# Petition — Chitty v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2655%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1062 ## Text 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 I ES be ee eka awakde wheue sees eee 2 EE sais. cas bee kaeanseesaaeeees eee 2 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 nl A eT OU al it Hie tk 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 <—