Petition for Writ of Certiorari — Pierce v. United States
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86-489
‘
Supreme Court, U.S.
FILE D
SEP 24 1966
No. 86-
JOSEPH F. SPANIOL, JR.
SEPERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1986
GREGORY PIERCE,
Petitioner,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
THOMAS D. YANNUCCI
(Counsel of Record)
JOHN M. WALKER
RONALD R. Ross
KIRKLAND & ELLIS
655 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 879-5000
Attorneys for Petitioner
Gregory Pierce
September 24, 1986
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
1. Were Petitioner’s statutory and constitutional rights
violated when, notwithstanding the express provision in
28 U.S.C. § 1826(a) that a citizen may decline to testify
for “just cause,” Petitioner was denied a meaningful op-
portunity to present his grounds for declining to testify
before a District of Columbia grand jury?
2. Did the Court of Appeals err in refusing to return
the Petitioner to the status quo ante when more than
30 days elapsed before Petitioner’s appeal was resolved,
as required by the express terms of 28 U.S.C. § 1826(b)?
(i)
TABLE OF CONTENTS
oo | rT
I I I rissa resnncnsinenceccsnescnnecsnesese
pe
alicia sswainnenteecascensioseesensiswescscensese
REE AE Se
CONSTITUTIONAL PROVISIONS AND STATUTES
EES ESE RT
Brees Ge fee CASS. .............-..........................
Nee no. ceeavcscansccteccenace Mere
I. AN ALLEGED CIVIL CONTEMNOR’S RIGHT
UNDER 28 U.S.C. §1826(a) TO DECLINE
TO COMPLY WITH A COURT ORDER FOR
“JUST CAUSE” REQUIRES A FULL AND
EFFECTIVE HEARING BOTH TO DETER-
MINE IF “JUST CAUSE” EXISTS AND TO
DETERMINE IF THERE ARE MITIGATING
OR EXTENUATING CIRCUMSTANCES........
II. THE COURT OF APPEALS’ JULY 8, 1986
DECISION DENYING THE PETITIONER
CREDIT FOR TIME SERVED BEYOND 30
DAYS WHILE HIS APPEAL WAS PENDING
DIRECTLY CONFLICTS WITH THE RUL-
INGS OF OTHER CIRCUITS AND RAISES
A SUBSTANTIAL ISSUE AS TO THE
PROPER INTERPRETATION OF 28 U.S.C.
as eskndennakseotessnnnseacssoencnenpscusee
ha at cnnculectanchuacensseinccvaeueasevncbscressee
ao nN ee Ww
iv
TABLE OF CONTENTS—Continued
APPENDIX Page
Judgment of the D.C. Circuit (May 16, 1986) ...... Al
Opinion of the D.C. Circuit (May 16, 1986) ............. A8
Opinion of the D.C. Circuit (794 F.2d 749 (July 8,
ED ickceesisnicsaghilgaa eae seinen aden A9
Order of the D.C. Circuit denying rehearing (Au-
ET BE | ccvtenazandeebc Lelanseenhsnacheiinadaauicdeleins Al5
Order of the D.C. Circuit denying rehearing en
URNS CE Dy RIOD ect seics ees oiicccckecdccahetnonws Al6
Plea Agreement (December 9, 1985) ......00....0200022... A17
Letter from Assistant United States Attorney
John E. Stevens to Charles B. Molster, III, Esq.
CP hs the cca A20
Motion to Reconsider Order (March 3, 1986) ........ A22
Transcript of the hearing before the United States
District Court for the District of Columbia
SO i a cedemieeaie A24
Transcript of the hearing before the United States
District Court for the District of Columbia
FE ee edaushoes A380
Order of the United States District Court for the
District of Columbia (March 10, 1986) -............. A45
Vv
TABLE OF AUTHORITIES
CASES: Page
Commissioner of Internal Revenue v. Bilder, 369
Mr A a i ecetlin 15
Cooke v. United States, 267 U.S. 517 (1925) .....10, 12,14
Fuller v. Oregon, 417 U.S. 40 (1974) ..................... 15
Harris v. United States, 382 U.S. 162 (1965) .....10, 12,14
In re Battaglia, 653 F.2d 419 (9th Cir. 1981) ........ 9
In re Berry, 521 F.2d 179 (10th Cir.) (per curiam),
cert. denied, 423 U.S. 1039 (1975) ............. Sat ee 17
In re Brummitt, 608 F.2d 640 (5th Cir. 1979),
cert. denied, 447 U.S. 907 (1980) ........................ 13
In re Cueto, 443 F. Supp. 857 (S.D.N.Y. 1978) ...... 12
In re Grand Jury Proceedings of August 1984, 757
F.2d 108 (7th Cir.), cert. denied, U.S. —,
SE Bs Cee ROE sod ovcipcaieseweteeesan inns 17, 18
In re July 1979 Term Special Grand Jury, 656 F.2d
OG Ce Ta Be ens a eee 17
In re Kitchen, 706 F.2d 1266 (2d Cir. 1983) ....... 2, 12, 16
In re Matter of Witness Before Special October
1981 Grand Jury, 722 F.2d 349 (7th Cir. 1983).. 17,18
In re Oliver, 388 U.S. 257 (1948) ...............:......... 10, 12, 14
In re Rosahn, 671 F.2d 690 (2d Cir. 1982) ......... 16, 17, 18
In re Sealed Case, 794 F.2d 749 (D.C. Cir. 1986) .. 3
In re Weiss, 703 F.2d 653 (2d Cir. 1983) ................. 2,9
Laing v. United States, 423 U.S. 161 (1976) .......... 15, 19
Linkletter v. Walker, 381 U.S. 618 (1965) ............ 19
McElroy v. United States, 455 U.S. 642 (1982).... 15, 19
Melickian v. United States, 547 F.2d 416 (8th Cir.),
cert. denied, 480 U.S. 986 (1977) .-...........0020.... 16, 17, 18
United States vy. Alter, 482 F.2d 1016 (9th Cir.
|: | EDDA EPs Re Reon em «6 LY, DN ge 11, 12, 15
United States v. Bowler, 585 F.2d 851 (7th Cir.
| AIR Am SOR eI RETA UE ine AEN Tee Rapes 12
United States v. Dinsio, 468 F.2d 1392 (9th Cir. 3
BP ie er he ales ee ac ieceh cae RR Ok Oe 11
United States v. Donovan, 429 U.S. 413 (1977)... 15
United States v. Gravel, 605 F.2d 750 (5th Cir.
Ee IND bissoicinsioccmcdaceseuanccaenes 13
United States v. John Hancock Mut. Life Ins. Co.,
ee te I skorts he cena ecacieee oases 19
vi
TABLE OF AUTHORITIES—Continued
Page
United States v. Powers, 629 F.2d 619 (9th Cir.
sik alctiemimnse 9
United States v. Ruzicka, 329 U.S. 287 (1946) .... 15
United States v. Standard Oil of California, 332
Ne a secibbvelnalahennnndis 15
Weinberger v. Hynson, Westcott and Dunning,
a I RI I I i enerinsncssctnnacessvsnantons 19
STATUTES:
U.S. Constitution Amendment V .............................. 3
Neen ics scanctenroncanensatootinsenscenneas 4
os ccs cnntacanpascrsesnenstsisncoinne 3 t
in ra sidsasenipta aennnahoreniunessatnienanaceed passim
I os ccicinnnassneanonedsuscetsnesanedess 10, 11
MISCELLANEOUS:
Annotation, Grand Jury Witness’ Right to Hearing
Before Summary Commitment For Contempt
Under Recalcitrant Witness Statute (28 U.S.C.
§ 1826(a)), 37 A.L.R. Fed. 875 (1978) ............... 9
3 Corbin on Contracts (1960) ................................... 13
Note, Coercive Contempt and the Federal Grand
Jury, 79 Colum. L. Rev. 735 (1979) ............ 1, 12, 14, 15
R. Stern, E. Gressman, S. Shapiro, Supreme Court
Practice § 4.4 (6th ed. 1986) ...............0.00002..-.-..-.-. 19
C. Wright, 3 Federal Practice & Procedure:
ve gE, 5 anne 16
IN THE
Supreme Court of the United States
OCTOBER TERM, 1986
GREGORY PIERCE,
Petitioner,
Ve
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioner Gregory Pierce respectfully requests that a
writ of certiorari issue to review two separate decisions,
entered on May 16, 1986 and July 8, 1986, by the United
States Court of Appeals for the District of Columbia
Circuit. Both decisions raise substantial issues pertaining
to 28 U.S.C. § 1826, titled ‘““Recalcitrant Witnesses,” which
permits an individual to be incarcerated for up to 18
months for civil contempt if he cannot demonstrate “just
cause” for declining to testify when subpoenaed to do so.
Since this statute was promulgated in 1970, “there has
been a dramatic increase in the use of coercive contempt”
in the federal courts. Note, Coercive Contempt and the
Federal Grand Jury, 79 Colum. L. Rev. 735, 735 (1979).
Although Section 1826 was enacted to aid in the fight
against organized crime,’ it applies equally, if not more
1 Section 1826 was enacted by Congress as part of the Organized
Crime Control Act, Pub. L. No. 91-452, 84 Stat. 922 (1970), see
2
so, to civil disobedients, members of religious sects and
journalists, since these individuals frequently decline or
resist government requests to testify on the ground that
there is “just cause” to withhold such testimony. Ac-
cordingly, a definitive and informed analysis of Section
1826 is of growing importance to the ability of federal
courts to balance properly the government’s legitimate
interest in gathering information with respect to sus-
pected criminal activity and a citizen’s right to decline to
participate in such an investigation when legitimate
grounds can be shown for doing so.
Two important issues related to judicial power under
Section 1826 merit the Court’s consideration here. First,
may a court bar an accused contemnor from presenting
an explanation of the “just cause” pursuant to Section
1826(a) which underlies his decision to decline to tes-
tify and, if it may do so, what grounds must support
such a decision? Second, may a court decline to return
a citizen to the status quo ante if his appeal is not re-
solved within 39 days, the express time limit for deciding
appeals established by Section 1826(b)? Each of these
issues is of obvious public importance because each bears
directly on personal liberty and each has given rise to
varying, if not sharply conflicting, interpretations of
Section 1826 among different courts of appeals. This case
thus provides the Court with a much-needed opportunity
to resolve these conflicting interpretations and, at the
same time, accord petitioner Gregory Pierce the protec-
tions to which he is entitied under Section 1826 and the
Constitution.
OPINIONS BELOW
The May 16, 1986 unpublished memorandum opinion
of the Court of Appeals appears at Appendix A8.
In re Weiss, 703 F.2d 653, 665 (2d Cir. 1983), and was intended
to codify the common law of civil contempt. See In re Kitchen, 706
F.2d 1266, 1271 (2d Cir. 1983).
3
The July 8, 1986 memorandum opinion of the Court of
Appeals, published at In re Sealed Case, 794 F.2d 749
(D.C. Cir. 1986), appears at Appendix AQ.
The August 6, 1986 orders denying the Petitioner’s pe-
tition for rehearing and suggestion for rehearing en
banc appear at Appendix Al5 and A116, respectively.
JURISDICTION
Jurisdiction of this Court arises under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
1. The Due Process Clause of the Fifth Amendment to
the Constitution of the United States provides:
No person shall be . . . deprived of life, liberty, or
property, without due process of law....
2. 28 U.S.C. § 1826, “Recalcitrant Witnesses,” provides
in relevant part:
(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, including 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 in-
formation. No period of such confinement shall ex-
ceed the life of—
(1) the court proceeding, or
(2) the term of the grand jury, including ex-
tensions,
before which such refusal to comply with the court
order occurred, but in no event shall such confine-
ment exceed eighteen months.
d
(b) No person confined pursuant to subsection (a)
of this section 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 ap-
peal 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.
STATEMENT OF THE CASE
A. The Facts At Issue
Petitioner Gregory Pierce, a member of the religious
organization known as the Original African Hebrew
Israelite Nation of Jerusalem (the “Black Hebrew Na-
tion”) was arrested in July of 1985 and charged with
fraudulent use of a credit card in violation of 18 U.S.C.
§ 1029. These charges, initially brought in the District
of Columbia, were transferred to the Eastern District of
Virginia, where Charles B. Moster, III was appointed by
that court to serve as Mr. Pierce’s counsel.
The Assistant United States Attorney in charge of the
case, John Stevens, and Molster discussed the possibility
of entering into a plea agreement. The parties in fact
reached an oral agreement, and on December 5, 1985, the
Court accepted Mr. Pierce’s plea of guilty on one count
of the indictment and dismissed the remaining counts.
Shortly thereafter, a written plea agreement—drafted by
the Assistant United States Attorney, Mr. Stevens—was
signed by the parties and filed with the Eastern District
of Virginia on December 9, 1985. (A17-19.) Mr. Pierce
then began serving a one-year prison sentence in a federal
prison in Minnesota.
Just two days after the plea agreement was filed,
Stevens wrote a letter to Molster that “invit[ed]” Pierce
both to meet with the United States Attorney and to pos-
sibly testify before a federal grand jury in the District
of Columbia then investigating an alleged “organized
ae
5
criminal element operating within the Black Hebrew
sect.” (A20-21.) After consultation with his attorney,
Mr. Molster, Petitioner declined both invitations. Ac-
cordingly, on February 27, 1986 and on motion by the
United States, Judge Aubrey Robinson of the United
States District Court for the District of Columbia issued
an order directing Mr. Pierce to testify and provide
other information to the grand jury.
Pursuant to the subpoena, Pierce was brought from
prison in Minnesota to the District of Columbia for the
purpose of testifying. A new attorney, David Woll, was
then appointed by the District Court to represent Mr.
Pierce regarding the order to testify. Upon meeting with
his client, Woll learned that Pierce believed that the
government had agreed that it would not call him to
testify in matters related to the government’s on-going
investigation of alleged criminal activity by members of
the Black Hebrew Nation. (See A25.) Accordingly, Woll
moved on March 8, 1986 for reconsideration of Judge
Robinson’s order compelling Pierce to testify. At the
hearing on this motion, Woll explained to District Judge
John H. Pratt that Pierce’s refusal to testify was prem-
ised on Pierce’s understanding that “he was assured both
by the Government and by his lawyer” that the plea
agreement “ended everything” and “that he would not
have to testify as to anything.” (A25; emphasis added.)
Woll also noted that Mr. Molster, Pierce’s court-appointed
attorney in the Virginia proceeding, had been contacted
and corroborated Pierce’s interpretation and understand-
ing of the plea agreement. (A26.)
Judge Pratt agreed that it was appropriate under the
circumstances to hold a further hearing with Pierce
present. As the Judge noted, if Pierce was “going to be
the subject of a rule to show cause’, then he “certainly”
should be permitted “to present his side of it.” (A27;
emphasis supplied.) Accordingly, Judge Pratt ordered a
prompt hearing “so that Mr. Pierce can be here and this
matter can be heard.” (A27.)
6
That hearing, with Gregory Pierce, Mr. Stevens, Mr.
Woll and Mr. Molster in attendance, took place before
Judge Pratt on March 6, 1986. When Woll indicated
that he wanted to present testimony concerning the plea
agreement either through a proffer or by testimony from
Molster, the court stated: ‘“‘[cJall him as a witness.”
(A32.) However, as soon as Molster began to testify
regarding the disputed plea agreement, the government
strongly objected on the ground that only the written
terms of the plea agreeinent were relevant. (A34-40.)
The District Court sustained this and similar objections,
and, accordingly, it precluded all testimony relating to
(1) a prior draft of the plea agreement; (2) the parties’
understanding of the plea agreement based on their
negotiations; and (3) Mr. Molster’s understanding of
the provision in the executed plea agreement addressing
whether Mr. Pierce would be called to testify in other
proceedings. (A34-40.) The District Court also failed to
question Mr. Pierce concerning the information conveyed
to him by Molster regarding the matters covered by the
plea agreement; instead, the court inquired only into
whether Pierce would continue to decline to testify.
(A42.)
In short, despite Judge Pratt’s earlier statements that
Mr. Pierce should “certainly” be permitted to “present
his side of it” (A27), Mr. Pierce never was allowed to
offer testimony, including corroborative third-party testi-
mony from Mr. Molster, to demonstrate that he reason-
ably believed that the plea agreement constituted “just
cause” for declining to testify. Rather, Judge Pratt con-
cluded that Mr. Pierce should be held in contempt be-
cause, in the court’s view, the plea agreement did not
excuse him from testifying (A42-48), and further or-
dered that the execution of Mr. Pierce’s criminal sen-
tence would be held in abeyance as long as he remained
in contempt by declining to testify. (A43.)
7
B. The Decisions By The Court Of Appeals
Mr. Woll promptly filed a notice of appeal on March
12, 1986. Undersigned counsel were appointed by the
Court of Appeals to represent Mr. Pierce on March 25,
1986, and on April 1, 1986, Petitioner moved for expe-
dited hearing and briefing, which was granted. On May
16—65 days after the notice of appeal was filed—a panel
of the Court of Appeals for the District of Columbia Cir-
cuit affirmed the judgment of the district court. (A1-2.)
In its memorandum opinion, the Court of Appeals con-
cluded that the plea agreement, standing alone, did not
support Mr. Pierce’s decision not to testify. The court
thus simply upheld Judge Pratt’s ruling that Mr. Mol-
ster’s and Mr. Pierce’s understanding of the agreement
was inadmissible (A5-6), rather than examine the ade-
quacy of the hearing or whether Pierce was given a
meaningful opportunity to explain his position. Indeed,
the only language arguably responsive to Petitioner’s Sec-
tion 1826 claim is found in the Court of Appeals’ ob-
servations that it “need not and do[es] not opine” whether
even the truncated hearing below was “required under
the circumstances at hand” (A5 n.4), and that any ar-
gument that the plea agreement was “agreed to only
after misrepresentations, false assurances of other im-
proper conduct” was “hypothetical.” (A8 n.7.)
The Court of Appeals did expressly reserve a second
question in its opinion: whether Mr. Pierce was entitled,
pursuant to Section 1826(b), to a “credit” against his
unrelated criminal sentence from the thirty-first day fol-
lowing notice of appeal until the day the D.C. Circuit
decided it, May 16. Mr. Pierce raised this issue in his
brief as appellant and in argument, but the government
failed to address it. Accordingly, the Court of Appeals
directed both parties to submit supplemental briefs with
respect to this separate issue. (A8.)
The same panel then also resolved this issue against
Petitioner by opinion issued on July 8, 1986. (A9.)
8
It did so by expressly declining to follow the uncontra-
dicted precedent of at least two other courts of appeals
which requires release of a contemnor pending resolution
of his appeal if it is not decided within the thirty days.
(A18-14.) Instead, in what the Court of Appeals itself
characterized as an “obviously atypical” remedy, it de-
termined that Mr. Pierce—notwithstanding his status as
an inmate at the time he was found in contempt—should
have sought “bail . . . so that he could thereby resume
serving his criminal sentence” after the thirty-day period
had elapsed. (A11 n.2.)
As of this time, Mr. Pierce remains confined for civil
contempt in a federal correctional facility located in
Petersburg, Virginia, with his one-year crimial sentence
held in abeyance.
REASONS FOR GRANTING THE WRIT
Enacted in 1970 as a codification of the civil contempt
power of the judiciary, 28 U.S.C. § 1826(a) empowers
federal courts to imprison an individual who disobeys a
court order “to testify or provide other information” only
if the individual cannot show “just cause” for declining
to comply. Although it is well-settled that an alleged
contemnor is entitled to a hearing to demonstrate “just
cause,” here the District Court and the Court of Appeals
used common law principles of contract interpretation to
deny Petitioner any effective hearing on his grounds for
declining to testify.
When an individual’s personal liberty is at risk, prin-
ciples of contract interpretation—while arguably relevant
to a court’s ultimate result—should not bar an individual
from fully explaining his position either for the purpose
of establishing “just cause” or for the purpose of mitigat-
ing any punishment assessed. Such a result violates both
the manifest meaning of the opportunity to show “just
cause” and the alleged contemnor’s right to due process of
9
law, and does not serve any substantial governmental
purpose.
Moreover, Section 1826(b) specifies in relevant part
that “[a]ny 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 ap-
peal.” The Court of Appeals did not decide Mr. Pierce’s
appeal until 65 days after it was filed, and yet held in its
July 8 opinion that Mr. Pierce was not entitled to a
“credit” against his criminal sentence from the thirty-
first day until the day the appeal was decided. This re-
sult is not only flatly contrary to the more reasoned rules
of the Courts of Appeals for both the Second and the
Eighth Circuits, which have held that an accused con-
temnor is entitled to release if his appeal is not heard
within thirty days, but also interprets Section 1826(b)
in a manner which renders the “thirty-day” rule nuga-
tory.
I. AN ALLEGED CIVIL CONTEMNOR’S RIGHT UN-
DER 28 U.S.C. § 1826(a) TO DECLINE TO COMPLY
WITH A COURT ORDER FOR “JUST CAUSE” RE-
QUIRES A FULL AND EFFECTIVE HEARING
BOTH TO DETERMINE IF “JUST CAUSE” EXISTS
AND TO DETERMINE IF THERE ARE MITIGAT-
ING OR EXTENUATING CIRCUMSTANCES
It is settled that a finding of civil contempt under
Section 1826 must be supported by “clear and convincing
evidence.” In re Weiss, 703 F.2d at 667. See also In re
Battaglia, 653 F.2d 419, 422 (9th Cir. 1981); United
States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980).
In responding to such an allegation, the statute provides
that an individual may show that he has “just cause” for
declining to comply with the court order at issue. To
demonstrate this “just cause,” it is “well established that
the [recalcitrant] witness is entitled to at least some op-
portunity to be heard... .” Annotation, Grand Jury
Witness’ Right To Hearing Before Summary Commit-
10
ment For Contempt Under Recalcitrant Witness Statute
(28 U.S.C. § 1826(a)), 37 A.L.R. Fed. 875, 877 (1978)
(collecting cases).
This settled right to a hearing is an outgrowth not
only of the statute itself, but of due process principles
recognized time and again by this Court in discussing
criminal contempt. For example, in Jn re Oliver, 333
U.S. 257, 275 (1948), the Court observed that
due process of law . . . requires that one charged
with contempt of court be advised of the charges
against him, have a reasonable opportunity to meet
them by way of defense or explanation, have the
right to be represented by counsel, and have a chance
to testify and call other witnesses in his behalf,
either by way of defense or explanation. (Emphasis
supplied. )
Again in Harris v. United States, 382 U.S. 162, 166-
67 (1965), this Court further explained that one’s right
to a hearing serves “important ends” because “extenuat-
ing circumstances may be present” in the case of con-
tempt; that “[i]f justice is to be done, a sentencing judge
should know all the facts;” and that “a hearing and only
a hearing will elucidate all the facts and assure a fair
administration of justice.” See also Cooke v. United States,
267 U.S. 517, 5387 (1925) (Taft, C.J.) (holding that an
accused criminal contemnor must be afforded a hearing
and right to present evidence “relevant either to the is-
sue of complete exculpation or in extenuation of the of-
fense and in mitigation of the penalty to be imposed”).
Following this Court’s analysis, several lower courts
have recognized that many of the procedural safeguards
available to alleged criminal contemnors®* substantially
2 These safeguards are required by the Due Process Clause, and,
in any event, are also incorporated in Federal Rule of Criminal
Procedure 42(b), which provides in relevant part:
A criminal contempt except as provided in subdivision (a) of
this rule shall be prosecuted on notice. The notice shall state
11
apply also to alleged civil contemnors by virtue of the
Due Process Clause and 28 U.S.C. § 1826(a).* For exam-
ple, the United States Court of Appeals for the Ninth
Circuit concluded in United States v. Dinsio, 468 F.2d
1392, 13894 (9th Cir. 1973):
The Due Process Clause requires that the rudimen-
tary concepts of fair play reflected in Rule 42(b) be
applied to afford Dinsio a real opportunity to meet
the just-cause criterion of Section 1826(a).... [Din-
sio] is entitled to an uninhibited adversary hearing
in which she can develop her proof that she has just
cause to refuse the grand jury’s demand.
The Ninth Circuit shortly thereafter expounded on this
right to the “uninhibited adversary hearing” under Sec-
tion 1826(a) in United States v. Alter, 482 F.2d 1016,
1024 (9th Cir. 1973). The court there remanded a civil
contempt finding to the district court, observing that the
hearing below was defective because it “was largely con-
fined to the perfunctory reception of affidavits, a round
of oral argument, and some offers for the record.” 482
F.2d at 1024. This was not enough, as the court went on
to hold:
That ‘uninhibited adversary hearing’ recognized by
Harris and most recently reaffirmed by Dinsio re-
quires, at the very least, that a witness be allowed
to probe all nonfrivolous defenses to the contempt
charge. The constitutional guarantee of due process
of law means more than a silhouette of justice; it
requires that judicial determinations affecting the
freedom of the individual be openly arrived at after
the time and place of hearing, allowing a reasonable time for
the preparation of the defense, and shall state the essential
facts constituting the criminal contempt charged and describe
it as such....
3 See Annot., 37 A.L.R. Fed. at 877 (‘‘a substantial number of
cases hold that the procedural requirements of Rule 42(b) ... are
applicable to a contempt hearing under § 1826(a)”).
12
full, fair, and vigorous debate on both sides of all
substantial issues.*
482 F.2d at 1024 (emphasis supplied). The holding in
Alter, it has been observed, has since “been essentially
adopted by a majority of the federal courts of appeals.”
Note, 79 Colum. L. Rev. at 746 (collecting cases) .°
Moreover, even if an accused contemnor’s claim of priv-
ilege—pursuant to a plea agreement or otherwise ‘—is
ultimately rejected by a court, the need for an “unin-
hibited hearing” is still essential, since such a hearing
may reveal extenuating circumstances favoring mitiga-
tion of the extent to which the contemnor should be
punished.? See Harris v. United States, 382 U.S. at 166
(hearing to show, inter alia, “extenuating circum-
stances”); In re Oliver, 333 U.S. at 275 (hearing to
present “defense or explanation”); Cooke v. United
States, 267 U.S. at 537 (hearing to show, inter alia,
“extenuation of the offense and in mitigation of the
4 There has been no contention by the government at any stage
in these proceedings that Mr. Pierce has presented an insubstan-
tial or frivolous argument.
5 See, e.g., In re Kitchen, 706 F.2d at 1273 (noting adoption in
Second Circuit of principles from Alter and reversing contempt
conviction under Section 1826 because contemnor had been denied
opportunity to testify on his own behalf and call witnesses).
6 Indeed, the right to a “vigorous debate . . . of all substantial
issues” through a hearing is particularly important where, as here,
a plea agreement is involved, since prosecutors engaged in plea
bargaining are held to the strictest standards of promise and per-
formance. See United States v. Bowler, 585 F.2d 851, 854 (7th
Cir. 1978) (holding that a “plea agreement is not an appropriate
context for the Government to resort to a rigidly literal approach
in the construction of language’’).
7 See In re Cueto, 443 F. Supp. 857, 863 (S.D.N.Y. 1978) (“A
district judge has wide latitude in a civil contempt situation in
determining whether to order coercive incarceration at all, and if
incarceration is deemed warranted, the length of incarceration im-
posed is within his sound discretion’’).
a
13
penalty to be imposed”). Accordingly, in In re Brum-
mitt, 608 F.2d 640, 643 (5th Cir. 1979), cert. denied,
447 U.S. 907 (1980), the Fifth Circuit reversed a con-
viction under Section 1826 “[b]ecause the district court
never allowed Brummitt to present his defenses” and
remanded the case to give the defendant “an opportunity
to raise any other matters, whether as defenses or in
mitigation.” Similarly, in United States v. Gravel, 605
F.2d 750, 752 (5th Cir. 1979) (per curiam), the court
noted that testimony pertaining to duress was permissi-
ble because, even though not a cognizable defense to a
civil contempt charge, it could prove mitigating circum-
stances.
Judge Pratt barred all testimony and evidence per-
taining to Gregory Pierce’s reasonable belief as to the
matters covered by the plea agreement, holding that such
testimony could not vary the “unambiguous” terms of the
plea agreement.* (See A42-43). The consequence was
8 The plea agreement stated that the government agreed not to
call Mr. Pierce as a witness in any of the “cases indicted” in the
District of Columbia involving the Black Hebrew Nation. (A18.)
Pierce contended that the term “cases indicted” includes cases
already indicted and those that would be indicted in the future, and
sought to introduce extrinsic evidence supporting that view. The
government’s contention was that this term unambiguously included
only “cases” already “indicted.” To be sure, Pierce and counsel
continue to believe that, at a minimum, the phrase is ambiguous and
thus Pierce’s proffered testimony should have been admitted. In-
deed, generally accepted canons of contract construction require
that a court should always admit extrinsic evidence to determine
the meaning of a contract. See generally 3 Corbin on Contracts
§ 536 (1960).
However, Petitioner does not, and need not, assert that this
Court should review the otherwise colorable contract issues in
this case to decide that Pierce was entitled to testify as to what
he reasonably believed the agreement covered. Rather, Petitioner
relies here, as he also did below, on his right to an effective hearing
under Section 1826(a) as an alternative and independent basis for
overturning the decisions below to exclude testimony from Pierce
and Molster.
14
that Pierce, far from receiving an “uninhibited ad-
versary hearing,” was accorded an empty formalism—
a mere “silhouette of justice’”—which essentially consti-
tuted no hearing at all. Indeed, under the approach
adopted below, a court is singularly unable to gather and
then weigh all the facts not only for purposes of deter-
mining if there is “just cause” or a defense for declining
to testify, but also for the required purpose of determin-
ing whether to temper a finding of contempt in the light
of “extenuating circumstances.”
Similarly, the Court of Appeals necessarily held in af-
firming this conclusion that principles of contract in-
terpretation override an accused contemnor’s statutory
and due process right—recognized by this Court in Oliver,
Harris and Cooke and in civil contempt proceedings by
several lower courts—to testify and present evidence for
the purpose of defense or mitigation. Yet, even the Court
of Appeals’ opinion implicitly recognizes the problem with
such an approach. The court observed that “we are not
faced, by virtue of the insufficient offer of proof to this
effect, with the situation where clear contract language
was agreed to only after misrepresentations, false as-
surances or other improper conduct by the Government.”
(A8 n.7.) However, the reason no evidence was available
pertaining to the issue of “misrepresentations” or “false
assurances” by the government was because Judge Pratt
barred evidence regarding Mr. Pierce’s understanding
of the plea agreement and, thus, of the representations
and assurances on which that understanding was bared.
(See A34-40.)
In sum, Petitioner should have been afforded a mean-
ingful opportunity to explain why he declined to testify,
and the decision by Court of Appeals is plainly at odds
with the prevailing view which provides for a much
broader hearing than that accorded Gregory Pierce.®
*“The ‘coercion’ in coercive contempt as currently administered
takes the form of deprivation of the contemnor’s liberty. While
15
Given the Court of Appeals’ divergence from settled prin-
ciples in this area,’ the importance of the issues in-
volved," and the fact that the statute in question is of
increased, not diminished, vitality,” it is appropriate to
issue a writ of certiorari to review the Court of Appeals’
May 16, 1986 judgment.
incarcerated, the restraints on his personal autonomy may be as
total as those of any other prisoner. In a society that places a high
value on individual freedom, such restraints should not be imposed
unless warranted by weighty public or governmental interests.”
Note, 79 Colum. L. Rev. at 758.
10 The Court of Appeals’ decision in this case is a clear departure
from decisions by the Ninth (Alter) and Second (Kitchen) Circuits
as well as from decisions by other courts. (See pp. 11-12, supra.)
Accordingly, certiorari is appropriate for this reason alone. See
McElroy v. United States, 455 U.S. 642, 643 (1982) (conflict among
the circuits on issue of federal statutory construction) ; Commis-
sioner of Internal Revenue v. Bilder, 369 U.S. 499, 501 (1962)
(conflict between Tax Court and Second Circuit).
11 It is also well established that the grant of certiorari is appro-
priate to resolve important questions of federal statutory and con-
stitutional law. See, e.g., United States v. Donovan, 429 U.S. 419,
422 (1977) (certiorari granted to resolve issues “concern[ing] the
construction of a major federal statute’) ; Fuller v. Oregon, 417 U.S.
40, 42 (1974) (important question of whether a state may condi-
tion probation on the repayment of costs incurred by the state in
providing a defendant with effective assistance of counsel) ; United
States v. Ruzicka, 329 U.S. 287, 288 (1946) (questions of im-
portance in the administration of a federal statute). The possi-
bility—and here, the reality—of confinement under Section 1826
necessarily renders issues arising under that statute important
and worthy of careful analysis. See note 9 supra.
12 Another key consideration in assessing the importance of the
issue presented is the number of pending and future cases likely to
turn on the outcome of a decision by the Court. See Laing v. United
States, 423 U.S. 161, 167 (1976) (seventy other cases in the fed-
eral courts dependent upon resolution of question presented) ;
United States v. Standard Oil of California, 332 U.S. 301, 302
n.2 (1947). As noted (p. 1, supra), cases under Section 1826
are occurring with increasing frequency and thus certiorari is
particularly appropriate here.
16
Il. THE COURT OF APPEALS’ JULY 8, 1986 DECISION
DENYING THE PETITIONER CREDIT FOR TIME
SERVED BEYOND 30 DAYS WHILE HIS APPEAL
WAS PENDING DIRECTLY CONFLICTS WITH
THE RULINGS OF OTHER CIRCUITS AND RAISES
A SUBSTANTIAL ISSUE AS TO THE PROPER IN-
TERPRETATION OF 28 U.S.C. § 1826(b)
The Court of Appeals’ July 8, 1986 opinion regarding
the “thirty-day rule” of 28 U.S.C. § 1826(b) is in direct
conflict with the positions of other federal courts of
appeals and raises a substantial question of statutory
interpretation that bears directly on an accused con-
temnor’s freedom. The Court should issue a writ of
certiorari to resolve this conflict.
Section 1826(b) provides in its first sentence that bail
pending appeal shall not be permitted for an accused
contemnor if the appeal appears to be “frivolous or taken
for delay,” but goes on to provide in the second sentence
that “[a]ny appeal from an order of confinement under
{the statute] shall be disposed of as soon as practicable,
but not later than thirty days from the filing of such
appeal.”” (Emphasis supplied.) On its face the statute
thus contemplates the swift resolution of all appeals from
orders of confinement within thirty days, whether or not
a court believes them to be “frivolous.”
As one leading authority has observed, however, “t]he
circuits vary widely on how, if at all, to enforce this
limitation.” C. Wright, 3 Federal Practice & Procedure:
Criminal 2d § 715 (1982) at 870 n.10. The dominant
view, supported by both the Second and Eighth Circuits,
expressly holds that the statute requires release of the
accused contemnor pending disposition of his appeal if
the appeal is not decided within thirty days. The
Eighth Circuit explained in first reaching this conclu-
sion in Melickian v. United States, 547 F.2d 416, 419
(8th Cir.), cert. denied, 480 U.S. 986 (1977)—in lan-
guage adopted by the Second Circuit in In re Rosahn,
17
671 F.2d 690, 694 (2d Cir. 1982)—that under this result
“(t]he policy of the statute is upheld in that the con-
temnor is released until his appeal is decided” and yet
“the coercive pressure of the contempt order is not com-
pletely lost . . . because the threat and actuality of re-
incarceration still loom on the horizon.” *
A second view, more severe than that endorsed in
Melickian, has been adopted by the Tenth Circuit. There,
the Court held in In re Berry, 521 F.2d 179, 181 (10th
Cir.) (per curiam), cert. denied, 423 U.S. 1039 (1975),
that the thirty-day limit is jurisdictional, and that the
Court of Appeals is divested of all power to review a
contempt order if not heard within thirty days.
In its July 8, 1986 opinion here, the Court of Appeals
became the first and (to date) oniy court to expressly
reject the Melickian and Rosahn rule,’ invoking instead
what it termed an “obviously atypical” remedy based on
an entirely different interpretation of the statute. (A111
n.2.) In contrast to the finding of the Second and Eighth
Circuits regarding the “policy of the statute” and not-
withstanding its express terms, the court first concluded
183 Two other Courts of Appeals have since suggested that they
agree with this result. See In re Matter of Witness Before Special
October 1981 Grand Jury, 722 F.2d 349, 353 (7th Cir. 1983) (citing
Rosahn) ; In re July 1979 Term Special Grand Jury, 656 F.2d 64,
66 (4th Cir. 1981) (citing Melickian).
14 This interpretation has not been embraced by any other court
of appeals, but it has been expressly rejected by some. See, e.g.,
In re Grand Jury Proceedings of August 1984, 757 F.2d 108, 110-12
n.1 (7th Cir.), cert. denied, U.S. , 105 S. Ct. 2025 (1985).
15 Tt is undeniable that the Court of Appeals’ decision results in
a “split among the circuits” since the court stated that “[wle are
aware that some courts have concluded that when an appeal is not
resolved within the thirty-day period, a contemnor whose request
for bail was properly denied . . . should nonetheless be released
pending [disposition] of the appeal .... We decline... to follow
{this] line of authority ....” (A13-14.)
18
that Congress would not have wanted the thirty-day time
limit to operate as a cap on time that may be served by
a contemnor.” (A13.) Pursuant to this reading of the
legislative history of Section 1826(b), the court concluded
that Gregory Pierce was not entitled to a “credit” for
time served beyond thirty days and that, instead, Mr.
Pierce—or any accused contemnor also incarcerated on
an unrelated charge—must first obtain “bail” for the
contempt charge “so he could thereby resume serving
his criminal sentence.” (A11 n.2.)**
The result reached by the D.C. Circuit—one of the
three interpretations of Section 1826(b) now expressly
adopted by four courts of appeals—is anomalous as well
as unique.’? Its admittedly “atypical” remedy asks that
an already incarcerated contemnor seek bail solely so he
can remain in jail, albeit on another charge. Moreover,
the Court of Appeals’ result renders nugatory the en-
tire thirty-day proviso: under its analysis, if a court
decides an appeal is not “frivolous or taken for delay,”
bail is immediately available and that remedy—but only
that remedy—is available without regard for how long it
takes the appeal to be decided. This result both voids by
judicial fiat the express protection in the statute requiring
16 The Court of Appeals acknowledged that this case cannot be
distinguished from Melickian and Rosahn on the grounds that Mr.
Pierce was incarcerated on an unrelated conviction. (A13-14.)
The issue is the same regardless of whether the alleged contemnor
is already incarcerated at the time of the contempt: whether he
must be returned to the status quo ante if his appeal is not decided
within 30 days.
17The other courts of appeals seemingly have avoided directly
confronting this issue by either deciding such appeals within the
required thirty days or simply not discussing the limitation at all.
See In re Grand Jury Proceedings of August 1984, 757 F.2d at 110-
112 n.1 (extensive footnote discussing alternative approaches to
thirty-day rule).
19
that “[a]ny appeal” be decided within thirty days*
and ignores the fundamental canon of statutory con-
struction that, if possible, language should not be given a
meaning which renders it nugatory.”
It is difficult to envison a case which more clearly pre-
sents both a burgeoning conflict among the courts of ap-
peals and an important question under an increasingly
prominent federal statute. Individually, these factors
counsel strongly in favor of review by this Court; jointly,
they are even more compelling.” The deep conflict among
the various courts of appeals, already noted in the past
by experts and the courts (supra pp. 16-18), has been
etched even more sharply by the court’s opinion here;
the four courts to interpret Section 1826(b) have now
promulgated three distinctly different rules.
18 The Court of Appeals’ opinion illogically links the availability of
bail for those alleged contemnors asserting nonfrivolous appeals with
the protection offered by the thirty-day rule, maintaining that “the
thirty-day rule was apparently intended to protect contemnors with
substantial grounds for appeal.” (A13.) As interpreted by the Court,
however, the thirty-day rule offers no protection at all to any accused
contemnor, regardless of the substance of his appeal; it becomes
mere surplusage to the right under the first sentence of Section
1826(a) to seek bail at any time pending disposition of a non-
rivolous appeal.
19 See, e.g., Weinberger v. Hynson, Westcott and Dunning, Inc.,
412 U.S. 609, 633 (1973) (“well-settled rule of statutory construc-
tion that all parts of a statute, if at all possible, are to be given
effect”) ; United States v. John Hancock Mut. Life Ins. Co., 364
U.S. 301, 308 (1960).
20“The Supreme Court usually, but not necessarily will grant
certiorari where the decision of a federal court of appeals, as to
which review is sought, is in direct conflict with a decision of
another court of appeals on the same matter of federal law... .”
R. Stern, E. Gressman, S. Shapiro, Supreme Court Practice § 4.4
(6th Ed. 1986), at p. 197 (emphasis in original). See, e.g., McElroy
v. United States, 455 U.S. at 643 (conflict among circuits on issue of
federal statutory construction) ; Laing v. United States, 423 U.S.
at 167; Linkletter v. Walker, 381 U.S. 618, 620 (1965) (certiorari
granted “in order to settle what has become a most troublesome
question in the administration of justice’).
20
Moreover, the need for a definitive interpretation of
Section 1826(b) is manifest, since the judiciary’s civil
contempt power increasingly is employed to enforce gov-
ernment interests. Nor should the balance struck by
Section 1826 between the public interest in furthering
testimony and an individual’s right not to testify under
certain circumstances vary depending on where that
citizen resides. The Court of Appeals believed the issue
of the proper interpretation of the thirty-day rule was
sufficiently important to merit separate briefing; it is also
sufficiently important, in Petitioner’s view, to merit dis-
positive consideration and decision by this Court.
CONCLUSION
This case presents the Court with an opportunity to
resolve conflicts among courts of appeals on two sepa-
rate aspects of an important federal statute: the rights
to which an alleged civil contemnor is entitled prior to
imprisonment (Section 1826(a)) and the remedy avail-
able to him in the event the statutorily-prescribed thirty-
day time limit for resolving his appeal is exceeded (Sec-
tion 1826(b)). Thus, the Court should issue a writ of
certiorari to review the decisions of May 16, 1986 and
July 8, 1986 of the United States Court of Appeals for
the District of Columbia Circuit.
Respectfully submitted,
THOMAS D. YANNUCCI
(Counsel of Record)
JOHN M. WALKER
RONALD R. Ross
KIRKLAND & ELLIS
655 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 879-5000
Attorneys for Petitioner
September 24, 1986 Gregory Pierce
APPENDIX
Al
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA COURT
September Term, 1985
Mise No. 86-66
No. 86-5161
IN RE: SEALED CASE
Appeal from the United States District Court
for the District of Columbia
[Filed May 16, 1986]
Before: SCALIA, STARR and BUCKLEY, Circuit Judges.
JUDGMENT
This cause came on to be heard on the record on appeal
from the United States District Court for the District of
Columbia, and was briefed and argued by counsel. While
the issues presented occasion no need for an opinion, they
have been accorded full consideration by the Court. See
Local Rule 13(c). On consideration thereof, and for the
reasons set forth in the accompanying memorandum,
it is
A2
ORDERED and ADJUDGED, by the Court, that the
judgment of the District Court appealed from in this
cause is hereby affirmed. It is
FURTHER ORDERED, by the Court, that the appel-
lant’s motion to lodge the affidavit of Charles B. Molster,
III, Esq., is hereby granted. It is
FURTHER ORDERED, by the Court, sua sponte, that
the Clerk shall withhold issuance of the mandate herein
until seven days after disposition of any timely petition
for rehearing. See Local Rule 14, as amended on No-
vember 30, 1981 and June 15, 1982. This instruction to
the Clerk is without prejudice to the right of any party
at any time to move for expedited issuance of the man-
date for good cause shown.
Per Curiam
For the Court
/s/ George A. Fisher
GEORGE A. FISHER
Clerk
A3
MEMORANDUM
This expedited appeal is taken from an order of the
District Court holding appellant in civil contempt for
refusing to testify before a federal grand jury in the
District of Columbia and ordering him incarcerated for
the life of the grand jury or until he agrees to testify.’
Appellant’s contention on appeal is that the subpoena
mandating his testimony violated the terms of a plea
agreement which he entered into in the Eastern District
of Virginia in December 1985. Under that agreement,
appellant pled guilty to one count of a seven-count in-
dictment charging him with fraudulently purchasing air-
line tickets with a counterfeit credit card at Washington
National Airport in June 1985. In return, the Govern-
ment in that agreement obligated itself, among other
things, as follows:
The government will not call [appellant] as a wit-
ness in any of the cases indicted in the District of
Columbia involving other members of the alleged
criminal organization operating within the [named]
ae
Following an evidentiary hearing with respect to the
circumstances surrounding the execution of the plea
agreement, the District Court concluded that the “plea
agreement ... plainly does not bar the government from
calling [appellant] to the Grand Jury to investigate mat-
ters not already indicted in the District of Columbia.”
Order of March 10, 1986.
Appellant vigorously contests that conclusion and as-
serts (1) that the operative language of the plea agree-
ment is infected with ambiguity, thereby warranting the
1 Counsel for appellant, Thomas D. Yannucci, was appointed by
this court for purposes of this appeal. (Another attorney served as
appointed counsel in the District Court.) Mr. Yannucci has per-
formed ably and admirably, consistent with the highest traditions
of the profession.
A4
admission of extrinsic evidence to illuminate the parties’
actual intent; and (2) that appellant’s own understand-
ing, as buttressed by his court-appointed counsel’s affi-
davit lodged with this court, was that his plea agreement
terminated entirely his obligations to cooperate with the
Government in any manner in its ongoing investigations
and prosecutions of members of the sect, including grand
jury proceedings.’
Upon analysis, we agree fully with the District Court’s
conclusion and affirm its judgment. The plea agreement
simply does not admit of the ambiguity which appellant
would have us divine. The Government obligated itself
not to call appellant as a witness “in any of the cases
indicted in the District of Columbia.” The clear and
unmistakable meaning of this language is that appellant
was being excused from testimony in “cases indicted”
in a specific jurisdiction, not from grand jury investiga-
tions in that jurisdiction. An investigation by a grand
jury is simply not encompassed, as the experienced Dis-
trict Court judge rightly concluded, by the words, “the
cases indicted.” *
That clear interpretation is buttressed by the proceed-
ing before the sentencing judge in the Eastern District
of Virginia. In the course of that proceeding, the pros-
ecutor represented to the court as follows:
2 The Government argues that any such agreement would be
violative of public policy. At oral argument, counsel for the United
States narrowed its broad proposed principle by suggesting that a
narrowly crafted agreement with respect to a specific grand jury
investigation might survive the public policy bar. By virtue of
our disposition of this case, however, we need not and do not venture
into these uncharted and difficult waters.
3 Appellant makes much of the point that “cases” are not “in-
dicted” and that only “individuals” are indicted. But the three
operative words taken together, “the cases indicted,’ cannot under
any reasonable stretch of ordinary English be interpreted to include
pre-indictment grand jury investigations.
A5
For the record, I will state that my agreement
with the defense was that though he has no legal
right to refuse to testify, the Government does not
plan to call him to testify in the cases now indicted
in Washington, D.C. We do not plan to call him as
a witness for the Government. I believe that that
will correspond to his understanding that was
reached.
The District Judge then and there engaged appellant in
the following colloquy:
THE COURT: All right, Is that correct... ?
[APPELLANT]: Yes.
Appellant does not quarrel in the slightest with the ac-
curacy of the foregoing excerpts; instead, he takes the
Government severely to task for employing extrinsic evi-
dence to shed light on what it argues to be a crystal clear
provision of the plea agreement, when it steadfastly ob-
jected to appellant’s efforts below to adduce extrinsic
evidence with respect to the parties’ understanding of the
agreement. Based upon our review of the proceedings
below, however, we cannot agree with the more pertinent
point that the District Court declined to consider ex-
trinsic evidence in violation of what appellant deems to
be controlling principles of contract law. Quite the con-
trary, the entire purpose of the evidentiary hearing con-
ducted by the District Court was to examine the facts
and circumstances leading up to and surrounding the
plea agreement.* At that hearing, appellant’s appointed
trial counsel (from the Virginia federal district court
proceedings) was called to the stand and testified con-
cerning the background of the plea agreement. What
the District Court declined to permit, and in our view
properly so, were specific questions expressly aimed at
4 We need not and do not opine on whether such a hearing was
indeed required under the circumstances at hand.
A6
eliciting the attorney’s own subjective understanding of
what the plea agreement meant. One party’s subjective
understanding, whatever it might be, cannot override
the unambiguous terms of an agreement, especially one
not of Byzantine complexity but which to the contrary
is written in plain English and covering only two and
one-half pages.
We are fortified in our conclusion by the following
points. First, in the sentencing hearing before the Vir-
ginia federal district court, the federal prosecutor made
specific mention of appellant’s refusal to cooperate in the
District of Columbia grand jury proceeding.® Not one
word was interposed by appellant or his trial counsel
that the former’s failure to cooperate was justified by the
terms of the plea agreement. Silence on such a critical
issue at such a critical juncture is odd in the extreme.
Second, the lodged affidavit of appellant’s trial counsel
fails to surmount the considerable barriers erected both
by the language of the plea agreement itself and by the
events in the courtroom of the Eastern District of Vir-
5 Appellant seeks to make much of the fact that the federal
prosecutor initially “invited” him by letter to testify before the
grand jury in Washington, only thereafter repairing to the grand
jury’s subpoena power. This argument is without merit. In the
first place, the parties at that juncture were in a cooperative mode,
as reflected by the plea agreement itself which had so recently been
struck in the Eastern District of Virginia; but more directly to
the point, nothing in the letter suggests the slightest doubt as to
the prosecutorial power to demand appellant’s appearance. Indeed,
that appellant’s cooperation was expected and that its wanting
would occasion some direct cost being imposed upon him was clearly
signaled by the prosecutor’s threat, expressly set forth in the letter
of invitation, to bring any failure to cooperate to the attention
of the sentencing judge. Such a threat would be highly curious
if the prosecutor was of the view that appellant enjoyed a con-
tractual agreement to be exempted from any such proceedings, since
such an agreement would obviously provide a ready and sufficient
response to the charge of non-cooperation.
AT
ginia.© Although Mr. Molster’s affidavit sets forth his
belief as to the inconsistency of the course of events here
with the contractual rights which his client putatively en-
joyed, the specific factual averments in the affidavit are
clearly wanting. The words “prosecution” and “prosecu-
tions” are relied upon throughout the portions of the
affidavit describing Mr. Molster’s understanding of the
coverage of the prosecutor’s promise not to call appellant
as a witness. In particular, Mr. Molster declared as
follows:
I understood [the prosecutor’s representations] to
mean that [appellant] would not be compelled to
provide either incriminating or excuplatory informa-
tion in connection with the prosecution of other
members of the [sect]. I conveyed to [appellant]
that she plea agreement wouid result in terminating
his dealings with [federal prosecutors] regarding
the prosecution of members of the [sect].
Without belaboring the obvious, “prosecutions” do not
begin until an indictment has issued. The wording, then,
of Mr. Molster’s own affidavit is consistent with the plain
language of the agreement itself and with the colloquy in
federal district court in Virginia.’
® As is evident from the discussion in the text, we have today
granted appellant’s motion to lodge the affidavit and have fully con-
sidered it in our disposition of this appeal.
7 At oral argument, counsel for appellant indicated that, if any
shortcoming were found with Mr. Molster’s affidavit, the affidavit
could be supplemented. We think that is a singularly inappropriate
course under the circumstances here. The appeal has been ex-
pedited, the case has been fully briefed, it has been ably and
thoroughly argued in open court, and with the seriousness of the
issues abundantly clear to all, a thorough affidavit from appellant’s
trial counsel going to the very issue at hand has been furnished for
our benefit. Given these elaborate preparations in an elaborate
judicial process, the time for decision is now.
Appellant also argues that he had “just cause” within the mean-
ing of 28 U.S.C. § 1826 to refuse to testify before the grand jury.
A8
We reserve the question whether and to what extent
the time served by appellant since the expiration of thirty
days provided by statute for resolution of any appeal in
such matters should be credited to his sentence entered
pursuant to his conviction in the Eastern District of
Virginia. By separate order entered this day, we are
directing the parties to file supplemental briefs with re-
spect to that question.
Affirmed.
That argument, however, turns in this case on whether he enjoyed
the prerogative by virtue of the plea agreement to decline to testify
before the grand jury. As to that, we find ourselves, for the reasons
already stated, in accord with the District Judge’s conclusion.
Moreover, we are not faced, by virtue of the insufficient offer of
proof to this effect, with the situation where clear contract language
was agreed to only after misrepresentations, false assurances or
other improper conduct by the Government. We obviously have no
occasion to address that sort of hypothetical situation.
A9
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
No. 86-5161
IN RE SEALED CASE
Argued May 15, 1986
Decided July 8, 1986
As Amended July 8, 1986
Appeal from the United States District Court
for the District of Columbia (Misc. No. 86-00066)
Before SCALIA, STARR and BUCKLEY, Circuit Judges.
Opinion PER CURIAM.
PER CURIAM:
This is an expedited appeal from a judgment of civil
contempt in a grand jury proceeding. In an earlier order
and memorandum opinion, filed May 16, 1986, we af-
firmed the District Court’s judgment finding appellant in
contempt for refusing, after a grant of immunity, to
answer questions propounded to him in the grand jury
proceeding. We expressly reserved, however, the question
whether appellant should receive credit on his sentence
on an unrelated criminal conviction for time spent in
custody pursuant to the contempt order beyond the statu-
torily prescribed period of thirty days for deciding ap-
peals in such cases. 28 U.S.C. § 1826(b) (1982). Follow-
ing the court’s order directing further submissions on
A10
this question, the parties filed supplemental briefs ad-
dressing solely this issue. This opinion is likewise di-
rected solely to the question of crediting.
Our role in resolving the issue before us is not to
apply our own notions of equity in this particular case,
but rather to determine whether Congress intended to
create the remedy that appellant now seeks. See, e.g.,
Northwest Airlines, Inc. v. Transport Workers Union,
451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750
(1981); Touche Ross & Co. v. Redington, 442 U.S. 560,
568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). As in
all matters of divining Congress’ intent, the language of
the statute provides the critical reference point for our
analysis. Id.
Subsection (a) of 28 U.S.C. § 1826 sets forth the
conditions under which recalcitrant witnesses may be
held in confinement until they are willing to obey an order
requiring testimony or other information in a pending
judicial or grand jury proceeding. The next subsection,
1826 (b), provides as follows:
No person confined pursuant to subsection (a) of
this section 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.
By the plain terms of this provision, Congress intended
that appeals from judgments of civil contempt imposed
upon recalcitrant witnesses be decided within thirty days.
But the statute is silent as to remedies for contemnors in
the event an appeal is not resolved within the requisite
period.’ Congress knows full well how to craft a remedy
1 Of course, a contemnor is not without any remedy; mandamus
may be sought requiring the appellate court to decide the appeal
All
for violation of a statutory time limit on judicial pro-
ceedings. For example, an entire provision of the Speedy
Trial Act is devoted to detailing sanctions for violation
of criminal trial time limits. 18 U.S.C. § 3162 (1982);
see also id at 3164(c) (1982). Under established canons
of statutory construction, the fact that Congress enacted
no analogous provisions in the statute at issue here is a
powerful indication that Congress did not intend to pro-
vide a remedy for violation of the thirty-day rule. See
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S.
11, 21, 100 S.Ct. 242, 247, 62 L.Ed.2d 146 (1979); cf.
Northwest Airline, 451 U.S. at 91 & n.24, 101 S.Ct. at
1580 & n.24.
Moreover, Congress has expressly provided a remedy
for the benefit of contemnors, “the class for whose especial
benefit” the thirty-day rule was arguably enacted. Cort
v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d
26 (1975) (emphasis in original) (citation omitted).
The liberal standard for granting bail ensures that no
contemnor will languish in custody pending appeal except
one who cannot show that the appeal is not frivolous or
taken for delay.? In light of this express statutory
remedy designed to protect contemnors, we find it “highly
improbable that ‘Congress absentmindedly forgot to men-
tion’” another remedy for contemnors awaiting disposi-
tion of their appeal. Transamerica, 444 U.S. at 20, 100
S.Ct. at 247 (citation omitted).
in timely fashion. See Allied Chem. Corp. v. Daiflon, Inc., 449 U.S.
33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (writ of manda-
mus traditionally used to compel an inferior court “ ‘to exercise
its authority when it is its duty to do so.’”’) (quoting Will v. United
States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967) ).
2 While the procedure is obviously atypical, we can see no reason
why a contemnor, such as appellant, who is serving time for an
unrelated criminal conviction may not seek bail (i.e., release from
confinement for the civil contempt) under 28 U.S.C. § 1826(b), so
he could thereby resume serving his criminal sentence.
A12
Although mindful of the vagaries of employing legisla-
tive history as a mechanism for discerning the intent of
the entire enacting body, we are nonetheless obliged to
examine the genesis and development of this statutory
provision for whatever light that inherently elusive proc-
ess might shed. See, e.g., Guardians Association v. Civil
Service Commission, 463 U.S. 582, 609, 103 S.Ct. 3221,
3236, 77 L.Ed.2d 866 (1983) (Powell, J., concurring in
judgment) ; Cannon v. University of Chicago, 441 US.
677, 694, 99 S.Ct. 1946, 1956, 60 L.Ed.2d 560 (1979).
Our resort to legislative history, however, only confirms
our view that the express statutory remedy of bail is
adequate to serve the legislative purpose undergirding
section 1826(b). See Daily Income Fund, Inc. v. Fox,
464 U.S. 523, -586, 541, 104 S.Ct. 831, 839, 841, 78
L.Ed.2d 645 (1984).
The original section of the Senate Bill that ultimately
was enacted as 28 U.S.C. § 1826 denied bail to all con-
temnors during the pendency of their appeals. This
regime prompted misgivings in the legislative process as
to the fate of worthy contemnors languishing in the wake
of an erroneous judgment of contempt. “In order to take
into account the exceptional case where substantial
grounds for appeal may exist,” the Justice Department
advanced the suggestion that a thirty-day limit on appel-
late consideration be added to the provision that denied
bail in all cases. Hearings Before the Subcomm. on Crim-
inal Laws and Procedure of the Senate Comm. on the
Judiciary on S. 30, et al., 91st Cong., Ist Sess. at 371
(1969). The upshot was that the Senate voted to retain
a stringent restriction on bail (i.e., bail was to be granted
only when the contemnor established a “substantial pos-
sibility of reversal’), but at the same time embraced the
thirty-day time constraint on appellate adjudication as
suggested by the Justice Department. Under this modi-
fied approach, the thirty-day rule was understood as a
means to mitigate “the fact that bail will usually be
Ai3
denied by the trial court.” Hearings Before Subcomm.
No. 5 of the House Comm. on the Judiciary on S. 30, et
al., 91st Cong., 2d Sess. at 163 (1970).
As events unfolded, however, the House declined to
accept the Senate’s strict standard with respect to grant-
ing bail. Rather, the House adopted a much more
generous standard under which bail is granted to a
contemnor unless the appeal is either “frivolous or taken
for delay.”” The House version ultimately prevailed in
conference and was enacted into law.
In our view, this history suggests that Congress would
not have wanted the thirty-day time limit to operate as a
cap on time that may be served by a contemnor, no
matter how frivolous his appeal. As we have just seen,
the thirty-day rule was apparently intended to protect
contemnors with substantial grounds for appeal. Inter-
preting the thirty-day limit to contain the remedy appel-
lant seeks would benefit only contemnors who do not
qualify for bail, that is those who fail to demonstrate
that their appeal is not frivolous or taken for delay.
We are aware that some courts have concluded that
when an appeal is not resolved within the thirty-day
period, a contemnor whose request for bail was properly
denied under the frivolous-appeal standard should none-
theless be released pending deposition of the appeal. See,
é.g., Melickian v. United States, 547 F.2d 416 (8th Cir.),
cert. denied, 430 U.S. 986, 97 S.Ct. 1684, 52 L.Ed.2d 381
(1977).* We also agree with appellant’s argument that
3 Some courts have stated or assumed that courts are deprived
of jurisdiction once the thirty-day limit expires. See, e.g., In re
Berry, 521 F.2d 179, 181 (10th Cir.) (per curiam), cert. denied,
423 U.S. 928, 96 S.Ct. 276, 46 L.Ed.2d 256 (1975). With all re-
spect, we find no merit in this approach. Neither the language
nor the legislative history of the statute dictates such a result. See
In re Grand Jury Proceedings, 776 F.2d 1099, 1102 (2d Cir. 1985) ;
Melickian, 547 F.2d at 419. Moreover, the availability of mandamus,
see supra note 1, a less drastic remedy for noncompliance with the
Al4
these cases cannot properly be distinguished on the
ground that they involved civil contemnors, who, unlike
appellant, were not already incarcerated by virtue of a
prior criminal conviction. See In re Baird, 668 F.2d 432,
433 n. 1 (8th Cir.), cert. denied, 456 U.S. 982, 102 S.Ct.
2255, 72 L.Ed.2d 860 (1982). The fact that a recalci-
trant witness was already incarcerated when held in civil
contempt provides no basis for treating that witness
differently for purposes of the contempt action.
We decline, rather, to follow the Melickian line of au-
thority for a more fundamental reason. In Melickian, the
court justified its automatic-release rule on the ground
that it “best reconciles the various interests bound up in
the bail issue” and upholds “the policy of the statute.”
547 F.2d at 419. But this approach, with all respect,
misconceives the appropriate judicial mission. In our
view, judicial creation of a statutory remedy based on
such a policy analysis is foreclosed where, as here, the
language, structure and legislative history of the statute
provide no support for the proposition that Congress
intended to create the remedy. See, e.g., Northwest Air-
lines, 451 U.S. at 94-95, 101 S.Ct. at 1582, Redington,
442 U.S. at 575-76, 99 S.Ct. at 2488-89. Our job is to
interpret the statute that Congress has set before us, not
to attempt to improve upon what Congress has done.
Redington, 442 U.S. at 578, 99 S.Ct. at 2490.
The request for crediting is therefore denied.
So ordered.
statutory deadline, and the weighty public interest in the orderly
functioning of grand juries and the judicial process dissuades us
from imputing to Congress a desire to render appellate courts
powerless to enforce civil contempt orders after thirty days have
_ elapsed. Cf. Brock v. Pierce County, USS. , 106 S.Ct. 1834,
90 L.Ed.2d 248 (1986).
i a |
Ald
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA CIRCUIT
September Term, 1985
No. 86-5161
IN RE: SEALED CASE
[Filed Aug. 6, 1986]
Before: SCALIA, STARR and BUCKLEY, Circuit Judges
ORDER
Upon. consideration of appellant’s petition for rehear-
ing, it is
ORDERED, by the Court, that the petition is denied.
Per Curiam
BY THE CouRT:
GEORGE A. FISHER
Clerk
By: /s/ Robert A. Bonner
ROBERT A. BONNER
Chief Deputy Clerk
Al16
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1985
No. 86-5161
IN RE: SEALED CASE
[Filed Aug. 6, 1986]
Before: WALD, Chief Judge; ROBINSON, MIKvA, ED-
WARDS, GINSBURG, BORK, SCALIA, STARR, SILBER-
MAN, BUCKLEY and WILLIAMS, Circuit Judges
ORDER
Appellant’s suggestion for rehearing en banc has been
circulated to the full Court. No member of the Court
requested the taking of a vote thereon. Upon considera-
tion of the foregoing, it is
ORDERED, by the Court en bane, that the suggestion
is denied.
Per Curiam
BY THE COURT:
GEORGE A. FISHER
Clerk
By: /s/ Robert A. Bonner
Chief Deputy Clerk
A17
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
Criminal No. 85-00208-A
UNITED STATES OF AMERICA
Ne
GREGORY PIERCE a/k/a Shavat
PLEA AGREEMENT
The United States of America and the defendant,
Gregory Pierce, have entered into a plea agreement dis-
posing of the charges in the above-captioned case. The
terms of the agreement are as follows:
MR. PIERCE’S OBLIGATIONS
1. He will plead guilty to Count VII of the indict-
ment charging Use of Counterfeit Access Device in viola-
tion of 18 U.S.C. § 1029(a) (1), carrying a penalty of
up to 15 years imprisonment or $50,000 fine or both;
2. He will state under oath that he knows of no
exculpatory evidence with regard to his alleged co-
conspirators.
GOVERNMENT’S OBLIGATIONS
1. All remaining counts of the indictment will be
dismissed ;
A18
2. The United States of America will not pursue any
other charges arising from the events of June 27-28,
1985, at Washington National Airport. This agreement
in no way limits the use of evidence of the events in
question in any other prosecution against Mr. Pierce;
8. The government will not call Mr. Pierce as a wit-
ness in any of the cases indicted in the District of Co-
lumbia involving other members of the alleged criminal
organization operating within the “Black Hebrew” sect;
4. The government will take no position at the time
of the plea regarding incarceration pending sentencing;
5. The government expressly reserves its right to
allocute at the time of sentencing;
6. No other inducements or promises have been or will
be offered to Mr. Pierce by the government.
GENERAL PROVISIONS
1. If Mr. Pierce should fail, in any way, to fulfill
completely each and every one of his obligations in this
agreement, the government will be released from its
commitment to honor all of its obligations to him;
2. Nothing in this agreement shall be construed to pro-
tect Mr. Pierce in any way from prosecution for Perjury,
False Declaration, or False Statement in violation of 18
U S.C. $$ 1621, 1623, or 1001, or Obstruction of Justice
in violation of 18 U.S.C. § 702, should he commit any of
those offenses in connection with this agreement;
3. This document constitutes the entire and complete
agreement between the United States and Gregory Pierce
and supercedes all prior understanding, if any, whether
oral or written relating to the subject matter hereof, and
cannot be modified other than in writing that is signed
by both parties;
A19
4. Gregory Pierce’s signature in the space designated
below signifies Mr. Pierce’s full and voluntary acceptance
of this agreement.
Respectfully submitted,
/s/ John E. Stevens
JOHN E. STEVENS
Special Assistant United
States Attorney
Seen and agreed:
/s/ Charles B. Molster, III
CHARLES B. MOLSTER, III
Attorney for Gregory Pierce
/s/ Gregory Pierce
GREGORY PIERCE
Defendant
A20
[SEAL]
U.S. DEPARTMENT OF JUSTICE
United States Attorney
District of Columbia
United States Courthouse, Room 2800
Constitution Avenue and 3rd Street, N.W.
Washington, D.C. 20001
December 11, 1985
Charles B. Molster, III, Esquire
2033 M Street, N.W.
Suite 404
Washington, D.C. 20036
Re: United States v. Gregory Pierce
Criminal No. 85-00208-A
Dear Mr. Molster:
We are continuing our investigation of illegal activi-
ties by an organized criminal element operating within
the Black Hebrew sect. Our investigation to date gives
us reason to believe that your client, Gregory Pierce, has
knowledge of these activities which could assist us.
Among other things, we believe that Mr. Pierce has
knowledge of the trafficking in stolen and fraudulently
obtained airline tickets engaged in by other members
of the criminal enterprise, including those here in the
District of Columbia.
We would like to interview Mr. Pierce about what he
knows and possibly have him testify before the Grand
Jury. Should there be any concern that Mr. Pierce’s
revelations might prove self-incriminating, we are pre-
pared to grant formal use immunity to protect his Fifth
Amendment privilege. See 18 U.S.C. 6002-6003; Kastigar
v. United States, 406 U.S. 441, 462 (1972).
POO ne Baa RA Mi
A21
We emphasize that this is an invitation to cooperate,
not a subpoena. If Mr. Pierce accepts our invitation and
cooperates completely and truthfully, that cooperation
will be made known to Judge Hilton at the time of sen-
tencing for whatever mitigating effect he may choose to
give it. Conversely, Mr. Pierce’s refusal to cooperate
will also be made known to the judge at time of sen-
tencing. Roberts v. United States, 445 U.S. 552 (1980).
We require a reply by December 20, 1985. A lack of
response will be interpreted as a refusal to cooperate.
Should you have any question, please contact me at once
at 272-9078.
Sincerely,
JOSEPH E. DIGENOVA
United States Attorney
by: /s/ John E. Stevens
JOHN E. STEVENS
Assistant United States Attorney
ec: Criminal Court Clerk
A22
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Misc. No. 86-66
IN RE: GRAND JURY PROCEEDING
GREGORY PIERCE
[Filed March 3, 1985]
MOTION TO RECONSIDER ORDER
Defendant, Gregory Pierce, by and through his attor-
ney, David Carey Woll, hereby respectfully requests this
Honorable Court to reconsider its Order of February
27th, 1986, entered in the instant case and vacate same.
As reasons therefore, defendant states:
1. Defendant, pursuant to his plea agreement entered
with the United States Attorney, represented by John E.
Stevens, Esquire, was assured by the United States At-
torney’s office that it would not require his testimony,
either before a Grand Jury or petit jury, in reference to
the Black Hebrew sect of which he was an alleged mem-
ber. Furthermore, he was assured that with his guilty
plea to the fraudulent use of a credit card to purchase
airline tickets at National Airport, all matters in the
Eastern District of Virginia and the District of Columbia
were concluded.
2. The Government has caused defendant to be taken
out of the facility in Duluth, Minnesota where he is serv-
ing his sentence, and returned to the District of Columbia
A23
Jail, pending his appearance ‘before a Grand Jury, caus-
ing Defendant great distress and discomfort.
3. It is Defendant’s contention, borne out by the an-
ticipated proffer of his attorney appointed to him in the
Eastern District of Virginia, who negotiated the above
plea agreement, that the Government has breached the
plea agreement by demanding that he testify under
immunity before the Grand Jury as to his knowledge of
Black Hebrew matters.
4. It is Defendant’s further contention that he is en-
titled to a hearing before the Court to present either a
proffer or sworn testimony from his previous attorney
as to the understanding of the parcies before the Court
is in a position to compel Defendant’s testimony before a
Grand Jury.
WHEREFORE, it is respectfully requested that the
Court’s Order earlier entered be vacated and that the
matter be scheduled for a hearing before the Court.
Respectfully submitted,
/s/ David Carey Woll
DAVID CAREY WOLL
Attorney for Defendant
434 Hungerford Drive
Rockville, MD 20850
340-1822
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the preceding
Motion was personally served on John E. Stevens,
Esquire, United States Attorney’s Office, this 8rd day of
March 1986.
/s/ David Carey Woll
DAVID CAREY WOLL
A24
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Miscellaneous No. 86-66
IN RE: GREGORY PIERCE
Monday, March 38, 1986
Washington, D.C.
The above-entitled matter came on for hearing before
The Honorable John H. Pratt, United States District
Judge, at 2:30 p.m., on a grand jury matter.
Appearances:
On behalf of the Government:
JOHN STEVENS, ESQUIRE
Assistant U.S. Attorney.
On behalf of the Respondent:
DAVID WOLL, ESQUIRE.
* * * =
[2] PROCEEDINGS
THE DEPUTY CLERK: Miscellaneous 86-66, in re-
gard to zrand jury proceedings of Gregory Pierce.
THE COURT: I think the record should show that on
the 27th of February last week, Judge Robinson issued
an order requiring Gregory Pierce to appear before a
grand jury and answer questions.
Is that correct, Mr. Stevens?
MR. STEVENS: That is correct, your Honor.
A25
THE COURT: And I assume that was done and he
stood mute—is that what happened?
MR. STEVENS: Your Honor, the witness in this
case has not yet appeared before the grand jury. His
attorney, Mr. Woll, informed me that he had two grounds
for refusing to comply with the order; one disputing the
legitimacy of the subpoena, and second, that he would not
in any case testify regardless of the ruling.
On the basis of that representation, Mr.’ Woll and I
asked the court to hear us today to avoid having tc wait
until Tuesday, since the witness had already stated what
he would do. We figure he could state his refusal in open
court to give the court basis for action, but unfortunately,
he is not here today.
THE COURT: Mr. Woll has filed a motion to re-
consider Judge Robinson’s order and I think we ought
to hear from you. Why doesn’t this go before Judge
Robinson, after all it’s his [3] order?
MR. WOLL: Of course, I would like to have the de-
fendant here for all proceedings. I mean, I have to be
careful in that regard. He is not here, but I can inform
the court that I was appointed, I think, late in the morn-
ing on the 27th and Mr. Stevens advised me as to what
the situation was.
So I went down to the cell block and talked with this
young man and he indicated that he—he told me, your
Honor—well, apparently he pled guilty over in Alexan-
dria federal court and he claims that there was a plea
agreement where he would not have to testify concerning
other Black Hebrew members and he stands by that. He
feels that, therefore, he is not required to give any type
of testimony because he was assured both by the Govern-
ment and by his lawyer, a person by the name of Charles
Molster who was appointed for the case over there. It
was his understanding, in other words, that this ended
everthing; that he would not have to testify as to any-
thing.
A26
When he told me that, I called his lawyer, Mr. Molster,
who called me back later and indicated that he thought
it was his understanding that all D. C. and Virginia
matters were concluded. Although the plea agreement
doesn’t quite back him up to that extent.
THE COURT: You say Virginia matter?
MR. WOLL: Well, it was over in the Eastern District
of Virginia, I believe.
[4] THE COURT: Well, you have seen the plea agree-
ment?
MR. WOLL: Yes, your Honor.
THE COURT: It is not as crystal clear as it might
be, but it—
MR. WOLL: No.
THE COURT: —but it does say the government will
not call Mr. Pierce as a witness in any of the cases
indicted- in the District of Columbia involving other
members of the alleged criminal organization.
Now I assume that what we have here is a grand jury
proceeding that doesn’t concern a case already indicted.
It concerns matters that conceivably may be the subject
of indictment somewhere down the road. Isn’t that a
correct interpretation?
MR. STEVENS: Precisely.
MR. WOLL: That would be my present interpreta-
tion. I am a little bit in a bind. I have to go on
Molster’s recollection. He would put both past and future
to that, indicating “have been indicted and would be.. .”
At any rate, just to finsh what I was saying, I think the
Judge signed an order that afternoon. I was unaware of
it. We didn’t have a hearing. I thought we were going
to have a hearing the next day before Judge Robinson.
I thought to marshal my argument and get Mr. Molster
down here and make a proffer to the court, but the order
had already been signed. So I [5] thought the best thing
to do is ask Judge Robinson to reconsider his order, or
have him at least give me an opportunity to have a
hearing and either present a proffer from Mr. Molster, or
A27
testimony, or something, to try to get it straightened out.
THE COURT: I think Mr. Pierce, if he is going to
be the subject of a rule to show cause, or something else,
certainly he ought to be present to present his side of it.
And since Judge Oberdorfer did not order a comeup, I
think Oberdorfer being Motions Judge, the only thing
is if we are going to keep this—and I assume we will—
is to set this down some time later on in the week so that
Mr. Pierce can be here and this matter can-be heard.
Now at this present posture, I assume that we have
two possible courses after hearing: one is that you can do
something about your motion to reconsider the order; or
two, we could issue a rule to show cause, or we could
conceivably find him in contempt. I don’t know. What
do we do, Mr. Stevens?
MR. STEVENS: My suggestion, your Honor, would
be to try to work out a procedure where we could handle
all of this in one sitting because I think the issue is not
very complicated. In fact, it is our position that hearing
the testimony is not even appropriate in that the plea
agreement must stand on its objective reading and the
interpretation supplied by the court and not what the
parties thought it [6] meant.
THE COURT: Of course, he hasn’t even been sen-
tenced, has he?
MR. STEVENS: Yes, your Honor. He has been sen-
tenced,
MR. WOLL: Yes, he is serving a sentence.
MR. STEVENS: So he may have some cause for
filing in Alexandria, if this court rules that he is not
exempt from subpoena before the grand jury for some
sort of vacation of the plea, if he elects to do it there.
But here in the District of Columbia, we simply should
schedule a hearing whereby the position could be pre-
sented and the court could then rule on whether the
agreement substantiates the defendant’s contention. At
that point, it seems to me, the court could then inquire
if he intends to comply with the motion to compel and
A28
if he says, “yes,” then I will be happy to schedule him
post haste for the grand jury; take him immediately
thereto. Or if he answers “no,” that might constitute
the requisite refusal that the court could take contempt
action upon.
That would be my suggestion.
THE COURT: So we would avoid the matter of
going through a rule to show cause. This would include
the rule to show cause.
MR. STEVENS: It would, if the court requires—
receives the motion in open court, that it would be.
THE COURT: Why don’t you gentlemen pick out a
date [7] and we could handle it at that time. I would
think a couple of days hence?
MR. WOLL: I would prefer to have it in the morn-
ing, some time, you know, some morning this week.
THE COURT: We can have it in the morning.
MR. STEVENS: I will be available at the court’s
convenience, Your Honor.
THE COURT: How about it, Sharon?
THE DEPUTY CLERK: How about 10:30 on Wed-
nesday?
MR. WOLL: That would be agreeable.
THE COURT: All right, see you 10:30 on Wednes-
day.
MR. WOLL: Your Honor would be in position to
rule one way, or the other on the order?
THE COURT: That is precisely it, or at least, I
hope so.
MR. WOLL: Thank you.
MR. STEVENS: Thank you, Your Honor.
THE COURT: - Gentlemen.
(Whereupon, subject proceeding was concluded at 2:35
p.m.)
* * * *
Pe eee ae ee ee
A29
CERTIFICATE OF REPORTER
The above and foregoing typewritten record is hereby
certified by the undersigned as the official transcript of
the proceedings in the above-captioned matter.
/s/ Vernell A. Marshall
VERNELL A. MARSHALL
Official Court Reporter
A30
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Miscellaneous No. 86-66
IN RE: GREGORY PIERCE
Thursday, March 6, 1986
Washington, D. C.
The above-entitled matter came on for hearing before
the Honorable John H. Pratt, United States District
Judge, at 10:45 a.m., on grand jury matter.
Appearances:
On behalf of the Government:
JOHN STEVENS, ESQUIRE
Assistant U.S. Attorney
On behalf of the Respondent:
DAVID WOLL, ESQUIRE.
* e . *®
A31
[1-B] CONTENTS
Witnesses Direct Cross
Charles B. Moister, III. 1-C
EXHIBITS 7
For In
Defendant’s Identification Evidenec
No. 1—Copy of Plea Agreement 6
No. 2—Correspondence 9 12
* * * *
A382
[1-C] PROCEEDINGS
(10:45 A.M.)
THE DEPUTY CLERK: Miscellaneous No. 86-66, in
re grand jury proceedings and witness Gregory Pierce;
Mr. Stevens for the government, Mr. Woll for the
witness.
THE COURT: Mr. Woll.
MR. WOLL: Yes, Your Honor.
Your Honor, as I indicated to you on Monday, it is our
contention that my client, Mr. Pierce, is not required
under the plea agreement to testify before a grand jury
concerning activities of various members of the Black
Hebrew Sect. I have evidence that I can either proffer,
or your Honor can hear sworn testimony, if your Honor
wishes, from his attorney who handled the matter, and
of course is represented, in reference to the plea agree-
ment, who can proffer testimony as to his understanding
what his agreement was. That is Mr. Charles Holster,
who is present in court and who is a member of the bar
of this court.
THE COURT: Why don’t you call Mr. Molster. Call
him as a witness.
MR. WOLL: All right. Thank you, your Honor.
Whereupon,
CHARLES B. MOLSTER, III.
took the stand, and being duly sworn, was examined and
testified as follows:
[2] DIRECT EXAMINATION
BY MR. WOLL:
Q Sir, would you please state your full name and
spelling for the court reporter your last name?
A My name is Charles Bennett Molster, III. M-O-L-
S-T-E-R.
A33
Q You are an attorney, sir?
A Yes.
Q And you are admitted to practice in this court here,
United States District Court for the District of Columbia?
A Yes. Yes, I am.
Q Now Mr. Molster, do you know Gregory Pierce?
A Yes, I do.
Q And how is it that you know Mr. Gregory Pierce?
A I was appointed to represent Mr. Pieree in a crim-
inal indictment in the Eastern District of Virginia.
Q Do you know approximately when it was you were
appointed to this case?
A Late-October of 1985.
Q Now could you briefly tell the court the nature of
the criminal charge in that case?
A Mr. Pierce was charged with a seven-count felony
indictment involving illegal use of credit cards at Na-
tional Airport and it was also alleged that he was part
of a conspiracy operating a criminal element, operating
with the Black Hebrew Sect. There were related prose-
cutions in the [3] District of Columbia.
Q Now was there a particular prosecutor you had
some dealings with in certain plea negotiations?
A Mr. Stevens.
Q John Stevens, Assistant United States Attorney,
here in the District of Columbia?
A Correct.
Q Now could you relate to the court how this pro-
gressed as far as the final plea agreement was made?
A We agreed—we reached a plea agreement, Mr.
Stevens and myself. We went to court in front of Judge
Hilton in the Eastern District on December 5, 1985, I
believe. Judge Hilton accepted Mr. Pierce’s plea and di-
rected that Mr. Stevens and I reduce the plea agreement
to writing. Mr. Stevens wrote me a letter purporting to
contain the conditions of the agreement.
We had discussions, a fair amount of discussions, about
the contents of the letter. He redrafted an additional
A34
plea agreement, which we signed and filed with the court.
Q All right, sir. Perhaps, I will show you this letter
of December 5th—
Mr. WOLL: If I could have this marked exhibit—
MR. STEVENS: Objection, your Honor. The Plea
agreement says “Supersedes All Prior Reports.”
THE COURT: I think the plea agreement speaks for
itself. I have a copy of it in front of me.
[4] MR. WOLL: Well, I think it is important to have
some understanding of what Mr. Molster’s understanding
of what the plea agreement was.
THE COURT: Well, the plea agreement in effect is
a contract and it seems to me it has to speak for itself.
This is parole evidence. If the plea agreement is not
clear, why conceivably, we wouldn’t permit parole evi-
dence. The plea agreement, it seems to me, speaks for
itself and it is clear on its face.
MR. WOLL: Well, I would argue to the court that
this letter of December 5 does set forth the plea agree-
ment. Now it was revised, Your Honor, later on, but—
and I’m sure—
THE COURT: I’m talking about the plea agreement
that bears the signature of Mr. Molster and Mr. Pierce
and Mr. Stevens.
MR. WOLL: Well Your Honor, I was going to ask
him if I could show him this plea agreement-letter, not
as entering it in this case, but perhaps to refresh his
recollection as to what the contents of the December 5th
letter is.
THE COURT: That’s getting around indirectly what
I won’t permit you to do directly. That is, I won’t per-
mit you to introduce the letter as a part of this proceed-
ing.
MR. WOLL: Very well, Your Honor.
Mr. Molster, do you have any recollection of this let-
ter of December 5, 1985, as far as what is stated?
THE WITNESS: Yes.
[5] MR. WOLL: Well, what is that, sir?
ernie DRA nee cere, Make
A35
THE COURT: Well, wait a minute. I’m going to
sustain an objection to that. You are asking for the
contents of the letter and I have indicated the letter is
not admissible.
Mr. WOLL: Very well.
After you received the December 5th letter, what hap-
pened?
THE WITNESS: Mr. Stevens made some agreement
to to provisions that it almost ended up ina final plea
agreement.
THE COURT: Well, some time after you had these
negotiations with Mr. Stevens, you and your clients dis-
cussed the matter and somebody typed up a document,
three-page document, entitled “Plea Agreement.” Now
I take it Mr. Stevens did that, is that correct, Mr. Mol-
ster?
THE WITNESS: Yes, Your Honor.
THE COURT: And when you got through, you read
it and Mr. Pierce read it?
THE WITNESS: Yes, Your Honor.
THE COURT: And both of you signed it?
THE WITNESS: Yes, Your Honor.
THE COURT: Go ahead, Mr. Woll.
BY MR. WOLL:
Q Now would you tell us what your understanding of
the plea agreement was that was reduced to writing, that
was signed by you as well as your client?
[6] THE COURT: I will sustain the objection to that.
I said the plea agreement speaks for itself.
MR. WOLL: Well, I would like to show him the plea
agreement, if I could, Your Honor.
THE COURT: Sure.
MR. WOLL: Could I have that marked as an exhibit?
THE COURT: It may be Defendant’s No. 1.
THE DEPUTY CLERK: Defendant’s Exhibit No. 1
marked for identification.
(Defendant’s Exhibit 1 so marked. )
A36
BY MR. WOLL:
Q Can you identify what is marked as Defendant’s
Exhibit No. 1 (handing) ?
A Yes. This is the plea agreement.
Q And this is the plea agreement that you went over
with your client, Mr. Pierce?
A Correct.
Q And you signed this plea agreement?
A Correct.
Q As did Mr. Gregory Pierce; is that correct?
A Correct.
Q All right. Now I’d like to direct your attention to
page 2 of the plea agreement, specifically paragraph 3.
What was your understanding in reference to that spe-
cific provision of the plea agreement?
[7] MR. STEVENS: Objection, Your Honor.
THE COURT: I'll sustain the objection. Mr. Mol-
ster’s understanding is not controlling. It was written
down and was agreed to.
MR. WOLL: Well certainly, Your Honor, if he is
going to advise his client as to whether to accept the
plea agreement, or not to accept it—
THE COURT: Now he may have a viable motion to
vacate his sentence on the ground that the plea agree-
ment was violated, but that would be in the Eastern Dis-
trict of Virginia, and I am aware of that possibility, but
we are stuck with the plea agreement as it is written—
the plea agreement that was before Judge Robinson when
we entered his order on February 27th.
MR. WOLL: Well Your Honor, there’re a lot of
things that lead up to a plea agreement.
THE COURT: Oh, I don’t think there is any doubt
about it, but the point is that is the basis for vacating
the judgment in Virginia and the sentencing on the
ground that the plea agreement has been violated.
Now we are taking the position that we are bound by
the plea agreement and we are proceeding from there.
A37
MR. WOLL: Well, first of all, Your Honor, I don’t
think necessarily that the remedy has to be a withdrawal
of the plea, if we can show that was the understanding
of the defendant, that he would not have to testify in
any matters [8] concerning the Black Hebrew Sect.
THE COURT: If the defendant misunderstood the
plea agreement as written, it seems to me that is a basis
for going ahead and vacating what happened in Virginia.
MR. WOLL: Well, I would argue that the govern-
ment is bound because the understanding that this at-
torney had with Mr. Stevens was that he would not have
to testify in any Black Hebrew matter and so they would
be bound by the agreement.
THE COURT: I think the government is bound by
that agreement and I’m sure Mr. Stevens will argue that
the defendant is bound by the plea agreement. But the
government is relying on paragraph 8, which presum-
ably the parties had a part in drafting, and doesn’t in-
tend to go outside the plea agreement.
MR. WOLL: But I don’t think it is clear, the word-
ing of it.
THE COURT: Well, that is a matter that you can
argue in Virginia, but we have it in front of us and it
seems to me to be perfectly clear.
MR. WOLL: So Your Honor is precluding Mr. Mol-
ster’s understanding as to the language in paragraph 3?
TH& COURT: That’s right.
BY MR. WOLL:
Q Now did you receive any subsequent letter from
Mr. Stevens in reference to Mr. Pierce’s situation?
[9] A Yes, I did.
Q And what was that?
A In December, some time after the plea agreement
was entered into, Mr. Stevens sent me a letter inviting
Mr. Pierce to testify before the grand jury prior to his
sentencing by Judge Hilton. The letter indicated—
A38
THE COURT: What grand jury was that?
THE WITNESS: I believe it was the District of Co-
lumbia, Your Honor. I may need to look at the letter
to refresh my recollection.
MR. WOLL: Your Honor, may I show him the letter
of December 11th?
THE DEPUTY CLERK: Defendant’s Exhibit No. 2
marked for identification.
(Defendant’s Exhibit 2 so marked. )
BY MR. WOLL:
Q Looking at Defendant’s Exhibit No. 2 (handing),
can you identify that?
A This is the letter to which I refer.
Q And what was your understanding concerning—
THE COURT: Now this letter, as I understand, had
to do with calling upon Mr. Pierce to testify before a
grand jury—
MR. WOLL: — inviting him to testify.
THE COURT: — inviting him to testify before a
grand jury.
[10] MR. WOLL. That’s correct.
Now did you go over, or did you communicate this
letter to your client, do you recall?
THE WITNESS: Yes.
By MR. WOLL:
Q And what was decided as far as this invitation to
testify, as far as you are concerned?
A It was our understanding that this could only be
an invitation to testify as a result of our plea agree-
ment—
MR. STEVENS: Objection, Your Honor. The witness
is injecting the inadmissible testimony into an admissible
question.
MR. WOLL: Your Honor, I think—
A39
THE COURT: Ask the question again, Mr. Woll, and
we'll hear Mr. Molster’s answer.
MR. WOLL: I asked him if he discussed the letter
with his client and he was answering that, Your Honor.
THE COURT: That he did?
MR. WOLL: Yes.
THE COURT: What is your next question?
MR. WOLL: And what was decided in reference to
the letter? hall
THE WITNESS: Mr. Pierce and I discussed the let-
ter and discussed that the letter could only be an invi-
tation. It could not be a subpoena.
[11] MR. STEVENS: The objection was to what
was decided whether he was going to accept it, or not.
THE COURT: That’s right. Let’s be responsive.
As a result of discussing this matter with Mr. Pierce,
what did you tell Mr. Stevens? |
THE WITNESS: We declined the invitation to tes-
tify before the grand jury.
‘THE COURT: That is the District of Columbia grand
jury?
THE WITNESS: Yes, Your Honor, I believe so.
By MR. WOLL:
Q Now did the letter make mention as to what posi-
tion the government would take if he declined to testify?
A Yes. The letter indicated that if Mr. Pierce de-
clined to testify, that would be brought to the attention of
the sentencing judge. If he agreed to cooperate, that also
would be brought to the attention of the sentencing judge.
THE COURT: At the time of sentencing, did Mr.
Stevens bring this to the sentencing Judge’s attention—
THE WITNESS: Yes.
THE COURT: —tThe fact that he did not testify?
THE WITNESS: Yes. :
THE COURT: And asked that that be considered as
a part of the sentencing of the Judge?
THE WITNESS: As I recall, yes.
A40
[12] MR. WOLL: Your Honor, I would ask that De-
fendant’s Exhibit No. 2 be entered into evidence.
THE COURT: It will be received.
(Defendant’s Exhibit No. 2 admitted.)
By MR. WOLL:
Q Now as a result of this plea agreement and after
the sentencing of Mr. Pierce, what was your understand-
ing in reference to his obligations that he had from that
point on to Mr. Stevens?
MR. STEVENS: Objection again, Your Honor.
THE COURT: I will sustain the objection.
MR. WOLL: Well, no further questions.
THE COURT: Do you have any questions, Mr.
Stevens?
MR. STEVENS: No, Your Honor.
THE COURT: Thank you, Mr. Molster.
THE WITNESS: Thank you, Your Honor.
(Witness withdrew from the stand.)
MR. WOLL: May we have just a moment, Your
Honor?
Your Honor, we have no further evidence to present.
THE COURT: Do you have anything you want to
present?
MR. STEVENS: No, Your Honor. We will just re-
serve our right to argue.
THE COURT: I’d like to ask Mr. Molster a couple
of questions. Would you resume the witness stand, Mr.
Molster.
(Witness resumed the stand.)
[18] THE COURT: I think you indicated that Mr.
Pierce was called to testify before the grand jury and
that the so-called lack of cooperation was brought before
the sentencing judge at the time of his sentence; is that
correct?
A41
THE WITNESS: Yes, Your Honor.
THE COURT: I take it that implicit in that report
was the notion that in other ways than those covered
by the plea agreement, Mr. Pierce was cooperative with
the government?
THE WITNESS: I’m sorry, I didn’t hear—
THE COURT: I take it that implicit in the report
was the notion that as a part of the plea agreement, Mr.
Pierce cooperated with the government, except as pre-
cluded by the plea agreement?
THE WITNESS: Your Honor, the terms of the plea
agreement, at least in my view, were that Mr. Pierce
would not have to cooperate with the government. He
cooperated at the plea, itself—
THE COURT: You mean cooperated at the plea?
What do you mean by that?
THE WITNESS: The government asked him several
questions at the plea to indicate that Mr. Pierce did not
have exculpatory evidence against—
THE COURT: That is set out in the plea agreement,
itself.
Well thank you, Mr. Molster.
(Witness withdrew from the stand. )
[14] THE COURT: Mr. Pierce, will you step forward,
please.
(Witness Pierce approached the lectern. )
THE COURT: Mr. Pierce, you have previously de-
clined to testify before an ongoing grand jury; is that
correct?
MR. PIERCE: Yes, I did.
THE COURT: And you have been requested to do so
again?
MR. PIERCE: Requested to do so—
THE COURT: I say you have been requested again
to appear before the grand jury—or was it only once?
MR. PIERCE: It was only once. I guess, this is an-
other one.
A42
THE COURT: It was only one situation?
MR. PIERCE: Right, that situation—
THE COURT: And you declined at that time to
testify?
MR. PIERCE: Yes, I did.
THE COURT: And you are presently refusing to
testify?
Mr. PIERCE: Yes, I am.
THE COURT: And you are aware of the fact that
you could be found in contempt and sentenced to a term
for as long as the life of the grand jury, which I am told
is something like ten months, plus any extension of that
grand jury?
MR. PIERCE: Yes.
THE COURT: And you are aware that if you do
decide to appear before the grand jury, you could purge
yourself of [15] contempt and the penalty which attaches
_ to the contempt will be obviated, it will disappear?
MR. PIERCE: Yes, I do.
THE COURT: And I’m going to ask you, finally, do
you still persist in refusing to appear before the grand
jury?
MR. PIERCE: Yes, I do.
THE COURT: Even though you recognize the pen-
alties that may ensue—and in fact, this penalty will be
consecutive to any sentence you have previously received
from the Eastern District of Virginia.
MR. PIERCE: Yes, I do.
THE COURT: Well, I think the record should show
that paragraph 3 of the plea agreement, which appears on
page 2, states that “the government will not call Mr.
Pierce as a witness in any of the cases indicted in the
District of Columbia involving other members of the
alleged criminal operation, operated within the Black
Hebrew sect.” -
That refers to cases that have been indicted and one of
those cases is now in the process of trial. The grand jury
that Mr. Pierce has been called to appear before is not
+ eer tcAdsanes mee ilamne aN
A438
one of the cases indicted. There has been no indictment
and I think the clear language of the plea agreement—
and I’m not asking Mr. Stevens to explain it for the
Same reason that I wouldn’t permit Mr. Woll to explain
Mr. Pierce’s understanding of it—I think the clear read-
ing of the plea agreement is that it refers [16] to indicted
cases and does not exclude grand jury investigations of
ongoing matters.
And for that reason, I think that the plea agreement
does not cover his grand jury testimony in a non-indicted
case and in view of his persistent refusal to testify, why
we have no alternative except to hold him in contempt
and commit him to custody for the life of the grand
jury.
And it is also understood that whatever sentence was
imposed in the Eastern District of Virginia will be tem-
porarily halted and will not count as time served, to be
served until the commitment under this contempt order
is satisfied; and that will be the end of the grand jury,
whenever that is, or any extension.
Do you have anything further you want to say, Mr.
Woll?
Mr. WOLL: Well, I was prepared to argue the mer-
its of the matter, but Your Honor has already decided—
THE COURT: I think the thing pretty well speaks
for itself, Mr. Woll.
MR. WOLL: Thank you, Your Honor.
MR. STEVENS: Would Your Honor like me to pre-
pare the order?
THE COURT: What’s that?
Mr. STEVENS: Would Your Honor like me to pre-
pare the order?
[17] THE COURT: Yes, you prepare the order.
MR. STEVENS: I will have it by this afternoon,
Your Honor.
(Whereupon, subject proceedings were so concluded at
11:12 a.m.)
* * * *
A44
CERTIFICATE OF REPORTER
The above and foregoing typewritten record is hereby
certified by the undersigned as the official transcript of
the proceedings in the above-captioned matter.
/s/ Vernell A. Marshall
VERNELL A. MARSHALL
Official Court Reporter
A45
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Mise. No. 86-0066
IN RE: GRAND JURY PROCEEDINGS
GREGORY PIERCE
[Filed Mar. 10, 1986]
ORDER
Upon Gregory Pierce’s refusal to testify before Grand
Jury 85-4, and after review of all papers and pleadings
in this matter, including oral argument heard March 6,
1986, in connection therewith, the Court finds:
(1) That the United States Attorney for the District of
Columbia on February 27, 1986, properly made applica-
tion for an Order from the Honorable Aubrey E. Robin-
son, Jr. compelling Gregory Pierce to give testimony to
the Grand Jury under the provisions of 18 U.S.C. 6002-
6003, and
(2) That the court signed the Order compelling Greg-
ory Pierce to appear and give testimony before the
Grand Jury on February 27, 1986, and
(3) That Gregory Pierce refused to comply with the
court’s Order, claiming that a plea agreement entered
into with the United States in the Eastern District of
Virginia barred his being subpoenaed as a witness here,
(4) That the plea agreement relied upon by the de-
fendant plainly does not bar the government from call-
A46
ing him to the Grand Jury to investigate matters not
already indicted in the District of Columbia, and
(5) That the matters for which his testimony is sought
are not those which have already been indicted in the
District of Columbia, and
(6) That having heard the ruling of this Court that
the plea agreement relied upon would not bar his sub-
poena, nor serve as an excuse for refusing to obey the
Order compelling his testimony, Gregory Pierce, in open
court, persisted in his refusal to comply with the com-
pulsion Order of February 27, 1986.
Therefore it is by the Court this 10th day of March,
1986,
ORDERED, that Gregory Pierce is in contempt of
Court and is for that reason remanded to the custody of
the Attorney General of the United States or his duly
authorized delegate pursuant to 28 U.S.C. 1826, for a
period of time not to exceed the life of Grand Jury 85-4,
or until such time prior to that as Gregory Pierce com-
plies with the Order of the court compelling his testi-
mony, and it is further
ORDERED, that, because the present commitment for
civil contempt is intended not to punish but to compel
compliance with the court’s Order to testify, and to give
meaning and coercive impact to the court’s contempt
powers in the interest of protecting the court’s integrity,
the execution of any other other sentence now being
served by Gregory Pierce shall be held in abeyance dur-
ing his confinement for contempt.
/s/ John H. Pratt
JOHN H. PRATT
United States District Judge
SRO mela tae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.