions to place Melickian in contempt under 28 U.S.C. § 1826 for refusing to testify. A hearing was set for September 17 for the filing of additional motions. Melickian subsequently filed a motion to suppress illegally obtained electronic surveillance evidence pursuant to 18 U.S.C. § 3504(a) and requested a hearing on his motion at which time the government would be required to produce the applications, affidavits, orders and recordings concerning the surveillance. The District Court denied Melickian's motion and reviewed the documents in camera ex parte without taking evidence or disclosing the documents requested. In an order issued on September 17, the District Court held that the in camera ex parte review was necessary to protect the secrecy of an ongoing grand jury investigation, that the order and affidavits were facially valid, and that a further evidentiary hearing on Melickian's motion to suppress was unnecessary. Melickian was found in contempt and confined on September 17.

An appeal from this order was filed and docketed with this Court on September 20, 1976. After Melickian's motion to grant bail was denied by the District Court, he made a similar motion with this Court. That motion was denied on September 22. When this Court was unable to hear Melickian's motion within thirty days from the filing of his notice of appeal as required by 28 U.S.C. § 1826(b), he was released on bail pending the filing of an opinion of this Court.

Three issues are presented for our consideration: (1) whether the fact that this appeal was not heard within thirty days from the date on which notice of appeal was filed deprives this Court of jurisdiction; (2) whether the trial court's decision to review Melickian's motion to suppress in camera ex parte was a proper exercise of its discretion; and (3) whether, on the basis of the orders and affidavits presented, the trial court's determination of probable cause to authorize the wiretap was proper. We will consider the issues in the order presented.

I. Is 28 U.S.C. § 1826(b) Jurisdictional?

Section 1826 codifies the common law powers of the court to deal with recalcitrant witnesses in a trial or grand jury context. Subsection (a) empowers the court to hold in civil contempt any witness who refuses to testify without a showing of "just cause" for the refusal. Subsection (b) reads as follows:

No person confined pursuant to subsection (a) of this section shall be admitted to bail pending the determination of an appeal taken by him from the order for his confinement if it appears that the appeal is frivolous or taken for delay. Any appeal from an order of confinement under this section shall be disposed of as soon as practicable, but not later than thirty days from the filing of such appeal.

It seems clear that the provision directs the courts to deny bail whenever the grounds for appeal are frivolous, but the second sentence of the subsection directs that those appeals be disposed of within thirty days to minimize the confinement of a meritorious contemnor. The issue which we must resolve is whether the statute deprives us of jurisdiction if we fail to hear an appeal within thirty days.

Those Circuits interpreting and applying the thirty-day provision of § 1826(b) have reached widely disparate results. The Second, ¹ Third, ² Sixth, ³ Ninth ⁴ and District of Columbia Circuits ⁵ have disposed of appeals under this provision within the thirty-day time period and thus have not had to deal authoritatively with the consequence of noncompliance. The Tenth Circuit has ruled that the thirty-day provision is mandatory, but failed to explain the reasons for its position. ⁶ It was unnecessary for the Court to discuss the effect of noncompliance since it decided the appeal within the statutory time limit. Both the First and the Fifth Circuits have considered appeals after the thirty-day period expired, but neither have given their reasons for doing so in any detail. ⁷ The Seventh and Ninth Circuits have followed the identical procedure used in this case. ⁸ The time for briefing and arguing the case was extended beyond the thirty-day period and the contemnor was released pending disposition of his appeal. In the only case before this Circuit, we accelerated the matter and rendered a decision within the thirty-day period. ⁹

Two aspects of this evident conflict in authority should be noted. First, none of the courts holding the provision to be mandatory dismissed an appeal or refused to hear it because the thirty-day period had passed. None of them reached their decision in a situation where the effect of their holding would be to deny them jurisdiction. Each court heard the appeal within the thirty-day period. Second, none of the courts applying the provision discussed the issue in any detail. For these reasons, we believe a more detailed treatment of the issue is necessary.

One reason for the confusion over the provision's intended effect is the virtual absence of any instructive legislative history explaining the subsection's purpose. The few existing legislative references do suggest, however, that the provision was inserted in the senate bill in reaction to that bill's "no bail" provision. ¹⁰ The senate bill, as initially proposed in committee, denied bail to all contemnors during the pendency of their appeal. Many of the parties testifying before the Senate Subcommittee objected to the "no bail" provision. ¹¹ The Justice Department, in a letter to the subcommittee, suggested that a sentence calling for the disposition of appeals in thirty days should be appended to the proposed § 1826(b). They argued that if all contemnors were denied bail, appeal of those contempt motions should be expedited to protect the meritorious contemnors from extended incarceration. ¹²

The suggested provision was included in the bill considered by the House of Representatives. That bill did not deny bail absolutely like the senate version, but did set a standard for bail pending appeal that was considered by many ¹³ to be considerably more strict than the common-law standard which the courts had developed. Because the proposed bail standard was perceived to be so severe, those advocating the thirty-day provision before the House Committee still viewed it as a means of protecting the meritorious contemnor from extended incarceration. The Justice Department argued for the provision on the ground that the trial court would, in most cases, deny bail applications since the proposed bail standard permitted release only in extreme circumstances and since the standard required the trial court to determine, in effect, that its contempt order was erroneous. ¹⁴

Although the arguments offered differed somewhat between the House and Senate Committees, there was general agreement that the provision would protect the meritorious appellant-contemnor from extended incarceration. However, no mention is made in the committee hearings of any intent to totally divest the court of jurisdiction if the thirty-day period passed without decision. The provision was intended to protect an interest of the meritorious contemnor, rather than bar consideration of contempt-related appeals.

This conclusion, based on our reading of the legislative materials, is supported by the fact that if § 1826(b) were read to be jurisdictional, it would defeat the coercive purposes which underlie the court's contempt authority. An appellate court's failure to act within the thirty-day period would deprive it and the District Court, which entered the contempt judgment, of jurisdiction in the matter. ¹⁵ In such event, the contempt order of the District Court would be vacated and the contemnor released from custody without receipt of the testimony which his incarceration was intended to furnish. We doubt Congress intended such an extreme result.

Moreover, giving the time limit jurisdictional effect may, in some circumstances, deny the parties enough time to properly brief and argue their positions and prevent the court from fully considering the issues involved. In fact, several of the courts that decided motions after the expiration of the thirty-day period indicated that they were doing so to assure full presentation of the party's arguments. Certainly, most appeals of this nature can be readily argued and decided within thirty days. But in those situations where a procedural delay occurs or an extension of time is necessary, a jurisdictional reading of subsection (b) would prevent the court from granting the necessary continuance.

None of the discussion above is intended to discount the importance of the contemnor's interest in swift consideration of his appeal. The statute calls for decision of a contemnor's appeal within thirty days and we intend to abide by that direction absent strong reasons for not doing so. We do feel, however, that when decision is impossible or unadvisable within the thirty-day period, the procedure followed by this Court which releases the contemnor pending disposition best reconciles the various...