Weir, In re

• Citation: 520 F.2d 662
• Decision Date: 18 July 1975
• Docket Number: No. 75-2039,75-2039
• Parties: In re James Frederick WEIR. UNITED STATES of America, Plaintiff-Appellee, v. James Frederick WEIR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 662

520 F.2d 662

In re James Frederick WEIR UNITED STATES of America, Plaintiff-Appellee, v. James Frederick WEIR, Defendant-Appellant.

No. 75-2039.

United States Court of Appeals, Ninth Circuit.

July 18, 1975.

Rehearing Denied Aug. 28, 1975.

James Brannigan, Sp. Atty. (argued), U. S. Dept. of Justice, San Diego, Cal., for plaintiff-appellee.

H. Peter Young (argued), Venice, Cal., for defendant-appellant.

OPINION

Before KOELSCH, ELY and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge:

This appeal involves a contempt proceeding against James Frederick Weir, a grand jury witness. The prior history of the case is shown in In Re Weir, 377 F.Supp. 919 (S.D.Cal.1974) holding Weir in contempt, aff'd, In Re Weir, 495 F.2d 879 (9 Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974).

Pursuant to 28 U.S.C. § 1826, Weir was originally held in contempt for refusing to answer questions before a grand jury and the circuit affirmed on April 19, 1974 (citations supra ).

On May 13, 1974, the term of the grand jury before which Weir had refused to answer questions ended. On May 28, 1974, Weir voluntarily accepted service of a subpoena for appearance before a new grand jury. On June 17, 1974, the district court stayed proceedings pending disposition of the petition for certiorari. The petition was denied by the Supreme Court on November 25, 1974.

In the prior proceeding the district court, on November 1, 1973, made a combination grant of immunity under 18 U.S.C. §§ 6002 and 6003 ¹ and an order to testify under 28 U.S.C. § 1826. ² It read as follows:

"Ordered that James Frederick Weir, in accordance with the provisions of § 6002 of Title 18, United States Code, shall testify before the Grand Jury of the United States, and in all proceedings ancillary thereto and resulting therefrom, and not be excused from testifying on the basis of his privilege of self-incrimination.

"However, no testimony or other information compelled under this order, or other information directly or indirectly derived from such testimony or other information, may be used against such witness in any criminal case except a prosecution for perjury for giving false statements or otherwise failing to comply with this order." ³

Subsequently, the trial court examined evidence presented to it in camera on November 1, 1973, and made the following order:

"It Is Hereby Ordered that, at any subsequent prosecution of James Frederick Weir, Jr., for or on account of any transaction, matter, or thing concerning which he testifies, the Government shall be limited in presenting its case to the use of the evidence presented to this Court in camera on November 1, 1973, and shall not be permitted to introduce evidence not then available to it."

Thereafter, the term of the grand jury before which Weir originally refused to testify expired on or about May 13, 1974. The new grand jury was impaneled on May 23, 1974. Weir, after accepting the subpoena to testify on May 28, 1974, appeared before a new grand jury on February 20, 1975 (following the denial of certiorari in the prior proceeding) and refused to answer questions identical to those he had been asked before the prior grand jury.

Weir was then brought back before the district judge and was ordered on March 27, 1975, to answer the particular questions before the grand jury. In order to save time it was stipulated that if he returned before the grand jury and the questions were asked, he would again refuse to answer them.

On that day, March 27, 1975, the district court held Weir in civil contempt, stayed execution of the order and released him on his own recognizance.

The appeal is from that order of contempt. Weir raises again various contentions he made in the first appeal. We need not discuss them since they were disposed of in our prior opinion (495 F.2d 879). In addition, he raises three additional questions: (1) Was it necessary to secure a new order to testify before the successor grand jury? (2) Was it necessary for the court to make a new order of immunity? (3) Was it necessary that the government show that the matter was again submitted to the Attorney General for his approval of the grant of immunity?

DISCUSSION

I. A New Order of Immunity Was Not Required

The statute governing the procedure for an order for contempt of a recalcitrant witness, 28 U.S.C. § 1826(a), expressly provides that the sentence on the contempt of a witness refusing to answer questions before a grand jury (or a trial jury), after a grant of immunity, may not exceed eighteen months or the balance of the term of the grand jury before whom the witness refused to answer questions. Thus the particular grand jury involved is only important as its existence bears on the serving of the sentence imposed. There is no provision for a new order to testify before the successor grand jury nor any provision for a new grant of immunity.

Logically, it appears that the grant of immunity order would be perpetual in its operation. Prospective grants of immunity appear to be contemplated by 18 U.S.C. § 6003(a) and no time limits for completion of testimony are fixed therein.

There is no case law directly in point. In United States v. Stevens, 510 F.2d 1101 (5 Cir. 1975), a second contempt adjudication before a new grand jury was affirmed even though no new immunity order was obtained, but the issue was not discussed.

Furthermore, the court order granting immunity in the present case was not the order that Weir refused to obey. The immunity order merely supplanted Weir's Fifth Amendment rights to refuse to answer questions on the ground of self-incrimination. Kastigar v. United States, 406 U.S. 441, 442, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

The immunity order received its validity from the fact that the court issued it and not because any grand jury was in session. 18 U.S.C. § 6003(a).

Weir cites United States v. Duncan, 456 F.2d 1401 (9 Cir.), rev'd on other grounds, 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed.2d 72 (1972), and United States v. Hawkins, 501 F.2d 1029 (9 Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). In Duncan the government secured a second immunity order prior to calling the witness before a successor grand jury. However, the issue was not litigated, the wording of the immunity orders is not set forth, and immunity was granted under a different statute, 18 U.S.C. § 2514. Hawkins, supra, merely held that "separate successive contempts are punishable as separate offenses." 501 F.2d at 1031. The case does not state whether successor grand juries were involved. Obviously it would make no difference.

No new immunity order was required and the contention to the contrary is without merit.

II. A New Order to Testify Was Not Necessary

The original order of November 1, 1973, required Weir to testify "before the Grand Jury of the United States and in all proceedings ancillary thereto and resulting therefrom . . . ."

There is no case law bearing directly on the issue. Weir relies on dicta in Yates v. United States, 227 F.2d 844 (9 Cir. 1955). There the lower court continued Yate's imprisonment for contempt for refusing to answer certain questions before the trial court, after the trial ended. This court held that "(i)f the witness were ordered to testify or wished to testify, there is no body before which the testimony could be received." Id. at 847. The panel's following remarks were dicta.

In Stevens, supra, the appellant contended ". . . the initial grand jury lacked authority to issue a subpoena compelling his appearance before a grand jury not yet impaneled." 510 F.2d at 1104. The court held, however: "We also sustain the validity of the subpoena ordering Stevens' appearance before the second grand jury. . . . The appellant misconceives the nature of a grand jury. . . ." Id. at 1106. The Stevens court then quoted from Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959):

"A grand jury is . . . an appendage of the court . . . powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so." 510 F.2d at 1106.

Stevens then added:

"As the power to summon witnesses before a grand jury ultimately emanates from the court itself, it is insignificant in the instant case that the subpoena was issued prior to the impanelling of the second grand jury." Id.

In Stevens no new order was requested, but this issue was not discussed. The attack was on the lack of a new subpoena.

In our case no complaint is made about the subpoena. The attack is made on the lack of a new order to testify. But we find the Stevens analysis persuasive with respect to our problem.

Finally, the government's action in going forward before the successor grand jury must be presumed lawful in the absence of clear evidence to the contrary. Beverly v. United States, 468 F.2d 732, 743-44 (5 Cir. 1972). See also In Re Lopreato, 511 F.2d 1150 (1 Cir. 1975).

III. Further Action by the Attorney General Was Not Necessary

The Attorney General had authorized the grant of immunity under 18 U.S.C. § 6003 prior to the court's order of November 1, 1973. Weir contends that the government should be required to show that the Justice Department again reviewed the matter and followed its departmental guidelines before the witness was ordered to appear before the new grand jury. Weir cites no authority on point.

18 U.S.C. § 6003 provides that a United States Attorney may, with the approval of designated officials of the Department of Justice, request from the district court an order of immunity" . . . when in his judgment (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his...