United States v. Anderson, No. 24317.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSOBELOFF, Senior Circuit
Citation464 F.2d 1390
Docket NumberNo. 24317.
Decision Date21 June 1972
PartiesUNITED STATES of America v. Charles ANDERSON. George W. Johnson, Jr., and Alberta Anderson, Witnesses, Appellants.

464 F.2d 1390 (1972)

UNITED STATES of America
v.
Charles ANDERSON.

George W. Johnson, Jr., and Alberta Anderson, Witnesses, Appellants.

No. 24317.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 1972.

Decided June 21, 1972.


Mr. Charles A. Brady, New York City, for appellants. Mr. Melvin M. Burton, Jr., Washington, D. C., was on the brief for appellants.

Mr. John M. Brant, Atty., Tax Div., Dept. of Justice, of the bar the Supreme Court of New Hampshire, pro hac vice, by special leave of Court, for appellee. Mr. Johnnie M. Walters, Asst. Atty. Gen. at the time the brief was filed, Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, Crombie J. D. Garrett and John P. Burke, Attys., Tax Div., Dept. of Justice, were on the brief, for appellee. Mr. Lee A. Jackson, Atty., Tax Div., Dept. of Justice, also entered an appearance for appellee.

Before BAZELON, Chief Judge, SIMON E. SOBELOFF,* Senior Circuit Judge for the Fourth Circuit, and McGOWAN, Circuit Judge.

SOBELOFF, Senior Circuit Judge:

At what stage of the litigation may a non-party witness have review of a district court order requiring him to testify over his objection that his answers may be self-incriminatory? We hold that an order compelling the testimony of a non-party witness is interlocutory and not appealable under 28 U.S.C. § 1291. Appellate review of the decision is available only by an appeal from a subsequent order of the district court adjudging the recalcitrant witness in contempt.

Appellants George Johnson and Alberta Anderson noted an appeal from the District Court's order overruling their objections to a pre-trial examiner's recommendation that they be compelled to answer certain questions in a deposition.1 Appellants are not under

464 F.2d 1391
citation for contempt in refusing to answer the questions and no further action to enforce the District Court's order has been instituted

The Government has moved to dismiss the appeal on the ground that it is not taken from a "final order" of the District Court as required by 28 U.S.C. § 1291. Appellants argue that a ruling requiring them to risk civil and criminal contempt in order to raise their Fifth Amendment claims places an intolerable burden on their assertion of the privilege. An argument of this nature has been accepted by the Tenth Circuit Court of Appeals in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965) (dealing with a refusal to disclose trade secrets). But the greater weight of authority favors the Government's position.

In Alexander v. United States, 201 U. S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906), the trial court had directed witnesses to produce documents in compliance with a subpoena duces tecum and to answer questions propounded by the Government in an anti-trust suit. The witnesses, claiming that the information called for was irrelevant to the underlying suit and was, moreover, self-incriminatory, sought immediate review of the order. The Supreme Court held that review was unavailable at that point. The Court declared:

Let the court go farther, and punish the witness for contempt of its order, —then arrives a right of review; and this is adequate for his protection without unduly impeding the progress of the case. * * * This power to punish being exercised, the matter becomes personal to the witness and a judgment as to him. Prior to that the proceedings are interlocutory in the original suit. 201 U.S. at 121-122, 26 S.Ct. at 358.

Just last term, in United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), the Court unanimously reaffirmed its Alexander holding. There it was decided that an order denying a witness' motion to quash a grand jury subpoena duces tecum was not appealable under either 28 U.S.C. § 1291 or § 1292(a) (1).

If, as Appellant claims, the subpoena is unduly burdensome or otherwise unlawful, he may refuse to comply and litigate those questions in the event that contempt or similar
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18 practice notes
  • Sigma Reproductive Health Center v. State, No. 18
    • United States
    • Court of Appeals of Maryland
    • September 1, 1983
    ...L.Ed.2d 124 (1975); Gialde v. Time, Inc., 480 F.2d 1295, 1300-01 (8 Cir.1973); United Page 674 States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (D.C.Cir.1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir.1969). The doctrine has since been reaffirmed by a unanimous Court in United St......
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...190, 46 L.Ed.2d 124) (1975); Gialde v. Time, Inc., 480 F.2d 1295, 1300-01 (8 Cir. 1973); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir. 1969). The doctrine has since been reaffirmed by a unanimous Court in United States v......
  • National Right to Work Legal Defense v. Richey, No. 74--1661
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 16, 1975
    ...U.S.C. 1291. The Supreme Court in United States v. Alexander, supra, and this court in United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972), recognized that this principle extends even to assertion of constitutional The holding in Ryan indicates (by an analogy approved by t......
  • Halkin, In re, No. 77-1313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 19, 1979
    ...before appellate review is possible . . . ." Id., at 22, 510 F.2d at 1243 (citations omitted). 55 See United States v. Anderson, 464 F.2d 1390, 1392 (D.C.Cir. 1972); National Right to Work Legal Defense v. Richey, 167 U.S.App.D.C. 18, 24, 510 F.2d 1239, 1245 (1975). See also Central So......
  • Request a trial to view additional results
18 cases
  • Sigma Reproductive Health Center v. State, No. 18
    • United States
    • Court of Appeals of Maryland
    • September 1, 1983
    ...L.Ed.2d 124 (1975); Gialde v. Time, Inc., 480 F.2d 1295, 1300-01 (8 Cir.1973); United Page 674 States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (D.C.Cir.1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir.1969). The doctrine has since been reaffirmed by a unanimous Court in United St......
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...190, 46 L.Ed.2d 124) (1975); Gialde v. Time, Inc., 480 F.2d 1295, 1300-01 (8 Cir. 1973); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972); Borden Co. v. Sylk, 410 F.2d 843, 846 (3 Cir. 1969). The doctrine has since been reaffirmed by a unanimous Court in United States v......
  • National Right to Work Legal Defense v. Richey, No. 74--1661
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 16, 1975
    ...U.S.C. 1291. The Supreme Court in United States v. Alexander, supra, and this court in United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972), recognized that this principle extends even to assertion of constitutional The holding in Ryan indicates (by an analogy approved by t......
  • Halkin, In re, No. 77-1313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • January 19, 1979
    ...before appellate review is possible . . . ." Id., at 22, 510 F.2d at 1243 (citations omitted). 55 See United States v. Anderson, 464 F.2d 1390, 1392 (D.C.Cir. 1972); National Right to Work Legal Defense v. Richey, 167 U.S.App.D.C. 18, 24, 510 F.2d 1239, 1245 (1975). See also Central So......
  • Request a trial to view additional results

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