United States v. Wilson, 83

• Decision Date: 28 November 1973
• Docket Number: Dockets 73-1574,73-1575.,101,No. 83,83
• Parties: UNITED STATES of America, Appellee, v. Thomas Joseph WILSON and Bobby Antonio Bryan, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

488 F.2d 1231 (1973)

UNITED STATES of America, Appellee, v. Thomas Joseph WILSON and Bobby Antonio Bryan, Appellants.

Nos. 83, 101, Dockets 73-1574, 73-1575.

United States Court of Appeals, Second Circuit.

Argued October 15, 1973.

Decided November 28, 1973.

Sheila Ginsberg, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for appellant Wilson.

Herbert Ira Handman, New York City, for appellant Bryan.

Kenneth R. Feinberg, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern District of New York, John D. Gordan III, Asst. U. S. Atty., on the brief), for appellee.

Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.

FEINBERG, Circuit Judge:

Thomas Joseph Wilson and Bobby Antonio Bryan appeal from judgments of the United States District Court for the Southern District of New York, Morris E. Lasker, J., finding them guilty of criminal contempt for refusing to testify in the trial of Robert Joel Anderson for armed bank robbery. Both Wilson and Bryan were sentenced by Judge Lasker to six months imprisonment. They challenge their contempt convictions, arguing that they had the right to refuse to incriminate themselves and that, in any event, the procedure followed by the judge was defective. For reasons set forth below, we reject the fifth amendment claim but reverse for further proceedings before Judge Lasker under Rule 42(b) of the Federal Rules of Criminal Procedure.

I

The indictment on which Anderson was tried charged him with armed robbery of the Nanuet National Bank in Mt. Ivy, New York, and the Empire National Bank in Tuxedo, New York. The same indictment charged appellant Wilson, too, with robbery of the latter bank. This case was assigned to Judge Lasker. A separate indictment also charged appellant Bryan with the Nanuet bank robbery. This indictment was assigned to Judge Irving Ben Cooper. By the time Anderson's case came to trial before Judge Lasker in March 1973, both appellant Wilson and appellant Byran had pleaded guilty to charges against them. However, neither had been definitively sentenced. Wilson's plea had been taken by Judge Lasker, who had deferred sentence.¹ Bryan had pleaded before Judge Cooper, who had imposed a provisional 25-year sentence (the statutory maximum), pending an evaluation under 18 U.S.C. § 4208(b).²

During Anderson's trial, the Government called appellants Bryan and Wilson as witnesses, the former on the Nanuet, and the latter on the Empire, bank robbery. Each refused to testify on self-incrimination grounds and persisted in this stance even though each received immunity under 18 U.S.C. §§ 6002-6003, and the judge warned that a contempt finding would follow. When Wilson and Bryan continued to balk, Judge Lasker immediately found each one separately in contempt, and sentenced both to six months in prison consecutive to whatever sentences they received on the counts to which they had pleaded guilty. Counsel for Wilson was present throughout and, in the absence of counsel for Bryan, she attempted with the court's sanction to represent the latter as well.

II

As previously noted, at the time appellants were called as witnesses in the trial of Anderson, they had not yet been finally sentenced on their own guilty pleas. Their uncertainty as to the eventual sentences forms the basis for their broadest argument on appeal. They claim that any admission by them of the details of participation in armed robbery might weigh against them with the sentencing judge — in Wilson's case, the very judge who would hear the testimony, and in Bryan's, a judge of the same court who could obtain the transcript. The Government responds that the privilege against self-incrimination ends immediately and completely with a guilty plea and that, in any event, the claim of privilege was not justified on these facts. Although the first argument raises substantial issues³ and there is much to commend the second,⁴ we need not deal with either. The grant of immunity under 18 U.S.C. §§ 6002-6003 is dispositive here.

One of the major purposes of that statute was to prevent what occurred in this case: the refusal of accomplices to testify about a crime, thereby aborting a conviction. (Indeed, Bryan succeeded admirably — if that was his motive — since the Nanuet bank robbery counts were, without his testimony, dismissed at the close of the Government's case.) Because of the asserted danger of adverse use of the compelled testimony in sentencing, however, appellants contend that the immunity given was not coextensive, as is required, with the scope of the fifth amendment privilege. Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). But neither Wilson nor Bryan followed what we deemed to be proper procedure in raising the issue of "forbidden use."⁵ If appellant Wilson doubted the ability of Judge Lasker to put out of his mind Wilson's statements at Anderson's trial, he should nevertheless have testified as ordered, but requested a different judge for sentencing on the robbery charge.⁶ Cf. Goldberg v. United States, 472 F.2d 513, 516 (2d Cir. 1973). Similarly, if Bryan genuinely feared an increased sentence on his guilty plea as a result of testifying in the Anderson case, he, too, should have given evidence, then asked that proper precautions be taken (e. g., sealing the record) to insure that Judge Cooper would not be privy to the statements made under grant of immunity. Both were, however, required to obey the mandate of 18 U.S.C. § 6002 that "the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination . . . ." Since appellants, on the contrary, selected a wholly improper means of testing their constitutional claim, the contempt judgments would stand regardless of the true extent of the privilege (an issue we need not reach), were it not for the fact that the trial judge erred procedurally in arriving at his findings. To this additional problem we now direct our attention.

III

Our recent opinion in United States v. Marra, 482 F.2d 1196 (1973), held that use of the summary criminal contempt sanction of Fed.R.Crim.P. 42(a) was inappropriate in the case of an orderly refusal to testify on fifth amendment grounds despite a grant of immunity. The proper course would have been to proceed under subdivision (b) of the Rule, which calls for disposition on notice and hearing, permitting "a reasonable time for the preparation of the defense."⁷ Since the district judge here immediately found both Wilson and Bryan in contempt upon their separate orderly refusals to answer the prosecution's questions, appellants argue that Marra governs, and compels reversal of the judgments. We agree, and therefore remand for further proceedings pursuant to Rule 42(b).

At the outset, appellee contends that the failure of appellants to object to the summary procedure below bars them from raising the claim on appeal. We hold, however, that under the circumstances, the request by counsel for Wilson for more time to research the fifth amendment issue constituted sufficient objection. And we refuse to penalize appellant Bryan for his failure to make timely objection to the Rule 42(a) proceeding, since his own counsel was not present. Although counsel for Wilson did her best to protect Bryan, the court having sanctioned her efforts in this regard, only a defendant's own lawyer could be fully aware of the considerations which might be raised in his behalf to mitigate a charge of contempt or the sentence thereunder, and of the likely usefulness of a hearing for development of these considerations.

Appellee also contends, in an effort to distinguish Marra, that Bryan and Wilson received the substance, if not the form, of a Rule 42(b) proceeding since both were represented by counsel and given a full opportunity to be heard. Mere presence of counsel, however, even...