U.S. v. Leyva, 74-3565

• Decision Date: 02 June 1975
• Docket Number: No. 74-3565,74-3565
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Ernest LEYVA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 774

513 F.2d 774

UNITED STATES of America, Plaintiff-Appellee, v. Frank Ernest LEYVA, Defendant-Appellant.

No. 74-3565.

United States Court of Appeals Fifth Circuit.

June 2, 1975.

James H. Pearl, San Antonio, Tex. (Court appointed), for defendant-appellant.

William S. Sessions, U. S. Atty., Eb F. Luckel, Jeremiah Handy, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GIBSON, ^* THORNBERRY and AINSWORTH, Circuit Judges.

GIBSON, Circuit Judge.

Frank Ernest Leyva appeals from a judgment of conviction for criminal contempt and the resulting 35-year sentence of imprisonment to run consecutive to his 12-year state sentence for narcotics violations. Leyva was tried and convicted in October, 1973, in Texas state court of selling heroin to a federal narcotics agent and sentenced to 12 years imprisonment. On January 8, 1974, he pleaded guilty in Texas court to another sale of heroin and was sentenced to 12 years to be served concurrently with the first offense.

On January 30, 1974, Leyva was called before a federal grand jury and questioned regarding the source of the heroin he had sold. He claimed his Fifth Amendment privilege against self-incrimination and was discharged. Subsequently, on February 15, 1974, the Government, pursuant to 18 U.S.C. § 6003 ¹ obtained an order granting Leyva use immunity. On February 19, 1974, he was recalled before the grand jury and again questioned concerning his sales of heroin. Upon his refusal to answer, he was informed of the order granting him use immunity and given an opportunity to consult with counsel. Upon his return to the grand jury room he persisted in his refusal to answer questions.

He was then brought before District Judge Spears where the immunity order was fully explained to him and was ordered and directed by Judge Spears "to return to the Grand Jury room and to answer such questions as the Grand Jury may propound to you with the understanding that you have full and complete immunity from prosecution for whatever you may say to the Grand Jury." The grand jury members were present throughout the court proceeding and then returned to the grand jury room. Leyva was again questioned and refused to answer, whereupon he was discharged. On March 13, 1974, the same grand jury returned an indictment charging Leyva with criminal contempt in violation of 18 U.S.C. § 401(3). ²

Trial was to a jury on August 12, 1974, and Leyva was found guilty. A sentence of 35 years imprisonment was imposed, to run consecutively to the 12 year-state sentences previously imposed. Leyva appeals and presents seven assignments of error. We consider each seriatim.

I. Defendant asserts he was denied due process in not being afforded notice and hearing before the immunity order was granted. He relies upon In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (D.C.Cir. 1962), a case interpreting 18 U.S.C. § 3486 to require notice and hearing. The decision in In re Bart was predicated at least in part upon the fact that under § 3486 the Government could not secure a prospective order. See 304 F.2d at 637 & n. 17. Thus, there might be something for the witness to object to at a hearing before the immunity order was granted. Section 6003 was designed to change this result. See H.R.Rep.No.1549, 91st Cong., 2d Sess. (1970), reprinted in 2 U.S.Code Cong. & Admin.News, pp. 4007, 4018 (1970).

Section 3486 was repealed by the Organized Crime Control Act of 1970, Pub.L.No.91-452, Title II, § 228(a), 84 Stat. 930. 18 U.S.C. § 6003 was added by this same act and provides for a prospective order while not explicitly requiring notice to a prospective witness before grant of immunity; this is an indication that none is required. Furthermore, since the court's duties in granting the requested order are largely ministerial, when the order is properly requested the judge has no discretion to deny it. In re Grand Jury Investigation, 486 F.2d 1013, 1016 (3rd Cir. 1973), cert. denied sub nom., Testa v. United States, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974); see In re Kilgo, 484 F.2d 1215, 1221 (4th Cir. 1973).

Moreover, defendant was represented by counsel during his grand jury appearances and at the February 19th proceeding during which the court ordered him to testify. We fail to see any prejudice. See In re Kilgo,supra at 1221-22; United States v. Handler, 476 F.2d 709, 714-15 (2d Cir. 1973). The February 15, 1974, immunity order under § 6003 is not the order the defendant was accused of violating, rather it was the court's oral order of February 19, 1975. And it is settled that in contempt proceedings "the validity of the order allegedly disobeyed is not open to question in the slightest degree." Cliett v. Hammonds, 305 F.2d 565, 570 (5th Cir. 1962); see United States v. United Mine Workers, 330 U.S. 258, 293-94, 67 S.Ct. 677, 91 L.Ed. 884 (1947). This claim affords no basis for reversal.

II. Leyva argues that the grant of use immunity was insufficient to supplant his Fifth Amendment privilege since it did not protect him against possible perjury charges arising from his prior state court testimony. We have determined that the grant of use immunity does protect a witness from prosecution for perjury antedating the immunity order and thus this argument lacks merit. Taylor v. United States, 509 F.2d 1349 (5th Cir. 1975); accord United States v. Watkins, 505 F.2d 545 (7th Cir. 1974); United States v. Alter, 482 F.2d 1016, 1028 (9th Cir. 1973).

III. Defendant contends that the failure of the court to specify which questions Leyva was to answer relegated the judicial function of determining the propriety of the questions to the grand jury and thus makes the court's order unenforceable. To support a conviction in the circumstance presented by Leyva's refusal to testify it is required only that the court unequivocally order the defendant to answer. Brown v. United States, 359 U.S. 41, 50, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). ³ It is clear that Judge Spears' order, previously quoted, met this requirement.

IV. Defendant argues that his refusal was based upon a good faith but erroneous claim of his Fifth Amendment privilege and, therefore, he lacked the "contumacious intent" necessary to support a conviction. While defendant may initially in good faith have relied upon his privilege when confronted with the immunity order by the grand jury, the subsequent proceedings before Judge Spears and the unequivocal order to answer the questions propounded by the grand jury refute this assertion of good faith. There clearly was sufficient evidence to determine that defendant's refusal to comply with the court's order was deliberate and willful.

V. Leyva claims his right to confrontation of witnesses was violated when transcripts of the February 19th proceeding were admitted into evidence and he was not allowed to call Judge Spears as a witness. This he claims denied him the ability to fully develop the evidence. We confess an inability to understand the relevance, much less the essentiality, of Judge Spears' testimony to the defense. The transcript of the February 19th proceeding, which we have read, speaks for itself. Defendant has failed to explain in any way the necessity for calling Judge Spears as a witness and we find no error or prejudice to the defendant in this regard.

VI. Leyva argues that the court did not consider using the civil contempt sanction prior to instituting criminal contempt proceedings and thus violated the principle of Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966), that "a court must exercise '(t)he least possible power adequate to the end proposed.' " The Government contends there is no necessity to do so since this was not a summary contempt proceeding. While the proceedings upon this contempt indictment present an appearance of some irregularity, defendant made his objection in a rather tardy fashion, and we can find no prejudice to any of his substantial rights.

The Government in pursuing this criminal contempt conviction by means of indictment ignored Fed.R.Crim.P. 42(b) ⁴ which "prescribes the 'procedural regularity' for all contempts in the federal regime except those unusual situations envisioned by Rule 42(a), where instant action is necessary to protect the judicial institution itself." Harris v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965).

While the statute, 18 U.S.C. § 401, defines and limits the power of a court of the United States to impose punishment for contempt, Fed.R.Crim.P. 42(b) governs the procedural aspects of proceedings for criminal contempt. Carlson v. United States, 209 F.2d 209, 213 (1st Cir. 1954).

Rule 42(b) provides for the institution of criminal contempt proceedings not by indictment or information but by notice. United States v. United Mine Workers, 330 U.S. 258, 296, 67 S.Ct. 677, 91 L.Ed. 884 (1947); United States v. DeSimone, 267 F.2d 741, 743 (2d Cir.), vacated as moot, 361 U.S. 125, 80 S.Ct. 253, 4 L.Ed.2d 167 (1959); Bullock v. United States, 265 F.2d 683, 691 (6th Cir.), cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260 (1959). Rather than being an innovation dispensing with the necessity of an indictment for criminal contempt, Rule 42(b) simply made more explicit the prevailing usages at law governing the procedure to be followed in contempt proceedings. Brown v. United States, 359 U.S. 41, 50, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952).

Cases which have considered arguments that criminal contempts must be prosecuted upon indictment have uniformly rejected the idea since contempts are not...