Petition for a Writ of Certiorari — United States v. Wilson

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INDEX

Page

Opinion below_____---------------------------

DP UTISCICHION 3 oo eects cs cess 1

Questions presented___________-____------------ 2

Statutes and rule involved. _._____- ne 2

Statement. ___________----_---------.-------- 6

Reasons for granting the writ______-_____-______- 8

A CON cc ee ee eee 15

Appendix A.__......-.----------------------- 17

Appendix ieee ae eee eee eee eee 25

CITATIONS

Cases: oo,

Baker v. Eisenstadt; 456 I’. 2d 382, certiorari

denied, 409 U.S. 846___--___--------___- 9,11

Bloom v. Illinois, 391 U.S. 194. ___________- 12

Brown v. United States, 359 U.S. 41__.._-__- 14

Cooke v. United States, 267 U.S. 517___-_____- 12

Groppi v. Leslie, 404 U.S. 496____.------ 11, 12, 14

Harris v. United States, 382 U.S. 162_______- 2,

8, 9, 10, 12, 14

Johnson v. Mississippi, 403 U.S. 212_______- 12

Shillitani v. United States, 384 U.S. 364_____- 12

United States v. Bryan, 339 U.S. 323_______- 12

United States v. Marra, 482 F. 2d 1196__ 7,8, 11, 13

United States v. Pace, 371 F. 2d 810____2___- 11

United States v. Seavers, 472 F. 2d 607_-.--.. 9,11

a)

it

Constitution, statutes and rule:

Page

U.S. Constitution, Fifth Amendment--_------ 7

18 U.S.C. 401_____----------- 2

18 U.S.C. 4208(b)__ -- -------- 6

18 U.S.C. 5010(b)-__ - ---------: 6

18 U.S.C. 6002____--- ae ! 2,7

18 U.S.C. 6003___.----------- 3,7

28 U.S.C. 1826__-------------! 4

Federal Rules of Criminal Pro

Rule 42_____------------ | ee 13

Rule 42(a).....---------- je 2, 5,8, 11, 12

Rule 42(b)....-----------t----- 5, 8, 9, 11, 13

ND RST, BRIERE LE aA Re alas ose?»

Jn the Supreme Court of the Gnited States

OcToBER TERM, 1973

No.

UNITED STATES OF AMERICA, PETITIONER

v.

‘THOMAS JOSEPH WILSON AND Bossy ANTONIO BRYAN

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Second Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, wiles

pp. 17-24) is not yet reported.

JURISDICTION

The judgment of the court of appeals (App. B,

infra, p. 25) was entered on November 28, 1973. On

December 20, 1973, Mr. Justice Marshall extended the

time for filing a petition for a writ of certiorari to

(1)

2

and including January 28, 1974. The jurisdiction of

this Court is invoked under 2 U.S.C. 1254(1).

1. Whether the holding of Harris v. United States,

382 U.S. 162 (involving the refusal of a witness to

answer questions before a grand jury), precludes the

use of summary contempt proceedings under Rule

42(a) of the Federal Rules of Criminal Procedure

when a witness, in disobedience of a court order, re-

fuses to testify at a trial after receiving a grant of

immunity. |

2. Whether, if the principles of Harris are found to

govern the instant case, that decision should he

overruled.

STATUTES AND, RULE INVOLVED

18 U.S.C. 401 provides:

A court of the United States shall have power

to punish by fine or imprisonment, at its disere-,

tion, such contempt of its authority, and none

other, as— _

(1) Misbehavior of any person in its presence

or so near thereto as to obstruct the administra-

tion of justice;

(2) Misbehavior of any of its officers in their

official transactions ;

(3) Disobedience or resistance to its lawful

writ, process, order, rule, decree, or command.

18 U.S.C. 6002 provides:

Whenever a witness refuses, on the basis of

his’ privilege against self-incrimination, to

testify or provide other information in a pro-

ceeding before or ancillary to—

OOD Ke 065 tt HON- IE Sor re

PEGI AI SG FO CPOE A PL REL, SH oh + NE SLY RB SET te EROS OF 7

2

18 U.S.C. 6003 provides:

3

(1) a court or grand jury of the United

States,

(2) an agency of the United States, or

(3) either House of Congress, a joint commit-

tee of the two Houses, or a committee or a

subcommittee of either House, .

and the person presiding over the proceeding

communicates to the witness an order issued un-

der this part, the witness may not refuse to

comply with the ovder on the basis of his privi-

lege against self- incrimination; but no testi-

mony or other information compelled under the

order (or any information directly or indirectly

derived from such testimony or other informa-

tion) may be used against the witness in any

criminal case, except a prosecution foRperjury,

giving a false statement, or otherwise fang to_

eomply with the order.

(a) In the case of any individual who has

been or may be called to testify or provide

other information at any proceeding before or

ancillary to a court-of the United States or a

grand jury of the United States, the United

States district court for the judicial district in

which the proceeding is or may be held shall

issue, in accordance with subsection (b) of this

section, upon the request of the United States

attorney for such district, an order requiring

such individual to give testimony or provide

other information which he refuses to give or

provide on the basis of his privilege against

self-incrimination, such order to become effec-

tive as provided in section 6002 of this part.

——————————eEeEeEeEeEEeEeEeEeEeEeEeEeEeEeEeEeEeEEeEEEEEeEeEeEEwwoOoOooreroS

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4

(b) A United States attorney may, with the

approval of the Attorney General, the Deputy

Attorney General, or any designated Assistant

Attorney General, request an order under sub-

section (a) of this section when in his judg-

ment—

(1) the testimony or other information from

such individual may be necessary to the

public interest; and

(2) such individual has refused or is likely

to refuse to testify or provide other infor-

mation on the basis of his privilege against

self-incrimination.

28 U.S.C. 1826 provides:

(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 wit-

ness is willing to give such testimony or pro-

vide such information. No period of such con-

finement shall exceed the life of—

(1) the court proceeding, or

(2) the term of the grand jury, including

extensions, before which such refusal to

comply with the court order occurred, but

in_no event shall such confinement: exceed

eighteen months.

(b) No person confined pursuant to subsec-

tion (a) of this section shall be admitted to bail

pending the determination of an appeal taken

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5 ,

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 con-

finement under this section shall be disposed of -

as soon as practicable, but not later than thirty

days from the filing of such appeal.

Rule 42 of the Federal Rules of Criminal Proce-

dure provides:

(a) Summary Disposition. A criminal con-

tempt may be punished summarily if the judge

certifies that he saw or heard the conduct con-

stituting the contempt and that it was com-

mitted in the actual presence of the court. The

order of contempt shall recite the facts and

shall be signed by the judge and entered of

record.

(b) Disposition Upon Notice and Hearing. A

criminal contempt except as provided in sub-

division (a) of this rule shall be prosecuted on

notice. The notice shall state 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 con-

tempt charged and describe it as such. The

notice shall] be given orally by the judge in open

court in the presence of the defendant or, on

application ofthe UMited States attorney or of

an attorney appointed by the court for that

purpose, by an order to show cause or an order

of arrest. The defendant is entitled to a trial

by jury in any case in which an act of Congress

so provides. He is entitled to admission to bail

as provided in these rules. If the: contempt

charged involves disrespect to or criticism of a

judge, that judge is disqualified from presiding

5 a PCR AS YN EDEN RN cl A NR RC Sr tater

3 .

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; 6

at the trial or hearing except with the defend-

ant’s consent. Upon a verdict or finding of gut

; the court shall enter an order fixing the

punishment. ©

STATEMENT

1. Pursuant to an indictment returned in the United

States District Court for the Southern District of

H New York, respondent Wilson and one Robert Ander-

: son were charged with armed robbery of the federally

insured Empire National Bank in Tuxedo, New York.

Anderson was also charged with robbing the Nanuet °

National Bank in Mount Ivy, New York. A separate

indictment also charged respondent Bryan with the

Nanuet robbery. Respondents both pleaded guilty to

charges in connection with the robberies.

Robert Anderson’s case was called to trial in March

1973. At that time, Bryan had been sentenced pro-

s visionally to twenty-five years’ imprisonment pursuant

to 18 U.S.C. 4208(b). Wilson had not yet been sen-:

tenced.’ Respondents were sworn as witnesses in the

Anderson trial; however, both refused to answer any

questions concerning their acquaintance with Ander-

son or their participation in the robberies, predicating

their refusals on the privilege against self-incrimina-

tion. The reason advan@d by each respondent for

claiming the privilege was a fear that any testimony

would adversely affect final disposition of his own

ish Siderits ia aati toto

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1 Subsequently, Bryan’s sentence was reduced to ten years.

Wilson was committed for an indefinite term pursuant to the

Youth Corrections a 18 U.S.C. 5010(b).

7

case by informing the sentencing judge of the details

of the crimes.’

Pursuant to 18 U.S.C. 6002-6008, the trial court con-

ferred immunity upon respondents, ordered them to

answer the questions, and warned that failure to an-

swer would constitute contempt of court. The witnesses

persisted in their silence, were summarily held in con-

tempt, and were sentenced to terms of six months’

imprisonment, to be served consecutively to their sen-

tences on the robbery charges. Execution of the sen-

tences was stayed pending appeal.°

2. The court of appeals rejected respondents’ claim

of Fifth Amendment privilege, finding the grant of

immunity to be dispositive and concluding that re-

spondents had failed to follow the proper procedures

to raise the issue whether the grant of immunity was

coextensive with the privilege in the particular cir-

cumstances (App. A, tmfra, pp. 19-22). However,

relying on its previous decision in United States v.

Marra, 482 F. 2d 1196, which in turn purported to

* The district judge sought to resolve the problem as to Wil-

son by sentencing him immediately on the robbery charge, but

found during allocution that the probation officer had not yet

verified his information and that Wilson wished to present a

psychologist’s report. He therefore deferred sentence. Transcript

of March 29 and April 2, 1973, p. 103. (We are lodging copies

of the transcripts with the Clerk of this Court.)

’ Transcript of March 30, 1973, pp. 3-23a; Transcript of

March 29 and April 2, 1973, pp. 84-113; App. A, infra, pp.

18-19. At the summary contempt proceedings, respondents

wer¢ represented by Wilson’s attorney. She spoke in mitigation

of sentence for the contempts but did not object to the summary

progedure. ic |

| 531-093—74——2

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8

rely on this Court’s opinion in Harris v. United

States, 382 U.S. 162, the court below concluded

that respondents’ refusal to give testimony at trial

f could not properly be the subject of summary con-

tempt proceedings under Rule 42(a) of the Federal

Rules of Criminal Procedure. Accordingly, the cause

was remanded to the district court for proceedings

pursuant to Rule 42(b), including a full hearing on

the facts of the contempts (App. A, infra, pp. 22-24).

“0 es opine edited: els as igloo iad

REASONS FOR GRANTING THE WRIT

In reversing respondents’ summary contempt con-

victions, the Second Circuit in this case, as in United

States v. Marra, 482 F. 2d 1196 (C.A. 2),* unjustifi-

q ably extended this Court’s ruling in Harris v. United

States, 382 U.S. 162 (involving contempt by a grand

jury witness), to a situation to which, in our view,

Harris has no application. Whatever may be the valid-

ity of the Harris rule barring availability of summary

contempt with respect to a grand jury witness who

refuses to testify, similar principles should not govern

the case of a witness who, in disobedience of a court

order, refuses to testify at trial and thereby inevi-

tably disrupts the trial proceedings. Moreover, the

‘ opinion of the court below is in direct conflict in its

interpretation of Harris with the decision of the First

Circuit in Baker v. Eisenstadt, 456 F. 2d 382, certio-

‘The government did not petition for certiorari in Marra

because of mootness problems arising from the fact that Marra

had already completed service of his sentepce at the time the

court of appeals decided that case. No such problem is present

here, since respondents have not commenced service of their sen-

tences for contempt.

9

rari denied, 409 U.S. 846.° This conflict should be

resolved.

Should the Court be of the view that this case is

factually and legally indistinguishable from Harris,

it is the government’s position that Harris was incor-

rectly decided and should be overruled. In either event,

this case presents important issues involving the proper

enforcement of the contempt power which should be

resolved by this Court.

1. In Harris, this Court held that when a witness

refuses after a grant of immunity to answer material

questions before a grand jury and repeats the refusal

before a judge, the contempt can be punished only

after notice and hearing, pursuant to Rule 42(b) of

the Federal Rules of Criminal Procedure. In articulat-

ing the rationale for its ruling, the Court stated (382

U.S. at 164-165) :

Cases of the kind involved here are foreign to

Rule 42(a). The real contempt, if such there

was, was contempt before the grand jury—the

refusal to answer to it when directed by the

court. Swearing the witness and iss the

questions before the judge was an effort to-have

the refusal to testify “committed in the actual

presence of the court” for the purposes of Rule

42(a). It served no other purpose, for the wit-

ness had been adamant and had made his posi-

5>The decision of the Second Circuit is also in conflict with

the holding of the Sixth Circuit in United States v. Seavers.

472 F. 2d 607, 611. There, although the summary nature of the

proceedings was not directly challenged, the court affirmed the

use of summary criminal contempt against a witness who re-

fused to testify at the trial of his accomplice.

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10

tion known. The appearance before the District

Court was not a new and different proceeding,

unrelated to the other. It was ancillary to the

—» grand jury hearing and designed as an aid to

it. Even though we assume arguendo that Rule

42(a) may at times reach testimonial episodes,

nothing in this case indicates that petitioner’s

refusal was such an open, serious threat to —

orderly procedure that instant and summary

punishment, as distinguished from due and

deliberate procedures, was necessary. [Citation

omitted. }

Whatever the vitality of the prohibition against

summary contempt proceedings for a witness’s re-

fusals to answer questions before a grand jury, such

refusals at trial in the presence of the court are pre-

cisely the kind of conduct as to which ‘‘speedy punish-

ment may be necessary in order to achieve ‘summary (

vindieation of the court’s dignity and authority.’”

Harris v. United States, supra, 382 U.S. at 164. In

the present case, the witnesses’ refusals to testify re-

sulted in disruption of the proceedings through delay,

and, indeed, the refusal of the respondent Bryan re-

sulted in the collapse of the prosecution’s case against

Anderson for the Nanuet bank robbery.°

The instant case is but one of several recent deci-

sions in which the Second Circuit has incorrectly ex-

panded Harris to prohibit summary contempt proceed-

*In acquitting Anderson of the three Nanuet counts at the

close of the government's case, the trial judge remarked to the

prosecutor, “of course, your case has been substantially weak-

ened through no fault of your own by the refusal of Mr. Bryan

to testify * * *.” Transcript of March 29 and April 2, 1973, pp.

158, 162.

Fe Aha ERE aft Ca APNE ee LN Oa Om cS Ba nel

lt

ings where a witness has refused to testify at trial.

See United States v. Pace, 371 F. 2d 810, 811, and

United States v. Marra, 482 F. 2d 1196 (expressly

relied upon below). These decisions are directly con-

trary to the decision of the First Circuit in Baker v.

Eisenstadt, 456 F. 2d 382, certiorari denied, 409 U.S.

846, which expressly criticized Pace and reaffirmed the

rule that ‘‘refusal to answer in the ‘actual presence’ of

the court can be * * * dealt with [summarily]’’ (456

F. 2d at 388).’ See also United States v. Seavers, 472 |

F. 2d 607 (C.A. 6), discussed at n. 5, supra. é

Both Seavers and Baker recognize that the funda-

mental difference between the summary proceedings

under Rule 42(a) and the notice and hearing provi-

sions of Rule 42(b) is simply whether the contuma-

cious conduct occurred in the presence of the court. |

Where, as here, the testimonial refusal occurred at

trial, the court is aware of the circumstances sur-

rounding the act and no purpose is served by notice

and hearing. In such circumstances due process does

not require a hearing. Groppi v. Leslie, 404 U.S. 496;

* Baker vy. Eisenstadt involved habeas cgrpus review of sum-

mary contempt proceedings of a state fe sh The court of ap-

peals found Rule 42(a) reflective of the common law principles

relating to criminal contempt, and it is clear that the court’s

holding is applicable with equal force to federal proceedings

expressly governed\by Rule 42(a).

* Moreover, in the present case respondents in fact were

warned by the court that continued refusal to answer, questions

would result in contempt. Respondents were also afforded ample

opportunity to explain the basis of their refusals to testify (see

pp. 6-7, supra). In these circumstances, it is clear that no inter-

ests would have been served by further notice and hearing.

~ os

Johnson Vv. Mississipi, 403-U.S. 212, 214-215; Bloom

v. Illinois, 391 U.S. 194, 205; Cooke v. United States,

267 U.S. 517, 534, 537.

Nothing in Harris requires a different = There,

the misconduct which formed the basis for contempt

oceurred before a grand jury, and the majority in

Harris found that the act of bringing the witness be-

fore the court was ineffective to bring the conduct

within Rule 42(a) as “committed in the actual pres-

ence of the court.” Subsequent to the Harris decision, l

4 this Court has indicated that it is the commission of

the contempt in the presence of the court which war-

rants summary proceedings. Groppi v. Leslie, supra,

404 U.S. at 504-505. Implicit in this principle is the

conclusion that Harris must be confined to cases where

the contempt oecurred outside the court’s presence.

The power of a court to compel testimony by a

recalcitrant witness is a well-recognized necessity. See,

e.g., Shillitani v: United States, 384 U.S. 364, 370;

United States v. Bryan, 339 U.S. 323, 331. Indeed,

the court below observed that ‘‘[o]ne of the major

purposes of [the immunity statute] was to prevent

what occurred in this case: the refusal of accomplices

to testify about a crime, thereby aborting a convic-

tion” (App. A, infra, p. 20). Although respondents

were convicted of criminal (rather than civil) con-

tempts of the court’s authority, the coercive and de-

terrent aspect of the contempt sanction in the crimi-

nal form should not be overlooked. Many a witness

who would draw back from engaging in contumacious

isobedience of judicial authority if he knew that

swift and certain punishment would ensue might,

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13

conversely, be fortified in his obstinacy by deferral of

the time of reckoning. In the context of a criminal

trial, this enhanced possibility that critical testimony

may be lost can jeopardize the integrity of the truth-

finding process—a risk that is ordinarily diminished,

if not eliminated, by the greater longevity of grand

jury proceedings.

‘The important differences between grand jury

proceedings and criminal trials, in relation to the ques-

tion of the proper procedures for dealing with con-

tempts, appear to have been overlooked or misunder-

stood by the court below. The life of a grand jury is

anywhere from 30 days to 18 months; the normal

criminal trial lasts only a few days. Thus, the ‘‘coer-

cive’’ sanction of civil contempt, which may well

prove effective with a recalcitrant grand jury wit-

ness and which the Second Circuit has suggested be

utilized prior to resort to criminal contempt proceed-

ings under Rule 42 in the context of a trial (United

States v. Marra, supra, 482 F. 2d at 1201), is likely

to be wholly ineffective in all but the most complex

and lengthy trials.’ Moreover, the delay of a few days

that may be necessitated by compliance with Rule

42(b) procedures, while unlikely seriously to disrupt

the activities of a grand jury (except when it is near-

ing the end of its term), may have substantial dis-

ruptive effects in the ordinary trial. It was as a result

*Indeed, in this very case the remedy of civil contempt

would have been futile, since respondents were already in-

carcerated at the time of their refusals to testify. Transcript

- of March 80, 1973, p. 22; Transcript of March 29 and April 2,

1973, p. 87. :

14

of its oversight of these important pragmatic distinc-

tions that the court below was able to conclude that

contumacious refusals to testify during the course of

a trial are covered by the Harris decision.

2. Should this Court, notwithstanding the forego-

ing arguments relating to the distinctions between the

grand jury and trial contexts, conclude that the hold-

ing of Harris is equally applicable to both contexts,

we submit that the Court should then consider the

question whether Harris should be overruled. We need

not repeat here the argument on the merits of that

issue, which have already been made on the govern-

ment’s behalf in connection with the litigation of the

Harris case and of its predecessor, Brown v. United

States, 359 U.S. 41, which Harris overruled. We note

only that the continuing vitality of Harris may be

considered to be in some doubt as a result of the ap-

proving citation of Brown in Groppi v. Leslie, supra,

404 U.S. at 504-505. As the Chief Justice there stated

immediately prior to the citation:

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PERRIS Qi oe Se RRS LES CEN LL nto ee

Where a court acts immediately to punish

for contemptuous conduct committed under its

eye, the contemnor is present, of course. There

is then no question of identity, nor is hearing

._ in a formal sense necessary because the judge

j has personally seen the offense and is acting on

: the basis of his own observations. Moreover, in

such a situation, the contemnor has normally

been given an opportunity to speak in his own

behalf in the nature of a right of allocution.

[Footnote omitted. ]

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15

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be granted.

. Rosert H._ Bork,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

Wim L. Patton,

Assistant to the Solicitor General.

JEROME M. Fert,

JupitH A. METZNER,

’ Attorneys.

JANUARY 1974.

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APPENDIX A

United States Court of Appeals for the Second Circuit

(Nos. 83, 101—September Term, 1973)

(Argued October 15, 1973

Decided November 28, 1973.)

Docket Nos. 73-1574, 73-1575

Unitep STaTEs OF AMERICA, APPELLEE

against

THOMAS JOSEPH WILSON AND Bossy ANTONIO Bryan,

\ APPELLANTS

Befgre: LuMBARD, FRIENDLY AND FEINBERG, Circuit

Judges.

Appeal from judgments of the United States Dis-

trict Court for the Southern District of New York,

Morris E. Lasker, J. finding appellants guilty of

criminal contempt for refusing to testify, on self-

incrimination grounds, despite grants of immunity. ‘

Reversed and remanded.

SHEILA GinsBerc, New York, N.Y. (Robert Kas-

anof, The Legal Aid Society, on the brief), for Ap-

pellant Wilson.

- Hersert Ira HanpMAN, New York, N.Y., for Ap-

pellant Bryan.

KennetH R. Fernserc, Assistant United States

Attorney (Paul J. Curran, United States Attorney

(17)

18

for the Southern District of New York; John D. Gor-

_ dan ITI, Assistant United States Attorney, on the

brief), for Appellee.

FEINBERG, Circuit Judge:

Thomas Joseph Wilson and Bobby Antonio Bryan

appeal from judgments of the United States District

Court for the Southern District of New York, Morris

E. Lasker, J., finding them guilty of criminal con-

tempt for refusing to testify in the trial of Robert

Joel Anderson for armed bank robbery. Both Wilson

and Bryan were sentenced by Judge Lasker to six

months imprisonment. They challenge their contempt

convictions, arguing that they had the right to refuse

to incriminate themselves and that, in any event, the -

procedure followed by the judge was defective. For

reasons set forth below, we reject the fifth amend-

ment claim but reverse for further proceedings before

Judge Lasker under Rule 42(b) of the Federal Rules

of Criminal Procedure.

7

I

The, indictment on which Anderson was tried

charged him with armed robbery of the Nanuet Na-

tional Bank in Mt. Ivy, New York, and the Empire

National Bank in’ Tuxedo, New York. The same in-

dictment charged appellant Wilson, too, with robbery

of the latter bank. This case was assigned to Judge

Lasker. A separate indictment also charged appellant

Bryan with the Nanuet bank robbery. This indict-

ment was assigned to Judge Irving Ben Cooper. By

the time Anderson’s case came to trial before Judge

Lasker in March 1973, both appellant Wilson and

appellant Bryan had pleaded guilty to charges against

them.. However, neither had been definitively sen-

tenced? Wilson’s: plea had been taken by Judge Las-

ca cS

19

ker, who had deferred sentence.\_Bry an had pleaded

before Judge Cooper, who had imposed a provisional

25-year sentence (the statutory maximum), pending

an evaluation under 18 U.S.C. § 4208(b).’

During Anderson’s trial, the Government called

appellants Bryan and Wilson as witnesses, the former

on the Nanuet, and the latter on the Empire, bank

robbery. Each refused to testify on self-incrimination

grounds and persisted in this stance even though each

received immunity under.18 U.S.C. §§ 6002-03, and

the judge warned that a contempt finding would fol-

low. When Wilson and Bryan continued to balk,

Judge Lasker immediately found each one separately

in contempt, and sentenced both to six months in

prison consecutive to whatever sentences they received

on the counts to which they had pleaded guilty. Court

sel for Wilson was present throughout and, in the

absence of counsel for Bryan, she attempted with the

court’s sanction to represent the latter as well.

II

» As previously noted, at the time appellants were

called as witnesses in the trial of Anderson, they had

not yet been finally sentenced in their own guilty pieas.

Their uncertainty as to the eventual sentences forms

the basis for their broadest argument on appeal. They

claim that any admission by them of the details of par-

ticipation in armed robbery might weigh against them

*On June 1, 1978, the judge committed Wilson as a Young

Adult Offender for an indeterminate term under 18 U.S.C.

§ 5010(b), as extended by 18 U.S.C. § 4209.

?On August 14, 1973, after-Anderson’s trial, and after receipt

of a report under 18 U.S.C. §4208(b), Judge Cooper reduced

Bryan’s sentence to ten years.

531-093—74——3

20

with the sentencing judge—in Wilson's case, the very

judge who would hear the testimony, and in Bryan’s,

a judge of the same court could obtain the transcript.

The Government responds that the privilege against

self-incrimination ends immediately and completely

with a guilty plea and that, in any event, the claim

of privilege was not justified on these facts. Although

the first argument raises substantial issues * and there

is much to commend the second,‘ we need not deal

with either. The grant of immunity under 18 U.S.C.

§& 6002-03 is dispositive here.

One of the major purposes of that statute was to

prevent what occurred in this case: the refusal of

accomplices to testify about a crime, thereby aborting

a conviction. (Indeed, Bryan succeeded admirably—if

* None of the cases cited by the Government hold that a guilty

plea ithmediately and completely ends the privileges even

thongh sentence has not yet been imposed. The statement in

United States v. Sanchez, 459 F. 24 100, 103 (2d Cir.), cert.

denied, 409 U.S. 864 (1972), relied on by the Government, was

made without discussion: the dispositive factor was that the

witness had not even been called. Although United States v.

Gernie, 252 F. 2d 664, 670 (2d Cir.), cert. denied, 356 U.S. 968

(1958), contains a similar statement, the witness in that case had

already been sentenced. Cf. United States ex rel. Sniffen v. Fol-

Jette, 439 F. 2d 1082, 1083-84 (2d Cir. 1971). But ef. United

States v. Sclafani, slip op. 4479, 4488-91 (2d Cir. June 27,

1973), cert. denied, 42 U.S.L.W. 3284 (U.S. Nov. 13, 1973). See

generally McCormick on Evidence § 121 (2d ed. 1972 for the

proposition that—at least when there has been a conviction after -

a trial rather than after a guilty plea—the privilege continues

not only until after sentencing but also until after the time for

appeal as of right has expired. : :

*The record shows, and oral argument substantiated, that

~ Wilson refused to testify out of “adolescent loyalty” in order

“to save a friend”—a motive possibly shared by Bryan, who

had already been provisionally sentenced. Moreover, Wilson had

earlier told the details of his complicity in the crime'to the pre-

sentence investigator from the Probation Office. .

FP EML LENSES POIROT SELL LEE IES ELIE ILLITE EAE LOLS ANIL ESO PTL AGRE TEU SIE Gee ee

21

that was his motive—since the Nanuet bank robbery

counts were, without his testimony, dismissed at the

close of the Government’s case.) Because of the as-

serted danger of adverse use of the compelled testi-

mony in sentencing, however, appellants contend that

the immunity given was not coextensive, as is re-

quired, with the scope of the fifth amendment privi-

lege. Kastigar v. United States, 406 U.S. 441, 449

(1972). But neither Wilson nor Bryan followed what

we deemed to be proper procedure in raising the issue

of “forbidden use.” * If appellant Wilson doubted the

ability of Judge Lasker to put out of his mind Wil-

son’s statements at Anderson’s trial, he should never-

theless have testified as ordered, but requested a dif-

ferent judge for sentencing on the robbery charge.° Cf.

United States v. Goldberg, 472 F. 2d 513, 516 (2d Cir.

1973). Similarly, if Bryan genuinely feared an in-

ereased sentence on his guilty plea as a result of testi-_

fying in the Anderson case, he, too, should have given

evidence, then asked that proper precautions be taken

(e.g., sealing the record) to insure that Judge Cooper

would not be privy to the statements made under

grant of immunity. Both were, however, required to

obey the mandate of 18 U.S.C. § 6002 that ‘‘the witness

may not refuse to comply with the order on the basis

of his privilege against self-inerimination. . . .” Since

appellants, on the contrary, selected a wholly improper

means of testing their constitutional claim the. con-

tempt judgments would stand regardless of the true

extent of the privilege (an issue we need not reach),

were it not for the fact that the trial judge erred pro-

5 We do not decide that the potential uses would have been

“forbidden.”

* Wilson’s default in this respect is another factor that casts

in doubt the legitimacy of his invocation of privilege. See note

‘4 supra and accompanying text.

TAS SR SOG SPET SPIE MLE ANT NG SEIS IME BREINER I CVE RR Yn HES RN ERS

IRE SADR T set

22

cedurally in arriving at his findings. To this additional

problem we now direct our attention.

III

Our recent opinion in United States v. Marra, 482

F. 2d 1196 (1973), held that use of the summary crim-

inal contempt sanction of Fed. R. Orim. P. 42(a) was

inappropriate in the case of an orderly refusal to

testify on fifth amendment grounds despite a grant

of immunity. The proper course would have been to

proceed under subdivision (b) of the Rule, which

calls for disposition on notice and hearing, permitting

‘a reasonable time for the preparation of the” de-

fense.’’’ Since the district judge here immediately

found both Wilson and Bryan in contempt upon their

* Fed. R. Crim. P. 42 provides:

“(a) Summary Disposition. A criminal contempt may be

punished summarily if the judge certifies that he saw or heard

the conduct constituting the contempt and that it was com-

mitted in the actual presence of the court. The order of con-

tempt shall recite the facts and shall be signed by the judge

and entered of record.

“(b) Disposition Upon Notice and Hearing. A criminal con--

tempt except as provided in subdivision (a) of this rule shall

be prosecuted on notice. The notice shall state the time and

place of hearing, allowing a reasonable time for the prepara-

tion of the defense, and shall state the essential facts con-

stituting the criminal contempt charged and describe it as such.

The notice shall be given orally by the judge in open court in

the presence of the defendant or, on application of the United

States attorney or of an attorney appointed by the court for

that. purpose, by an order to show cause or an order of arrest.

The defendant is entitled to a trial by jury in any case in

which an act of Congress so provides. He is entitled to admis-

_ Sion to bail as provided in these rules. If the contempt charged

involves disrespect to or criticism of a judge, that judge is

disqualified from presiding at the trial or hearing except with

the defendant’s consent. Upon a verdict of finding of guilt the

court shall enter an order fixing the punishment.”

dee!

°F

23

separate orderly refusals to answer the prosecution’s

questions, appellants drgue that Marra governs, and

compels reversal of the judgements. We agree, and

therefore remand for further proceedings pursuant to

Rule 42(b).

At the outset, appellee contends that the failure of

appellants to object to the summary procedure below —

bars them from raising the claim on appeal. We hold,

however, that under the circumstances, the request

by counsel for Wilson for more time to research the

- fifth amendment issue constituted sufficient objection.

And we refuse to penalize appellant Bryan for his

failure to make timely objection to the Rule 42(a)

proceeding, since his own counsel was not present.

Although counsel for Wilson did her best to protect

Bryan, the court having sanctioned her efforts in this

regard, only a defendant’s own lawyer could be fully

aware of the considerations which might be raised in

his behalf to mitigate a charge of contempt or the

sentence thereunder, and of the likely usefulness of a

hearing for development of these considerations.

Appellee also contends, in an effort to distinguish

Marra, that Bryan and Wilson received the sub-

stance, if not the form, of a Rule 42(b) proceeding

since both were represented by counsel and given a

full opportunity to be heard. Mere pres¢nce of coun-

sel, however, even had it been each defendant’s own

counsel, would not be determinative. In Harris v.

United States, 382 U.S. 162 (1965), upon which Mar ra

relies, counsel was also present.

Nor is the bare “‘opportunity to be heard” disposi-

tive here since the “hearing” was confined to the mat-

ter of sentence. If, however, counsel had been given ‘“‘a

reasonable time for the preparation of the defense,”

Fed. R. Crim. P. 42(b); she might have marshalled

and presented facts in mitigation of the charge. Sig-

Li EEALE RS DIED EE SSA ELE EIGER LEI LG POEL LONE LEE LOE OLE AR r? SEIT N YOR A

24

os

nificantly, the record reveals the possibility of a

psychiatric defense, at least for Wilson. Some of Wil-

son’s psychological problems, disclosed by a court-

ordered study, were explored at an abortive sentenc-

ing hearing on his guilty plea, preceding the refusal

to testify. With respect to that conviction, Judge

Lasker concluded: “I do not believe that in this com-

plicated case I have sufficient information before me

to permit me justly to proceed to sentence with Mr.

Wilson.” Shortly thereafter, nonetheless, he proceeded

to sentence him for contempt. With additional time

to prepare a defense, counsel for Wilson might have

enlarged on the issue of appellant’s mental health,

and perhaps shown a relationship between any psycho-

logical difficulties and the refusal to serve as a witness.

Finally, because of the posture of the case, the record

is silent on other facts which may well exist in de-

fense or mitigation of the charge against both appel-

lants, and which could be properly developed at a

plenary hearing.

Accordingly, since United States v. Marra, supra,

controls, we reverse the judgments of contempt and

remand for further proceedings pursuant to Rule

42(b).

APPENDIX B

United States Court of Appeals for the Second

Circuit

[caption omitted ]

JUDGMENT

Judgments reversed and that the actions be and

they hereby are remanded to said district court for

further proceedings in accordance with the opinion of

this Court.

NOVEMBER 28, 1973.

(25)

U.S. GOVERNMENT PRINTING OFFICE: 1976