# Petition for Writ of Certiorari — Pierce v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2527%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 1021 ## Text te 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2527%3A1. Public record. Not legal advice.