In Re Grand Jury Investigation. United States of America v. Frank Berger

657 F.2d 88
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 12, 1981
Docket81-1374
StatusPublished
Cited by2 cases

This text of 657 F.2d 88 (In Re Grand Jury Investigation. United States of America v. Frank Berger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Grand Jury Investigation. United States of America v. Frank Berger, 657 F.2d 88 (6th Cir. 1981).

Opinions

LIVELY, Circuit Judge.

The defendant Berger appeals from an order of the district court finding him in civil contempt for refusing to testify before a grand jury and ordering him confined until he purges himself. Confinement is not to exceed the life of the term of the grand jury. We affirm the adjudication of contempt.

I.

Frank Berger was subpoenaed to appear and testify before a grand jury in the Eastern District of Michigan. Through his attorney Berger informed the United States Attorney that if called before the grand jury he would refuse to testify on constitutional grounds. Thereafter the United States Attorney applied to the district court for an order granting use immunity and directing Berger to testify before the grand jury. 18 U.S.C. §§ 6002, 6003 (1976). Neither Berger nor his counsel was given notice of the application and there was no hearing.

The district court entered the following order-:

IN RE: GRAND JURY INVESTIGATION

MISC. NO. 81-164

ORDER GRANTING IMMUNITY

The United States Attorney for this District having made Application under 18 U.S.C. 6003(b) for an order requiring Frank Berger to testify and provide information relative to Grand Jury and trial proceedings which are or may be held in this district and the court having reason to believe that Frank Berger has decided to invoke his privilege not to testify pursuant to the Fifth Amendment of the United States Constitution, and the court having been advised that the United States Attorney believes that Frank Berger’s testimony is necessary for the public interest and the court having determined that this application for immunity has been properly authorized:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Application heretofore made by Richard A. Rossman, United States Attorney for the Eastern District of Michigan to grant immunity to Frank Berger in accordance with Title 18, United States Code, Sections 6002-6003 be and the same hereby is allowed. It is further ORDERED that Frank Berger testify and answer questions asked by the grand jury and testify and answer questions in the course of any trial which may be held in this district as a result of the grand jury investigation.
IT IS FURTHER ORDERED that no testimony or other information compelled under the order, or any information directly or indirectly derived from such testimony, shall be used against him in any criminal case, except that the said Frank Berger shall not be exempted by this order from prosecution for perjury, giv[90]*90ing a false statement, or contempt while giving testimony as ordered herein.
IT IS SO ORDERED.
RALPH M. FREEMAN UNITED STATES DISTRICT JUDGE

Thereafter Berger was informed that he had been granted use immunity and was ordered to testify before the grand jury. When he appeared before the grand jury Berger refused to answer the questions propounded by the United States Attorney and was cited for contempt. After considering written memoranda and hearing oral arguments the district court entered the order from which this appeal is taken.

II.

On appeal Berger contends the immunity statute should be construed to require notice and that his due process rights were infringed by the failure of the government to give him notice and an opportunity to be heard on whether he would be ordered to testify under a grant of immunity. With respect to the requirements of the statute Berger relies primarily on In re Bart, 304 F.2d 631 (D.C.Cir.1962), and In re Grand Jury Investigation, 317 F.Supp. 792 (E.D.Pa.1970), both of which were concerned with grants of immunity under statutes different in some respects from §§ 6002, 6003. In a case brought under the latter statute the Fifth Circuit dealt with an argument based on In re Bart as follows:

I. Defendant asserts he was denied due process in not being afforded notice and hearing before the immunity order was granted. He relies upon In re Bart, 113 U.S.App.D.C. 54, 304 F.2d 631 (D.C.Cir.1962), a ease interpreting 18 U.S.C. § 3486 to require notice and hearing. The decision in In re Bart was predicated at least in part upon the fact that under § 3486 the Government could not secure a prospective order. See 304 F.2d at 637 & n. 17. Thus, there might be something for the witness to object to at a hearing before the immunity order was granted. Section 6003 was designed to change this result. See H.R.Rep.No.1549, 91st Cong., 2d Sess. (1970), reprinted in 2 U.S.Code Cong. & Admin.News, pp. 4007, 4018 (1970).

Section 3486 was repealed by the Organized Crime Control Act of 1970, Pub.L.No.91-452, Title II, § 228(a), 84 Stat. 930. 18 U.S.C. § 6003 was added by this same act and provides for a prospective order while not explicitly requiring notice to a prospective witness before grant of immunity; this is an indication that none is required. Furthermore, since the court’s duties in granting the requested order are largely ministerial, when the order is properly requested the judge has no discretion to deny it. In re Grand Jury Investigation, 486 F.2d 1013, 1016 (3rd Cir. 1973), cert. denied sub nom., Testa v. United States, 417 U.S. 919, 94 S.Ct. 2625, 41 L.Ed.2d 224 (1974); see In re Kilgo, 484 F.2d 1215, 1221 (4th Cir. 1973).

United States v. Leyva, 513 F.2d 774, 776 (5th Cir. 1975). We agree with this analysis. As structured section 60031 places the [91]*91decision to request an immunity order in the United States Attorney and provides that the district court “shall issue” the order upon the U.S. Attorney’s request.

There is no provision for inquiry into the judgment or decision of the United States Attorney to seek an immunity order. No purpose would be served by a hearing. At oral argument in this court counsel for Berger stated he was making no claim that the statutory requirements for obtaining approval of a request for an immunity order had not been followed in this case. In argument before the district court counsel advised the court that he had “not observed any” procedural defects. As the court said in Ryan v. Commissioner of Internal Revenue, 568 F.2d 531, 541 (7th Cir.

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