Opposition — Blasi v. United States

ees

f

} Sup reme Cou A

HU, :

FILE ae |

. wi |

No. 78-1857 i

bye

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

DOMINIC: BLASI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR~™

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCreg, JR.

Solicitor General

PuHitip B. HEYMANN

Assistant Attorney: General

KATHERINE WINFREE

Attorney

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-1857

DoMINIC BLASI, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 2a-6a) is

not yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

March 16, 1979. The petition for a writ of certiorari was

filed on June 13, 1979. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether a witness before a grand jury has a right

under the Fifth or Sixth Amendment to have counsel

accompany him into the grand jury room.

2. Whether use and derivative use immunity granted

pursuant to 18 U.S.C. 6002 and 6003 is co-extensive with

the scope of the privilege against sell-incrimination

guaranteed by the Fifth Amendment and is therefore

sufficient to compel testimony over a claim of privilege.

3. Whether the procedures followed by the district

court in holding petitioner in civil contempt were

adequate.

s

STATEMENT

On October 25, 1978, petitioner was summoned to

testify before a federal grand jury in the Northern District

of Illinois that was conducting an investigation into

alleged racketeering activities in violation of 18 U.S.C.

1962. Petitioner asserted his Fifth Amendment privilege

against compulsory self-incrimination and refused to

answer any questions (Tr. 3).' On the morning of January

31, 1979, petitioner was granted immunity under 18

U.S.C. 6002 and 6003 (Tr. 10-11). That same day, when

petitioner appeared before the grand jury, he again

asserted his privilege against compulsory _ self-

incrimination and refused to answer any questions (Tr.

17). Later that afternoon, the prosecutor orally petitioned

the district court for a rule to show cause why petitioner

should not be held in civil contempt (Tr. 17-18). The court

granted the show cause petition, ordered that a written

petition be filed, and set a hearing on the petition for the

morning of February 7, 1979, the day on which the grand

jury was to return (Tr. 18-19).

On February 6, 1979, four days after

the government filed its written peti-

tion for a show cause order and six

Tr.” refers to the transcript of proceedings before the district

court on January 31, 1979, and February 6, 9 and 14, 1979.

days after the court granted the government's oral

petition, counsel for petitioner requested a_ contin-

uance of the contempt hearing (Tr. 24). The court

directed counsel to file a written response to the contempt

petition by February 8, 1979, and announced its intention

to determine on the basis of the petition and response

whether a full evidentiary hearing on the defenses raised

by petitioner would be necessary (Tr. 36-37).

In his response, petitioner challenged the con-

stitutionality of the immunity statutes and asserted that he

had been denied his constitutional right to the assistance

of counsel in the grand jury room (see Pet. 5-6). The

contempt hearing resumed on February 9, 1979. The

district court observed (Tr. 41) that the constitutionality

of the immunity statutes had already been sustained by

this Court. Accordingly, after hearing petitioner's proffer

of testimony and arguments of counsel, the court held

that no issue requiring a full hearing had been presented

(Tr. 41-51). The court several times stressed that

petitioner did not argue that the trauma of testifying

under an immunity grant would have any unique impact

on him, an issue on which the court was prepared to hold

a full evidentiary hearing (Tr. 43, 48, 50, 59). Petitioner

was ordered to reappear before the grand jury on

February 14, 1979, to be given another opportunity to

testify (Tr. 51-52).

On that date, petitioner appeared before the grand jury

for the third time and continued to assert his Fifth

Amendment privilege (Tr. 55). Petitioner then appeared

before the disirict court and renewed his request for a

plenary hearing on his asserted defenses (Tr. 56-59), which

the court denied (Tr. 59). The questions petitioner had

refused to answer were read into the record (Tr. 63-67).

After petitioner declined a final opportunity to testify, the

court adjudged him in civil contempt and committed him

to the custody of the United States Marshal until he

obeyed the order to testify or until the grand jury dis-

continued its investigation (Pet. App. la; Ir. 67-68).

ARGUMENT

|. Petitioner's argument (Pet. 16-22) that he had a

constitutional right to the presence of counsel in the grand

jury room was properly rejécted by the court of appeals.

As the court noted (Pet. App. Sa-6a):

Four members of the Court have held that the

constitutional right to counsel is not implicated by

grand jury proceedings, United States v. Mandujano,

425 U.S. 564, 581 (1976), while a fifth had suggested

only that there is a constitutionally derived right to

have counsel present for consultation outside the

grand jury room. /d. at 608 (Brennan, J., con-

curring). In this case [petitioner] was given the

opportunity to consult with counsel outside the grand

jury room at any time. Accordingly, we find no

constitutional error.

See also /n re Groban, 352 U.S. 330, 333 (1957).

2. Similarly, petitioner's contention (Pet. 12-16) that

the immunity granted by 18 U.S.C. 6002 and 6003 is not

sufficient to supplant the Fifth Amendment privilege is

foreclosed by Kastigar v. United States, 406 U.S. 441

(1972), in which the Court held that “such immunity from

use and derivative use is coextensive with the scope of

the privilege against self-incrimination, and is

sufficient to compel testimony over a claim of the

privilege.” /d. at 453.

© theeehies,

Congress has carved out of the use immunity provision

in 18 U.S.C. 6002 an exception permitting the use of

compelled testimony or information in “a prosecution for

perjury, giving a false statement, or otherwise failing to

comply with the order.” The constitutionality of this

exception cannot be doubted. “[I]t cannot be conceived

that there is power to compel the giving of testimony

where no right exists to require that the testimony shall be

given under such circumstances and safeguards as to

compel it to be truthful.” Glickstein v. United States, 222

U.S. 139, 142 (1911), quoted in United States v.

Mandujano, 425 U.S. 564, 578 (1976) (plurality opinion).

See also id. at 584-585 (Brennan, J., concurring); id. at

609 (Stewart, J., concurring). United States v. Wong,

431 U.S. 174, 178 (1977).

Nevertheless, petitioner maintains that he should have

been permitted to introduce evidence at his contempt

hearing to demonstrate that use and derivative use

immunity is not in fact co-extensive with the rights

guaranteed by the Fifth’ Amendment because of the

possible use in a subsequent perjury or false statement

prosecution of testimony or information furnished under

a grant of immunity. Petitioner argues that testimony

before a grand jury is necessarily based on the witness’

memory and powers of observation, which are in turn

dependent upon a number of variables in the mental

process and which are subject to subconscious distortion

deriving from the emotional needs of the individual in

question. Thus, because a witness before a grand jury is

under great tension, anxiety, and stress, he might be led to

answer a question honestly as he remembered, but

nevertheless, incorrectly. Petitioner concludes that the risk

that a witness might subsequently be subject to prosecu-

tion for perjury, even though he did not intentionally

answer the questions falsely, renders the immunity

insufficient to supplant the Fifth Amendment privilege

(Pet. 14).

Petitioner's contention is, as explained above, foreclos-

ed by the holding in Glickstein that a witness testifying

under a grant of immunity may be prosecuted for perjury.

The result in Glickstein was not based, as peti-

tioner appears to suggest (Pet. 13, 15), on the Court's

impressions or factual assumptions about the pressures to

which grand jury witnesses are generally subject and their

likely reaction to those pressures. It was based instead on

the recognized need of the government to compel

testimony in certain circumstances (222 U.S. at 141) and

the conclusion that “an authority which can only extend

to the licensing of perjury is not a power to compel the

giving of testimony. Of course, these propositions being

true, it is also true that the immunity afforded by the

constitutional guarantee relates to the past and does not

endow the person who testifies with a license to commit

perjury.” /d. at 142. The district court therefore correctly

concluded (Tr. 41) that petitioner's argument has been

“preempted” by this Court’s decisions? and properly

declined to permit petitioner the opportunity to present

evidence to establish the factual premises for that

argument.’

2The proper occasion for a witness to raise the argument that the

pressures of a grand jury appearance may lead to unintentional false

statements would be in connection with a subsequent prosecution for

perjury, not in seeking to avoid testifying altogether. /n re Grand

Jury Proceedings, 539 F. 2d 382, 384 (Sth Cir. 1976).

‘Moreover, although the district court observed that petitioner's

claim had been “preempted” by this Court, it allowed petitioner to

proffer testimony of what he sought to show in this connection, i.e.,

that the psychological stress upon a witness was such that it could

adversely affect his memory and ability to tell the truth, perhaps

causing him to testify falsely and thereby to subject himself io a

perjury prosecution (Tr. 41-51; Pet. 13-14). The court took judicial

notice (Tr. 41-42) of the psychological impact of testifying upon a

grand jury witness and again concluded (Tr. 58-59) that its decision

would remain unaltered.

3. There also is no merit to petitioner's assertion (Pet.

8-11) that the district court deprived him of due process in

holding him in contempt. Under 28 U.S.C. 1826, a district

court may adjudge in contempt a witness who refuses

“without just cause shown to comply with an order of the

court.” The witness must be given notice and “the

opportunity of presenting all defenses properly available

to him.” Jn re Grand Jury Investigation, 545 F. 2d 385,

388 (3d Cir. 1976), quoting /n re Grand Jury Investigation

(Schofield 1), 486 F. 2d 85, 91 (3d Cir. 1973). See also

United States v. Alter, 482 F. 2d 1016, 1023-1024 (9th Cir.

1973). As explained above, petitioner's asserted defenses

the right to presence of counsei in the grand jury room

and the unconstitutionality of the immunity statutes were

not “available to him.”

Contrary to petitioner's contention, a plenary hearing is

not always warranted. Rather “[t]he test is whether [the

witness] had an adequate opportunity to raise his claims

and have them determined by the court.” /n re Bonk, 527

F. 2d 120, 127 (7th Cir.), stay denied, 423 U.S. 942 (1975);

In re Sadin, 509 F. 2d 1252, 1255-1256 (2d Cir. 1975). In

the present case, a period of eight days elapsed between

January 31, 1979, the date on which the district court

granted the government’s petition for a rule to show cause

why petitioner should not be held in contempt, and

February 8, 1979, when petitioner filed his response to the

petition. This period of time is certainly reasonable for the

preparation of a defense. See /n re Weeks, 570 F. 2d 244,

247 (8th Cir. 1978), and cases cited. Petitioner was given

an opportunity to raise and did raise his defenses, but the

court correctly rejected them as a matter of law. The hear-

ing afforded petitioner thus was sufficient to satisfy due

process. See /n re Grand Jury Proceedings, 550 F. 2d

1240, 1242-1243 (3d Cir. 1977); In re Sadin, supra, 509 F.

2d at 1256; cf. United States v. Alter, supra, 482 F. 2d at

1023-1024. .

oF

Petitioner relies in part on United States v. Dinsio, 468

F. 2d 1392 (9th Cir. 1972), for the proposition that he was

entitled to a full evidentiary hearing. That case, however,

is inapposite. The defendant in Dinsio was held in

contempt for refusing to provide finger and palm print

exemplars to the grand jury. The prosecutor submitted in

camera an affidavit of an FBI agent to show that the

grand jury request was reasonable. No hearing was held

and defense counsel was denied the opportunity both to

inspect the affidavit and examine the affiant. In those

circumstances, the court held that the witness was

entitled to an “uninhibited and adversary hearing” in

order to show “just cause.” Here, there are no factual

issues in dispute regarding any “just cause” for petitioner's

failure to testify. Moreover, the correctness of the Dinsio

decision has been questioned in a later decision by the

Ninth Circuit. /n re Braughton, 520 F. 2d 765, 767

(1975).

Petitioner also cites /n re Sadin, supra, for the

proposition that he was entitled to a hearing and that

there is a conflict among the circuits regarding the rights

of potential contemnors (Pet. 11). However, that case

merely held that the recalcitrant witness has a right to a

reasonable time within which to prepare a defense. It did

not suggest that a full evidentiary hearing is required

where the defenses raised are without merit as a matter of

law. See 509 F. 2d at 1256.

“ONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCreE, JR.

Solicitor General

PuiLtiep B. HEYMANN

Assistant Attorney General

KATHERINE WINFREE

Attorney

AuGust 1979

DOJ-1979-08