*1 Joyce and Brenda Sherrie BURSEY Presley, Appellants, also, D.C., F.Supp. See America,
UNITED STATES Appellee.
No. 26479. Appeals,
United States Court
Ninth Circuit.
June
Rehearing Denied Oct. 1972. *6 Gen., Mardian, Atty.
Robert C. Asst. Atty., Browning, Jr., James L. S.U. Cal., Keueh, N.D. Garvin Lee L. Robert Oliver, Woerheide, Jr., Victor Jerome C. Heilbron, Attys., Dept, of K. U. S. Jus- tice, C., Washington, appellee. D. MERRILL, KOELSCH, Before Judges. HUFSTEDLER, Circuit Judge: HUFSTEDLER, Circuit Presley, who are members Black Panther news- of the staff The contempt they paper, were held in when pro- refused to answer certain pounded by grand jury. a federal Throughout grand jury proceedings proceedings district before the court, consistently asserted the witnesses First and Fifth Amendments upon bases which refused grand appeal jury’s inquiries. The presents searching questions impact of Amend- the First Fifth ments the context federal investigations. jury investigation, outgrowth, appeal this given by speech triggered David Hilliard, Black of Staff of Chief Day during Party, Moratorium 15, 1969. November demonstrations on public speech ain Hilliard delivered the large park before Francisco San speech was televised crowd. widely reported media news *7 country. the In of course across the said, Rich- speech, kill Hilliard “We will began investigation Nixon.” The ard identity of to as an effort determine persons, any, re- Hilliard if to whom kill the will said “We” ferred when he investigations ex- Later, President. po- exploration panded of to an include armed with the interference tential general probe the affairs of and forces Party. fo- theAs the Black Panther of subject expanded, inquiry cus of the investigation has been matter variously proceedings (argued), Arne Werchick Richard J. in described Massa, Garry, Dreyfus, possible & 18 U.S.C. McTernan violations of below as Brotsky, 2387, Cal., appel- Francisco, 2, 1751, related 371, 871, “and San for §§ (general (18 aid- lants. statutes.” U.S.C. §§ (general abetting Bursey ing statute), Presley granted and and im- be statute), (threats munity conspiracy pursuant to 18 and U.S.C. 2514 § testify being to Presi- and successors to President ordered matters to dency), (presidential assassination, investigated by grand jury. Both (interfer- assault), applications kidnapping, subject and described the matter forces); stat- with armed “related ence as follows: identified.) specifically were utes” never inquiring “This into was involving presidential matters assassi- speech printed in The Hilliard was assault, and nation threats to assassi- 22, 1969, in full the November issue nate the President of the weekly Panther, publica- Black attempts conspiracies States, and to or organ of is an tion official cause commit offenses these and to Party. the Black Panther Hilliard’s offenses, in vio- to commit such others killing the President statement about Code, 18, lation of Title United States by quoted in an Ora Wil- article 1751, 18, United and also Title Section liams entitled Amerikka” “No Justice in Code, Sections 2 and States 371.” published that was December support applications, In 1969, issue of The Black Panther. attached As- Government letters from speech reprinted Hilliard full Attorney dated sistant General paper Wilson January 3, same on 1970. On February 13, authorizing February Unit- magazine printed Life Attorney immunity ed to seek an article about the illustrated Panthers The letters stated photographs Party these witnesses. several mem- part: bers. regard your re- Bursey “This Presley appeared first be- immunity grant quest to seek a jury fore on December Joyce Presley Brenda [and Sherrie ques- at which time Bursey] in primarily connection with the tioned publication about the investigation relating possible speech Hilliard’s in the November 22 is- of Title United States operations violations sue about the internal Code, newspaper. 1751 members Section Each answered Party . .” Black Panther . . a few and refused the remainder. opposition application, Pres- In February 25, 1970, they ley stating On were re- submitted affidavit grand jury. called before the At this if recalled asked she were session, inquiry pub- plan conspiracy on the focused kill the about newspaper lication of the issues and Vice-President and dated President January acquisition weapons, November an- December she would photographs published responsively, denying and on the such swer February knowledge. 6. Both de- witnesses Life respond clined relating Hearings applications were on the management paper the internal May April 3 and 1970. On held on persons and to the identification of the grant- the court issued an order pictured in Both witnesses were Life. immunity Presley under *8 they any also asked if had information requiring them to 2514 and 18 U.S.C. § plot a about to kill the or President they questions had which answer certain acquisition and Vice-President by Febru- on been asked weapons Bursey purpose. for that an- ary specifically ex- The order 1970. swered that she had informa- no such be answer- cluded from the Presley tion. declined to answer. per- identity relating to the those ed photographs, On March it ex- and sons in the United States Life Attorney questions asked pressly for the to the Northern District of referred February 25, applications requesting jury California 1970. by grand filed on May Bursey Presley veloped 13, 1970, by profes- or them On and maintained as grand jury. journalists” again sional were called before the unless and until the compelling Presley knew Government asked whether she shows “a and overriding conspiracy anything to kill the national interest re- a ... quiring” testimony. to ac- their or Vice-President President quire purpose. weapons for She May issue of The Black Presley was asked also answered “No.” Panther an article contained entitled by weapons possession of about My Nam,” “To Black Brothers in Viet had answered she She Panthers. signed by Eldridge Cleaver, Minister of weapons discussion never heard Party. Information of Panther the Black by Panthers, refused but she Among inflammatory passages the more seeing weapons at question her a about following: of this article is the Party meeting. Both a Black Panther quit Army “Either now or start again Presley Bursey asked and destroying Any- it from inside. publication relating and to the thing compromise else is a and a form 22, Decem- the November distribution of your people. of treason own January issues ber newspaper and Stop killing people. the Vietnamese Hilliard contained the killing You need to the racist start 1 against Both the President. “threat” pigs you giv- who are over there with they responded that worked witnesses you Kill Abrams orders. General paper, but refused for Panther staff, and his all his officers. Sabo- concerning any questions its to answer tage supplies equipment or turn and Presley operations. admit- also internal people.” them over to the Vietnamese Black member of ted was a that she Presley reappeared grand Party. before the Panther jury May 21, on 1970. She testified following May Immediately paper, detail about her on the activities hearing session, jury held especially in connection with the issues at which the before the district court 27, January November December Bursey sought and May explained and her She Presley propound- to answer the ordered only relating challenged activities contempt if for ed they and cited editing, articles in those issues were instigation of At refused. typesetting, proofreading. She testi- Presley, Bursey counsel Hewitt, Seale, fied that John Masai Sam hearing reopening court deemed the Napier, Emory Douglas, Hil- and David immunity, application it al- paper liard had and she worked on the put in lowed the witnesses evidence However, said what each did. she privi- establish First Amendment their regular- people refused to name the leges. testified in detail The witnesses ly paper worked or who worked on the Black activities on The their specific on issues. they sometimes Panther. Both said that gathered prepared articles news and Both witnesses were recalled reporters they regularly and that edited grand jury Presley June prepared others assisted articles again specific refused to name individu- phases publication, in- in the various identify played als and to each the roles layout typesetting. cluding publication in the and distribution of May paper. On 20 the district court issued the same issues of declaring protective the wit- named all of order that' the members of Central required Party, reveal nesses not be “shall Committee the Black received, Party generally de- confidential information their fune- described 1. We indicate no view on 22 L.Ed.2d whether Hil *9 Roy liard’s statement was a true threat or States United merely political 874.) hyperbole. a kind crude F.2d (Cf. Watts v. oper- ed from the May article tions with the Cleaver from the and their connection that paper, 2 issue and indicated of The Black Panther and ation of the membership annexed to of the Central Commit- had it as ar- exhibits various changed appreciably newspaper since ticles from Panther and tee had not newspapers describing Party testi- also from other was formed. She paper to re- Panthers. The was intended from The Black fied that articles program described, previously platform of the Panther and were flect the Party. those containing together knew that she with other stories She testified respon- revoluntary identity persons who were Panther of the exhortations distributing leaders, publishing and the use sible on of fire- instructions and, arms, instance, description December issues dated a November one January to dis- but she declined of the and manufacture of cock- Molotov time, identity. papers For the first close their Bursey tail. articles other interrogated reported than The Black about Panther violent My article, po- Brothers Cleaver “To Black confrontations Panthers between and Nam,” reprint of about the lice several Viet cities. pamphlet testi- the article in form. She The district af court decided nothing fied that she had publication do with compelling fidavit “established a article. of the She said overriding national to which the interest responsible re- she for its knew who was conflicting rights of the constitutional pamph- print and its distribution as a respondents give way.” (In re must let, per- but she refused to name those Jury (N.D.Cal.1970) Grand Witnesses sons. F.Supp. 578.) The court de August 13, 1970, On subject scribed the matter of the excerpts moved of both witnesses’ jury investigation inquiry into an as testimony counsel be disclosed to their possible violations U.S.C. §§ compelled and that the witnesses be 871, 1751, 2387, and “related statutes.” questions answer had (Id. ordered The court refused to on June On 1970. Presley questions all to answer August 20, 1970, the district indi- court asked 1970, them at held June the session deny cated that it would the motion and to other answer “all compel testimony, because the which are the said Grand relevant to infringed press freedoms of as- Jury’s investigation.” guaranteed sociation the First were recalled be witnesses given Amendment. The September grand jury present fore continuance to evidence They answer the fol 1970. refused to compelling might national interest lowing lines described outweigh rights the First Amendment interrogation: involved. September 3, 1970, On Questions Bursey to Answer Refused special attorney filed the affidavit of a Department from the of Justice who was oper- Questions current A. assisting per- it. The affidavit listed and distribution ation sons, as Black described Panthers or newspaper. associating persons Panthers, with Black pa- people who edit the Name the 1. pending whom there then per. charges criminal in state or federal normally people 2. Name the quoted published courts. by It article newspaper. work on Times, the New York Decem- dated cur- person who is the Name the 14, 1969, quoted ber in which Hilliard is newspaper. editor-in-chief rent saying: very direct “We advocate currently respon- government person by way overthrow Name the newspaper. distributing quot- force violence.” The affidavit sible *10 right yourself people 20. Name the man at the far besides Name the 5. particular photograph. paper. of a layout for the work who do Questions persons E. about the Panthers have been kind of 6. What’ generally recently manager ? and their activities. distribution 21. people who Name the of the Black of the members some Name 7. Party Panther Panther Black Central Committee. of the on the staff work Manager. Distribution 22. Name some of the Panthers who Questions No- have the traveled overseas. concerned with B. January 3, '27, 22, December vember 23. Name the Panthers who have vis- newspaper May 2 issues the of Algeria. ited together. regularly 24. Does Albert Howard people on who worked 8. some Name Algeria travel back and forth from any issues. of these the United States? person responsible Name the 9. Questions Presley to Answer distributing any of these issues. Refused person persons Questions 10. the Name A. the November subscriptions distribution January on worked December issues these newspaper. issues. the Panther people with 11. some of the people Name 1. on the who worked Name through you gone in newspa- articles whom the November issue deciding particular arti- the course if per. published issues. cles in these should be people on 2. who worked Name the newspaper. 12. on Did John Seale work the December 27 issue newspaper ? these issues of people on 3. who worked Name the Questions the Cleaver January newspaper. C. related to issue article, My in Black Brothers Viet “To all three 4. on Did John Seale work May Nam,” appeared 2 is- in newspaper ? of these issues of the newspaper sue of the Panther work all 5. Did Masai Hewitt on pamphlet form. newspaper? three of these issues of person responsible 13. Name Napier three 6. Did work on all Sam putting pictures the Cleaver around newspaper ? of these issues of the May paper. article issue of the all 7. Hilliard work on Did Junior person responsible for 14. Name the newspaper? three of these issues distributing pamphlet. Emory Douglas all 8. work on Did person you newspaper? whom 15. Name three of these issues of you put clear if wanted would have to job 9. on What John Seale’s pamphlet. aout newspaper three issues at the time these newspaper published person ? 16. a were Name who would know pamphlets if Panther were sent over- job 10. was Junior What Hilliard’s seas. newspaper three on at time these Questions published? identity D. issues were related to the persons magazine pictured Life job on Hilliard’s 11. was David What February 6, 1970. newspaper is- these three at the time people published? particular 17. sues were Name photograph. Douglas’ job Emory 12. What is- right newspaper three time these Name the woman at far particular published? photograph. side of sues May Question people particular issue B. about the Name the newspaper picture. which contained the Panther *11 article, My you the Cleaver “To Black Broth- 25. If meetings, did attend such any killing ers in Nam.” Viet there discussion about any judge? state or federal people helped put who 13. Name newspaper. you anything 26. Do issue of out this know about the Party “going Black Panther under opera- present Question about the C. 2*****8 ground” ? newspaper. Panther tion of the you Party 27. Do know where the people on who worked 14. Name get leaders funds to travel ? newspaper Panther the issue (September yesterday any 28. Do out which came funds are used for by Party 1970). any travel leaders come from foreign government ? Questions the Panthers about D. you generally any activities. 29. Do and their know whether by Party funds used for travel leaders any you member ever seen 15. Have any foreign government? come from Party posses- the Black Panther you any 30. of a firearm? Do
sion Black know whether rep- Panthers have been contact with any explo- you seen ever 16. Have resentatives of the Palestine Liberation headquarters any ? Panther sives Front or the A1Fatah movement? you any Molotov ever seen 17. Have any 31. Have Black Panthers con- any headquarters? Panther cocktails at tacted the Palestine Liberation Front or any you discus- heard 18. Have ever the A1 Fatah movement in connection by any Black Panth- sion member of the getting guerrilla training ? concerning Party use er you anything 32. Do in- know about explosives? being given structions to the members any you 19. Have heard discus- ever Party guerrilla of the Black Panther by any sion Panth- member the Black warfare ? concerning any Party er the use At session, the same both weapons? responsively great witnesses answered many you 20. attended Black Have ever questions. other A brief review Party meetings where the use responsive of some of their answers weapons explosives or was discussed? necessary place ques- in context the you meetings, If 21. did attend such tions that each declined answer. they where were held? Immediately Bursey after refused to you meetings, 22. If did attend such identity question answer the about the purpose what was the use of such (question 3), this of the editor-in-chief weapons explosives? colloquy occurred: you 23. meetings, If did attend such “Q. you current Do know the any was there discussion about a threat editor-in-chief? against the President? put Well, A. we—it’s not editor newspaper. chief you meetings, If did attend such concerning Q. primarily there person discussion ei- re- isWho getting ther assaulting, kidnapping, sponsible newspaper or exe- for cution of the President? out? Superficially, personal knowledge underlying informa- toward the directed entirely require the witnesses irrelevant tion. If the could jury’s investigation. (See underlying in- witnesses formation, to disclose the can, require Grudin course, v. United States it an- 610, 612.) context, preliminary questions. 198 F.2d Read If swers however, prelimi- require such were could not disclosure of ulti- nary, purposes opinion facts, probe and for of this mate it could not the knowl- we edge have treated them as if were of these witnesses about those facts.
X07X pa- “just people us who work on about the same A. All of previous papers.” per.” worked on hearing identify persons contempt Bursey Septem- At refused to paper distributing responsible ber counsel Presley but, during (questions 4, 6), her interro- reasserted their contentions that photographs, gation her First and Fifth Amendments shield- the Life *12 argued contempt testimony ed them from and that as follows: attempted the information to be elicited “Q. pointing person I am who The by questions the that each had refused appears person is the who to now grand to answer was not relevant pic- left, you the extreme as face the jury investigation. The district court Napier? Isn’t Mr. Sam ture. that questions held that all the rele- were A. Yes. grand jury investigation, vant the re- to something Q. to Doesn’t he have jected argu- the witnesses’ constitutional putting paper— do the with ments, and ordered the to an- witnesses No. A. questions. they swer all the When indicated their continued an- refusal to my Q. interpreted question swer, to contempt You the court found them in actually something custody to do with have ordered them committed to layout putting paper purged in terms the until either the witnesses them- thing, contempt and he’s and that sort of selves of or the term of grand manager, jury expired.3 he distribution national not? by principal presented questions not I’m I he still is. A. think appeal (1) these: Does sure. privilege against Fifth Amendment apply self-incrimination shield Q. sure? You’re not responding witnesses all or changed and forth back A. No. It’s questions each declined recently. not.” if I’m not sure he any, (2) limitations, answer? What if Although to describe declined process does the due clause the Fifth paper publication the details of impose power upon Amendment 1-12), she (questions she testified that district court to commit witness the is- on did remember who worked not custody questions for refusal to answer 22, December sues dated November propounded by grand jury? a federal persons January 3, those and that (3) governmental in- Do the interests people might some of the same investigation volved this paper. working currently were press and asso- override freedoms identify some of refused She eiational, personal, political privacy pictured persons who were Life as- secured the First Amendment and identify 17-20), (questions but she did refusing serted the witnesses photo- persons one herself of the grand jury? answer the of the graphed. back- identified the also She appeal moot? Is shop ground print the news- as the might pictures paper, said that I. SELF-INCRIMINATION about November been taken persons some of the and indicated that invoke Neither witness could photographed members were privilege her Fifth Amendment Party. Black Panther answering to avoid self-incrimination might anyone Presley people who incriminate testified (Rogers September 9, 1970, issue other than herself. v. United worked on occurred, Fed.R.Crim.Rroc., U.S.C., 18 and Rule event but the district Neither (6), 60(b)(5), released both witnesses from cus Fed.R.Civ.Proc. 28 court U.S.C. pursuant tody pending appeal to Rule rehearing denied, U.S. 93; (2d 344; v. Henkel In re Hale 27 L.Ed.2d Vericker 95 L.Ed. 652.) 1971) 50 L.Ed. 446 F.2d December .201 U.S. Jury Although Bur- Grand v. United States all of sey Presley con- Cir. refused to answer F.2d cert. denied identity knowledge States, sub Di their nom. Domenico v. United cerned others, assert could acts argue responsive Nevertheless, privileges an- the witnesses their because immunity grants might them. have incriminated coex swers purpose tensive their Amendment Fifth privileges publication jury in or not the because whether determine immunity quiries beyond certain articles extended and distribution granted pamphlets newspaper and them. 417 F.2d provided fore, United States less cast needed Fed.Cas. grants witnesses which revealed sibly edge (Carter and certain activities Party unlawful conduct. 170; Emspak (Blau Section 25144 the suspicion upon could of the intimate details criminal members v. United States of full in a v. United privileges “a link in the chain 38, 40.) immunity. rely upon prosecution” of themselves. transactional activity cert. denied were Burr provides the witnesses States United States them part Testimony by the their 687, L.Ed. *13 of Black would (C.C.Va.1807) 25 witnesses, (1950) nullified (9th of privileges un- their of such (1970), a scheme of evidence necessarily could Cir. immunity. 95 L.Ed. 340 U.S. by the knowl- there- 1969) have 997; pos- of against self-incrimination, thing concerning investigation from that after count of cuted or tion must grant mit such cide that Thereafter, the witness cannot be must relate to a involving any the Attorney General; served in section upon [119] (1) If the Section 2514 application A United under section obtaining a or having subjected subject any offenses; 2516,” any transaction, the immunizing be described does not States violation granted by must be public imposes claimed matter or which to grant “proceeding offenses conspiracies (3) any penalty Attorney materially change in interest aof a he approved by of four conditions the there his of an witness; court this to the enumerated application matter or immunity: compelled, immunity must de- privilege is no testify.” applica- will to com- chapter “on ac- . prose- order. . the (2) in- be . books, papers, 2514: § U.S.C. on the or other evidence judgment testimony ground in the of a United “Whenever re- or evidence attorney testimony any quired of wit- of him tend to incriminate ness, production books, papers, subject penalty or the of him or for- to a him or by any any witness, prose- in or other evidence feiture. such witness shall be No proceeding any grand jury subjected any penalty case or before or for- or to cuted involving any or court of the United States transac- on account of feiture for or any any chapter thing concerning tion, violation of this of or matter or having compelled, the offenses enumerated in section his claimed he is after any conspiracy chapter privilege against self-incrimination, or to violate this any testify produce evidence, or the offenses enumerated nor shall or necessary public testimony compelled section 2516 is to the in- be used as evi- so terest, attorney, upon (except any proceeding such United States dence criminal approval Attorney General, proceeding in the next sen- described in a application tence) shall make to the court him in No wit- court. testify exempt the witness shall be instructed to this section ness shall be under produce subject provi- contempt perjury prosecution or evidence or section, testimony upon giving pro- sions of this order committed while pro- compulsion ducing the court such witness shall not be ex- evidence under testifying producing cused from or from vided this section.” provisions requirements of dural and substantive herent conflict between grant authorizing authorizing (In of immu- statute a statute. re the nity Russo defining provisions F.2d Ull- cf. immunity that has been mann v. United States breadth interpretation statutory 100 L.Ed. conferred. investigation problem ex- an arises when making argument, their In subject pands re- matter in to include require effect, witnesses, in ask us to spect could witness either which the court rule on district the relevan immunized not or was not have been cy grand jury questions directed grant. terms of the ques an immunized witness before contradictory Relying upon infer- propounded. adopt tions are Were we par- statute, in this ences inherent argument, fundamentally their we would appeal adopted opposite ties to this grand jury proceed alter nature of defining positions and extreme ings, and we would create intolerable inquiry permissible range procedural investiga In difficulties. pursuant immunity. grant Fo- tory process, question one leads to an imposed cusing upon the limitations other. The district court could fectively ef compel upon statute to the use of this grand-jury confine the argue testimony, that the witnesses monitoring script constantly without grand jury inquiry pursuant can result —a granted immunity strictly lim- should be squared neither with functions specifically ited detailed *14 grand jury nor with the functions of the or, granting immunity, the court order grand jury in court in context a the of granting alternative, in the that when vestigation. To the extent that relevan immunity section, district under the this grand cy an in is issue the of context required court define clear- should be to jury inquiry witness, an of immunized ly permissible inquiry. the limits of properly is witness is raised when the upon the The relies broad Government summoned the failure before court for language immunity grant the of in the comply compelling with the order tes immunity position statute for that its timony. (In (1962) 113 re Bart U.S. granted applies once to a witness n.18; App.D.C. 304 F.2d inquiry jury there- which a States Cobbledick United cf. after make of the witness. 84 L.Ed. 309 U.S. 783.) interpretations of Neither of these acceptable. section 2514 The first is testimony impede that the flow would of nothing hand, the other On Congress through the release intended to legislative history of section the text or immunity use section 2514. of under Congress suggests intended that impermissibly the extends second immunized a witness who had been Congress immunity scope au- of the proceed grand jury a in connection with thorized in this statute. ing involving specific or of offense impliedly immunized would be fenses em is not The district court respect any inquiry the to which of powered of a the course control might grand jury it address thereafter investigation. passing upon an In language re of the statute self. The application, immunity the court con Re in the Senate the intent stated flects applica of the fined to an examination immunity port available would be accompanying it tion and the documents investigation only in connection the with deciding only purpose whether of for the There offenses.5 proce- enumerated application of certain meets the or not the chapter the and the chapter pro- tions offenses the “Section of new of un- section 2516. immunity granting enumerated Since the of from vides for typically investigation surveillance prosecution in the viola- lawful electronic immunity point specify application by pie, the the little would have been immunity Attorney approval ing proceedings in which United States the Attorney granted' specification refers to an in if General could be vestigation prelude possible simply unrestricted violations of were (presidential immunity. U.S.C. assassina § tion, kidnapping, assault), but giv interpret 2514 as section To expanded inquiry to encom ex discretion possible pass of 18 violations U.S.C. § grant by immunity pand scope an (interference with armed substantially undertaking inquiry re an Attorney forces). The United States for which the witness moved Attorney might have decid General emp an reduce to immunized would Bursey’s and ed that evidence of statutory ty formality conditions Presley’s possible lat involvement by prior determination strong public Attorney ter offense was so approval Attorney prior by the by granting interest served would not be case, exam- In this ral.6 Gene (S. 677) wiretap separate by introduced crime, bill often committed a clandestine instigation and Hruska. McClellan Senators another an individual immunity provision. techniques an Neither bill had person, of criminal usual being held, Berger hearings not, organized While will as in investigations, adequate New York be to en- crime decided, prohibitions 1040 was 18 L.Ed.2d force the statute. wiretap new privilege Hruska introduced Senator self-incrimination would requirements prevent princi- of that deci bill to meet the in most cases to work referred to Judi pals bill was sion. The ciary behind the overt acts others from legally being those added to un Committee and held accountable. Conse- immunity grant a section quently, It contained der consideration. will be neces- immunity effectively authorizing sary prohibitions in connection enforce wiretapping. illegal investigations safeguard privacy. statute During proposed section, grant consideration the Committee’s Under immunity bills, approved amended this section was would have *15 adding by Attorney present a cross 2514 General would be effec- form of § immunity authorizing only upon in connec an order reference tive of court. The provision patterned provisions investigations all the offenses is after tion with upheld 2516 in addition to other have been listed § laws which 18 U.S.C. illegal wiretapping. It effective. is have been un found intended to reflect We published existing (Ullmann States, anything in the law. v. United able hearings find 497, explain 422 350 U.S. [100 L.Ed. bills to on these upholding (1956), congressional 18 debates 511] U.S.C. 3486 amendment. The (1964), amended, 3486(c), equally prior 18 U.S.C. unen enactment ; (Supp. 1, 1965) only specific States, lightening. Indeed, Reina v. United 364 [5 U.S. 507 L.Ed.2d references to 2514 which we have been § (1960), upholding imply 18 1406 able to some 249] U.S.C. find that Senators S.Rep.No.1097, (1964)).” Cong., may 90th the mistaken im have acted under Sess., Cong. pression immunity 2d News, 1968 U.S.Code & Admin. 2514 was § pp. (Emphasis investigations illegal still confined to added.) wiretapping. (See Cong.Rec. 114 14745- part 46; supra.) S.Rep.No.1097, Section 2514 was enacted as III Title of the Omnibus Crime Control immunity application and Safe primarily Act of Streets 1968. Title III 6. The this case wiretapping, by approved Wilson, concerns then declares Will As- illegal charge Attorney it to be unless es- authorized and sistant General apparently pursu- Division, tablishes standards such authoriza- the Criminal by Attorney delegation tion. ant to a Gen- very legislative by power There is little his eral of to him committed tory immunity. (8th originally (United As v. Di Mauro § States passed House, 428, 438-439; 1971) in the the bill contained Cir. 441 F.2d provisions (7th 1971) none of the final III. Cir. Title United States Puntillo v. Senate, (H.R. 540, 544; In the the House version 440 F.2d December 1968 Grand 917) by Jury States, supra, 5037 and S. 420 v. F.2d considered United Judiciary together 1203.) Committee with a at might immunity, 2514 should be construed to of them Section or one them immunity by posed granting avoid the difficulties the inter- have determined that investigation parties. pretations offered It un an in connection with unnecessarily applied in in be a manner that will should would der statute grand jury rights accommodate the a fringe upon witnesses needs of of the testimony immunity by affixing to their and of the immunized without witness investigatory pow- unduly impairing unlikely helpful in when it was rights grand jury stat er of the of the would be obtained. formation determina places of the witness. ute the burden Attorney tion a States on United A court is “entitled General; Attorney no dis such confers set limits that a (In re jury. upon the cretion (Blair conduct.” Investigation (E.D.Pa.1970) Jury Grand States United (3d F.Supp. motion denied 979; 468, 471, L.Ed. Bart, Cir.) su In re 427 F.2d cf. District Court United States 635.) pra, 304 F.2d 238 F.2d de cert. Co., Valley Dairy nied sub nom. Bell authority gives no Section Inc. v. United States assisting attorney a an is How immunity scope extend ever, grant of neither of a the issuance broadening grant by in of his the area immunity interpretation of the nor the terrogation witness. of an immunized immunity grant any part func implied, authority should not be Such grand jury. a tion of issuance it would undermine the statuto because immunity initially pros committed to Congress ry imposed upon checks operating within the ecutorial discretion immunity. Report grants of The Senate Congress imposed later limits that provi on section 2514 indicates that congressional interpreting to the court requiring sions of the statute action will and the commands of Constitu Attorney by the At United States tion. torney after exist modeled General was (See supra.) im An note 5 law. con The court first becomes munity appears to statute that inquir cerned substance with the 3486(c), model was former 18 U.S.C. § when ies to witness 20, 1954, 83-600, Aug. P.L. 68 Stat. compelling an order the witness seeks repealed, 91-452, P.L. Oct. respond he refused has require imposing same Stat. despite grant prior of im history legislative sec ments. The munity. the witness’ When basis *16 3486(c)
tion one reveals that Fifth is assertion his declination the including purposes for dual action was privilege, court must the Amendment by guard against immunity “immunity (1) grant to interpret baths” to the investigation for identify specific requiring the “at least two other inde under was immunized which witness pendent parties must but interested 2514, rela section determine the grant immunity.” (H. concur investiga tionship any, between if 2606, Sess., Cong., R.Rep.No. 2d 1954 83d tion for he immunized which 3059, Admin.News, pp. & U.S.Code subject challenged questions. If the 3064-3065; v. United Corona States cf. interrogation he to which matter of the (6th 578, 1958) de Cir. 250 F.2d cert. respond not related to is refused nied, 921, 954, 2 L.Ed. 356 U.S. investigation has been val for which he 847, 978, rehearing denied, 2d 356 U.S. idly be immunized, cannot the witness 1152; 1140, 2 L.Ed.2d United (Carter United forced to answer. v. U.S.App. 94 v. Brennan 388; States re supra, In States, at 417 F.2d 184, denied, 268, 244; D.C. 214 348 supra, F.2d cert. United Vericker, 446 F.2d supra, at Mauro, 441 F.2d 830, 53, Di v. 75 L.Ed. States U.S. S.Ct. 99 1076 States, grand
438; jury, su Ullmann v. United The not cf. 497; pra, 426, court, investigate, In re at S.Ct. 350 U.S. 76 decides what shall Investigation Jury called, of Giancana which Grand witnesses shall be and how interrogated. 1965) de 352 F.2d cert. the witnesses The Cir. shall be court, grand jury, nom. Giancana v. United nied sub not the decides wheth specific grand L. States, 86 15 382 S.Ct. er which the 362; jury v. Shillitani Ed.2d United States wants fall within with answered (2d 1965) grant by on immunity F.2d vacated 345 out Cir. authorized grounds (1966) 364, 86 other 384 U.S. section We hold the court can that 622; compel L.Ed.2d United 16 not under S.Ct. witness immunized (2d 1965) incriminating 343 Tramunti Cir. section 2514 questions States v. to answer grounds on sub not sub F.2d vacated other that related ject granted v. United for which nom. Castaldi States matter he was immunity.7 16 86 L.Ed.2d 384 U.S. 993; (2d Cir. United States v. Harris The standard of relevance 1964) other F.2d rev’d applied that is be cannot be defined grounds (1965) 162, 86 S.Ct. precisely. recognize We con that 240; L.Ed.2d States cepts ordinary liti relevance used (3d Testa 326 F.2d 732- gation investiga grand jury do not fit a (dissenting opinion petition for 734 rehearing), flexibility tion. al Greater must be Testa cert. denied nom. sub grand jury inquiries lowed to accommo States, v. United date the differences a trial and between supra, 652; Bart, In re investigation. (See Carter v. United 637; at 304 F.2d Chas. United States v. States, 384; supra, F.2d at cf. Unit (S.D.N.Y.1965) F. Pfizer Supp. 801, & Co. supra, Tramunti, ed F.2d 817-818). supra, Harris, at United States v. ques The nexus between the 462-463.) F.2d that We think tions witness refused to answer relevancy the minimum standard of subject and the matter has he applied deciding be an immu whether been immunized is established compelled nized witness can an showing inquiries that the were relevant specific questions posed swer grand jury to the matter the is investi nothing is If there this: is gating, unless that matter is substantial in the record before court the district ly subject confined to named in logical suggests be connection grant. immunity necessary There no is subject question tween scope connection between the of im subject matter of the munity granted been has for which the witness received immuni scope investiga jury of a ty, question shall be deemed to elicit tion. ques issue not: Was a testimony irrelevant, that is and the wit subject tion relevant compelled ness cannot be it. investigating? issue The burden rests on the question is: Was a sub relevant to the to show that ject respect to which the witness witness has refused rele answer are granted immunity? Almost *17 investigation vant to the he for which question may subject be relevant to the granted immunity. (In re has grand investigation, been jury matter of the 247-248.) Vericker, supra, questions but not 446 F.2d all such are necessari ly investigation relevant for meet this chal It has ammunition immunity granted. which lenge, has been Aside and the does not. witness Weinberg (9th questions investigation In United v. States of which Cir. 1971) 743, 749-750, immunity granted 439 F.2d the distinc- was neither raised relevancy questions tion between of nor discussed. grand jury investigation relevancy
1077 privilege testimony, predicated upon the witness cannot be from his such own (Shotwell Mfg. has Co. what evidence been statements. Unit does know v. (1963) 341, 347-348, by jury grand evi ed or what States 371 U.S. received rehearing 357, by 448, produced 83 9 the attor S.Ct. L.Ed.2d will be later dence neys denied, 950, 931, assisting grand jury. L. Absent 72 83 9 U.S. S.Ct. court, 975; the Ed.2d Crawford disclosure the district v. United States (5th 1955) 210-211, assisting 207, jury grand alone Cir. F.2d it 219 and those rehearing denied, 352; Miller laid 220 F.2d that has been know the foundation 624; sought (Miss.1971) testimony v. 2d State 250 and the desti So. for the cf. (1897) questioning Bram United States 168 U.S. nation toward which the v. 532, 568; 183, 18 42 L.Ed. Wilson S.Ct. leads. (1896) 613, 16 v. United 162 States U.S. necessary appears If it that the 1090.) case, 895, 40 In this S.Ct. L.Ed. may impair exploration relevance grand attorneys assisting jury secrecy proceeding, jury repeatedly Presley reminded camera, protection may be achieved they they immunized, had been Of court. disclosure to the district course, respon witnesses extracted both encroaches disclosure incriminating upon sive and answers pro secrecy some measure on ceeding, subjects that irrelevant to the of were security modest but some immunity fenses for which had been be tolerated in situa breaches should granted. slightest indi There not the competing interests out tions acting in cation that were the witnesses weigh preserving secre interests such bad when answered faith (Mara cy. Cir. States v. United circumstances, questions. Under these 1971) petition 454 for cert. F.2d deemed neither witness can be to have 1971); (Dec. 30, filed, 40 3316 U.S.L.W. privilege her Fifth Amendment waived (1969) Alderman United States v. cf. respect an those 961, 22 L.Ed.2d 394 U.S. 89 S.Ct. swers that fell within the nonimmunized 176, rehearing Ivanov v. denied sub nom. areas. States, United case. We turn to facts this 475; 1177, 22 Dennis v. L.Ed.2d granted The immu- witnesses were both (1966) States 384 U.S. nity investigation potential an vi- 973; 1840, 16 v. United Allen L.Ed.2d The inves- olations of U.S.C. 1751. tigation § U.S.App.D.C. expanded to thereafter include Youngblood 476; F.2d United States potential violations 18 U.S.C. §§ (2d 365.) F.2d unspecified other im limitations granted thus all statutes.” assume that “related We immunity posed on under sec the witnesses seriously threaten a tion 2514 do not pos- relevant to refused to grant of im who, witness misled which the sible offenses provides incriminating munity, informa issue, might investigate. properly in tion about vestigation unrelated to the offenses however, is, were the relevant been immu for which he has possible violations privilege nized. Waiver resolution of the of section 1751? The self-incrimination is unless not effective question: depends further issue on the voluntary. (Boykin Alabama successfully carry its Did the relationship establishing be- burden of Johnson v. Zerbst cf. sought in- and an information 82 tween the in vestigation possible An immunized witness’ of sec- L.Ed. violations good criminating statements made tion 1751? *18 posed by response questions faith grand jury the think We “voluntary.” A are the not regard most carry did its burden with of the Fifth Amendment waiver witness’ Questions given questions September 10, of cerning con- the asked.8 which was killing kidnap- presented or the discussions of district court. She ping (Presley questions background photo- the President identified the graphs of the 23, 24) print shop pa- of about discussions and use as the where the (Presley ques- per explosives prepared, firearms the is and she said that pictures might 15-22) on are tions their face relevant been taken around have potential Similarly, 1751. violations of section November the testi- Bursey relevancy questions mony The the of about of on June gov- foreign Panthers of involvement members of the Central Committee (Presley questions 28-31) Party ernments is the on the sometimes worked doubtful, but, bearing newspaper membership more mind that the of preliminary questions the have been the un- Central Committee remained relevancy changed during applicable and that the standard of applied to be the time was stringent is than that in less sufficient basis the trial, questions require identify we are her conclude the of the members investigation (Bursey question not too potential from the of the remote Central Committee violations section 1751. of 21). Questions that concerned train Questions identity about the of Panthers for violent action and persons worked on the is three secrecy of the activities of the Panthers paper
sues of dated November De (Presley questions 32) too not are January (Bursey ques 27, and cember possible plots remote from of acts violent Presley 1-12) 8-12; questions tions the President to fail our rele are not on their face relevant. How vance test. ever, po questions were connected to by tential violations of section 1751 hand, general On the other prior testimony by witnesses questions about travel abroad and fi attorney assisting of affidavit nancing (Bursey travel Panthers presented were questions 22-24; Presley 27) question manner, the district court. In this are relevant on their and noth face, grand jury established that issues these ing in the record before the district paper of carried the Hilliard suggests logical court connection be paper “threat” and that reflected questions tween those of and a violation policies official the Black grand jury may section Party. The foundation ade thus laid connection, had information that made a quately linked the im presented, but such until foundation investigation pur present munized poses. compelled the witnesses cannot to an questions.
swer these Questions identity publication about the persons responsible present oper May newspaper for the 2 issue of the newspaper (Bursey ation ques pamphlet containing ar the Cleaver 1-7; Presley question 14) tions 13-16; Presley (Bursey questions ticle upon testimony question based of these wit were relevant to an investi people working gation possible nesses that then on the violations U.S.C. paper might have also worked problem 2387. The wit § is that January November December nesses were not immunized in connection 3 issues and investigation possible therefore relevant. The with an viola relevancy questions concerning statute, tions of re and the record identity persons photo in veals no sufficient between connection Life graphs (Bursey questions 17-20) sup such and an ported testimony other possible section violations of 1751 for 8. The discussion in this section of tion issue. It does not touch the First opinion is problems confined to the self-incrimina- later. Amendment considered *19 granted. questions immunity It does answer some had an- hearing. prior contempt logically person that a who swered to follow (2) Bursey contempt pamphlets re- was held in for would know whether might questions fusing to answer also certain were sent overseas previously knowledge a con- held in the court had she could of or be involved required spiracy not be to to President. Until answer. kill the grand a sufficient establishes During grand jury her the course of information connection between Bursey testimony September pro- on sought possible violation of sec- and a responsive questions vided answers to properly are tion or the witnesses 4, 6, and had in substance 8-12. She granted immunity an for question grand jury answered 21 at the possible of section violations hearing Presley substance on June 4. in privilege prevents Fifth Amendment questions 4-6, 9,8, answered and being Bursey Presley punished and testimony during her earlier before the refusing questions. these for to May on had re- 21. She sponded questions to 18-24 in an affida- Presley compelled to cannot be opposition immu- in vit submitted to plans kill question about answer the nity during application and her testimo- (Presley question judges federal or state grand ny jury May before the plan 25). Admittedly, people repetition in the examination Some planning may ning be one murder also a witness before a is inevita- alone, standing but, is not another, and, circumstances, it ble some under expand im a sufficient connection may rep- even desirable.9 Excessive be munity compel granted an answer questions upon the etition of the same Congressional question. limitations this subsequent appearances aof same or investigations immunity on the use purpose. It serves witness no useful offenses, be would enumerated certain needlessly investigation, prolongs an entirely negated unrelated if evidence of may permit of the witness. it abuse brought offenses were thus within grant immunity after was reach Compelling a to answer witness ed. previously question he has to which ques very Finally, responded were some there adds little to jury’s The risks that simultane information. tions directed store of carry by repetitious ously issues three to a confronted concerned the witness speech however, questions, may issue one not minimal. the Hilliard be (Bursey possibility carrying always hovering article the Cleaver There may questions 8-12). inconsistency questions The form of in his answers ordinarily perjury. expose prosecution im jury is for asked him to however, may Here, the multifar also have to assume material. The witness prior both immunized his answers ious covered the risk that subjects. The error of his First nonimmunized construed as a waiver rights. (See Presser before be corrected Fifth Amendment form should U.S.App.D. compel the answers. court can v. United States denied F.2d cert. C. 694, 5 L.Ed.2d II. DUE PROCESS rehearing 855, 81 denied, 365 U.S. George In re 5 L.Ed.2d process arise this S. Ct. Due Bldg. Corp. Nord Both witness- for reasons: F. two case refusing Kausal contempt sub nom. to F.2d denied cert. es were held pow- ways grand jury, example, ap- test the witness’ different A has credibility. hearing responses propriate ers of recollection interest put matter the same *20 1080 Corp., grand
v.
& Escanaba
jury
79th
317
permit
U.S.
to
the witness
10
538.)
63
87
inspect, copy,
S.Ct.
L.Ed.
to
photograph
or
the wit
testimony
ness’ recorded
before the
potential for
is considera-
abuse
grand jury.
grant
The motion shall be
bly
re-
enhanced when the witness is
attorney representing
ed unless the
again
again
called
and
and
weeks
when
par
can demonstrate “some
elapse
appearances.
or months
between
why
ticularized and substantial reasons
this should not be allowed in a
attorneys
jury
grand
and the
assist-
The
ing
particu
their
it can refresh
memories of the
(United
Projansky
lar case.”
States v.
prior testimony
ap-
witness’
each
before
(S.D.N.Y.1968)
550, 552.)
44 F.R.D.
If
pearance
they
to
because
have access
carry
is
to
able
its sub
transcripts.
his
The witness cannot aid
regard
stantial
burden
this
and
recollection
recourse either
a tran-
to
denied,
prior
witness’ motion is
tes
memory
script or to the
of his counsel.11
timony of the witness
disclosed
must be
may
obliged
be
to
these risks
He
take
court; and,
in camera
if
district
though
memory
prior
even
his
of his
appears
witness,
to the court
testimony during
span
full
in-
his
substance, may
have answered the
terrogation
been
or ex-
has
diminished
questions
compulsory process
for which
tinguished.
sought,
is
the court must disclose such
concepts
think that the
We
passages
prior testimony
in the
of fundamental fairness inherent in due
(Cf.
witness and his counsel.
Pitts
process
grand
require
jury
that a
wit
burgh Plate Glass Co.
States
v. United
given
protection
ness be
some
from (1959)
360
79
3 L.
S.Ct.
compelled
these risks before he is
to an
rehearing
denied,
Ed.2d
361 U.S.
repetitious questions.
swer
protection
Minimal 855,
94.)
4
If
S.Ct.
L.Ed.2d
this
by devising
is
afforded
procedure
followed,
is not
an
order
give
opportunity
means
him an
de
contempt
upon
based
a refusal to answer
previous
termine whether or not
has
he
repetitious questions will not be sus
ly
de
answered
which he now
tained.
clines to answer.
could
Several methods
used,
perfect.
be
may
none which is
One
A witness
not base a re
method that commends
us is
question
itself to
fusal
to answer a
on the
16(a)
ground
modeled
repetitious.
pur
after Rule
of the Federal
that it is
Upon
pose
Rules
Criminal Procedure.12
adopting
proce
this disclosure
grand jury witness,
motion of a
any
dure is
create
new basis for
may
attorney represent
court
immunity
any
privilege.
order the
or
new
It
purpose
freely
jury
If a
grand
court divines that
allowed to leave the
repetitious questioning
counsel,
is to
a wit-
coax
room
with
to consult
perjury
Presley
ness into the
were,
may
commission of
or con-
such assistance
be
tempt,
such
case,
conduct would
abuse
In this
of limited value.
for ex-
grand jury process.
(Brown
ample,
throughout
proceeding below,
1957)
provided
United States
F.2d
counsel
for
witnesses
549;
Thayer
of.
(D.Colo.
only
excerpts
United States v.
with
limited
their
clients’
F.Supp. 929;
testimony
preserve
United States v.
in order to
(D.D.C.1959)
F.Supp.
secrecy.
Cross
doubtful,
therefore,
It is
whether
(D.D.C.1956)
Icardi
their
counsel
is even now aware
F.Supp. 383).
may
clients
substance
answered
certain
which
were held in
“Laymen
expected
cannot be
to know
contempt
refusing
to answer.
protect
rights
dealing
how to
their
when
practical
carefully
part,
16(a) provides:
pertinent
counseled ad-
12. In
Rule
”
(Brotherhood
.
“Upon
versaries
.
.
.
motion of a defendant
the court
Virginia
attorney
govern-
Railroad Trainmen v.
ex rel. Vir-
order
ginia
1, 7,
permit
inspect
State Bar
ment
the defendant
1113, 1117,
copy
photograph
12 L.Ed.2d
rehear-
relevant
or
ing denied,
testimony
84 of the defend-
.
.
.
recorded
jury.”
Even when witnesses
ant before
give
pro-
intended to
witness a fair basis
secured
First Amendment to
upon
being compelled
to make an informed choice
tect
them
to an-
answering
declining
identity
to answer
swer
ac-
proceeding
posed
people
when the
in a
tivities
issue
who worked on
compel
newspaper
pamphlets
him
answer.
or who were
*21
Party.
members of the Black Panther
process problem
due
second
responds
(1)
The Government
the
Bursey
arises
to answer
because
refused
sought
by
protected
information
not
is
photographs
about
in Life
Amendment,
(2)
the
First
First
the
magazine
17-20),
(Bursey questions
grand
penetrate
does
not
Amendment
May 6
court’s
district
order
the
jury investigation,
(3) even if the First
expressly excepted
granting
immunity
trip
the
into the
Amendment survived
grant questions
from
the same
the
grand jury room,
First Amendment
the
subject.
district
court’s
the
Whether
yield
paramount
interests must
original exception
right
wrong, it
or
securing
interests
in
of the Government
process
is a
of due
to hold a wit
denial
sought
the
to
information
obtain
contempt
refusing
ness in
to answer
for
through
the
that the witnesses
excepted
questions that had been
from
refused to answer.
immunity grant, at
in
ab
an
least
the
sence of a reversal of that order
argues
first
Government
brought
the
has been
witness’ atten
the President and incitements
threats to
Bursey
clarity.
with
tion
unmistakable
insubordination in the armed forces
refusing
contempt
cannot
held
for
in
be
by
“speech” protected
are not
First
(People
questions.
these
investigation
Amendment
(1971)
287, 321 N.
28 N.Y.2d
Masiello
into the
those
be
activities of
reargument
305,
Y.S.2d
270 N.E.2d
“non-speech” is
with
denied,
connected
such
29 N.Y.2d
N.Y.S.2d
273 N.E.2d
Brown United
insulation
cf.
likewise removed from the
41, 50,
the First Amendment.
denied,
rehearing
3 L.Ed.2d
objectives
Two
3 L.Ed.2d
U.S.
determine
potential
of 18
violations
existence of
AMENDMENT
III.
FIRST
(threats
871(a)
U.S.C.
§
(in
President)
and 18 U.S.C. §
Presley rely
on the free-
forces),14
press
privacy
terference with the armed
doms of
and associational
provides
provides:
:
Section 2387
Section 871
(a) Whoever,
knowingly
willfully
(a)
interfere
intent
Whoever
loyalty,
with,
deposits
conveyance
impair,
mo-
or influence
the mail or for
military
by
discipline
delivery
any post
rale,
naval
or
or
office or
any
any. letter, paper,
United
writ-
forces
States:
letter carrier
counsels, urges,
advises,
ing, print, missive,
or
or document
con-
any
attempts
any
taining
to cause
life
manner causes or
threat
to take the
of or
mutiny,
insubordination,
disloyalty,
bodily
upon
or
harm
the President of
inflict
any
duty by
States,
President-elect,
member
refusal of
United
military
or naval
forces
Vice President or
officer next
other
States;
or
order of succession to
office
Pres-
attempts
States,
distrib-
distributes or
ident of the United
or the Vice
printed
willfully
any
President-elect,
knowingly
matter
written
or
or
ute
urges
counsels,
advises,
any
against
insub-
or
makes
such threat
otherwise
disloyalty, mutiny,
ordination,
President, President-elect,
or
re-
Vice Pres-
duty
mili-
member of
next
fusal of
tary
ident or other officer
the order
President,
the United
naval
forces
or
or
succession to the office of
President-elect,
fined not
States—
Vice
shall be
$10,000
imprisoned
$1,000
than
fined not more
be
more
not more
Shall
than
or
years,
imprisoned
years,
more than ten
than five
or both.
“pure
penalize
nugatory
both of which
forms of
ment
is
in a
speech.”
proceeding.15
governmental
There
ei
is no offense under
No
door can
particular expres
statute unless the
be
ther
closed
the Amendment. No
governmental activity
sion read in context falls within
is immune from
statutory proscription
setting
and unless the
its force.
That
com-
speaker, printer,
petition
rights
or distributor had
between
secured
specific
antagonistic gov-
intent
that each
re
statute
First Amendment and
quires.
(Watts
States, supra,
grand jury pro-
v. United
ernmental
interests
ceeding
simply
394
664;
one of the
factors
striking
Dunne v. United States
must
into
taken
account
denied,
appropriate
138 F.2d
cert.
320 U.
constitutional balance.
476, re
S.
88 L.Ed.
There are differences between
hearing denied,
814, 815,
64 S.
jury investigations and other forms of
*22
260, 426,
493.)
492,
Ct.
88 L.Ed.
governmental activity to
which
First
applied,
has
Amendment
been
but none
argument
The Government’s
provides any
of the differences
basis
premise
takes
its
the conclusion to be
applying
rig-
the First Amendment less
proved:
expressions and
The
associa
orously
grand jury proceedings.
relationships
pro
tional
in issue are not
A
arm
is an
by
tected
This
First Amendment.
judiciary,
appendage
rather than
an
argument
implies
pre
that
there is a
other
the
judiciary,
branches of
The
Government.
sumption
nonprotection applied
governmental
no
than its
less
expressions and
associations involved
coordinates,
by
is bound
the Constitu
this
liged
case
that the
are ob
witnesses
Indeed,
tion.
it would be anomolous for
rely
to overcome it before
can
protect
courts
First Amendment
on the First
Amendment.
Govern
rights
infringement
other
speech,
ment has it backwards. All
Government,
provid
branches' of
while
press,
relationships
and associational
are
protection
no such
from the acts of
presumptively protected by the First
agencies
judicial
over
the courts
Amendment;
the burden rests
supervisory
as well as constitution
partic
Government to establish
powers.
(Cf.
al
A.
P.
N.
C.
v. Ala
A.
expressions
relationships
ular
or
are
(1957)
449, 463,
bama
357 U.S.
78 S.Ct.
(E. g., Gooding
outside its reach.
v.
1163,
1488; Shelley
2 L.Ed.2d
v.
(1972)
518,
Wilson
405
92
U.S.
S.Ct.
(1948)
1, 14-18,
Kraemer
334
68
U.S.
1103,
408;
31 L.Ed.2d
Cohen v. Califor
836,
1161.)
S.Ct.
92 L.Ed.
(1971)
15,
1780,
nia
403
91
U.S.
29
S.Ct.
jury
investigatory body,
an
is
but the
284, rehearing denied,
L.Ed.2d
404 U.S.
regularly
First Amendment
enters inves
876,
26,
124; Speis
92 S.Ct.
30 L.Ed.2d
tigatory territory.
(E. g., Gibson v.
(1958)
513,
er v. Randall
357
78
U.S.
S.
Legislative Investigation
Florida
Comm.
1332,
1460, rehearing
Ct.
L.Ed.2d
2
de
539,
889,
372
83
9
L.
S.Ct.
City
County
nied sub nom. Prince v.
929;
Ed.2d
Barenblatt v. United States
Francisco,
860,
of San
358 U.S.
79 S.Ct.
1081,
360 U.S.
79 S.Ct.
95.)
3 L.Ed.2d
1115, rehearing
denied,
L.Ed.2d
reject
We
93.)
the Government’s U.S.
80 S.Ct.
4 L.Ed.2d
second
contention that
proceedings
supposed
Amend-
First
Grand
both,
ineligible
or
protection
shall be
for em-
cannot invoke the
ployment by
the United States or
of the First Amendment to avoid answer-
department
agency thereof,
ing questions.
The Government reads too
years
following
five
Weinberg.
next
Weinberg recog-
his conviction.
much into
pene-
nizes that
the First Amendment
grand jury room,
trates the
but it strikes
15. The
Government cites United States v.
the balance
the First Amendment
Weinberg, supra,
rights
v. United 403 U.S. 714-720, Questions 2140, identity 91 29 822 S.Ct. L.Ed.2d about the concurring), persons (Black, J., 723-724, responsible 91 of who were the S. J., concurring); (Douglas, 2146 T. editorial Ct. and content distribution of Emerson, System newspaper pamphlets (Bursey ques of Freedom of and 17 Expression (1970); Chafee, 1-21; 1-14) Presley questions tions 98-100 Z. Speech deeply press Freedom in the cut of United States into freedom. ba Two (1941). ingredients press 497-516 the The draftsmen of sic of freedom lib are guided by erty print First Amendment were decide what to to dis and testified, pared 17. AH have to be read that of bad members they in the total in context worked Central Committee on Bursey questions paper. context, therefore, ques- asked. 17-21 on the In these merely attempts surface do not seem to involve freedom tions were alternative press remembered, identity of issues. It should discover however, persons publication responsible had identified the of for the background photographs newspaper. of Life print shop pre- paper where
1085
designed
(Publication:
printed.18
is
tribute what
get
States,
him or
to convict
some-
evidence
Co. v. United
New York Times
of
2140;
distribution
713,
else for
secret
swpra,
New
one
91
403
S.Ct.
U.S.
England.
Min-
(1964)
Puritan
Two
376
books
York
Co. v. Sullivan
Times
Udal,
686;
Penry
isters,
and John
John
710, 11 L.Ed.2d
84 S.Ct.
U.S.
charges
University
on
Rutgers,
sentenced to death
of
were
Avins
State
v.
responsible
for writ-
were
Jersey (3d
385 F.2d
New
printing
publishing
ing,
or
books.
denied,
88 S.Ct.
cert.
390 U.S.
Revolutionary
colonial
982;
War
Opinion
Before
Justices
19
of
L.Ed.2d
patriots
frequently
to conceal
N.E.2d
had
(1967)
229
353 Mass.
authorship
lit-
Talley
their
distribution
California
263. Distribution:
brought
easily
(1960)
4 L.
have
erature that
could
S.Ct.
Eng-
prosecutions
559;
on them
v. California
down
Ed.2d
Smith
Along
about
L.Ed.2d
lish-controlled courts.
U.S.
205, rehearing
were
of Junius
time
Letters
denied
identity
their au-
Lovell
written
day.
Even
unknown
this
v. Griffin
thor
949.)
Papers,
in fa-
Federalist
written
82 L.Ed.
Protection
adoption
anonymity
printers, and
Constitu-
publishers,
vor of
our
pam
newspapers
tion,
published
were
under fictitious
distributors
supra,
(Talley
California,
phlets
integral part
press free
names.”
is an
64-65,
at 538-
U.S. at
dom:
leaflets,
“Anonymous
pamphlets,
played
books
and even
brochures
identity
Inquiries
progress
important
role in the
persons with whom the witnesses
groups
Persecuted
mankind.
newspaper
associated
throughout
time to
time
sects
(Bursey ques
Party
the Black
op-
history have been able
criticize
1-14,
1-24; Presley questions
27-
tions
pressive practices
either
and laws
31) infringed
right
associational
anonymously
The ob-
or not at all.
privacy.19
chilling
com
effect of
Eng-
licensing
press
law of
noxious
pulsory
associations
disclosure of one’s
land,
on the
which was also enforced
activity
repeatedly
political
has been
part
the knowl-
Colonies
due
per
recognized.
hardly a
“It
novel
edge
exposure of
names of
compelled
ception
affil
disclosure of
printers, writers
and distributors
advocacy
groups engaged iation with
litera-
would lessen
circulation of
effective
constitute
.
.
*25
[an]
.
government.
the
The
ture critical of
freedom
association.”
restraint
England
old
libel cases
seditious
supra,
(N.
Alabama,
357
A. A. C. P. v.
lengths
government
to which
show the
also
at
at 1171. See
U.S.
S.Ct.
respon-
go
find out
Investiga
had to
to
Legislative
Florida
Gibson v.
543-544,
Comm.,
sible
that were
supra,
for books
obnoxious
tion
U.S. at
supra,
889;
Tucker,
Lilburne was
rulers.
John
the
S.Ct.
Shelton v.
247;
pilloried
485-486,
Bates
whipped,
refus-
at
81 S.Ct.
fined
press,
named
element of the
4-12 asked about
the activities
A third
freedom
questions
gather
persons.
news,
in
In
is not
context of all
the freedom
apparent
purpose
asked,
a
See
v. Unit
it
is
in this ease.
volved
Caldwell
identify
questions
supra,
States,
was to
associa-
ed
potential kinds raised criminal could editorial of these reports charged that members have been with crimes Production Democrats Party persons violence, with raise no associated but fact would other of the same had violent confrontations members members had inference parties violent, police had that violence was that some Panthers with charged plank party platform, of crimes or that or convicted in the been *27 nothing party significance publishers of news- of violence or distributors added guilt by as- It not be hard some kind of the foundation. would letters shared prove registered Republicans and sociation. that rectly sought persons that involved when the witnesses were an inference may persons have had judgments had or asked to- name who worked destroy paper. intent, approach effec- on the is we would The indirect criminal protection all no better than the we Amendment direct route that tive First Hil- foreclosed It will be recalled that for lack of foundation. media. news nationally reported. speech was liard’s In a class themselves are Bursey Presley required to and If can be Bursey questions Presley 22-24 identity persons who of all disclose question Presley question is pamphlets, paper and the on the worked enough Party encompass broad lead give jobs, to each of their to describe source as his er’s of carfare as well financing newspaper, details of the any editor, of funds for or interna source national reporter, typesetter, or cam- journeys. require a tional To member compelled reveal the could eraman be association, especially of an a dissident paper tel- his or same information about party, political to reveal the details paper station, or station if his evision funding chilling de its is as effective story. Amend- First The carried the compulsory is its vice as membership disclosure of that ment forbids result. The United lists. no foundation The Government’s is diplomatic Al maintains relations with that firmer on the alternate theories say foreign geria, and we cannot that persons with those who were connected specifical generally Algeria travel or to paper or Hilliard aided abetted ly sufficiently suspicious to is overcome conspired either of or with Cleaver involved. the First Amendment interests hereto- No acts other than those them. response may questions A have to these involved, and those fore described substantially produced evidence some simply together separately acts either objects compelling connected to the potential criminali- raise no inference of investigation, have but it also ty. The has to dem- Government failed produced quantity that information interrogation line of onstrate this grand jury’s was none business. bore a the com- substantial connection to First are at When Amendment interests investiga- pelling subject matter of the stake, must a scal the Government use tion, and it has that these de- not shown pel, justifica not ax. There was no interrogation were means of structive questions, the wit tion for these necessary vindicate its interest compelled to answer nesses cannot be protecting or the armed the President them. forces. group questions The third MOOTNESS IV. identity persons pic concerned the Presley were each magazine. (Bursey ques tured in Life custody complied she committed to until 17-20). background tions testify the district court’s order photographs identified as been had grand jury expired. or the term of the shop paper in which the Panther term assume We printed. testimony There was also jury expired during pendency has photo people almost all of graphs in the appeal Nevertheless, appeal. Party, al were members of the not moot.22 though names had not been re their presents Response federal constitution- vealed. these case per- affecting disclosed, fundamental would in whole or al Adjudication part, of those di- sonal the same information liberties. disposed 1826, concerning later § U.S.C. the confine- shall thirty days filing contempt ment of a from the such witness held in than inapplicable appeal” case. Sec- to this refusal of a “Any stating appeal until effective not become tion 1826 did appeal filed. been an order of herein had confinement under this section after
1089 extremely with in- resort limited circulation not be thwarted issues should grand interpretations of doc dicted for criminal libel. The narrow justiciability. jury refused to Thereaf- twice indict. of mootness trines ter, Zenger, history case, publisher, to Moreover, Peter this of grow litigation charged gether in information with with the related libel involving in one of the most trials out incidents celebrated of same history suggests strongly Hilliard, Gov American followed. It precedents fresh will its before this and similar ernment renew efforts founding fa- infor that our obtain the their memories another sought incorporated compel case into thers Fifth mation it Postponement requirement no of deci Amendment before us. person important in- is for an constitutional shall held to answer sions of ripened except upon present- sues that have here is not famous crime Government, grand jury. public, a interests of the ment or indictment of (See Ogilvie Moore or the v. witnesses. country Today, this courts across 816, 1493, (1969) 814, 394 89 S.Ct. U.S. increasing of with an flow cases faced 1; L.Ed.2d President 23 Carroll v. arising grand jury proceedings out of (1968) 393 U. of Princess Anne Com’rs possible punishment concerned with the 175, 178-179, 347, 89 21 L.Ed.2d S.Ct. S. political of dissidents. would be It 325; (1968) New York 392 Sibron v. history to the insti- cruel twist allow 1889, 40, 50-58, U.S. 88 20 L.Ed. S.Ct. was de- tution of 917; (1968) 391 2d Carafas LaVallee v. signed protect politi- partially to at least 234, 237-240, 20 1556, U.S. 88 L. S.Ct. an instrument cal dissent become 554; Amalga Ed.2d Division 1287 political suppression. of Mr. The words Ry, St., mated Ass’n & Motor Electric particularly appropri- Justice Clark are (1963) Employees 374 Coach v. Missouri ate: 77-78, 74, 1657, U.S. 10 L.Ed.2d 83 S.Ct. proceedings five “This is another of 763, rehearing 870, denied, 84 375 U.S. during present before this Court Gray 29, 100; 11 S.Ct. L.Ed.2d v. Sand privilege Term each (1963) 375-376, 368, ers 83 372 S. U.S. been as- has self-incrimination 821; 801, Ct. 9 United v. federal serted in the course 629, (1953) T.W. Grant 345 Co. U.S. grand-jury investigations. A number 894, 1303; 632-633, 73 97 L.Ed. S.Ct. considered cases have been similar Southern Terminal v. Pac. Co. Interstate sig- recently courts. The lower 219 Commerce Comm. U.S. empha- litigation in such nal increase 310; 514-516, 31 L.Ed. 55 necessity continuing sizes Freight Trans-Missouri States v. prosecutors ‘alert alike be and courts Association 166 307- U.S. repress’ any of the investi- abuses 1007; Wash L.Ed. bearing invoked, gatory power ington Community Att’y Free v. State’s ‘may grand juries mind while Montgomery (D.Md.1970, Co., 3- Md. proceed, upon their own knowl- either judge court) F.Supp. 436, 442- upon edge of wit- the examination 443.)23 . inquire . whether nesses, . cognizable by court has crime V. CONCLUSION Henkel, committed’, v. Hale been English 43, 65, Cosby, In 26 S.Ct. William U.S. governor yet sought valua- York, ‘the most (1906), L.Ed. New jury publisher newspaper [has radical ble function 1889; 50-58, States, Here, supra, 88 S.Ct. at unlike Pierre St. v. United LaVallee, supra, at 319 U.S. 63 S.Ct. Carafas appellate United States L.Ed. review was under Association, Freight su taken term of the Trans-Missouri before the York, 307-310, expired. (Cf. pra, . had Sibron v. New *29 1090 logical only the a not to examine into show connection must between
been] subject crimes, question to stand be- commission of but and sub- ject prosecutor and the matter of tween the ac- for which cused,’ id., page 26 S. witness was it U.S. at immunized to enable lay page 373, contempt En- to the foundation for im- Ct. at 50 L.Ed. taking permissibly initia- invades the traditional sec- forcement officials grand recy jury grand-jury proceedings proceedings. re- and We tive ject charged superintend- all three contentions. courts with their to the consid- ence should be sensitive First, Branzburg, Pappas, and Cald- making exercise of erations for wise well our inconsistent either with only investigatory power, not such reasoning or the result we reached. have where be in- constitutional issues The issue in tril- central the newsmen’s the noncoercive volved but also where ogy whether First Amendment agencies assistance other federal protects a newsman from dis- enforced unnecessary may render it to invoke grand jury to closure a of his confiden- compulsive process press tial sources of information. The jury.” (Hoffman United States v. with was con- function which the Court (1951) gathering. cerned was news 1118.) 95 L.Ed. gathering is in our News not involved case.1 reversed, The order is and cause is proceedings
remanded for further
con-
question
whether
First
expressed.
with the
sistent
views herein
protects
Amendment
ever
newsman
a
being required
appear
to
before a
grand jury,
subsidiary
a
in the
issue
OPINION ON
RE-
PETITION FOR
trilogy,
newsman’s
here.
never
arose
HEARING AND SUGGESTION
Bursey
Presley repeatedly appeared
FOR REHEARING EN BANC
and testified.
HUFSTEDLER,
Judge:
rejected,
Supreme
Circuit
We
as did the
arguments
Court,
court
district
seeking
rehearing,
In
a
the Govern-
require
could and should
the Govern-
(1)
ment makes three
contentions:
grand jury
prelim-
ment or the
to
amake
Supreme
rationale of the
Court’s deci-
showing
inary
grand jury
before the
can
Branzburg
Hayes,
sions in
In
v.
Matter
(Com-
questions
ask
of the witnesses.
Pappas,
and United
v. Caldwell
States
Branzburg
pare
Hayes, supra,
408 U.
(1972)
p. 665, 92
S. at
L.Ed.2d
is inconsistent with our
States,
p.
supra,
v. United
466 F.2d at
reasoning
Bursey,
requiring
re-
us to
1073.)
showings only
require
We
limited
disposition
consider our
the First
answer
after
the witnesses decline to
Amendment
issues.
Our distinction
asserting
questions
their First
Fifth
relevancy
between
to
rights
only
Amendment
when
subject
grand jury
matter of the
inves-
compel
seeks
to
answers
tigation
relevancy
ques-
of the same
through
contempt power
court.
of the
subject
to
tions
matter
investi-
gation
Nothing
Bursey permits
which the
a
witnesses were
contrary
authority.
prior
immunized is
Amend-
refuse on First
witness
requirement
grounds
identify
Our
person
that the
ment
whom
early stages
contempt pro
Witnesses,
1. In
F.Supp.
577-578
ceeding
only
(N.D.Cal.1970).)
when the district court had
When
un
the record
peripheral
us,
investigation,
look at
before
folded
became
evident
thought
presented
the district
problem
court
that a news
Caldwell
a different
privilege,
Caldwell,
gathering
man’s
similar
a real
news
was never
Bursey.
proceedings
(See Bursey
at
issue in
As the
issue here.
United States
advanced,
p.
the district
court
n.
retreated
F.2d
1084 and
(In
Jury
from its earlier
18).
view.
re Grand
committing
Indeed,
immunity
grant
same
seen
crime.
he has
contrary
prior authority.
can
is not
held that
witnesses
In
we have
much less
required to
Brown v. United
answer
directly
ques
conduct.
to criminal
related
States, supra, 466 F.2d
(Bursey
tions
v. United
witness refused
refused, however,
p.
to is- were conceded to be
We
relevant
the sub
*30
grand jury
investiga
ject
to
carte
to a
matter of the
sue a
blanche
immunized
simply
(Id.
rights
42,
539.)
pre
tion.
First Amendment
at
79
override
S.Ct.
questions
the witness
cise
not
that
issue was
nor
because
raised
decided
something
might
(9th
Weinberg
refused
United
v.
to
States
Cir.
might
vaguely
1971)
to
conduct
do with
those supra, Branzburg Hayes,
Both in p. and in at (1972) 408
Gravel v. L.Ed. n. power reaffirmed the
2d the Court duty keep the district court
and the grand proceedings within constitu- power forfeited bounds. tional That duty can- is barren if the Court secrecy penetrate shield of enough upon con- to see assaults *31 ramparts.
stitutional rehearing petition for is denied. court full has been advised hearing. suggestion for en No banc requested
judge Ac- has a vote thereon. rehearing suggestion cordingly, for a rejected.
en banc
UNITED STATES America ex rel. CURTIS, Albert Petitioner- Appellee, ZELKER, Superintendent
Hon. John Facility, Haven Green Correctional Stormville, York, Respondent-Ap New pellant.
No. Docket 72-1536. Appeals, Court Second Circuit.
Argued June July 17,
Decided