United States v. Germann
| Decision Date | 12 January 1967 |
| Docket Number | Docket 30848.,No. 260,260 |
| Citation | 370 F.2d 1019 |
| Parties | UNITED STATES of America, Appellee, v. Walter GERMANN, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
John S. Allee, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, and Pierre N. Leval, Asst. U. S. Atty., New York City, on the brief), for appellee.
Louis Bender, New York City (Lloyd A. Hale, New York City, on the brief), for appellant.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
This appeal raises the question whether a witness before a grand jury is in disobedience of the command of the district court, in violation of 18 U.S.C. § 401, when he fails to return for further questioning at a time expressly directed by the foreman of that grand jury and recorded in the grand jury's minutes. We hold that he is in disobedience and we affirm the order of the district court which adjudged him in civil contempt and imposed a fine, after a hearing held in his absence as he had advised the court that he was in Switzerland and did not intend to appear.
Walter Germann appeared before the April Special and May Grand Juries in the Southern District of New York on April 29, May 2, May 6 and May 10, 1966. At the end of each session he was orally instructed when next to appear.1 The grand juries were investigating various international holding companies owned by Germann and others to determine whether these corporate entities were being used to evade the laws of the United States relating to income tax and regulation of securities. He was specifically instructed on May 10 to return on May 31 but he failed to appear; his attorney informed the United States Attorney that Germann had cabled that he had decided not to appear.
The government, on July 13, 1966, moved by order to show cause to hold Germann in contempt. The motion was served on Germann's attorney, returnable on August 1. Copies of the papers were sent by certified mail to Germann in Basel and cabled to him by his attorney. Germann secured an adjournment to August 15 through new counsel, who retired a few days later but cabled Germann that the government would not agree to any further adjournment. On August 15 a third attorney appeared only for the purpose of requesting an additional adjournment. Judge Cooper granted the request for adjournment as to the criminal contempt but denied it as to the civil contempt and proceeded to hear the government's motion.
Following a hearing which neither Germann nor his counsel attended, although they had been duly advised thereof, Judge Cooper held Germann in civil contempt for his failure to appear before the grand jury on May 31, 1966. He directed that if Germann did not appear before the grand jury on or before August 22, 1966, he must pay a fine of $25,000 and an additional $1,000 for each additional day thereafter until he appeared.2
Thereafter, on September 27, after the court had heard arguments and received briefs on an order to show cause obtained by Germann's fourth counsel to vacate the August 15 judgment of contempt, Judge Cooper denied the motion to vacate, but he stayed the daily accumulation of the fine beyond the amount already determined on September 27, provided that Germann filed his notice of appeal and filed his brief on appeal and moved for a preference according to a schedule, all by October 27, 1966. It is from these two orders of the Southern District entered on August 15 and September 27, 1966 respectively that this appeal is taken.
Germann contends that he did not violate any process or order of the district court and thus he could not be held in contempt. The record is clear that on May 10, 1966 he was instructed by the foreman of the May grand jury to return on May 31 and that he agreed to do so. However, he argues that a foreman of a grand jury has no power to command his return at a later time and this oral command by the foreman was not "process" within the meaning of 18 U.S.C. § 401(3) or an order or command of the court. We disagree.
It is implicit in the operation of the grand jury as an arm of the district court under Rule 6, Federal Rules of Criminal Procedure, see, e. g., Levine v. United States, 362 U.S. 610, 617, 80 S. Ct. 1038, 4 L.Ed.2d 989 (1960), that the attendance of witnesses before a grand jury may be directed by the foreman or deputy foreman of that grand jury. Once the witness has appeared before the grand jury, whether pursuant to subpoena or of his own volition, the witness is subject to the orders of the grand jury. The grand jury acts through its foreman or deputy foreman; they have the power to direct the witness to return at a stated time just as they have the power to administer an oath. It is true that the power to administer an oath...
To continue reading
Request your trial
-
Marc Rich & Co., A.G., Matter of, 501
...States v. Field, 532 F.2d 404, 407-10 (5th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309 (1976); United States v. Germann, 370 F.2d 1019, 1022-23 (2d Cir.), vacated on other grounds, 389 U.S. 329, 88 S.Ct. 503, 19 L.Ed.2d 559 (1967). Neither may the witness resist the prod......
-
U.S. v. Johnpoll
...nationals in Switzerland, they were not amenable to service of United States process, either by statute or treaty. 9 United States v. Germann, 370 F.2d 1019, 1022-23 (2d Cir.), vacated on other grounds, 389 U.S. 329, 88 S.Ct. 503, 19 L.Ed.2d 559 (1967). The government asked the witnesses to......
-
United States v. Kleen Laundry & Cleaners, Inc.
...context of the instant case is the United States which is, of course, represented by the United States Attorney. United States v. Germann, 370 F.2d 1019, 1020 n. 1 (2d Cir.) vacated because of petitioner's death, 389 U.S. 329, 88 S.Ct. 503, 19 L. Ed.2d 559 (1967) ("Subpoenas are made freely......
-
U.S. v. Mann
...maintenance, and retaining her passport and ticket. The government could also have placed her under subpoena. United States v. Germann, 370 F.2d 1019, 1023 (2nd Cir. 1967). There is no suggestion that such possibilities were explored. Having in mind that it failed even to extract a promise ......
-
Criminal Antitrust Enforcement
...to appear before another grand jury in the same investigation even though he could not be subpoenaed. See United States v. Germann, 370 F.2d 1019, 1023 (2d Cir. 1967), vacated on other grounds, 389 U.S. 329 (1967). The Antitrust Division can and does prosecute foreign nationals for antitrus......
-
Table of Cases
...Manufacturers Antitrust Litig., In re, 2020 U.S. Dist. LEXIS 57625 (N.D. Cal. 2020), 621, 654, 803, 894 Germann; United States v., 370 F.2d 1019 (2d Cir.), vacated, 389 U.S. 329 (1967), 1060 Ger-Ro-Mar, Inc. v. FTC, 518 F.2d 33 (2d Cir. 1975), 740 GE; United States v., 80 F. Supp. 989 (S.D.......
-
Examination
...States v. First Nat’l Bank, 699 F.2d 341 (7th Cir. 1983); United States v. Field, 532 F.2d 404 5th Cir. 1976); United States v. Germann, 370 F.2d 1019 (2d Cir. 1967), vacated , 389 U.S. 329 (1967); United States v. Vetco, Inc., 644 F.2d 1324 (9th Cir. 1981); United States v. Chase Manhattan......