In re James Frederick WEIR. UNITED STATES of America, Plaintiff-Appellee, v. James Frederick WEIR, Defendant-Appellant.
No. 75-2039.
United States Court of Appeals, Ninth Circuit.
July 18, 1975.
Rehearing Denied Aug. 28, 1975.
520 F.2d 662
We feel compelled to dispose of one issue not treated in the District Court as apparently raised here for the first time. The Junior Schindlers argue that the contract for deed should be determined enforceable as to at least the 12.2 acres specifically described since
The following contracts are invalid, unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or by his agent:
* * *
4. An agreement * * * for the sale, of real property, or of an interest therein.
In interpreting its Statute of Frauds relative to real estate sale contracts, the North Dakota Supreme Court has stated:
To be sufficient the entire agreement must be in writing and the contract cannot rest partly in writing and partly in parol. The memorandum agreement must contain all of the essential or material terms and conditions of the contract.
* * *
The fact that the consideration cannot be determined from the writing which is relied upon as a memorandum, without resort to outside evidence, renders the writing insufficient as a memorandum to take the transaction out of the statute of frauds.
Heinzeroth v. Bentz, 116 N.W.2d 611, 614-15 (N.D.1962).
It is thus clear that the absence of an ascertainable consideration or price rendered the contract for deed unenforceable at the time of the taking.
The judgment appealed from is affirmed.
James Brannigan, Sp. Atty. (argued), U. S. Dept. of Justice, San Diego, Cal., for plaintiff-appellee.
H. Peter Young (argued), Venice, Cal., for defendant-appellant.
Before KOELSCH, ELY and CARTER, Circuit Judges.
JAMES M. CARTER, Circuit Judge:
This appeal involves a contempt proceeding against James Frederick Weir, a grand jury witness. The prior history of the case is shown in In Re Weir, 377 F.Supp. 919 (S.D.Cal.1974) holding Weir in contempt, aff‘d, In Re Weir, 495 F.2d 879 (9th Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974).
Pursuant to
On May 13, 1974, the term of the grand jury before which Weir had refused to answer questions ended. On May 28, 1974, Weir voluntarily accepted service of a subpoena for appearance before a new grand jury. On June 17, 1974, the district court stayed proceedings pending disposition of the petition for certiorari. The petition was denied by the Supreme Court on November 25, 1974.
In the prior proceeding the district court, on November 1, 1973, made a combination grant of immunity under
“Ordered that James Frederick Weir, in accordance with the provisions of
§ 6002 of Title 18, United States Code , shall testify before the Grand Jury of the United States, and in all proceedings ancillary thereto and resulting therefrom, and not be ex-cused from testifying on the basis of his privilege of self-incrimination. “However, no testimony or other information compelled under this order, or other information directly or indirectly derived from such testimony or other information, may be used against such witness in any criminal case except a prosecution for perjury for giving false statements or other-wise failing to comply with this order.”3
“It Is Hereby Ordered that, at any subsequent prosecution of James Frederick Weir, Jr., for or on account of any transaction, matter, or thing concerning which he testifies, the Government shall be limited in presenting its case to the use of the evidence presented to this Court in camera on November 1, 1973, and shall not be permitted to introduce evidence not then available to it.”
Thereafter, the term of the grand jury before which Weir originally refused to testify expired on or about May 13, 1974. The new grand jury was impaneled on May 23, 1974. Weir, after accepting the subpoena to testify on May 28, 1974, appeared before a new grand jury on February 20, 1975 (following the denial of certiorari in the prior proceeding) and refused to answer questions identical to those he had been asked before the prior grand jury.
Weir was then brought back before the district judge and was ordered on March 27, 1975, to answer the particular questions before the grand jury. In order to save time it was stipulated that if he returned before the grand jury and the questions were asked, he would again refuse to answer them.
On that day, March 27, 1975, the district court held Weir in civil contempt, stayed execution of the order and released him on his own recognizance.
The appeal is from that order of contempt. Weir raises again various contentions he made in the first appeal. We need not discuss them since they were disposed of in our prior opinion (495 F.2d 879). In addition, he raises three additional questions: (1) Was it necessary to secure a new order to testify before the successor grand jury? (2) Was it necessary for the court to make a new order of immunity? (3) Was it necessary that the government show that the matter was again submitted to the Attorney General for his approval of the grant of immunity?
DISCUSSION
I.
A New Order of Immunity Was Not Required
The statute governing the procedure for an order for contempt of a recalcitrant witness,
Logically, it appears that the grant of immunity order would be perpetual in its operation. Prospective grants of immunity appear to be contemplated by
There is no case law directly in point. In United States v. Stevens, 510 F.2d 1101 (5 Cir. 1975), a second contempt adjudication before a new grand jury was affirmed even though no new immunity order was obtained, but the issue was not discussed.
Furthermore, the court order granting immunity in the present case was not the order that Weir refused to obey. The immunity order merely supplanted Weir‘s Fifth Amendment rights to
The immunity order received its validity from the fact that the court issued it and not because any grand jury was in session.
Weir cites United States v. Duncan, 456 F.2d 1401 (9 Cir.), rev‘d on other grounds, 409 U.S. 814, 93 S.Ct. 161, 34 L.Ed.2d 72 (1972), and United States v. Hawkins, 501 F.2d 1029 (9 Cir.), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). In Duncan the government secured a second immunity order prior to calling the witness before a successor grand jury. However, the issue was not litigated, the wording of the immunity orders is not set forth, and immunity was granted under a different statute,
No new immunity order was required and the contention to the contrary is without merit.
II.
A New Order to Testify Was Not Necessary
The original order of November 1, 1973, required Weir to testify “before the Grand Jury of the United States and in all proceedings ancillary thereto and resulting therefrom . . .”
There is no case law bearing directly on the issue. Weir relies on dicta in Yates v. United States, 227 F.2d 844 (9 Cir. 1955). There the lower court continued Yate‘s imprisonment for contempt for refusing to answer certain questions before the trial court, after the trial ended. This court held that “[i]f the witness were ordered to testify or wished to testify, there is no body before which the testimony could be received.” Id. at 847. The panel‘s following remarks were dicta.
In Stevens, supra, the appellant contended “. . . the initial grand jury lacked authority to issue a subpoena compelling his appearance before a grand jury not yet impaneled.” 510 F.2d at 1104. The court held, however: “We also sustain the validity of the subpoena ordering Stevens’ appearance before the second grand jury. . . . The appellant misconceives the nature of a grand jury. . . .” Id. at 1106. The Stevens court then quoted from Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959):
“A grand jury is . . . an appendage of the court . . . powerless itself to compel the testimony of witnesses. It is the court‘s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.” 510 F.2d at 1106.
Stevens then added:
“As the power to summon witnesses before a grand jury ultimately emanates from the court itself, it is insignificant in the instant case that the subpoena was issued prior to the impanelling of the second grand jury.” Id.
In Stevens no new order was requested, but this issue was not discussed. The attack was on the lack of a new subpoena.
In our case no complaint is made about the subpoena. The attack is made on the lack of a new order to testify. But we find the Stevens analysis persuasive with respect to our problem.
Finally, the government‘s action in going forward before the successor grand jury must be presumed lawful in the absence of clear evidence to the contrary. Beverly v. United States, 468 F.2d 732, 743-44 (5 Cir. 1972). See also In Re Lopreato, 511 F.2d 1150 (1 Cir. 1975).
Further Action by the Attorney General Was Not Necessary
The Attorney General had authorized the grant of immunity under
The rules and orders of an Attorney General continue to govern the Department of Justice (notwithstanding the advent of new Attorneys General) until they are changed or altered. This is the customary way in which administrative agencies operate. When a determination has been made to compel the testimony of a witness, it borders on the frivolous to contend that after a witness has been held in contempt and then unsuccessfully appeals and seeks and is denied certiorari, the Department of Justice must again review its original decision before the witness can again be proceeded against.
“The guidelines on which appellants rely are directed to the handling of requests by United States Attorneys within the Department of Justice for permission to seek orders granting immunity. They are not directed to the procedural or substantive rights of prospective witnesses.” In Re Tierney, 465 F.2d 806, 813 (5 Cir. 1972), cert. denied, 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973); Beverly v. United States, supra (468 F.2d 732); In Re Horn, 458 F.2d 468, 473 (3 Cir. 1972).
IV.
Weir Should Be Remanded to Custody
Weir is at liberty under a stay order of the district court. The attempt to compel Weir‘s testimony began on June 14, 1973. He was first held in contempt on March 4, 1974. By his appeal and petition for certiorari while he was at liberty, he delayed the matter until the denial of certiorari on November 25, 1974.
Meanwhile, the time of the first grand jury expired on May 13, 1974. The new grand jury was impaneled on May 23, 1974. Its term will expire at the end of 18 months, about November 23, 1975. It is now June of 1975. Over a year of the new grand jury‘s term has run. After petitions for re-hearing and hearing en banc (if filed) are disposed of, a new petition for certiorari will undoubtedly be filed. The Supreme Court recesses about the end of June 1975 and no action on the certiorari petition can be expected until, at the earliest, October 1975, and possibly much later.
The statutory scheme for compelling testimony,
“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.”4
The judgment holding Weir in civil contempt until he answers the questions posed to him before the grand jury is affirmed. The stay granted below is set aside and Weir is ordered into custody.
ELY, Circuit Judge (concurring):
I concur in the majority‘s disposition, but not without grave reservations.
On this appeal, Weir has contended that his refusal to answer the questions asked him by the grand jury was justified because the questions were based on a statement forced from him by torture in Mexico. He unsuccessfully presented the same claim to the majority of another panel of our court as he appealed his first judgment of contempt. In re Weir, 495 F.2d 879 (9th Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974) (hereinafter referred to as ”Weir I“). As I interpret the majority‘s opinion in the present appeal, my Brothers Koelsch and Carter have considered Weir‘s arguments but have concluded to adhere to the majority opinion in Weir I.
Without intervention by our court sitting en banc, I am, of course, bound by the majority‘s holding in Weir I. Nevertheless, I wish to state that I wholly disagree with that holding, and it is difficult for me to accept the fact that the cogent reasoning of Judge Goodwin‘s Weir I dissent (495 F.2d at 881-82) was rejected. In my view, Weir‘s uncontradicted allegations that Mexican officers held his head under water until he lapsed into unconsciousness and that they also beat, stabbed, and hanged him in order to extract his statement raise serious questions touching due process and the “imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). See United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975); United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974). Were it not for Weir I, I would here dissent, as vigorously as I could.
As to the majority‘s conclusion that the Government was not required to obtain a new immunity order before taking Weir before the second grand jury, I am somewhat dubitante. It is clear I think, that on the particular facts of this case, Weir could not reasonably have doubted that he would have been immunized had he testified before the second grand jury. He stipulated that he would continue to refuse to testify even after the District Court had clearly ruled that no new immunity order was necessary. Whether, as a matter of precedent, the Government should be required to obtain a new immunity order is, I believe, a question that turns wholly on policy considerations. As to that, the legislative history of the new immunity statutes is silent. If the Government were required to obtain a new order before taking a witness before a second grand jury, I suspect that potential witnesses might be better protected, at least to some extent, from conceivable attempts by local prosecutors to abuse the grand jury system. Futhermore, the Government might be better protected from unnecessary and improvident continuation of immunity granted to witnesses who have already refused to testify before earlier grand juries. Nevertheless, the majority has chosen its course, and since I cannot believe that Weir has suffered prejudice, I concur in the result that my Brothers have reached.