In Re Federal Grand Jury Witness. United States of America v. Robert Lawrence Lemieux

597 F.2d 1166

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 1979
• Docket: 19-15720
• Status: Published

Opinions

PER CURIAM:

Robert Lawrence Lemieux appeals his commitment for civil contempt after he refused to answer questions under a grant of immunity before a federal grand jury. He argues that his testimony could leak out and subject him to prosecution in Mexico and elsewhere. He therefore contends that the Fifth Amendment shields him from the duty to testify.

The law of this circuit denies relief. In re Weir, 495 F.2d 879, 881 (9th Cir.), cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974). The Weir case rejected a similar claim, holding that there was no real and substantial danger of foreign prosecution because the district court had the power and duty to preserve the secrecy of the grand jury. Fed.R.Crim.P. 6(e). Because there was no real and substantial danger, we followed Zicarelli v. New Jersey State Investigation Commission, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972), and affirmed Weir’s judgment of contempt. We again affirm.

The district court in this case correctly held that its power to prevent, disclosure of the grand jury testimony obviated any need for further immunity beyond that already provided.

Lemieux lists a number of hypothetical scenarios in which his grand jury testimony could be made public in the future.¹ This point was answered by In re Tierney, 465 F.2d 806, 812 (5th Cir. 1972), cert. denied, 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973):

“Appellants point to specific circumstances where it might be necessary to disclose the testimony of appellants, one where it became necessary in the defense of another, and the other in showing derivative use of testimony given under immunity. The answer is that the court granting immunity could protect appellants by refusing to make their testimony available to defendants in other cases, where it is shown to be necessary to the defense, although the refusal might lead to an acquittal. The court could control any problem as to derivative use of the testimony by an in camera proceeding.

“Appellants also argue that secrecy would be breached in the event their testimony was used * * * in perjury proceedings against them. Again the initial protection would come from an in camera proceeding. Thereafter, if * * a perjury prosecution should seem indicated to the district court, the question would arise as to whether the scope of the Fifth Amendment embraces protection against [the] perjury [prosecution]. We will not now rule on such a speculative hypothesis * * *

Because of the nature and complexity of the legal questions presented, and the necessary time taken by counsel to brief the appeal, this court has not attempted to comply with the literal language of 28 U.S.C. § 1826(b) which purports to require a decision within thirty days of the filing of the appeal. Confinement was stayed, pending the appeal, and no party has been prejudiced by the passage of the time necessary for responsible deliberation. See Charleston v. United States, 444 F.2d 504, 506 (9th Cir.), cert. dism., 404 U.S. 916, 92 S.Ct. 241, 30 L.Ed.2d 191 (1971); Melickian v. United States, 547 F.2d 416 (8th Cir.), cert. denied, 430 U.S. 986, 97 S.Ct. 1684, 52 L.Ed.2d 381 (1977).

Affirmed.

1 . The Supreme Court has made it clear that statements made under a grant of immunity before a grand jury may not be introduced to impeach the grand jury witness at a subsequent criminal trial in which he or she is a defendant. State v. Portash, 436 U.S. 955, 98 S.Ct. 3067, 57 L.Ed.2d 1120 (1979).