United States v. Marra

• Decision Date: 12 July 1973
• Docket Number: No. 986,Docket 73-1464.,986
• Citation: 482 F.2d 1196
• Parties: UNITED STATES of America, Appellee, v. Thomas Henry MARRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

482 F.2d 1196 (1973)

UNITED STATES of America, Appellee, v. Thomas Henry MARRA, Defendant-Appellant.

No. 986, Docket 73-1464.

United States Court of Appeals, Second Circuit.

Argued June 20, 1973.

Decided July 12, 1973.

Herbert Ira Handman, New York City, for defendant-appellant.

S. Andrew Schaffer, Asst. U. S. Atty., (Paul J. Curran, U. S. Atty., for S. D. N. Y., John J. Kenney, John W. Nields, Jr., Asst. U. S. Attys., of counsel), for appellee.

Before FRIENDLY, FEINBERG and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

This appeal raises the perplexing question of what procedure must be followed by a trial judge before holding a witness in contempt for refusal to obey an order directing the witness to testify after immunity has been granted. Thomas Henry Marra appeals from an order of summary criminal contempt entered on January 16, 1973, pursuant to Rule 42(a)¹ of the Federal Rules of Criminal Procedure and 18 U.S.C. § 401(3)² by Judge Constance Baker Motley of the United States District Court for the Southern District of New York. Marra, in the presence of the jury, had invoked the Fifth Amendment privilege against self-incrimination in response to certain questions posed by the prosecution despite a grant of immunity pursuant to 18 U.S.C. §§ 6002 and 6003. Since we conclude that summary disposition under Rule 42(a), F.R.Cr.P., was not available to the court under the circumstances of this case, the order of contempt is reversed.

Marra was subpoenaed as a government witness in the prosecution of Kenneth Krevey, who along with Frank Anthony Conte, was charged with possessing and passing counterfeit federal notes and conspiring to commit these substantive offenses in violation of 18 U.S.C. §§ 472 and 371. Because Marra, who had pleaded guilty to one count in each of two indictments arising from violations of the counterfeiting laws,³ planned to invoke the Fifth Amendment privilege upon being questioned, the Assistant United States Attorney had applied for an order granting immunity. The government advised the court, when Marra appeared at the time of trial on January 15, 1973, without his then counsel, Donald Gilbert, that Mr. Gilbert had been apprised of the pending application for immunity and of the intention to call Marra as a witness.

Outside of the presence of the jury, Judge Motley questioned Marra as to his willingness to testify. Marra informed the court that his lawyer had "advised me . . . to answer as many questions as I can but since I have cases pending in this Court, . . . not to say anything that would incriminate me either in this matter or the matters pending." Notwithstanding Judge Motley's ensuing explanation that the grant of immunity would prevent the government from using any of his testimony against him and that a refusal to testify might result in a finding of contempt, Marra persisted in stating his intention to invoke the Fifth Amendment. Still outside the presence of the jury, Marra was then sworn as a witness and questioned by the government. Following his refusal to testify the court signed the order granting immunity, and instructed him to consult with his attorney concerning the effect of the grant of immunity and to be prepared to testify the next day.

On January 16, 1973, Marra returned and was again questioned outside of the hearing of the jury, at which time he gave testimony contrary to that expected of him by the prosecution. After reiterating the consequences of the grant of immunity but cautioning that such grant did not insulate a witness from a possible perjury charge, Judge Motley stated that it was her "feeling that the Government now has the right to assume that when Mr. Marra testifies now he will testify in accordance with the way he previously answered questions put to him by Mr. Tulley."

Upon being sworn as a witness before the jury Marra, after responding to a few preliminary questions, refused to answer the prosecutor's inquiry as to a "transaction with Krevey concerning counterfeit currency," stating that he would "rather not answer any more questions since I could be incriminating myself until my attorney is here. I have no legal advice here at all." When he further invoked the Fifth Amendment in response to another question, Judge Motley excused the jury and reviewed with him again the consequences of his refusal to answer after being granted immunity and being ordered to answer, including the probability of imprisonment for contempt. When the witness nevertheless persisted in his refusal, Judge Motley decided that criminal contempt was appropriate, after concluding that "civil contempt would be ineffective to compel compliance." Later on the same day, acting pursuant to Rule 42(a) and 18 U.S.C. § 401(3), she summarily found Marra in contempt for his "refusal to answer a material question" and sentenced him to a term of imprisonment of three months.⁴ On January 17, 1973, two days after the commencement of the trial and one day after Marra had been summarily found in contempt, the jury found Krevey guilty on all counts.

In an opinion dated February 22, 1973, which nominally dealt with a motion for bail pending appeal, Judge Motley rejected the claim that "summary criminal contempt cannot be used to punish testimonial failures" and concluded that in any event Marra's conduct "showed a calculated design to obstruct a court proceeding." Finally Judge Motley denied Marra's claim that he was improperly denied the right to counsel.⁵

By repeatedly instructing the witness as to his responsibilities and giving him the opportunity to seek the advice of independent counsel before finally responding to her order to testify, the district judge appears to have conscientiously sought to strike a balance between the court's interest in commanding respect for the judicial process and the witness' right to procedural due process protection. Indeed, if we were writing on a tabula rasa the court's use in this case of the summary contempt procedure provided by Rule 42(a) would seem appropriate enough, especially since Marra's defiance of the court's order took place in the jury's presence after immunity had been granted and it tended to obstruct an ongoing proceeding. But we are confronted with well-entrenched authority, including decisions of the Supreme Court and of our own court, squarely holding that summary procedure may not be used to punish a testimonial refusal of the type here encountered. In Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965), which overruled Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), Harris, appearing as a witness before the grand jury, refused to answer certain questions on Fifth Amendment grounds despite the trial judge's promise of immunity. Harris was then brought before the court where he was represented by counsel and, after being given the opportunity to purge himself by testifying, continued to invoke the privilege against self-incrimination. Thereupon he was summarily adjudged guilty of criminal contempt under Rule 42(a). The Supreme Court reversed, holding that under the circumstances the summary punishment constituted an abuse of the contempt power, and that a Rule 42(b) proceeding was required.

Although Harris might be construed as being limited to instances where a witness repeats before the court a testimonial refusal originally committed outside of its presence, we are persuaded by the language of the opinion that such an interpretation would be unduly restrictive. The Court emphasized that "Rule 42(a) was reserved `for exceptional circumstances,' Brown v. United States, 359 U.S. 41, 54, 79 S.Ct. 539, 3 L.Ed.2d 609 (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings . . . where speedy punishment may be necessary in order to achieve `summary vindication of the court's dignity and authority,' Cooke v. United States, 267 U.S. 517, 534, 45 S. Ct. 390, 69 L.Ed. 767. But swiftness was not a prerequisite of justice here." 382 U.S. at 164, 86 S.Ct. at 354. Absent such disruptive conduct, which afronts the dignity of the court, a hearing pursuant to Rule 42(b) is required to explore possible exculpatory or mitigating circumstances. "What appears to be a brazen refusal to cooperate . . . may indeed be a case of frightened silence. Refusal to answer may be due to fear—fear of reprisals on the witness or his family. Other extenuating circumstances may be present." 382 U.S. at 166, 86 S.Ct. at 355.

Any doubt as to the ambit of Harris was resolved by our decision in United States v. Pace, 371 F.2d 810 (2d Cir. 1967), which controls the outcome in this case. In Pace we applied the broad underpinnings of Harris to reverse the summary conviction for criminal contempt under Rule 42(a) of a witness who, in the presence of the court but with the jury absent, refused to testify on the ground that the answers might tend to incriminate him. In rejecting a narrow reading of Harris we stated in terms applicable here:

"Summary disposition is thus available only when immediate punishment is necessary to put an end to acts disrupting the proceedings, such as threats to the judge, disturbances in the courtroom or insolence before the court. It is not a remedy to be used in a case like this where the contempt consists of no more than orderly refusal in the absence of the jury to answer a question on Fifth Amendment grounds. . . ." 371 F.2d at 811.

Because summary contempt under Rule 42(a) deprives the contemnor of procedural safeguards, its limited use is "to prevent `demoralization of the court's authority' before the public." In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 500, 92 L.Ed. 682 (1948), quoting Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Cf. 8A J. Moore, Federal Practice ¶ 42.042 (2d ed. 1972).

"To preserve order in the court room for the proper conduct of business, the court

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