United States v. Seavers

• Decision Date: 25 January 1973
• Docket Number: No. 72-1014.,72-1014.
• Citation: 472 F.2d 607
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Trenton Brooks SEAVERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

472 F.2d 607 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Trenton Brooks SEAVERS, Defendant-Appellant.

No. 72-1014.

United States Court of Appeals, Sixth Circuit.

Argued November 29, 1972.

Decided January 25, 1973.

James D. London (Court appointed), Cleveland, Ohio, for defendant-appellant.

Joseph T. McGinness, Asst. U. S. Atty., for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, on brief.

Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.

LIVELY, Judge.

The Court is called upon in this appeal to determine whether a person who has pled guilty in his own criminal prosecution may subsequently refuse to testify on Fifth Amendment grounds when called as a witness in the trial of one accused of aiding and abetting him. Appellant Seavers pled guilty to violation of the Dyer Act, 18 U.S.C. §§ 2312 and 2. The charge involved transporting a stolen automobile from California to Ohio. Approximately one month later he was brought from prison by the government to testify in the trial of William Franklin who was also charged with aiding and abetting Seavers and with a substantive Dyer Act offense. The District Judge appointed counsel to advise Seavers of his rights and he was called by the prosecution as a witness.

The court then excused the jury and questioned Seavers about his willingness to testify. His court-appointed attorney advised the trial judge that although Mr. Seavers had pled guilty to the federal charge of transporting, he was still subject to prosecution by the State of California for the manner in which the car was taken and for operating a vehicle without the owner's consent. The court held that his plea of guilty was a waiver of Seavers' Fifth Amendment right against self-incrimination as it applied to "that crime", i. e., the Dyer Act offense. The privilege was upheld with respect to unauthorized use of credit cards during the transportation of the automobile, but the court ruled that the witness would be required to answer questions with respect to the circumstances surrounding the acquisition of the automobile, its transportation to Ohio and his association with the defendant Franklin. The possibility of prosecution by the California and Ohio authorities was recognized, but the witness was specifically held to have waived the right to refuse to testify as to these matters.

The jury returned and the witness Seavers then answered questions of the prosecuting attorney with respect to his name, his prisoner status and the fact that he had pled guilty to violation of the federal statute. Thereupon he was asked if he knew the defendant William Franklin in September, 1970, and refused to answer by invoking the Fifth Amendment. The court then advised the witness that the question was in no way incriminating and directed him to answer. Upon the continued refusal of the witness to answer this question, the jury was again excused and the court advised the witness that he would be held in contempt if he persisted, and the penalties for contempt were explained.

The witness advised the court that he would refuse to answer any questions "as far as the other party is concerned." After answering several questions on voir dire concerning his own activities in acquiring the car, and his arrest, he then refused to testify further and was found by the court to be in contempt and sentenced to six months imprisonment, to run consecutively to the term he was then serving.

The doctrine of immunity is discussed in briefs, but cannot be made the basis of a decision in this case. Title 18 U.S.C. §§ 6002 and 6003¹ when read together are not written as self-executing laws. The record is clear that no order was requested by the United States Attorney following the procedure required by § 6003(b) and no order was issued by the district court based on application of the immunity statutes. It is a requirement of the quoted sections that these steps be taken in order that immunity may be bestowed upon a witness who refuses to testify on the ground of self-incrimination. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), for the procedure to be followed in conferring immunity under the provisions of Sections 6002 and 6003.

The contempt judgment here actually has two separate bases. The refusal to answer the early questions concerning Seavers' acquaintance with Franklin was overruled because the answers could not possibly have been incriminating. The refusal to answer later questions concerning events connected with the stolen automobile was overruled on the ground that the previous guilty plea was a waiver of the right to rely on the Fifth Amendment guarantee against self-incrimination.

Turning first to the ruling of the District Court that Seavers had waived his Fifth Amendment privilege, we must determine whether there was a genuine danger that such testimony would have been used as the basis for further prosecutions. As the Supreme Court said in Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951) the privilege against self-incrimination presupposes the existence of real danger that the testimony will lead to further crimination. The trial judge acknowledged the fact that Seavers might be subjected to state prosecutions for theft of the car in California and other charges with respect to the vehicle. Nevertheless, he held that by virtue of the plea of guilty the witness had waived "any right with respect to inquiry with respect to the acquisition, of the possession of, and the transportation of that vehicle."

Since transportation of the vehicle (and aiding and abetting in transportation) was all that he had pled guilty to, we do not believe he had waived the privilege with respect to acquisition of the vehicle and unauthorized possession of it in California, both offenses for which there existed the possibility of State prosecution. It is well settled that the privilege protects a federal witness against incrimination under state as well as federal law. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964). We are not willing to assume, as the Appellee insists, that as a practical matter such dual prosecutions do not take place. The power of the State of California to prosecute Seavers was not such an imaginary or unsubstantial contingency as we referred to in United States v. Harmon, 339 F.2d 354 (6th Cir. 1964), cert. denied 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963 (1965). The privilege claimed by Seavers should have been upheld with...