U.S. v. Brummitt, 81-1067

• Decision Date: 28 December 1981
• Docket Number: No. 81-1067,81-1067
• Citation: 665 F.2d 521
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David BRUMMITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 521

665 F.2d 521

UNITED STATES of America, Plaintiff-Appellee, v. David BRUMMITT, Defendant-Appellant.

No. 81-1067.

United States Court of Appeals, Fifth Circuit.

Dec. 28, 1981.

Charles L. Roberts, El Paso, Tex., for defendant-appellant.

LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, TATE and WILLIAMS, Circuit Judges.

TATE, Circuit Judge:

David Brummitt appeals from his conviction for criminal contempt for failure to testify before a federal grand jury after being granted use immunity under 18 U.S.C. §§ 6002, 6003. On appeal, Brummitt principally claims that (a) the testimony he refused to give would subject him to foreign prosecution, against which use immunity would not protect him, and that he was denied an opportunity to present evidence as to the real hazard of foreign prosecution that his testimony would present; (b) his five year sentence is excessive; and (c) the jury selection process in the district does not represent a cross-section of the community. For the reasons set forth below, we affirm Brummitt's conviction.

Brummitt's instant conviction arises out of his refusal to testify on September 18, 1979 and again on August 8, 1980, before a federal grand jury investigating the 1976 crash of a marijuana-loaded airplane in Marfa, Texas, just a few miles north of the Mexican border, on a flight originating in Mexico. Brummitt, under court subpoena, appeared before the grand jury on September 18, 1979, but refused to testify concerning the events of the marijuana purchase in Mexico and its American based financing, invoking his fifth amendment right against self-incrimination. Brummitt continued in his refusal to testify even after being given a grant of use immunity. He was held in civil contempt and served four months in civil confinement. The facts surrounding that adjudication are set out in prior proceedings that affirmed his civil contempt conviction. In re Grand Jury Proceedings (Brummitt and Scarborough), 608 F.2d 640 (5th Cir. 1979), after remand, 613 F.2d 62 (5th Cir. 1980).

On August 8, 1980, after serving his civil contempt sentence, Brummitt was again summoned before the same federal grand jury, and again refused to answer the same questions concerning the events leading to the 1976 crash of the marijuana-loaded plane. At this time he was charged with criminal contempt under 18 U.S.C. § 401(3) ¹ for his failure to testify on the two occasions. After a jury trial on the merits, Brummitt was convicted and sentenced to five years imprisonment on count one, with credit for time served in civil confinement.

A. Fifth Amendment Challenge

Brummitt invoked his fifth amendment privilege and refused to answer, on two occasions, questions prepounded to him before the federal grand jury concerning the purchase of illegal drugs, and its financing, that preceded the 1976 plane crash. He continued in his refusal even after receiving a grant of use immunity. Brummitt claims on appeal that such testimony would subject him to possible prosecution in a foreign country (Mexico). The district court, having allowed the defendant to make an offer of proof ² to the effect that Brummitt had an actual subjective fear of foreign prosecution, ruled that Brummitt's claims of a fear of Mexican prosecution were only conclusory and speculative. The proffer submitted by statement of counsel pointed out that Mexican criminal law, which permits in absentia prosecutions, imposes harsh criminal penalties and that Mexican courts would not be bound by a grant of immunity in the United States. It also suggested that the United States Attorney could, under Fed.R.Cr.P. 6(e)(3), lawfully leak information of the defendant's grand jury testimony to a federal enforcement agency (the Drug Enforcement Administration), which federal agency shares information with the Mexican drug enforcement agencies.

Aside from finding highly speculative the defendant's subjective fears of Mexican prosecution for the marijuana transaction of some five years ago, the district court primarily relied upon the court's power, in compelling testimony under a grant of immunity, to prohibit its disclosure for any other purpose than for American criminal prosecution.

Under Fed.R.Cr.P. 6(e)(3) (as last amended in 1979), ³ a federal attorney with criminal prosecutorial powers may ex parte obtain disclosure of grand jury testimony "for use in the performance of such attorney's duty," as may other "government personnel" as are deemed necessary by such attorney to assist him in the performance of "such attorney's duty to enforce the federal criminal law." The district court held that the rule permitting disclosure without court order to government attorneys (and those acting for them in aid of their federal criminal duties) did not authorize them to disclose the testimony they had obtained to any other prosecutorial authority without court authorization. In its oral comments explaining its rule, the court stated that those matters that are obtained before the grand jury on a grant of immunity could not be released except with the consent of the court, and that the court could not "put itself in the position of violating the grand jury's integrity by allowing that proof to be released once the person has been given immunity. The court would be under an obligation to seal what he said before the grand jury." R. IV, pp. 12-13. ⁴

In the defendant's previous civil contempt case, reiterating the point that in this circuit fear of foreign prosecution is not a defense to contempt for refusal to testify, we stated:

In our prior opinion, we relied on precedent to hold that the fear of foreign prosecution is not a defense to contempt for refusal to testify and "that a grand jury witness is adequately protected against the leak of his testimony by the district court's power to prevent such disclosure. See Fed.R.Crim.P. 6(e)." 608 F.2d at 643. See In re Grand Jury Proceedings (Postal), 559 F.2d 234 (5th Cir. 1977) (per curiam), cert. denied, 434 U.S. 1062, 98 S.Ct. 1234, 55 L.Ed.2d 762 (1978); In re Tierney, 465 F.2d 806 (5th Cir. 1972), cert. denied, 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973). Even if we were to entertain such a defense in this circuit, cf. In re Federal Grand Jury Witness (Lemieux), 597 F.2d 1166, 1168-69 (9th Cir. 1979) (Hufstedler, concurring specially), appellants' offer of proof has not presented a sufficient showing that they will be prosecuted by a foreign sovereign or that the protections of Rule 6(e) will be inadequate to prevent the disclosure of incriminating testimony. The trial court, therefore, committed no error in refusing to entertain appellant's defense.

In re Brummitt, 613 F.2d 62, 64 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2990, 64 L.Ed.2d 856 (1980).

The defendant relies on Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972) for the proposition that the fifth amendment privilege should include a fear of foreign prosection. There the Court found there was no showing that the defendant was ever in real danger of being compelled to disclose information that might incriminate him under foreign law. Id. 406 U.S. at 479-81, 92 S.Ct. at 1675-76. The Fifth Circuit in In re Tierney, 465 F.2d 806, 811-12 (5th Cir. 1972), cert. denied, 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973), reached the identical result that was reached in Zicarelli, but for different reasons. The view of the Fifth Circuit was that due to the secrecy of the grand jury proceedings, no substantial risk of foreign prosecution was posed, citing Rule 6(e). The court decided that it would not rule on a speculative hypothesis that did not make out a substantial risk of foreign prosecution resulting from the compelled testimony.

While the Fifth Circuit has recognized that a different case might be presented where the appellant demonstrated that the content of his answers would be used as evidence against him in a foreign prosecution, In re Grand Jury Proceedings (Field), 532 F.2d 404, 406 (5th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976), the defendant Brummitt has not made a showing on the record that he is in any real danger that his compelled testimony might be used in or give rise to a foreign prosecution. In re Grand Jury Proceedings (Postal), 559 F.2d 234, 236-37 (5th Cir. 1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1234, 55 L.Ed.2d 762 (1978). Furthermore, under present circuit jurisprudence, "because of the secrecy of the grand jury proceedings no substantial risk of foreign prosecution is posed. Rule 6(e), Fed.R.Crim.P. provides for this secrecy." In re Tierney, supra, 465 F.2d at 811. Cf., United States v. Malatesta, 583 F.2d 748, 752-53 (5th Cir. 1978), reh. (on other grounds), 590 F.2d 1379 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979).

The defendant Brummitt contends, however, that the protection envisaged by these prior Fifth Circuit decisions-that the court that granted imunity could seal its use for the purposes of foreign prosecution-has been eroded by broadening amendments to Rule 6(e)(3) that permit government personnel, in addition to federal attorneys, to secure access to the grand jury testimony. However, as earlier noted (see text at footnote 3), disclosure to such personnel is limited to purposes of assisting the attorney to enforce federal (American) criminal law, and neither the attorney nor his assisting personnel may disclose this testimony to other law enforcement personnel without express court order. See United States v. Malatesta, supra 583 F.2d at 752-53. Insofar as the defendant relies upon the thoughtful concurring opinion of Judge Hufstedler in In re Federal Grand Jury Witness (Lemieux), 597 F.2d 1166, 1168 (9th Cir. 1979), we may simply say that the views there...