Petition — Chitty v. United States

Cae LE ide SON ot

=

.*

IN THE

Supreme Court of the United States

OcroserR TERM, 1977

No Y= 596

Grorce A. Curry, Petitioner,

Vv.

Untrep States or America, Respondent.

Rosert M. Postat, Petitioner,

v.

Untrep States or America, Respondent.

CONSOLIDATED PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT 2

Gene P. Hives

1767 L Street N.W.

Suite 560

Washi D.C. 20006

(202)

JaMEs REIF

GLapsTeIn, Rei & Srece.

308 Livingston Street

Brooklyn, N.Y. 11217

(212) 858-9131

Attorneys for Petitioners

Pusss ov Breow S. Apams PR xine, Inc. Wasameren, D. C.

CCl & ja77

MICHAEL RODAK, JR., CLERS

TABLE OF CONTENTS

Page

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I TD on ki vkb0 op dacdecbeccecsnecene 2

SS SR oe eee eee en eteheeetws 2

ee Oe TI ici van caesne ducdecesens 3

REASONS FoR GRANTING THE WRIT:

The Petition Presents Important and Recurring

Constitutional Questions Not Previously Resolved

By This Court And Over Which There Exist

Conflicts In Lower Federal Court Decisions. The

Holding Below Conflicts Squarely With Decisions

of the U.S. Court of Appeals for the Ninth Cir-

cuit and the U.S. District Court for Connecticut .. 5

SEO OPES OE COE EP ee a ey ee °1

APPENDIX:

A—Opinion of the Court of Appeals in U.S. v.

Postal, No. 77-2468 (5 Cir., August 30,1977)... la

~~ of the Court of Appeals in U.S. vy.

Chitty, No. 77-2109 (5 Cir., August 2, 1977) .. 9a

C—Statutes and Rule Involved ................ 18a

ii TABLE OF CITATIONS

Cases Crrep Page

Albertson v. SACB, 382 U.S. 70 (1965) ............ 8

Brady v. Maryland, 373 U.S. 83 (1963) ............. 15

Glickstein v. United States, 222 U.S. 139 (1911) ..... 15

I{offman v. United States, 34 U.S. 479 (1951) ....... 8

In re Cardassi, 351 F. Supp. 1080 (D. Conn. 1972). . 13, 14

In re Oliver, 333 U.S. 257 (1948) .............c000. 15

In re Parker, 411 F.2d 1067 (10th Cir. 1969), vacated

and remanded 397 U.S. 96 (1970) ............. 13, 19

In re Quinn, 525 F.2d 221 (1st Cir. 1975) ........... 20

In re Tierney, 465 F.2d 806 (5th Cir., 1972) cert. den.

oe? OR OR er ee 4, 12,15

Kastigar v. United States, 406 U.S. 441 (1972) ..... 14

Murphy v. Waterfront Commissioner, 378 U.S. 52

Pr ree er Hf ey a A 19

Tierney v. United States, 410 U.S. 914 (1973) ..... 14, 15

United States v. Moss, No. 77-1134 (2nd Cir., Septem-

ON MUO ncncsaede biandaenuie case 15

United States of America v. Postal, No. 77-2468, (5th

St Oe See re eee 11

Vandeyacht v. United States, No. 75-3290 (9th Cir.,

ee Te SD. vd cs aunb¥edncepeuseeieaee 14

Unitep States Constitution Crrep

oth Amendment of the United States Constitution... 2

Rute Crrep

ee SG OS ON 6 ds ven den duveunceskuaewaaraed 2, 4, 7

Oruer AvutHorities CITED

Article 37, Decree 1188 of June 25, 1974 ............ 6,7

Columbia Diario Oficial of July 8, 1974 ............. 6

Columbia Penal Code Article 208 .................. 7

Columbia Penal Code Article 16,17 ................ 7

Columbia Penal Code Article 19 .................-. 8

Convention of Extradition, 1949, ‘‘Crimes Against the

Laws for the Suppression of the Traffic in Nar-

gfe) EG OBS er eee 10

Table of Citations Continued

lil

Page

Drug Enforcement Magazine. ‘‘United States Drug

Enforcement Agency’’, P. 34 .........-.-005: 11,12

Multilateral Single Convention on Narcotic Drugs,

1961, Article 14, Amendments to Paragraphs 1

Oe OS in ca ed e604 60nceen esa taeein ene

The World Narcotics Problem: The Latin American

Perspective, House of Representatives, 93rd Con-

gress, Report No. 13022-4 ..........-seseeeeeee

10

10

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Ne eee ee

IN THE

Supreme Court of the United States

OcTOBER TERM, 1977

No.

GeorceE A. CuitTty, Petitioner,

v.

UniTep States oF AMERICA, Respondent.

Ropert M. Postau, Petitioner,

v.

UNITED States oF AMERICA, Respondent.

CONSOLIDATED PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT

George A. Chitty and Robert M. Postal respectfully

pray that a writ of certiorari issue to review the judg-

ments and opinions of the United States Court of

Appeals for the Fifth Circuit entered on August 2,

1977 and August 30, 1977, respectively.

2

OPINIONS BELOW

The opinions of the Court of Appeals (Appendices

A and B infra) have not been reported. In each case

the District Court entered judgment without opinion.

JURISDICTION

The judgments of the Court of Appeals were en-

tered on August 2, 1977 and August 30, 1977 and this

petition has been filed within ninety (90) days of each

of those dates. The jurisdiction of this Court is in-

voked pursuant to Title 28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. Whether the Fifth Amendment privilege

against self-incrimination protects a witness before a

federal grand jury from compelled disclosure of in-

formation which would incriminate him under the

laws of a foreign country where there is a real and

objective fear of use of the witness’ testimony against

him in a foreign criminal proceeding ?

2. Whether F.R.Crim.P.6(e) provides protection

consonant with the Fifth Amendment against disclo-

sure to foreign law enforcement personnel of self-

incriminating testimony compelled before a federal

grand jury?

PRCVISIONS INVOLVED

The provisions of law involved are the Fifth

Amendment to the U.S. Constitution, Title 18 U.S.C.

Sections 6002-6003, Title 28 U.S.C. Section 1826 and

ek 6(e) of the Federal Rules of Criminal Proce-

ure.

3

STATEMENT OF THE CASE

Petitioners were each adjudicated in civil contempt

by the U.S. District Court for the Southern District

of Florida pursuant to 28 U.S.C. Section 1826, for

declining to give testimony before a federal grand

jury after being ordered to do so by the District

Court. The contempts arise from the same facts.

On or about September 15, 1976, petitioners were

arrested by U.S. Coast Guard personnel on board a

vessel of foreign registry after a search of the vessel

led to discovery and seizure of 8300 pounds of mari-

huana. The search of the vessel and resultant arrest of

petitioners occurred beyond the twelve mile limit off

the Florida cvast.

Thereafter petitioners were each charged in the

Southern District of Florida with importation, pos-

session with intent to distribute and conspiracy to im-

port and to possess with intent to distribute. The gov-

ernment contended that, when apprehended, petition-

ers were bringing the marihuana into the U.S. from

Colombia, South America. The logs and charts of the

vessel on which petitioners were arrested indicated it

had recently come from Rio Ocha, Colombia. The de-

fendants (petitioners here) contended they were not

on their way toward the U.S. when apprehended and

were not attempting to bring the marihuana into the

jurisdiction of the U.S.

After the submission of the evidence at their April,

1977 trial, the District Court dismissed the substan-

tive charges. Petitioners were each convicted on the

conspiracy count and sentenced to a term of imprison-

ment. Their appeals from these criminal judgments

are presently pending in the Court of Appeals.

4

Thereafter the Government subpoenaed petitioners

before the same grand jury which had indicted them

for the purpose of determining who else, if anyone,

was involved in the conspiracy to possess the mari-

huana and import it into the U.S. Chitty duly ap-

peared on May 24, 1977 and answered several ques-

tions. He did, however, decline to answer two, one,

where did he get the marihuana and, second, where

was he taking the load of marihuana. He was there-

upon ordered to testify by the District Court pursu-

ant to the provisions of 18 U.S.C. Sections 6002-6003.

Chitty nevertheless declined to testify when returned

to the grand jury upon the ground that to do so would

tend to incriminate him under the criminal laws of

Colombia and that the immunity conferred by Sec-

tions 6002-6003 did not and could not protect him

against use of his grand jury testimony in a criminal

prosecution in Colombia.

Relyirg upon In re Tierney, 465 F 2d 806 (5 Cir.

1972), cert.den. 410 U.S. 914 (1973), wherein the

Court of Appeals had held that F.R.Crim.P. 6(e)

protects against disclosure of grand jury testimony

and therefore removes the danger of use in a foreign

criminal proceeding of a federal witness’ self-incrimi-

nating testimony, the District Court held Chitty did

not have just cause to refuse to answer and adjudi-

cated him in civil contempt pursuant to 28 U.S.C.

Section 1826. The Court of Appeals affirmed this

judgment.

Postal duly appeared before the grand jury on July

12, 1977. After answering preliminary questions he

declined to answer a question as to how much money

he had invested in the marihuana found aboard the

vessel. After granted immunity, Postal continued to

5

decline to respond upon the ground that the immunity

did not adequately protect him against the danger he

faced of incrimination under Colombian law. The Dis-

trict Court overruled this Fifth Amendment conten-

tion and adjudicated Postal in civil contempt. The

Court of Appeals affirmed in separate opinion, relying

upon its decision in In re Tierney, supra.

REASONS FOR GRANTING THE WRIT

The Petition Presents Important and Recurring Constitutional

Questions Not Previously Resolved By This Court And Over

Which There Exist Conflicts In Lower Federal Court Decisions.

The Holding Below Conflicts Squarely With Decisions of the

U.S. Court of Appeals for the Ninth Circuit and the U.S. District

Court for Connecticut.

The basic question presented herein is whether the

Fifth Amendment privilege protects a witness in the

U.S. from self-incrimination under the laws of a for-

eign jurisdiction. This issue has never been decided

by this Court. On separate occasions, however, it has

acknowledged its importance. In Zicarelli v. New

Jersey State Commission of Investigation, 401 US.

933, 934 (1971), this Court noted probable jurisdic-

tion specifically to consider inter alia:

“4. Whether the immunity statute, N.J.S.A. 52:

9M-17 can supplant the Fifth Amendment priv-

ilege when it fails to provide immunity against

foreign prosecution with respect to an indivi-

dual who has a real fear of such foreign prose-

eution ?”

On the record there presented, the Court was unable

to decide this issue. Zicarelli v. New Jersey State

Commission of Investigation, 406 U.S. 472 (1972).

6

Earlier this Fifth Amendment question had been

presented in the case of a federal grand jury witness.

In re Parker, 411 F.2d 1067 (10 Cir. 1969). Mootness

prevented a decision by this Court on the merits, how-

ever, so that it granted certiorari, vacated the judg-

ment of the Tenth Circuit and remanded with instruc-

tions to dismiss. Parker v. U.S., 397 U.S. 96 (1970).

In Zicarelli, this Court held it need not reach the

ultimate Fifth Amendment question because, on the

facts, Zicarelli had not shown he was “in real danger

of being compelled to disclose information that might

incriminate him under foreign law.” 406 U.S. at 480.

Here, however, such danger is posed.

Chitty was asked where petitioners obtained the

marihuana and where they were taking it. Postal was

asked how much money he had invested in the mari-

huana. The Government has asserted that, when ap-

prehended with this marihuana in their possession,

petitioners were in the process of transporting it from

Colombia and in effect had conspired to export it

therefrom. The logs and charts of the vessel on which

petitioners were arrested and on which the marihuana

was found indicated it had recently been in Rio Ocha,

Colombia.

Article 37 of Decree 1188 of June 25, 1974, pub-

lished in the Colombia Diario Oficial of J uly 8, 1974,

provides:

‘Whoever without permission of competent

authorities cultivates or maintains plants from

which one could extract marihuana, cocaine, mor-

phine, heroin or any other drug or substance

which could produce a physical or psychological

dependence is punishable by imprisonment of

7

from two to eight years plus a fine of 100 to 1,000

pesos.”

Article 38 of the Decree provides:

“Whoever without permission of competent

authorities imports, ezports, possesses, stores,

maintains, manufactures, sells, offers, acquires or

supplies marihuana, cocaine, morphine, heroin or

any other drug or substance that produces physi-

cal or psychological dependence is punishable by

imprisonment for three to twelve years plus a fine

of 5,000 to 500,000 pesos.” (Emphasis added)

Article 208 of the Colombian Penal Code prohibits

conspiracy to commit an illegal act and provides that

upon conviction therefor one may be sentenced to a

term of imprisonment of from five to fourteen years.

Article 211 proseribes “proposing to another the com-

mission of a crime.” Such an offense is punishable by

sentence of up to three years.

Petitioners could also be prosecuted for a mere

attempt to commit a crime under Colombian law.

Articles 16 and 17 of the Code provide as follows:

“Article 16. Anyone who for the purpose of com-

mitting a crime commences the execution thereof

but fails to consummate it for reasons beyond his

control shall suffer a punishment not less than

one-half of the minimum nor more than two-

thirds of the maximum penalty prescribed for the

consummated crime.

“ Article 17. When all acts necessary for the con-

summation of a crime have been performed, but

the actual crime is not accomplished for reasons

independent of the volition of the actor, the pun-

ishment prescribed for the consummated crime

may be reduced to one-third thereof.

8

Aiding and abetting are similarly illegal and might

— petitioners to criminal prosecution in Colom-

via:

“Article 19. Anyone who participates in the com-

mission of a deed or has rendered any assistance

or cooperation to the offender or offenders, with-

out which it would have been impossible to carry

it out, shall be subject to the punishment pre-

scribed for the crime. The same punishment shall

be imposed upon any person who has instigated

another person to commit it.”’

In determining the applicability of the privilege

against self-incrimination, the questions must be con-

sidered in the setting in which they are asked. Hoff-

man v. U.S., 341 U.S. 479, 486-487 (1951). Petitioners

were being questioned about their obtaining, possess-

ing and transporting of marihuana on a boat of for-

eign registry where they had each previously been con-

vieted for conspiracy to possess and and import said

marihuana from a foreign jurisdiction, and where

the Government asserted and had at least some evi-

dence they had exported the marihuana from Colom-

hia, which makes possession or exportation of mari-

huana and the related offenses of conspiracy, attempt

and aiding and abetting serious crimes punishable by

substantial terms of imprisonment.

In these circumstances, petitioners’ providing infor-

mation concerning their possession and transportation

of the marihuana in question might well ‘furnish a

link in the chain of evidence needed to prosecute”’

each petitioner under Colombian law. Hoffman vy.

U.S., supra at 486. Such information could “supply

investigatory leads to a criminal prosecution” in Co-

lombia. Albertson vy. SACB, 382 U.S. 70, 78 (1965).

9

There is, therefore, a real danger of self-incrimination

under the criminal laws of a foreign country.

The Multilateral Single Convention on Narcotic

Drugs, 1961, to which both Colombia and the U.S. are

signatories, requires that:

‘The parties shall adopt such measures as may he

necessary to prevent the misuse of, and illicit

traffic in, the leaves of the cannabis plant.”

(Art. 28 Control of Cannabis (3))

That international agreement has recently been af-

firmed and expanded by amendment at a convention

in Geneva on March 26, 1972 to which Colombia was

a party. By this new amendment the parties pledge

to prohibit and strictly penalize all activities related

to illicit traffic of narcotics:

“1. (a) Subject to its constitutional limitations,

each Party shall adopt such measures as will en-

sure that cultivation, production, manufacture,

extraction, preparation, possession, offering, of-

ering for sale, distribution, purchase, sale, deliv-

ery on any terms whatsoever, brokerage, dispatch,

dispatch in transit, transport, importation and

exportation of drugs contrary to the provisions

of this Convention shall be punishable offenses

when committed intentionally, and that serious

offenses shall be liable to adequate punishment

particularly by imprisonment or other penalties

of deprivation of liberty.

2. Subject to the constitutional limitations of a

Party, its legal system and domestic law, (a) (i)

Each of the offenses enumerated in Paragraph 1,

if committed in different countries, shall be con-

sidered as a distinct offense. (ii) Intentional par-

ticipation in, conspiracy to commit and attempts

to commit, any of such offenses, and preparatory

10

acts and financial operations in connection with

the offenses referred to in this article, shall be

punishable offenses as provided in Paragraph ."

(Article 14, Amendments to Article 36 Para-

graphs 1 and 2 of the Single Convention )

“Each of the offenses enumerated in Paragr

1 and 2(a)(ti) of this article shall be ool te

be included as an extraditable offense in any ex-

tradition treaty existing between Parties. Parties

undertake to include such offenses as extraditable

in every extradition treaty to be concluded be-

tween them.” (Article 1

original). (Article 14 (2)(b)(i)) (Emphasis

Colombia and the United States had previously en-

tered into a bilateral agreement for Reciprocal Extra-

dition of Criminals signed in Bogota, Colombia, May

7, 1888. A supplementary Convention of Extradition

signed in Bogota, September 7, 1949, added a number

of extraditable offenses to the list and specifically in-

cluded *‘Crimes against the laws for the suppression

of the traffic in narcotics.” Article I, No. 22.

In a 1973 House of Representatives Report it was

noted the Government of Colombia was beginning to

cooperate more fully with the United States in the

effort to slow the flow of drugs into this country. The

President of Colombia was quoted in a statement

made publie on January 13, 1973 as agreeing on “the

need to coordinate efforts to fight a battle against this

serious menace, especially due to its harmful effects

on youth.” The World Narcotics Problem: The Latin

American Perspective, House of R '

; Y ; epresentat

93rd Congress, Report No. 13022-4, Pp ives,

Petitioners’ counsel was advised by an Assistant

Legal Affairs Advisor of the Department of State

11

that a review of the records of said Department indi-

cates there have been previous extraditions of U.S.

citizens to Colombia for criminal prosecution and,

further, that a request by Colombia for extradition

under existing treaties would be honored by the

United States.

Thus, not only is there a substantial danger of self-

inerimination of petitioners under clearly defined pro-

visions of Colombian law but a realistie danger of

prosecution in Colombia. That country possesses both

an articulated concern over reducing the flow of drugs

from Colombia to the U.S. and the means, i.e., extra-

dition, to implement that concern in this case by ac-

quiring jurisdiction over petitioners for purposes of

criminal prosecution. As the Court of Appeals stated

in Postal:

“There is no doubt that if allegedly incriminating

testimony and evidence was available to the Co-

lombian authorities, charges under Colombian

drug laws could be brought against Postal and

extradition requested.” (Footnote omitted)

The danger of use of petitioners’ grand jury testi-

mony in a Colombian prosecution is particularly acute

because it is the policy of the Drug Enforcement Ad-

ministration to furnish evidence obtained by U/S.

authorities in drug cases to authorities in other coun-

tries. John T. Cusack, Chief of the International Op-

erations Division of the D.E.A., quoted in the Spring,

1976 issue of the D.E.A. magazine, “Drug Enforee-

ment,” stated :

“A new technique involving simultaneous prose-

cutions in Mexico and the United States of major

violators was inaugurated in 1975. This program

EEE

12

follows the concept developed with the French

authorities over a period of years whereby sup-

pliers in France were prosecuted on the basis of

evidence and testimony developed against them

in the United States... .’’ (at ‘

sis added ) (at page 34) (Empha

The Government contends, however, that F.R.Crim.

P. 6( e) provides a sufficient guarantee against use of

petitioners’ self-incriminating testimony in a Colom-

bian prosecution. Relying upon the Fifth Circuit’s

decision in In re Tierney, 465 F.2d 806 (5 Cir. 1972)

cert.den. 410 U.S. 914 (1973), the District Court ae-

cepted this contention and the Court of A

affirmed. —

In Tierney, the Court stated:

“[Blecause of the secrecy of the grand ju ro-

ceedings no substantial risk of Soca wine:

tion 1s posed. Rule 6(e), F.R.Crim.P., provides

for this secrecy. The same court which grants

immunity 1s the court which prevents violation

of the secrecy. The government represented that

it could not violate the secrecy, even under the

first sentence of allowing it to disclose matters in

the performance of its duties, without a court

order. This is answer enough to the contention

of appellants that the government might disclose

their testimony.” 465 F.

omitted), y 2d at 811 (footnote

Tierney holds in effect that under no circumstances

may a witness before a federal grand jury decline to

testify on the ground his answers might tend to in-

criminate him under foreign law; that Rule 6(e)

standing alone establishes a guarantee against use of

the grand jury testimony in a foreign prosecution

13

that satisfies the Fifth Amendment. See also In re

Parker, 411 F.2d 1067, 1069-70 (10 Cir. 1969), vacated

and remanded 397 U.S. 96 (1970).

This holding conflicts with opinions issued by the

U.S. District Court in Connecticut and the U.S. Court

of Appeals for the Ninth Circuit, as well as the view

expressed by Mr. Justice Douglas.

In In re Cardassi, 351 F.Supp. 1080, 1082-3 (D.

Conn. 1972), District Judge Jon O. Newman, in a

thoughtful and comprehensive opinion, specifically

considered and rejected the secrecy rationale of Tter-

ney and Parker:

‘‘With deference, this Court declines to follow

the two courts of appeals which have found this

argument persuasive. . . .The argument rests on

the assumption that all law enforcement officials

with access to grand jury minutes can be relied

upon to abide by the disclosure requirements of

Rule 6(e). While there is no reason to believe

that any enforcement officials presently involved

in this grand jury proceeding would not honor

the rule, the constitutional protection of the wit-

ness must rest on more than faith. If in fact a

law enforcement official wanted to make the wit-

ness’ answers known to foreign prosecuting offi-

cials, it is unlikely that he would apply to this

Court for disclosure of the grand jury minutes.

He would simply send the transcript. It may well

be that such conduct would render the official sub-

ject to the disciplinary powers of this Court if

the conduct and the identity of the person respon-

sible ever became known, but such an after-the-

fact sanction would provide no protection for the

witness.” Id. at 1082.

14

The Court relied upon the observation in Kastigar

v. U.S. 406 U.S. 441, 460 (1972) that a federal grand

jury wituess compelled to reveal self-incriminating

information “is not dependent for the preservation

of his rights upon the integrity and good faith of the

prosecuting authorities,’ a fact relied upon by this

Court in upholding the constitutionality of the use

immunity statute. Judge Newman noted that such

good faith “is the sole safeguard the Government can

offer a witness who fears his compelled testimony may

be used against him in foreign courts where the do-

mestice judicial ban on use and derivative use of com-

pelled testimony is vnenforceable.”’ Jd. at 1083.

In Vandeyacht v. U.S., No. 75-3290 (9 Cir. Nov. 24,

1975), decided after Tierney and Parker, the Court of

Appeals reversed an order adjudging a witness in

civil contempt for refusal to testify before a federal

grand jury and remanded for further proceedings. In

particular, in response to the witness’ claim of fear

of self-inerimination under Mexican law, the Court

of Appeals directed the trial court to make findings

of fact and conclusions of law relating to the question,

among others: “What assurances and methods of sup-

porting them can the government or the court, or

both, provide that . . . Vandeyacht’s answers to the

grand jury questions will not be disclosed to Mexican

authorities?’ The Court thus implicitly rejected the

government’s contention that Rule 6(e) by itself pro-

vides constitutionally adequate assurance against such

use.

In dissenting from the denial of certiorari in Tier-

ney V. U.S., 410 U.S. 914, 926, n.2 (1973), Justice

Douglas recognized the many circumstances in which

>=

15

compelled self-incriminating testimony before a grand

jury may lawfully be disclosed. Notwithstanding a

grant of immunity pursuant to Title 18 U.S.C. Sec-

tion 6002-6003, a witness may constitutionally be pros-

ecuted for perjury before the grand jury. The Fifth

Cireuit in Tierney termed this “a speculative hypothe-

sis,” 465 F.2d at 812, but the law has been settled on

this point since Glickstein v. U.S., 222 US. 139

(1911). Such a defendant would have the right to a

public trial of the perjury charge, In re Oliver, 333

U.S. 257 (1948), but exercise of this constitutional

guarantee would lead to public disclosure of his testi-

mony incriminating him under Colombian law.

Grand jury testimony will also be and is often dis-

elosed pursuant to the constitutional mandate of

Brady v. Maryland, 373 U.S. 83 (1963) and its prog-

eny or pursuant to the Jencks Act, Title 18 U.S.C.

Section 3500. These disclosures are not discretionary

but are mandated by law.’

A witness’ supposedly immunized testimony may

also be used in certain circumstances on cross-exami-

nation to impeach the direct testimony of the grand

jury witness at his own criminal trial. Cf. U.S. v.

Moss, No. 77-1134 (2 Cir., Sept. 6, 1977). Indeed, in

Moss, the Government has taken the position that

Harris v. New York, 401 U.S. 222 (1971) and Walder

1 As Justice Douglas has noted, these disclosures are also fre-

quently effected without court order. 410 U.S. at 916, n.2, Indeed

the government’s representation relied upon in Tierney to the effect

that it cannot and does not make any disclosure of grand jury

testimony without prior court order is contradicted by law and fact.

E.g., U.S. v. Hoffa, 349 F.2d 20,43 (6 Cir. 1965), aff'd 385 U.S, 397

(1966) ; U.S. v. Culver, 224 F.Supp. 419, 432 (D.Md. 1963) ; U.S.

V. Anzelmo, 319 F.Supp. 1106, 1116 (E.D.La. 1970).

16

v. U.S., 347 U.S. 62 (1954) ‘‘sanction a general use of

immunized testimony for purposes of impeachment,”

that is, that even truthful statements may be used for

impeachment.

The opinions of the District Court of Connecticut

in Cardassi, the Ninth Cirenit in Vandeyacht and

Justice Douglas in Tierney each conflict with the hold-

ing below and suggest persuasive reasons why the

Fifth Cireuit ruling is unfounded.

It should be recognized that in practice Rule 6(e)

has failed to provide meaningful protection against

public disclosure of grand jury testimony. In the re-

cent period, there have been numerous leaks of testi-

mony before federal grand juries, many of which have

been well publicized and need no recounting here. The

incidence of grand jury leaks and the necessary con-

clusion relative to the effectiveness of Rule 6(e) is

well summarized in a Report by several committees

of the prestigious Association of the Bar of the City

of New York:

“In numerous recent instances involving public

figures and criminal activity of a newsworthy

kind, disclosures attributed to ‘sources close to

the investigation’ have appeared in the public

media. These stories have included predictions as

to who would be indicated and when, who was

‘under investigation’ and what witnesses were

saying.

* * *

The types of proceedings thus publicized have

included grand jury investigations, the actual

text of grand jury minutes as well as the thrust

of grand jury testimony. . .. These situations

have arisen on all three levels of government,

federal, state and local.

* * .

ee ee EE ine ee a a

17

Violations of Rule 6(e) may be punished as con-

tempt of court... . The power to punish by con-

tempt appears to be rarely invoked to punish un-

authorized disclosures, and the number of preju-

dicial leaks which have occurred during the last

year demonstrates that the contempt power ts not

an effective deterrent.” (Emphasis added)

“Strengthening the Role of the Federal Grand Jury:

Analysis and Recommendations,’”’ reprinted in Fed-

eral Grand Jury, Hearings Before the Subcommittee

on the Judiciary, House of Representatives, 95th Con-

gress, 2d Session on H.J.Res. 46, H.R. 1277 and Re-

lated Bills, pp. 621, 628-634.

In a letter to Hon. Peter W. Rodino, Jr., Chairman

of the Committee on the Judiciary, dated July 23,

1975, an Assistant Attorney General, expressing the

views of the Department of Justice, stated:

“The incidence of breaches of grand jury secrecy

has been such, we believe, as to warrant the enact-

ment of criminal provisions (supplementary to

the contempt powers of the court) to protect

grand jury secrecy... .”

See Federal Grand Jury, supra, pp. 77, 79.

The inadequacy of Rule 6(e) as a protection against

disclosure of grand jury testimony has likewise been

acknowledged by the Ad Hoe Committee on Grand

Juries of the Advisory Committee on Criminal Rules

of the U.S. Judicial Conference:

“Tt is recommended that unauthorized disclosure

of matters occurring before the grand jury be

made a criminal offense. This recommendation

results from two considerations. One is that un-

authorized disclosure is becoming a more serious

18

problem, particularly with regard to grand jury

inquiries focusing upon public figures. . . . The

second consideration is that the limited reach of

Rule 6(e) and the contempt power is not ade-

— to deal effectively with unauthorized dis-

closure.”

See ‘Operation of the Grand Jury—A Study Con-

ducted by the Advisory Committe on Criminal Rules”

in Federal Grand Jury, supra, pp. 226, 241.

It should also be noted that Rule 6(e) has only

recently been amended to permit even broader dis-

closure. On August 1, 1977 an amendment to the Rule

became effective which defines “attorneys for the gov-

ernment,” as that term is used in Rule 6(e) specify-

ing those to whom disclosure may be made, to include

not only those identified in F.R.Crim.P. 54(c) (as

previously), but also ‘tsuch other government person-

uel as are necessary to assist the attorneys for the gov-

ernment in the performance of their duties.” 44

USLW 4549. Persons who are not attorneys and not

officers of the Court will now be entitled to see the

contents of grand jury testimony.

There is also a conflict among the lower federal

courts on the ultimate constitutional question whether

the Fifth Amendment privilege protects a federal

grand jury witness against self-incrimination under

the laws of a foreign country. In In re Cardassi, 351

f.Supp. 1080, 1084-1086 (D.Conn. 1972), the Court

held the Fifth Amendment does afford this protec-

tion:

“(T)he Amendment must be reckoned with when

a person in an American court claims that his

testimony is being judicially compelled here and

— Ss -

19

may well be used in a foreign court. In this situa-

tion, the issue is not the availability of the privi-

lege but its proper scope, i.e., whether the reason-

ably feared prospect of foreign use of testimony

can be a basis for resisting its compulsion by an

American court. Since Murphy construed the

privilege to have the same scope under our Con-

stitution as it has in England, where it can be

claimed to preclude foreign use of compelled tes-

timony, the privilege can be claimed in this case

at the point when the testimony is sought to be

judicially compelled.’’ 351 F. Supp. at 1086 (foot-

note omitted).

Compare In re Parker, 411 F.2d 1067, 1070 (10

Cir. 1969), certiorari granted and judgment vacated

397 U.S. 96 (1970, where the Court of Appeals stated

the Fifth Amendment “need not and should not be

interpreted as applying to acts made criminal by the

laws of a foreign nation.”’

This is an important issue; the conflict in lower

court opinions underscores the importance of its final

resolution by this Court.

In Murphy v. Waterfront Commissioner, 378 U.S.

52 (1964) this Court held the Fifth Amendment privi-

lege protects a witness in one U.S. jurisdiction from

self-incrimination under the laws of another jurisdic-

tion in the U.S. Significantly the Murphy Court relied

upon and quoted approvingly from the leading Eng-

lish ease of U.S. v. McRae, L.R. 3 Ch. App. 79 (1867).

In McRae, the U.S. sued in an English court for

an accounting and payment of moneys allegedly re-

ceived by the defendant as an agent for the Confed-

eracy during the Civil War. When the defendant de-

clined to answer discovery questions for fear of in-

20

crimination under foreign (U.S.) law, the U.S.

moved to compel responses. The Court of Chancery

denied the application, holding that where there exists

a real danger of prosecution in a foreign jurisdicti n,

the case could not be distinguished ‘‘in principle from

one where a witness is protected from answering any

question which has a tendency to expose him to for-

feiture for a breach of our own municipal law.” 378

U.S. at 63 (quoting U.S. v. McRae, supra at 87).

This Court then stated:

“In light of the histories, policies and purposes

of the privilege against self-incrimination, we

now accept as correct the construction given the

privilege by the English courts. .. .” 378 U.S. at

77.

Thus Murphy, while it does not decide the precise

point, supports the conclusion that the Fifth Amend-

ment protects a witness against self-incrimination

under the eriminal laws of a foreign jurisdiction.

Cases in which a federal witrfess invokes the Fifth

Amendment privilege on the ground his testimony

may tend to incriminate him under foreign law are

recurrent. In addition to Cardassi, Vandeyacht, Tier-

ney and Parker, supra, see also In re Quinn, 525 F.2d

222 (1 Cir. 1975) and In re Cahalane, 361 F.Supp. 226

(E.D.Pa. 1973) (grand jury witnesses); ef. U.S. v.

Yanagita, 552 F.2d 940 (2 Cir. 1977) (trial witness).

The responses of the lower courts to this Fifth

Amendment contention have been varied. A decision

by this Court would achieve uniformity in approach

as well as resolve the conflicts which exist in lower

court holdings.

21

CONCLUSION

For the foregoing reasons the petition for writ of

certiorari should be granted.

Respectfully submitted,

GenE P. HINES

1707 L Street N.W.

Suite 560

Washington, D.C. 20006

(202) 296-0993

JAMES REIF

GLADSTEIN, Retr & SIEGEL

308 Livingston Street

Brooklyn, N.Y. 11217

(212) 858-9131

Attorneys for Petitioners

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT,

Aug. 30, 1977.

No. 77-2468

Summary Calendar.*®

In re GRAND JURY PROCEEDINGS.

Unrrep States oF America, Appellee,

. Ve

Robert Morris Postar, Appellant.

Appeal from the United States District Court for the

Southern District of Florida.

Before Gotpperc, CLark and Fay, Circuit Judges.

Per Curiam:

Appeliant, Robert Postal, appeals from an adjudication

of civil contempt for failure to testify before a federal

grand jury after having been given use immunity under 18

U.S.C. §§ 6002, 6003. Appellant was incarcerated and was

* Rule 18, 5 Cir.; see /sbell Enterprises, Inc. v. Citizens Casualty

Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

* § 6002. Immunity generally

Whenever a witness refuses, on the basis of his privilege against

self-incrimination, to testify or provide other information in a pro-

ceeding before or ancillary to—

(1) a court or grand jury of the United States

(2) an agency of the United States, or

(3) either House of Congress, a joint committee of the two

Houses, or a committee or a subcommittee of either House, and

the person presiding over the proceeding communicates to the

witness an order issued under this part, the witness may not

Qa

denied bail pending appeal under 28 U.S.C. § 1826(a) and

(b).?

There are four assignments of error. The principal as-

signment is that use immunity was insufficient to displace

refuse to comply with the order on the basis of his privilege

against self-incrimination: but no testimony or other informa-

tion compelled under the order (or any information directly

or indirectly derived from such testimuny or other informa-

tion) may be used against the witness in any criminal case,

except a prosecution for perjury, giving a false statement, or

otherwise failing to comply with the order.

§ 6003. Court and grand jury proceedings

(a) In the ease of any individual who has been or may be called

to testify or provide other information at any proceeding before

or ancillary to a court of the United States or a grand jury of

the United States, the United States district court for the judi-

cial district in which the proceeding is or may be held shall

issue, in accordance with subsection (b) of this section, upon

the request of the United States attorney for such district, an

order requiring such individual to give testimony or provide

other information which he refuses to give or provide on the

basis of his privilege against self-incrimination, such order to

become effective as provided in section 6002 of this part.

(b) A United States attorney may, with the approval of the

Attorney General, the Deputy Attorney General, or any desig-

nated Assistant Attorney General, request an order under sub-

section (a) of this section 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 testi-

fy or provide other information on the basis of his privilege

against self-incrimination.

*§ 1826. Recalcitrant witnesses

(a) Whenever a witness in any proceeding before or ancillary

to any court or grand jury of the United States refuses without

just cause shown to comply with au order of the court to testify

or provide other information, including any book, paper, docu-

3a

appellants’ Fifth Amendment rights because of the possi-

bility of prosecution in Colombia, South America. The other

three assignments are (1) the trial court erred in denying

appellant’s motion to quash the grand jury subpoena in

that the questions to be propounded to the witness were

a result of a seizure effected beyond the jurisdiction of

the Coast Guard, (2) the trial court erred in refusing to

grant appellant adequate notice and time to prepare for

the contempt hearing and (3) the trial judge erred in not

recusing himself pursuant to appellant’s affidavit of bias.

We affirm.

On July 12, 1977, defendant appeared, pursuant to sub-

poena, before the Grand Jury in the Fort Lauderdale Divi-

sion of the Southern District of Florida. The Grand Jury

was conducting an investigation into the circumstances

surrounding the possession, transportation and importa-

tion of 8,300 pounds of marijuana seized by the United

States Coast Guard after search of a foreign vessel, the

LA ROSA, registered in the Cayman Islands. Appellant

and two others were aboard the vessel.

ment, record, recording or other material, the court, upon such

refusal, or when such refusal is duly brought to its attention,

may summarily order his confinement at a suitable place until

such time as the witness is willing to give such testimony or

provide such information. No period of such confinement shall

exceed the life of —

(1) the court proceeding, or

(2) the term of the grand jury, including extensions, before

which such refusal to comply with the court order occurred,

but in no event shall such confinement exceed eighteen months.

(b) No person confined pursuant to subsection (a) of this sec-

tion shall be admitted to bail pending the determination of an

appeal taken by him from the order for his confinement if it

appears that the appeal is frivolous or taken for delay. Any

appeal from an order of confinement under this section shall

be disposed of as soon as practicable, but not later than thirty

days from the filing of such appeal.

4a

This same Grand Jury had previously indicted all three

for importation of marijuana, possession with intent to

distribute, and conspiracy to commit the substantive of-

fenses. After a trial before Judge C. Clyde Atkins,’ the

substantive charges were dismissed and they were all con-

victed of the conspiracy count. Appeals are pending in this

court.

On July 11 and 12, 1977, appellant filed with the District

Court various motions and memoranda concerning all issues

and defenses which would be raised in the event of a subse-

quent contempt hearing. A motion for continuance was filed

on July 12, 1977, in which appellant gave notice of his

intention to invoke the Fifth Amendment and refuse to

testify even with a grant of use immunity.

Appellant appeared before the Grand Jury that same day

represented by counsel and refused to answer one question,

in particular, ‘‘How much money did you have invested in

the marijuana aboard the LA ROZA, seized py the Coast

Guard?’’

At a 4:00 P.M. hearing that afternoon, appellant was

granted use immunity upon motion of the Government.

Appellant returned to the Grand Jury room and again

refused to testify.

An hour later the Government commenced a civil con-

tempt hearing before Judge Norman Roettger over appel-

lant’s objection that he had not been given adequate prior

notice and opportunity to prepare for the hearing. Judge

Roettger overruled this objection stating that he found

‘*{t]here was no surprise.’’

The Supreme Court has not reached the constitutional

. claim that a grant of immunity cannot supplant the

Fifth Amendment privilege with respect to an indvidual

sé

*The trial and conviction oceurred before Postal ever received

the grand jury subpoena.

-~_s»*. —-—

va

who has a real and substantial fear of foreign prosecution.’’

Zicarelli v. New Jersey Investigation Commission, 406 U.S.

472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972). The

decision in Zicarelli did note that ‘‘. .. the [Fifth Amend-

ment] privilege protects against real dangers, not remote

and speculative possibilities.’’ [Footnote omitted]. Supra,

p. 478, 92 S.Ct. p. 1675.

Appellant asserts several factors which expose him to a

‘‘real danger’’ of foreign prosecution. First he submits that

answering questions asked before the Grand Jury would

tend to incriminate him under Colombian law. Second, he

urges that there is a reasonable fear of prosecution under

Colombian law and that, third, this testimony might be

used against him in such a prosecution. Last he asserts the

Fifth Amendment privilege protects him from testifying.

There is no doubt that if allegedly incriminating testi-

mony and evidence was available to the Colombian authori-

ties, charges under Colombian drug laws could be brought

against Postal and extradition requested.* However, the

* Appellant cites numerous provisions of Colombian law which

might provide the basis for a criminal! prosecution of Appellant.

Article 37 of Decree 1188 of June 25, 1974 (published in The Diario

Official of July 8, 1974) prohibits cultivation and maintenance of

plants from which one could extract marijuana without permission

of competent authority. Violation is punishable by imprisonment of

from two to eight (2-8) years, plus a fine from 100 to 10,000 pesos.

Article 38 proseribes the ‘mport, erport, storage, maintenance,

possession, manufacture, sac, offer, acquisition, or supply of mari-

juana without permission of competent authority. Such activity is

punishable by imprisonment of from three to twelve (3-12) years,

plus a fine of 5,000 to 50,000 pesos.

Further, Article 208 of the Colombia Pena] Code makes con-

spiracy to commit the above offenses punishable by five to fourteen

(5-14) years imprisonment. Proposing to another the commission

of a crime is punishable under Article 211 by imprisonment up to

three (3) years.

6a

key words above are *‘if .. . available’’. This Cireuit held

in In Re Tierney, 465 F.2d 806 (5th Cir. 1972), that:

... beesuse of the secrecy of the grand jury proceed-

ings no substantial risk of foreign prosecution is posed.

Rule 6(e), F.R.Crim.P., provides for the secrecy. The

same court which grants immunity is the court which

prevents violation of the secrecy. The government rep-

resented that it could not violate the secrecy, even

under the first sentence of allowing it to disclose mat-

ters in the performance of its duties, without a court

order. This is answer enough to the contention of ap-

pellants that the government might disclose their testi-

mony. [Footnote omitted].

In Re Tierney, supra, p. 811. Thus, in this case, we find

there is no real danger of foreign prosecution.

The motion to quash based on a seizure which was ef-

fected allegedly beyond the jurisdiction of the Coast Guard

is without merit.’ Appellant attempts to draw a distinction

from the Supreme Court case which provides that a witness

summoned to appear and testify before a grand jury may

not refuse to answer questions on the ground that they are

based on evidence obtained from an unlawful search and

seizure. United States v. Calandra, 414 U.S. 338, 94 S.Ct.

613, 38 L..Fid.2d 561 (1974).

[The grand jury] is a grand inquest, a body with

powers of investigation and inquisition, the scope of

whose inquiries is not to be limited narrowly by ques-

tions of propriety or forecasts of the probable result

Articles 16, 17 and 19 of the Code make attempting the commis-

sion of a crime or aiding or abetting the commission thereof a

criminal offense, each one punishable by a term of imprisonment

for several years.

° This issue of whether there was an illegal seizure is presently

awaiting decision by the Fifth Cireuit.

7a

of the investigation, or by doubts whether any particu-

lar individual will be found properly subject to an

accusation of crime. [Citation omitted]

Calandra, supra, p. 343, 94S.Ct. p. 617.

Whether appellant’s claim is one of illegal search and

seizure or the proper jurisdiction of the Coast Guard

(which we decline to decide here), Calandra controls. The

motion to quash was properly denied.

Appellant next suggests that he was not given adequate

notice and time to prepare for the contempt hearing citing

Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.

2d 240 (1965). In this case, appellant had adequate time to

prepare for the contempt hearing. The defendant was sub-

poenaed more than a month prior to his scheduled Grand

Jury appearance. On that scheduled date, July 12, 1977,

appellant’s counsel filed numerous motions, which included

a memorandum of law in which the above issues were ex-

haustively briefed. Appellant’s motion for continuance

states in part:

The witnesses intend to invoke their Fifth Amendment

rights before the Grand Jury. If granted immunity,

they still intend to invoke their Fifth Amendment

rights. Undoubtedly, the Government will seek to have

the witnesses held in contempt. The defenses that the

witnesses will raise are set forth in their simultane-

ously filed motion to quash. (R. 81)

The realities of this situation indicate appellant knew ex-

actly what was going to happen and was prepared to raise

all applicable issues and defenses. Appellant’s suggestion

that in this case Judge Roettger should have set a hearing

for another date is without merit.

Appellant’s motion to recuse Judge Roettger is insuffi-

cient in that the alleged bias and prejudice, to be disquali-

fying, must stem from an extrajudicial source and that

8a

prejudice and bias must result in an opinion on the merits

on some basis other than what the Judge was exposed to

in his participation in this case. Davis v. Board of School

Commissioners of Mobile County, 517 F.2d 1044 (5th Cir.

1975) cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d

188.

On the basis of the foregoing, we affirm the judgment of

the district court.

9a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 77-2109

Summary Calendar *

In re: GRAND JURY PROCE“DINGS

Unirep States or America, Plaintiff-Appellee,

vs.

Gizorce A. Cuitrtry, Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(Avcust 2, 1977)

Before ArnswortH, Morcan and Gee, Circuit Judges.

Morgan, Circuit Judge:

Appellant Chitty is incarcerated under an adjudication

of civil contempt for failure to testify before a federal

grand jury after having been afforded immunity under 18

U.S.C.A. § 6001, et seg. The incarceration is pursuant to

28 U.S.C.A. § 1826. The appeal is subject to the 30-day

statutory requirement of 28 U.S.C. § 1826(b). The record

and briefs were filed on short notice in order to comply

with the statute. For reasons stated in our orders of June

6, 1977, and July 13, 1977, we extended the expiration

time of the 30-day period to August 8, 1977.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty

Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409 Part I.

10a

There are four assignments of error alleged by appel-

lant, and they are as follows:

I The trial court erred in refusing te grant the de-

fendant adequate notice and time to prepare for

the contempt hearing.

Il The trial court was biased and prejudiced against

the defendant and his attorney because of the con-

duct of other attorneys who had represented wit-

nesses previously subpoenaed before the same

grand jury and because of the attorney’s foreign

bar membership; this obvious attitude of the trial

court denied the defendant his right to due process

of law.

I{f The trial court erred in holding that the govern-

nent made an adequate denial of illegal electronic

surveillance and wire-tapping, when the testimony

of the Assistant United States Attorney and of

the case agent established that no steps whatsoever

had been taken to determine whether or not there

had been any such electronic surveillance or wire-

tapping.

I\’ The grant of use immunity to the defendant was

insufficient to displace his Fifth Amendment right

against self-incrimination, because if the defendant

answered the questions which were asked, and

which were to be asked, there was a real and sub-

stantial probability that his answers would result

in a foreign prosecution.

The facts of the record disclose that appellant Chitty

and two others were subpoenaed to appear before the

grand jury, Fort Lauderdale Division, Southern District

of Florida, on May 23, 1977. This grand jury had previ-

ously indicted them for various marijuana-related of-

fenses, and they were tried in the latter part of April,

lla

1977, before Honorable Clyde C. Atkins, United States

District Judge for the Southern District of Florida. Judge

Atkins found them guilty on two conspiracy charges and

disinissed the two substantive charges. That case is on

appeal to this court.

The appellant’s attorney, Mr. Eugene Hines, had been

chief counsel for Chitty and two co-defendants in the trial

before Judge Atkins.

Appellant Chitty had been served with a grand jury

subpoena on April 22, 1977, immediately after his convic-

tion in the non-jury trial and more than a month prior to

his scheduled grand jury appearance. Chitty’s attorney,

Mr. Hines, believed that the grand jury appearance would

be continued, but more than two weeks prior to the May

94, 1977, grand jury appearance, Assistant United States

Attorney Michael P. Sullivan advised appellant’s eo-coun-

sel that the grand jury appearance would not be continued.

On May 24, 1977, as scheduled, Chitty and two other

witnesses appeared at the federal court house in Fort

Lauderdale, Florida. They were represented by Attorney

Hines. From approximately 10:30 A.M. until 11:30 AM.,

on Mav 24, 1977, the three witnesses were given a hearing

hefore District Judge Norman C. Roettger, Jr. on their

motion for continuance. Attorney Hines explained to the

court that he felt unprepared to go forward as the wit-

nesses’ attorney, though he had been looking into the

matter for several days.’ The hearing was continued until

1:30 P.M., when Judge Roettger denied any further con-

tinnanee. At that time, Attorney Hines served upon thie

court and government a motion for discovery of electronic

surveillance pursuant to 18 U.S.C. § 3504, and 18 U.S.C.

§ 2515, with an accompanying memorandum of law.

Appellant’s counsel supported his claim of electronic

surveillance by alleging that the government had in its

' Transcript, Volume II, Page 1.

12a

possession evidence which it could not have come by had

there not been some electronic surveillance. Counsel

claimed that the government had acquired the names of

various individuals who were later subpoenaed before the

grand jury by intercepting appellant’s telephone calls.

Assistant United States Attorney Sullivan denied there

had been any electronic surveillance.

Appellant Chitty and his former co-defendant, Robert

Postal, then testified in support of the motion to compel

disclosure of electronic surveillance, claiming that they

had experienced telephone difficulties during the course of

the government's investigation.

Special Agent Richard Waldie, of the Drug Enforce-

ment Administration, testified on behalf of the govern-

ment that he was the only case agent on this particular

investigation, and that he was not aware of any electronic

surveillance. Waldie testified that the evidence in question

was obtained as the result of the seizure of certain papers

along with the vessel **La Rosa’’ which bore the names

of various individuals. Other information was secured by

administrative subpoena of telephone records. On cross

examination, Waldie testified that he did not contact

numerous agencies, including the United States Postal

Service, Internal Revenue Service, Secret Service. Federal

Bureau of Investigation and Central Intelligence Agency,

heeause they were not involved in the investigation and

had no connection with the ease. Waldie further testified

that had there been any wire-tap conducted by such agen-

cles, as case agent he would have been contacted.

Assistant United States Attorney Sullivan then testified

that absolutely none of the information which he possessed

could have come from electronic surveillance, and that the

names of several individuals were obtained from sub-

poenaed telephone records. Mr. Sullivan testified that the

‘“*“A’* agency check requested by appellant would have

entailed a very complicated procedure costing approxi-

eo

13a

mately $50,000. Sullivan then testified that he had always

been the Assistant United States Attorney assigned to the

case, he knew the source of every bit of information (none

of which was obtained illegally), and that based on his

experience it would have been impossible for him not to

know of the existence of any wire-tap.

The district court found the substance of appellant's

motion to disclose electronic surveillance to be frivolous

and totally lacking in evidential support.

The court next heard argument that the grand jury was

without jurisdiction to compel appellant’s appearance, on

the ground that there had been no jurisdiction originally

to arrest and try him. After a brief discussion concerning

the sufficiency of immunity, should it be granted later, the

court adjourned.

Appellant Chitty then appeared before the grand jury

and on two occasions consulted with his attorney, Mr.

Hines, concerning questions propounded by the grand jury.

After both consultations the appellant asserted his privi-

lege against self-inerimination. All parties then returned

to the district court where Chitty was granted ‘‘use im-

munity’’ pursuant to 18 U.S.C. § 6001, et seg, upon motion

of the government.

At this time. another hearing was held at which defense

counsel argued that the immunity grant was insufficient;

that the grant would fail to protect Appellant from for-

eign prosecution and would prejudice any appeal, as the

immunized answers could be used against appellant for

impeachment or in a perjury prosecution if he should take

the stand in a retrial. These motions were denied.

Chitty returned to the grand jury and refused to testify

despite the grant of immunity, claiming that to do so

would prejudice his right to appeal. Thereafter, at ap-

proximately 5:00 P.M., Tuesday, May 24, 1977, a contempt

hearing was held in which Judge Roettger denied appel-

l4a

lant’s counsel’s request for continuance. Appellant’s coun-

sel failed to raise the issue of foreign prosecution but,

instead, asserted that the testimony before the grand jury

would prejudice Chitty’s right to appeal. After hearing

argument and a statement by Chitty, the court found

Chitty’s refusal to be without just cause and held him in

contempt of court, pursuant to 28 U.S.C. §826(a). The

court denied bail pending appeal, pursuant to 28 U.S.C.

§1826(), finding that the proceedings before the court

and any appeal would be frivolous and taken for delay.

The first assertion of error is that the trial court erred

in refusing to grant the appellant adequate notice to pre-

pare for the contempt hearing. The record, however,

shows that appellant’s attorney, Mr. Hines, had more

than adequate time to prepare for his representation of

Chitty before the grand jury. Mr. Hines had been chief

counsel for Chitty and his two co-defendants in the trial

hefore Judge Atkins. Chitty had been subpoenaed at least

a month before his scheduled grand jury appearance and

was advised two weeks prior to the scheduled grant jury

appearance that it would not be continued. On May 24,

1977, Mr. Hines disclosed to the district court that though

he felt unprepared, he had been in fact looking into the

legal issues on behalf of his client for some days previ-

ous. Ilines was able to file with the court a motion and

memorandum of law compelling discovery of electronic

surveillanee, and was granted a full evidentiary hearing

on this issue. Appellant cites Harris vs. United States,

382 U.S. 162 (1965), to support the proposition that the

district court failed to grant adequate notice and hearing

to prepare for the coniempt hearing. The situation in

Harris is inapposite to the case at hand. The contempt

hearing in Harris was a true summary procedure in which

the defendant was deprived of a reasonable time to pre-

pare and argue all relevant issues. Subsequent decisions

have made it clear that the determination of a reasonable

time to prepare for a contempt hearing is committed to

hi

° oe

Be

loa

the sound discretion of the trial court (within the limits

of Harris, supra), and that the amount of time may vary

according to the existing cireumstances. United States vs.

Alter, 482 F.2d 1016 (9th Cir. 1973). In Alter, the eourt

stated in some cases all of the important issues have been

raised by the time of the immunity hearing and it will be

apparent that the actual contempt hearing can raise no

new issues. If so, the witness may have had adequate

time to prepare even though very little time elapses be-

tween the alleged contempt and contempt hearing. 482

F.2d at 1024.

In this case, all of the relevant defense issues had actu-

ally been raised and argued prior to the contempt hearing,

and it was apparent that the actual contempt hearing

would raise no new issues.

In the instant case, Chitty had been subpoenaed for

nore than a month before his scheduled grand jury ap-

parance. Undoubtedly Chitty and his counsel realized that

ne would have to answer or face contempt. To say that

appellant was not afforded an adequate opportunity to

prepare is to ignore the realities of the situation.

As was held in Weinberg vs. United States, 439 F.2d

743, 746 (9th Cir. 1971), an analagous situation, the court

held there was no denial of due process, stating:

Each appellant and attorney had ample notice that

contempt proceedings would be held in the event of

refusal to answer the questions, and ample notice of

the issues which would be relevant thereto.

We hold that Chitty had a reasonable time to prepare

for the contempt hearing and that said hearing was

adequate.

Appellant’s second assertion of error is that the dis-

trict court was biased and prejudiced against him and

his attorney because of the conduct of other attorneys

l6a

who had represented witnesses previously subpoenaed he-

fore the same grand jury and because of the attorney’s

foreign bar membership, and that this obvious attitude of

the district court denied Critty due process of law.

We have carefully examined the record and although

the district court's conduct throughout the hearing might

not have been a model of judicial conduct, some of the

court’s comments reprimanding appellant’s counsel were

in some instances justified by the dilatory tactics em-

ployed by counsel. In spite of the assertions of Mr. Hines,

the district court nonetheless allowed an entire court day

for argument on the issues relevant to the hearing.

We find no merit in appellant’s contention that he was

deprived of due process and an impartial hearing.

In his third contention of error, appellant alleges that

the government’s response to the metion for discovery of

electronic surveillance was insutildat as it did not

aimount to a full central records check of numerous federal

agencies. Appellant’s motion, pursuant to Title 18, § 2515,

as found by the district court, was unsupported by artic-

ulable facts and was based solely on speculation. The gov-

ernment counsel made an unsworn oral denial of illegal

surveillance. The sole Drug Enforcement Administration

agent involved in the case denied electronic surveillance.

As was noted in Beverly vs. United States, 468 F.2d 732

(Sth Cir. 1972), district courts must balance the right of

witnesses to be free from unwarranted surveillance with

the right of the government to operate grand juries in an

effective manner; such courts must be given ‘‘wide lati-

tude’’ in evaluating suci. claims of unlawful surveillance.

We conclude that the district court did not abuse its

discretion in determining that the government’s general

denial, when viewed in the context of Chitty’s general and

unsubstantiated assertions, satistied 18 U.S.C. § 3504. See

also, United States vs. Stevens, 510 F.2d 1101 (5th Cir.

1975).

—— — - ——

17a

The fourth and last assertion of error is that the grant

of use immunity to Chitty was insufficient to protect his

Fifth Amendinent right against self-incrimination, as

there was a real and substantial probability that his an-

swers would result in foreign prosecution. Appellant cites

the case of Zicarelli vs. New Jersey Commission of Inves-

tigation, 406 U.S. 472 (1972), and Murphy vs. Waterfront

Commission, 378 U.S. 52 (1964), to support his position

that immunity must be coextensive with foreign prosecu-

tion and that the Fifth Amendment protects from foreign

prosecutions. We do not find this position to be supported

by these cases. Neither did we hold in the case of Jn Re

Field, 532 F.2nd 404 (5th Cir. 1975), cert. den. 532 U.S.

404, also cited by appellant in support of this position,

that the Fifth Amendment extended to protect from for-

eign prosecution. In fact, in Field, we clearly stated that

we did not pass on the issue of whether the Fifth Amend-

ment extended to protect from foreign prosecution.

Again, a careful review of the record indicates that ap-

pellant has failed to show any real or substantial likelihood

that he faces foreign prosecution in Colombia, or that any

answers which he might give before the grand jury would

be used in any foreign prosecution. The Fifth Amendment

protects against real danger, not remote and speculative

possibilities. Zicarelli, supra.

The complaint against the district court is without

merit Order and judgment

AFFIRMED.

18a

APPENDIX C

Statutes, Rule and Guidelines Involved

28 U.S.C. § 1826. Recalcitrant Witnesses

(a) Whenever a witness in any proceeding before or

ancillary to any court or grand jury of the United States

refuses without just cause shown to comply with an order

of the court to testify or provide other information, in-

cluding any book, paper, document, record, recording or

other material, the court, upon such refusal, or when such

refusal is duly brought to its attention, may summarily

order his confinement at a suitable place until such time

as the witness is willing to give such testimony or provide

such information. No period of such confinement shal] ex-

ceed the life of—

(1) the court proceeding, or

(2) the term of the grand jury, including exten-

sions,

hefore which such refusal to comply with the court order

occurred, but in no event shall such confinement exceed

eighteen months.

(hb) No person confined pursuant to subsection (a) of

this section shall be admitted to bail pending the deter-

mination of an appeal taken by him from the order for his

confinement if it appears that the appeal is frivolous or

taken for delay. Any appeal from an order of confinement

under this section shall be disposed of as soon as practica-

ble, but not later than thirty days from the filing of such

appeal.

18 U.S.C. § 6002. Immunity generally

Whenever a witness refuses, on the basis of his privi-

lege against self-incrimination, to testify or provide other

information in a proceeding before or ancillary to—

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

<—</ ———

SS ee aoe ee

19a

(3) either House of Congress, a joint committee

of the two Houses, or a committee or a subecommit-

tee of either House,

and the person presiding over the proceeding communi-

cates to the witness an order issued under this part, the

witness may not refuse to comply with the order on the

basis of his privilege against self-incrimination; but no

testimony or other information compelled under the order

(or any information directly or indirectly derived from

such testimony or other information) may be used against

the witness in any criminal case, except a prosecution for

perjury, giving a false statement or otherwise failing to

comply with the order.

§ 6003. Court and grand jury proceedings

(a) In the case of any individual who has been or may

be called to testify or provide other information at any

proceeding before or ancillary to a court of the United

States or a grand jury of the United States, the United

States district court for the judicial district in which the

proceeding is or may be held shall issue, in accordance

with subsection (b) of this section, upon the request of

the United States attorney for such district, an order re-

quiring such individual to give testimony or provide other

information which he refuses to give or provide on the

basis of his privilege against self-incrimination, such or-

der to become effective as provided in sestion 6002 of this

part.

(b) A United States attorney may, with the approval

of the Attorney General, the Deputy Attorney General, or

any designated Assistant Attorney General, request an

order under subsection (a) of this section when in his

judgment—

(1) the testimony or other information from such

individual may be necessary to the public interest;

and

20a

(2) such individual has refused or is likely to

refuse to testify or provide other information on

the basis of his privilege against self-incrimination.

F.R.Crim.P. 6(e) Secrecy of Proceedings and Disclosure.

Disclosure of matters occurring before the grand jury

other than its deliberations and the vote of any juror may

be made to the attorneys for the government for use in

the performance of their duties. For purposes of this sub-

division, ‘‘attorneys for the government’’ includes these

enumerated in Rule 54(¢); it also includes such other gov-

ernment personnel as are necessary to assist the attor-

neys for the government in the performance of their dut-

ies. Otherwise a juror, attorney, interpreter, stenographer,

operator of a recording: device, or any typist who tran-

seribes recorded testimony may disclose matters occurring

before the grand jury only when so directed by the court

preliminarily to or in connection with a judicial proceed-

ing or when permitted by the court at the request of the

defendant upon a showing that grounds may exist for a

motion to dismiss the indictment because of matters occur-

ring before the grand jury. No obligation of secrecy may

be imposed upon any person except in accordance with

this rule. The federal magistrate to whom an indictment is

returned may direct that an indictment shall be kept se-

eret until the defendant is in custody or has been released

pending the trial. Thereupon the clerk shall seal the in-

dietment and no person shall disclose the finding of the

indictment except when necessary for the issuance and

execution of a warrant or summons.