United States v. Pace
| Decision Date | 18 January 1967 |
| Docket Number | No. 338,Docket 31020.,338 |
| Citation | 371 F.2d 810 |
| Parties | UNITED STATES of America, Appellee, v. Augustus J. PACE, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Jon O. Newman, U. S. Atty., for Dist. of Connecticut, Hartford, Conn., for appellee.
Edward G. Burstein, Bridgeport, Conn. (Burstein & Goldman, Bridgeport, Conn., on the brief), for appellant.
Before MEDINA, ANDERSON and FEINBERG, Circuit Judges.
Augustus J. Pace was to be the first prosecution witness in United States v. Piccolo on trial in the United States District Court for the District of Connecticut. Having been informed that Pace would refuse to answer questions on the ground that his answers might tend to incriminate him the trial judge excused the jury temporarily and in open court questions were put to Pace which he refused to answer. The first question was: "Do you know the defendant Frank Piccolo?" A later question, which is the basis of the contempt adjudication now before us for review, was: "Did you appear before the Grand Jury voluntarily or under subpoena?"
As the trial is still pending, and there is the possibility of a double jeopardy claim by Piccolo in the event of a mistrial, the proceedings in this Court have been expedited. After a full hearing under Rule 42(a) of the Federal Rules of Criminal Procedure, Pace was found guilty of criminal contempt and sentenced to 90 days unconditional imprisonment. We heard the appeal from this judgment of conviction on January 16, 1967.
We hold the question, "Did you appear before the Grand Jury voluntarily or under subpoena?" is a proper question and that Pace's objection and refusal to answer on the ground that an answer might tend to incriminate him was properly overruled.
While this was not an instance of contempt proceedings against a witness who refused to testify before a Grand Jury, we think the reasoning of the Supreme Court in Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) is applicable and we remand the case so that if the trial judge so decides proceedings may be promptly had pursuant to the provisions of Rule 42(b).
It is true that the Court in Harris assumes "arguendo that Rule 42 (a) may at times reach testimonial episodes * * *." The narrow holding of Harris, overruling Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed. 2d 609 (1959) is merely that a district judge may not create a summary disposition case by calling a recalcitrant Grand Jury...
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United States v. Wilson 8212 1162
...of no more than orderly refusal in the absence of the jury to answer a question on Fifth Amendment grounds . . ..' United States v. Pace, 371 F.2d 810, 811 (CA2 1967). In another case the Court of Appeals had interpreted the language of our Harris decision to require that '(a)bsent . . . di......
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United States v. Di Mauro
...434, 448 (C.D.Cal. 1967); and United States v. Doe, 295 F.Supp. 956 (D.Conn.), aff'd 405 F.2d 436 (2d Cir. 1968); see United States v. Pace, 371 F. 2d 810 (2d Cir. 1967), rev'g United States v. Piccolo, 295 F.Supp. 955, 956 (D.Conn.1967). On the other hand, the Sixth Circuit has held that a......
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Baker v. Eisenstadt
...of the court can be so dealt with. Carlson v. United States, 209 F.2d 209, 216 (1st Cir. 1954). We are mindful that in United States v. Pace, 371 F.2d 810 (2d Cir. 1967), the court extended the holding in Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965), proscribin......
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United States v. Chandler
...Government urges that we should not encourage conjured fears of incrimination or arbitrary refusals to answer, of which United States v. Pace, 371 F.2d 810 (2d Cir. 1967), is an example. But this is hardly such an instance. In this case, appellant answered questions asking his residence, hi......