In Re Grand Jury Investigation. United States of America v. Frank Berger
657 F.2d 88
6th Cir.
1981
Check Treatment

*2 LIVELY, MERRITT, Before ENGEL and for immu- application that this termined Judges. Circuit nity properly authorized: has been ORDERED, AD- IT THEREFORE IS LIVELY, Judge. Circuit Ap- AND DECREED that the JUDGED Berger from appeals The defendant by A. plication made Richard heretofore finding order of the district him in court Rossman, Attorney for the refusing testify contempt civil before Michigan im- Eastern District grand jury ordering and him confined munity Berger in accordance to Frank purges until he himself. Confinement Code, with Title Sec- States not to life of exceed the the term the hereby be and the same tions 6002-6003 grand jury. adjudication affirm that It is further is allowed. ORDERED contempt. Berger testify ques- answer Frank and testify grand jury tions asked I. any course of questions in the answer district as trial which be held in this appear Berger subpoenaed Frank was investigation. grand jury result testify grand jury in the before East- Michigan. Through ern District IT at- FURTHER ORDERED IS compelled other torney Berger informed the United States information order, di- grand any if information called before under the from such tes- jury rectly indirectly he derived would refuse on constitu- timony, him in grounds. tional shall be used Thereafter case, except said Frank that the Attorney applied the district court criminal exempted granting for an shall not perjury, giv- directing prosecution for order from statement, ing contempt false granted. while was Bart, He relies upon In re giving testimony as ordered herein. U.S.App.D.C. 54, (D.C. F.2d 631 Cir.1962), a ease interpreting

IT IS SO ORDERED. U.S.C. require hearing. § 3486 to notice and RALPH M. FREEMAN The decision in In predicated re Bart was UNITED STATES *3 at part upon least in the fact that under DISTRICT JUDGE § 3486 the Government could not secure a Berger Thereafter was informed that he prospective order. See 304 F.2d at 637 & had granted immunity been and was Thus, n. 17. might there be something testify ordered to grand before the jury. for the object witness to at hearing a appeared grand When he before the jury immunity granted. before the order was questions pro- refused to answer the designed change Section 6003 was this pounded by Attorney the United States and result. H.R.Rep.No.1549, Cong., See 91st was cited for contempt. After considering (1970), 2d reprinted Sess. in 2 U.S.Code written hearing argu- memoranda and oral Cong. Admin.News, 4007, & pp. 4018 the ments district court entered the order (1970). from appeal which this is taken. repealed by Section 3486 was Organized the Crime Control Act of II. Pub.L.No.91-452, II, 228(a), Title 84 § On appeal Berger contends the im Stat. 930. 18 U.S.C. 6003 was added § munity statute be should construed to re provides same act and prospec quire notice process rights and that his due tive order explicitly requiring while not infringed by the govern failure of the prospective notice to a witness before give ment to him notice an opportunity grant immunity; this is an indication to be on heard whether he would be ordered required. Furthermore, that none is testify under immunity. With the respect since court’s duties requirements granting the the of the statute requested largely ministerial, order Bart, relies are primarily on In re 304 (D.C.Cir.1962), F.2d when the order properly requested 631 the and In re Grand Jury Investigation, (E.D. has no F.Supp. deny 317 discretion to it. In re 792 Pa.1970), Jury Investigation, both of Grand which were 486 F.2d concerned (3rd with grants immunity 1973), 1016 under Cir. statutes dif cert. denied sub nom., respects ferent some States, from Testa v. United §§ 6003. 417 U.S. In a brought case under the (1974); latter statute S.Ct. L.Ed.2d the Fifth Kilgo, Circuit dealt re argument (4th with an see In 484 F.2d based on re 1973). In Bart as follows: Cir. I. Defendant Leyva, asserts he was denied States F.2d process

due being in not (5th 1975). afforded agree Cir. analy- with this hearing immunity before the order sis. As places structured section 60031 the grand jury (b) proceedings attorney may, Court and § A United States with the General, approval Attorney Deputy the (a) In the case of individual who has Attorney General, any designated or may Assistant or provide been be called to or Attorney General, request an order under sub- any proceeding other information at or (a) judg- section of this ancillary section when in his to a court of the United or ment— jury States, of the United (1) or other information judicial States district court for the district in from such proceeding individual which the issue, is or be held shall interest; public (b) accordance with subsection of this section, (2) upon likely request such individual has refused or the United States attorney district, provide requiring for such refuse to an order other informa- give testimony provide such privilege against individual to tion on the basis of his self- other information which he refuses to incrimination. provide privilege against on the basis of his self-incrimination, such order to become effec- provided part. tive as in section 6002 of this infringe any property on immunity ty does request an order decision to Rather, witness. provides liberty interest of a the United States immunity effectively an ex- issue” the or- order is that the district court “shall request. safeguard one another. Attorney’s change of for upon der the U.S. relinquishes The witness provision inquiry into the There is no incriminating silent and avoid remain judgment or decision of the United States promise himself and receives a from immunity seek order. No Attorney to gives government that the information he purpose by hearing. would be At served him, directly or will not be used argument oral in this court counsel for Ber- indirectly, subsequent prose- in a criminal ger making was no stated he claim that cution. As matter of constitutional requirements obtaining ap- statutory law, the witness suffers detriment proval request of a for an *4 immunity from an order and therefore had in this case. In not been followed right to heard. has no be argument court counsel before the district immunity grant- at 539. the 568 F.2d Since the court he had “not observed advised that the Amend- ed is coextensive with Fifth any” As the court said procedural defects. self-incrimination,2 privilege against ment of Internal Reve- Ryan v. Commissioner deprived we that has been agree nue, 531, (7th 1977), Cir. 568 F.2d 541 “Since being property liberty of interest a judgment entirely the is a matter for the testimony. to his ordered branch, court, by a executive unreviewable no need the record to contain there is has amplification Berger Without supporting facts the decision his possible to the forfeiture of referred Attorney.” required testify. if he should be to property raising point In before the district due The defendant contends that that the court counsel asserted process hearing a requires notice and before governments placed state and federal had deprived property liberty he may be of a “We that property, liens on his believe Ryan, supra, interest. In the court dealt immunity protect would not the order of arguments the following with similar property should him from forfeiture of that language: jury regarding he before the First, Ryans immu the contend the any tax It is obvious that tax violations.” process of law nity order denied them due to counsel were unrelated liens referred they neither notified of a because testimony they since had been compelled to hearing immunity request giv nor on of his refusal to testi filed before issue en an to heard opportunity be before Berger’s proper fy No forfeiture of arose. Ryans rely The on order was entered. ty place. proceed If forfeiture has taken holding process cases that the due clause begun against Berger’s property ings are requires notice some kind of and some immu pursuant he has testified to the after hearing person may be kind of order, opportunity in he will have an nity deprived governmentally of a created proceedings to assert that forfeiture those property liberty g., interest. E. di is on information derived either based Shevin, 67, Fuentes v. 407 92 U.S. S.Ct. indirectly compelled from his testi rectly or 1983, (1972); 32 L.Ed.2d v. Bur 556 Bell express validity no view on the mony. son, 91 29 402 U.S. S.Ct. argument. of such an Goldberg (1971); Kelly, L.Ed.2d 90 v. 397 is af- judgment the district court The of 287 U.S. S.Ct. L.Ed.2d firmed. (1970). inapposite. The These cases are procedural protections proces of due MERRITT, dissenting. Judge, Circuit s only person come into if is clause effect no person of suffers deprivation property with The Court holds that threatened compelled to grant at all when liberty or a interest. A of immuni- detriment (6th Coplon, 339 F.2d Cir. U. S. 1964). heard, exchange immunity ty be except avoiding for a of a minor therefore is hearing no notice advance inconvenience. liberty at because interest person compelled “No . . . shall be ... disagree reasoning.

stake. with this be a witness himself.” Before a The Fifth Amendment person divulge compelled private his —molded courage over the centuries in the of Sir thoughts exchange and actions in for use many Thomas More and others who chose immunity, he should receive notice and government to remain silent in the face of opportunity hearing before the liberty, persecution important like who issues the order. Basic fairness re- —is speech freedom of Before conscience. quires history liberty this much. “The jail a witness is threatened with if he refus- largely history procedural has been the speak, es to he at be should least entitled States, safeguards.” McNabb v. United may a hearing. The witness 332, 347, U.S. L.Ed. 819 S.Ct. explain want to the court in his (1943). protections opinion he or members of family will Constitution are not units compelled if speak killed and that use subject budget, federal reduction as the protection. alone is not He change. political winds materiality want possi- to contest the of his Accordingly, I dissent from the view of testimony. ble He want the court to the Court that a citizen is not entitled to government’s limit the of his *5 notice opportunity and an to be heard be- ways in certain set out in the required speak fore he is a criminal injunctive statute. He want the case. against him to include orders adversary, government, regarding

way his testimony may be used and what

may be disclosed to others.

The immunity specifically statute pro- only

vides an Article III —not Deputy General or the Attor- ney America, General some other UNITED STATES officer — compel testimony immunity. Plaintiff-Appellee, return for The contemplates judicial statute proceed- ing, Surely a decision a court of law. (80-5117), “Bobby” Robert TAYLOR person whose liberty interest is at stake Knight (80-5118), Wayne Drewry James proceeding witness —is entitled —the (80-5119), Defendants-Appellants. to notice and an opportunity to attend and speak. person The Nos. 80-5117 to 80-5119. whose interest is most at stake should be consulted and allowed to Appeals, States Court of participate proceeding. in the Circuit. Sixth Why person should the most affected not Argued July receive opportunity advance notice and an hearing? government Aug. Neither nor Decided reason, good the court has offered 14,1981. Rehearing Sept. Denied government can think of It none. costs the nothing. surprise The need for is not

present, as in the case of search warrants.

The element of delay serious administrative present,

and added financial costs are not as ordinary, the case of the issuance of trial

subpoenas. government gains nothing

by refusing opportuni-