Opposition Brief — Pierce v. United States

Supreme Court, U.S.

Fit 2D

NOV 24 1996

JOSEPH F. SPANIOL, JR,

CLERK

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No. 86-483

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Iu the Supreme Court of the United States

OCTOBER TERM, 1986

GREGORY PIERCE, PETITIONER

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UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F.. WELD

Assistant Attorney General

LOUIS M. FISCHER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether petitioner, who was held in contempt

for refusing to testify before a grand jury, was

deprived of an adequate opportunity to explain the

reasons for his recalcitrance.

2. Whether under 28 U.S.C. 1826(b) petitioner

is entitled to a credit on his underlying sentence,

which was stayed by his contempt citation, for the

period in excess of 30 days that the court of appeals

took to decide his appeal, where the claim on appeal

was ultimately found to be without merit.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Berry, In re, 521 F.2d 179, cert. denied, 423 U.S.

LS i REI OE 9-10

Eg 9 Ok Ee ce 9

Grand Jury Investigation (Hartzell), In re, 542

F.2d 166, cert. denied, 429 U.S. 1047 0.0... 10

Grand Jury Proceedings In re, 776 F.2d 1099.......... 10, 12

Grand Jury Proceedings (Gravel), In re, 605 F.2d

Neen ne ena oaeviinteansipitnanies 10

Grand Jury Proceedings (Horak), In re, 625 F.2d

767, cert. denied, 449 U.S. 840 .......................2...220.- 9

Grand Jury Proceedings (Smith), In re, 604 F.2d

IESE ET Re 10

Grand Jury Proceedings (Vargas), In re, 727 F.2d

941, cert. denied, 469 U.S. 819....................000........ 9

Grand Jury Proceedings of August, 1984, In re,

757 F.2d 108, cert. denied, No. 84-1405 (Apr. 15,

Nee ds ctianenciiiannuns 10-11

July 1979 Term Special Grand Jury, In re, 656 F.2d

a OER cee i 9

Rie ok” | 8

Melickian v. United States, 547 F.2d 416, cert.

I A a esevassinaumieinnens 5,9, 11,12

aS ef EE 9,11, 12

United States v. Doe, 460 F.2d 328, cert. denied,

Neen asoibeansniasion 10

United States v. Johnson, 736 F.2d 358 ....... it ac 11

(IIL)

IV

Constitution and statutes: Page

Mei I, I le a 2

Speedy Trial Act of 1974, 18 U.S.C. 3162 _.............. 12

BO Ue CD. TE) BOCAS OD) onc cvvevccccccccccceecanoee.- 2

eg RET ale OEE ee EN Oe ET RCE 2

18 U.S.C. 60068 ................... SNe grated ee aa 2

8 Mh SOROS ISI RARER er eel ato an eben RUAN 12

i oo 5,9, 11, 12, 13

Miscellaneous:

4 Williston on Contracts (3d ed. 1961) ............... <i 7

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-483

GREGORY PIERCE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The May 16, 1986, opinion of the court of appeals

(Pet. App. A3-A8) is unreported. The July 8, 1986,

opinion of the court of appeals (Pet. App. A9-A14)

is reported at 794 F.2d 749.

JURISDICTION

The judgment of the court of appeals was entered

on May 16, 1986 (Pet. App. Al-A2), and a petition

for rehearing was denied on August 6, 1986 (Pet.

App. A15-A16). The petition for a writ of certiorari

was filed on September 24, 1986. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. Petitioner, a member of the “Black Hebrew”

sect, was charged in October 1985 in the Eastern

District of Virginia with seven counts relating to the

purchase of airline tickets with a counterfeit credit

ecard at Washington National Airport. His court-

appointed attorney and the prosecutor negotiated a

plea agreement under which petitioner pleaded guilty

to a single count of fraudulent use of a counterfeit

credit card, in violation of 18 U.S.C. (Supp. II) 1029

(a)(1).’ As part of the plea, which was entered on

December 5, 1985, the government agreed that it

would “not call [petitioner] as a witness in any of

the cases indicted in the District of Columbia involv-

ing other members of the alleged criminal organiza-

tion operating within the ‘Black Hebrew’ sect?’ (Pet.

App. A3, A17, A18).

Six days after the plea was entered, the prosecutor

wrote to petitioner’s attorney inviting petitioner to

testify before a grand jury investigating criminal

activity by the Black Hebrew sect. Petitioner declined

that invitation, despite the prosecutor’s offer of use

immunity (18 U.S.C. 6002, 6003) and despite his

warning that any lack of cooperation on petitioner’s

part would be made known to the judge at the sen-

tencing on petitioner’s plea (Pet. App. A20-A21,

A39).

In February 1986, petitioner was summoned te

testify before a grand jury investigating the Black

Hebrews’ alleged criminal activities. Petitioner, rep-

resented by another court-appointed attorney, invoked

his Fifth Amendment privilege and refused to testify.

1On January 10, 1986, petitioner was sentenced to one

year’s imprisonment for that offense.

ee a .|

3

He later was granted use immunity and was ordered

to testify, but he still refused to do so, claiming that

his plea agreement precluded the government from

calling him before the grand jury. Pet App. A22-

A23, A45. At a hearing on March 6, 1986, to show

cause why petitioner should not be held in contempt,

the district court heard evidence about the circum-

stances of the plea agreement from the attorney who

had represented petitioner in connection with the plea

(id. at A38, A5, A32-A41). The district court de-

clined, however, to allow the attorney to testify about

his subjective understanding of the plea agreement,

indicating that the written text of the agreement was

unambiguous and therefore cortrolling (id. at A5-

A6, A36, A40, A43).?

After hearing the evidence and examining the

written plea agreement, the district court determined

that the agreement relieved petitioner from testifying

only as to cases in which an indictment had already

been returned as of the time of petitioner’s guilty

plea (Pet. App. A3, A43). Since the grand jury in-

vestigation in question plainly did not fall within that

category, the court ruled that petitioner’s plea agree-

ment did not afford him a basis for refusing to testify

before the grand jury. When petitioner persisted in

his refusal to testify, the court held him in civil con-

tempt and ordered that he be incarcerated for the life

of the grand jury or until he agreed to testify. It

further ordered that the sentence imposed in the

Eastern District of Virginia be held in abeyance dur-

ing his confinement for contempt. /d. at A42-A43,

A45-A46.

2 The court also indicated (Pet. App. A43) that the prose-

cutor likewise would not be asked to give his subjective un-

derstanding of the agreement.

4

2. On March 12, 1986, petitioner filed a notice of

appeal from the district court’s order, and new coun-

sel was appointed. On May 15, 1986, after full brief-

ing, the court of appeals heard oral argument on the

appeal. The following day, the court affirmed the

order of the district court in an unpublished memo-

randum opinion (Pet. App. A3-A8). The court re-

jected petitioner’s argument that the plea agreement

was ambiguous, thereby warranting the admission of

extrinsic evidence on the parties’ intent (id. at A4).

According to the court (ibid.), the agreement made

clear that petitioner “was being excused from testi-

mony in ‘cases indicted’ in a specific jurisdiction, not

from grand jury investigations in that jurisdiction.”

The court further found (id. at A6) that the plain

language of the agreement was consistent with the

proceedings before the sentencing judge in the East-

ern District of Virginia. At that time, the prosecutor

mentioned petitioner’s refusal to cooperate in the Dis-

trict of Columbia grand jury investigation. Neither

petitioner nor his attorney stated that petitioner’s

failure to cooperate was justified by the terms of the

agreement. The plain language was also bolstered,

in the court’s view, by the prosecutor’s statement at

the sentencing proceeding—with which petitioner

agreed—that under the agreement, “the Government

does not plan to call [petitioner] to testify in the

cases now indicted in Washington, D.C.” (id. at A5

(emphasis added)). Finally, although the district

court had not allowed petitioner’s prior attorney to

testify about his understanding of the plea agree-

ment, the court of appeals received and considered

an affidavit from the attorney addressing that issue

(id. at A6-A7 & n.6). The court concluded, however,

that the affidavit actually supported the district

a ee

5

court’s ruling, because the affidavit referred to the

prosecutor’s promise that petitioner would not be

compelled to testify in connection with any Black

Hebrew “prosecutions,” and because prosecutions “do

not begin until an indictment has issued” (id. at

A7).

Since the court of appeals took more than 30

days from the filing of the notice of appeal to resolve

the case, the court requested further briefing on

whether petitioner should receive credit, pursuant to

28 U.S.C. 1826(b),* on his criminal sentence for the

35 days that the appeal consumed beyond the statu-

tory 30-day period. After considering the supple-

mental briefs, the court held that petitioner was not

entitled to credit on his criminal sentence for the

period in excess of 30 days (Pet. App. A9-A14).

According to the court (id. at All & n.2, A13), a

civil contemnor’s remedy is to seek release on bail

under 28 U.S.C. 1826(b), which authorizes bail to

a contemnor unless his appeal is either “frivolous or

taken for delay.” In so ruling, the court declined to

follow Melickian v. United States, 547 F.2d 416 (8th

Cir.), cert. denied, 430 U.S. 986 (1977), which held

that a contemnor should be released on bail if a

court of appeals does not meet the 30-day requirement

of Section 1826(b), even if the contemnor is unable

to show that his appeal is not frivolous or taken for

delay (Pet. App. A13-A14).

On October 15, 1986, after the filing of the petition

for a writ of certiorari, the district court ordered that

3 Section 1826(b) provides, 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 frora the filing of such appeal.”

6

petitioner discontinue serving any further incarcera-

tion relating to the civil contempt order (App.,

infra, 1a). Two days later, the government filed an

application for order to show cause, requesting that

petitioner be ordered to show cause why he should

not be held in criminal contempt for refusing to

testify before the grand jury. On November 5, 1986,

the district court denied the government’s application.

In light of the district court’s November 5 ruling, the

government does not intend to pursue criminal! con-

tempt charges against petitioner.

ARGUMENT

1. Petitioner’s principal contention (Pet. 9-15) is

that he was denied his right to a full hearing on

whether he had just cause for refusing to comply

with the district court’s order that he testify. Speci-

fically, he claims that the district court erred by pre-

cluding him from presenting testimony concerning

his (and his attorney’s) subjective understanding of

the plea agreement.

As an initial matter, we note that the circumstances

of this case have changed somewhat since the petition

for a writ of certiorari was filed. The district court

has discharged petitioner from confinement for his

civil contempt (App., infra, 1a), and the government

does not intend to bring criminal contempt charges.

Nonetheless, the case is not moot at this time. If

petitioner were to prevail in showing that he had

just cause for refusing to testify and that the con-

tempt citation was wrongfully issued, he would be

entitled to a credit on his criminal sentence for the

period he served on the contempt citation, during

7

which time the underlying criminal sentence was

held in abeyance.*

On the merits, we submit that the court of appeals’

decision is correct. Petitioner’s claim that the plea.

agreement justified his refusal to testify was fully

considered by the district court. As the court of ap-

peals noted (Pet. App. A5), the district court heard

evidence concerning the background of the plea and

studied the text of the agreement. The district court

simply ruled that because the language of the writ-

ten agreement was clear, extrinsic evidence of the

parties’ subjective understanding of the agreement

would not be admitted. Except for its ruling on that

issue—a ruling that we submit is correct °—the court

in no way precluded petitioner from putting on evi-

dence to support his claim that there was just cause

for his refusal to testify.°®

Furthermore, petitioner’s claim that he was denied

the opportunity to present evidence of his subjective

understanding of the plea agreement is particularly

4 We have been advised that petitioner is now due to be

released on his criminal sentence in May 1987. Petitioner’s

completion of that sentence would moot both issues in this

case.

5 As the court of appeals noted (Pet. App. A6), “[o]ne

party’s subjective understanding, whatever it might be, can-

not override the unambiguous terms of an agreement, espe-

cially one not of Byzantine complexity but which to the con-

trary is written in plain English and covering only two and

one-half pages.” See generally 4 Williston on Contracts § 601,

at 310 (3d ed. 1961).

® Notably, once petitioner’s prior attorney completed his

testimony, the lawyer who represented petitioner at the con-

tempt hearing conferred with petitioner and then rested his

evidentiary presentation without calling petitioner or any

other witness to the stand (see Pet. App. A40).

8

unpersuasive in light of the court of appeals’ con-

sideration of an affidavit filed by petitioner’s prior

attorney on that very subject (see Pet. App. A7 &

nn. 6-7). As the court of appeals pointed out (id.

at A7), the affidavit, far from supporting petitioner’s

refusal to testify, was in fact “consistent with the

plain language of the agreement itself.” ’

Petitioner’s- contention (Pet. 15 n.10) that the

court of appeals’ decision somehow conflicts with de-

cisions of other circuits that have recognized a con-

temnor’s right to a full hearing is without merit. The

court’s memorandum opinion in no way suggests that

a contemnor can be denied a fair hearing. Similarly,

the cases cited by petitioner (7bid.) do not hold that

a district court, in conducting a hearing, must per-

mit the defense to introduce evidence that is factu-

ally or legally irrelevant or otherwise inadmissible.*

7 Even aside from the unambiguous language of the agree-

ment, the asserted propriety of petitioner’s* refusal to testify

was belied by the events at his sentencing hearing. As the

court of appeals noted (Pet. App. A6), the prosecutor at

sentencing brought to the court’s attention petitioner’s re-

fusal to cooperate in the District of Columbia grand jury pro-

ceedings, yet “[n]ot one word was interposed by [petitioner]

or his trial counsel that the former’s failure to cooperate was

justified by the terms of the plea agreement.” Furthermore,

when the prosecutor explained to the sentencing court the

terms of the agreement—that “ ‘the Government does not plan

to call [petitioner] to testify in the cases now indicted in

Washington, D.C.’” (id. at A5 (emphasis added) )—peti-

tioner indicated his agreement with the prosecutor’s represen-

tation (ibid.).

8 Indeed, in In re Kitchen, 706 F.2d 1266 (2d Cir. 1983),

one of the principal authorities relied upon by petitioner, the

Second Circuit made clear (id. at 1273) that if a district court

determines, based on an offer of proof, that a witness’s testi-

mony would not be relevant, it can preclude the witness from

testifying.

9

At most, the issue is whether the district court, in

construing the plea agreement and excluding ex-

trinsic evidence, properly applied common law prin-

ciples of contract law, a question plainly inappropri-

ate for review by this Court.

2. Petitioner also contends (Pet. App. 16-20) that

under 28 U.S.C. 1826(b) the court of appeals should

have given him credit on his criminal sentence for

the period in excess of 30 days that it took the court

of appeals to decide his appeal from the civil con-

tempt citation. The 30-day period, however, was

designed to protect contemnors with meritorious

claims, and both courts below properly determined

that petitioner’s claim was not meritorious. Accord-

ingly, the court of appeals correctly ruled that peti-

tioner was not entitled to a credit on his criminal

sentence.

a. As petitioner notes (Pet. 16-19), there is a

conflict among the circuits on the interpretation of

28 U.S.C. 1826(b). In the Second and Eighth Cir-

cuits, a confined contemnor is released on bail if the

appeal cannot be decided within the 30-day period.

See, e.g., In re Fula, 672 F.2d 279, 282-283 (2d

Cir. 1982); In re Rosahn, 671 F.2d 690, 693-694

(2d Cir. 1982); In re Grand Jury Proceedings

(Horak), 625 F.2d 767, 768 (8th Cir.), cert. denied,

449 U.S. 840 (1980); Melickian v. United States,

547 F.2d at 417-420; see also In re July 1979 Term

Special Grand Jury, 656 F.2d 64, 66 & n.3 (4th

Cir. 1981). The Tenth Circuit has apparently re-

solved its appeals within 30 days but has stated in

dictum that the 30-day period is jurisdictional and

may not be extended. See In re Grand Jury Pro-

ceedings (Vargas), 727 F.2d 941, 942-943 n.1 (10th

Cir.), cert. denied, 469 U.S. 819 (1984) ; In re Berry,

10

521 F.2d 179, 181 (10th Cir.), cert. denied, 423 U.S.

928 (1975). The Fifth Circuit has simply extended

the 30-day period by order if the case cannot be

decided in a timely fashion. See, e.g., In re Grand

Jury Proceedings (Gravel), 605 F.2d 750, 751-752

(5th Cir. 1979); In re Grand Jury Proceedings

(Smith), 604 F.2d 318, 319 (5th Cir. 1979). The

First and Third Circuits have extended the period,

apparently without issuing orders. See, e.g., United

States v. Doe, 460 F.2d 328, 332 n.3 (1st Cir. 1972),

cert. denied, 411 U.S. 909 (1973) ; In re Grand Jury

Investigation (Hartzell), 542 F.2d. 166 (3d Cir.

1976), cert. denied, 429 U.S. 1047 (1977). The

Seventh Circuit recently treated the 30-day period

as commencing when the contemnor files his brief on

appeal, not when the notice of appeal is filed. In re

Grand Jury Proceedings of August, 1984, 757 F.2d

108, 110-112 n.1 (1984), cert. denied, No. 84-1405

(Apr. 15, 1985). And the District of Columbia Cir-

cuit in the present case, in an approach that is func-

tionally equivalent to that taken in the First, Third,

and Fifth Circuits, has rejected the contention that

a contemnor must be released on bail if his appeal is

not resolved within 30 days.

Notwithstanding these disparate approaches, we

believe that the issue raised here is unimportant and

that review by this Court is not necessary. The con-

flict identified by petitioner has existed since the mid-

1970s (see Gravel, 605 F.2d at 752 n.1) and we

have seen no indication that Congress’s intent has

been contravened or that any unfair hardship has re-

sulted. The reason is clear: Congress’s purpose in

enacting 28 U.S.C. 1826(b) was to protect meritor-

tous contemnors. See, e.g., In re Grand Jury Pro-

ceedings, 776 F.2d 1099, 1102 (2d Cir. 1985); In re

11

Grand Jury Proceedings of August, 1984, 757 F.2d

at 111 n.1; United States v. Johnson, 736 F.2d 358,

361-362 n.5 (6th Cir. 1984); In re Rosahn, 671 F.2d

at 694 (reviewing legislative history) ; Melickian, 547

F.2d at 417, 419. Yet the conflict cited by petitioner

has no effect whatsoever on meritorious contemnors,

because in all but frivolous cases or cases taken for

delay, the contemnor is entitled to bail under 28

U.S.C. 1826(b).° Furthermore, as the government

conceded below, if a contemnor is incarcerated on

other charges, and if he prevails on his appeal, he is

entitled to credit on his criminal] sentence for all the

time he has served since the contempt order was

entered. See Gov’t C.A. Supp. Br. 9; see also John-

son, 736 F.2d at 362 n.5 (“[I]f it is determined that

[the defendant] was erroneously held in contempt,

the time he has served under the contempt judgment

can be credited toward his bank robbery sentence”).

Thus, assuming the contemnor avails himself of the

statutory bail remedy, the only person whose case

would be affected by the different circuit approaches

is one whose appeal is frivolous or taken solely for

delay.” And there is nothing unfair or unjust if

® As the court of appeals in the present case noted (Pet.

App. All n.2), even a contemnor imprisoned on unrelated

criminal charges can seek bail on the contempt matter and

thereby resume serving his criminal sentence.

10 Petitioner does not view his appeal to have been frivolous

or taken for delay, but he did not seek bail on the contempt

matter so that he could continue serving his criminal sentence.

While he asserts that the bail remedy in that context was

not logical (Pet. 18), we agree with the court of appeals

(Pet. App. All & n.2) that even if the approach is “atypical,”

there is no reason why a contemnor who is incarcerated on

an unrelated conviction cannot seek bail and thereby have his

criminal sentence continue to run. Moreover, petitioner could

12

such a person does not obtain an automatic release

after 30 days if his frivolous or dilatory appeal has

not been decided.”

b. On the merits, we submit that the court of ap-

peals’ decision is correct. As the court correctly noted

(Pet. App. A10-A11), Congress provided no remedy

for the violation of 28 U.S.C. 1826(b), even though

it did so with respect to other statutory time limits

on judicial proceedings, such as the Speedy Trial Act

of 1974 (18 U.S.C. 3162). This factor strongly sug-

gests that Congress intended to provide no remedy

for violation of the 30-day rule. Furthermore, as

the court observed (Pet. App. All, A12-A13), Con-

gress’s concern in passing 28 U.S.C. 1826(b) was to

protect meritorious contemnors, and “[t]he 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

have sought mandamus to require the court to decide the case

in a timely manner (see Pet. App. A10-All n.1, A13-A14

n.3). In any event, it is now clear—and hence, no longer

illogical—that a contemnor serving a sentence whose appeal

is not frivolous or taken for delay has a means to avoid hav-

ing his sentence stayed during the pendency of the appeal.

Thus, the rule adopted in the District of Columbia Circuit

works no hardship on any contemnor filing a nonfrivolous

appeal.

11 We note that the courts have endeavored to resolve ap-

peals under 28 U.S.C. 1826 as promptly as possible. The Sec-

ond Circuit, for example, has instructed the parties to pro-

vide special notice to the court if an appeal falls within 28

U.S.C. 1826(b) so that the court can set an expedited briefing

schedule. See In re Grand Jury Proceedings, 776 F.2d at 1102

& n.1; In re Rosahn, 671 F.2d at 694 n.1. See also Melickian,

547 F.2d at 418 & nn. 1-5 (citing several cases in which ap-

peals have been disposed of within 30 days).

13

taken for delay” (Pet. App. All (footnote omitted) ).

In short, the court of appeals correctly construed Sec-

tion 1826(b) in refusing to credit petitioner’s under-

lying sentence for the period in excess of 30 days

that was needed to decide the appeal.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F’. WELD

Assistant Attorney General

LOUIS M. FISCHER

Attorney

NOVEMBER 1986

APPENDIX

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Mise. No. 86-66

IN RE: GRAND JURY PROCEEDINGS GREGORY PIERCE

[Filed Oct. 15, 1986]

ORDER

Upon consideration of the request for discharge

from confinement filed on behalf of Gregory Pierce,

the government’s response thereto and the entire rec-

ord herein, it is by the court this 15th day of October,

1986,

ORDERED that the defendant Gregory Pierce dis-

continue serving any further incarceration relating

to the contempt order issued by this court on March

10, 1986.

/s/ J. H. Pratt

JOHN H. PRATT

United States District Judge

(la)

WY OU. S&S. GOVERNMENT PRINTING OFFICE; 1986 181483 40100