OpenJurist

931 F2d 896 In Re Grand Jury Proceedings Dilger

931 F.2d 896

Unpublished Disposition

IN RE GRAND JURY PROCEEDINGS.
Rodney Alan DILGER, Witness-Appellant,
v.
UNITED STATES of America, Appellee.
IN RE GRAND JURY PROCEEDINGS.
David George Henderson, Witness-Appellant,
v.
UNITED STATES of America, Appellee.
IN RE GRAND JURY PROCEEDINGS.
Steven Sullivan HANNA, Witness-Appellant,
v.
UNITED STATES of America, Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Nos. 91-35382, 91-35384 and 91-35385.

2

United States Court of Appeals, Ninth Circuit.

Submitted April 30, 1991*.
Decided May 3, 1991.

3

Before TANG, REINHARDT and DAVID R. THOMPSON, Circuit Judges

4

MEMORANDUM**

5

Appellants Rodney Alan Dilger, David George Henderson and Steven Sullivan Hanna appeal the district court's judgment holding them in civil contempt for refusing to testify before the grand jury subsequent to a grant of use immunity. We affirm the district court's adjudication of contempt.1

ANALYSIS

6

This court reviews the district court's finding of contempt under 28 U.S.C. Sec. 1826 for abuse of discretion. In re Grand Jury Proceedings, 801 F.2d 1164, 1167 (9th Cir.1986). A grand jury witness may be held in civil contempt if he refuses without just cause to testify. 28 U.S.C. Sec. 1826.

A. Use of 18 U.S.C. Sec. 3621(d)

7

Appellants contend that their refusal to testify is justified because the United States Attorney used 18 U.S.C. Sec. 3621(d) to secure their presence before the grand jury in lieu of a subpoena or a writ of habeas corpus ad testificandum.2 This contention lacks merit.3

8

Generally, an individual's presence before a grand jury is secured by the issuance of a grand jury subpoena. See Fed.R.Crim.P. 17(a); Fed.R.Civ.P. 45(a). However, as appellants concede, when an incarcerated person's presence before a grand jury is sought, a federal judge may issue a writ of habeas corpus ad testificandum. See United States v. Hayman, 342 U.S. 205, 221 n. 35 (1952); United States v. Lach, 874 F.2d 1543, 1548 (11th Cir.1989); Gilmore v. United States, 129 F.2d 199, 202 (10th Cir.), cert. denied, 317 U.S. 631 (1942). See generally 28 U.S.C. Secs. 2241(a), (c)(5). The writ of habeas corpus ad testificandum, which means "you have the body to testify," Black's Law Dictionary 639 (5th ed.1979), directs the custodian of the incarcerated witness to bring the witness into court to give testimony. Thus, the subpoena and the writ of habeas corpus ad testificandum are both vehicles for obtaining the physical presence of a desired witness before the grand jury.

9

In this case, appellants' transfer from prison to the grand jury proceedings was accomplished by means of a written request from the United States Attorney to the marshal pursuant to 18 U.S.C. Sec. 3621(d). Appellants' contention that the Government's use of 18 U.S.C. Sec. 3621(d) was improper is irrelevant to the question of whether appellants were in contempt of a subsequent district court order directing them to testify before the grand jury. See In re Lopreato, 511 F.2d 1150, 1152 (1st Cir.1975) (alleged failure of service of subpoena was irrelevant to subsequent court order of contempt). Any claimed abuse of process was abrogated by the district court's supervision of these proceedings. Appellants were protected against abuse of process by the requirement of a court order, independent of the Government's transport request, as the premise for these contempt proceedings. See id. at 1153.

10

We therefore conclude that appellants' refusal to testify on the basis of the Government's use of 18 U.S.C. Sec. 3621(d) did not constitute just cause.4

B. Fourth and Fifth Amendment Protection

11

Appellants next contend that a grant of use immunity will not protect their Fourth and Fifth Amendment rights because they have entered conditional pleas, and their appeals are currently pending before this court. Appellants fear that if they prevail on their appeals, statements made before the grand jury could be used against them at a later trial or at resentencing.

12

This argument is unavailing. We have held that "a witness whose appeal is pending may be compelled to testify by a grant of use immunity...." In re Grand Jury Proceedings (Garcia-Rosell), 889 F.2d 220, 222 (9th Cir.1989). If appellants prevail on their Fourth Amendment claims in this court and their cases ultimately proceed to trial, the Government will bear the burden of proving that its evidence is derived from sources independent of appellants' compelled and immunized testimony. See United States v. Lipkis, 770 F.2d 1447, 1450 (9th Cir.1985) (citing Kastigar v. United States, 406 U.S. 441, 460-61, reh'g denied, 408 U.S. 931 (1972)).5

*

The panel unanimously agrees that this case is appropriate for submission without oral argument pursuant to Fed.R.App.P. 34(a) and Ninth Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

1

The district court ordered appellants incarcerated until they purged their contempt by testifying before the grand jury, or for the life of the grand jury: January 1, 1992. On April 19, 1991, however, the district court stayed the contempt order pending appeal

Appellants have entered conditional pleas of guilty to narcotics related offenses and are presently serving their sentences.

2

18 U.S.C. Sec. 3621(d) provides:

Delivery of prisoner for court appearances. The United States marshal shall, without charge, bring a prisoner into court or return him to a prison facility on order of a court of the United States or on written request of an attorney for the Government.

3

We review de novo the district court's determination that the use of 18 U.S.C. Sec. 3621(d) to secure appellants' attendance before the grand jury constituted valid process. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984) (questions of law are reviewed de novo )

4

Appellants state that they have not received witness fees pursuant to 28 U.S.C. Sec. 1821 and that there is no precedent for paying witness fees to prisoners who have been transported to grand jury proceedings under 18 U.S.C. Sec. 3621(d). The Government's failure to pay appellants' witness fees has no bearing on whether they have good cause to refuse to testify

5

The same holds true if Dilger's appeal of his sentence results in a remand to the district court for further findings with regard to his role in the charged offense. Again, the Government may only use evidence which is derived from a source independent of Dilger's immunized testimony. The fact that a hearing on this issue will be held before the same district court that will later resentence Dilger is of no import. The district court is fully capable of determining which facts can be used to calculate the term of Dilger's sentence

Although appellants' Fourth Amendment argument is unclear, it appears that they also contend that they have just cause for refusing to testify because the grand jury proceeding is the product of an illegal search and seizure. This argument is foreclosed by United States v. Calandra, 414 U.S. 338 (1974), which held that a witness summoned before the grand jury may not refuse to testify on the ground that the questions posed are based on evidence obtained from an unlawful search and seizure.