PER CURIAM:
Appellant, Robert Postal, appeals from an adjudication of civil contempt for failure to testify before a federal grand jury after having been given use immunity under 18 U.S.C. §§ 6002, 6003.
Appellant was incar
cerated and was denied bail pending appeal under 28 U.S.C. § 1826(a) and (b).
There are four assignments of error. The principal assignment is that use immunity was insufficient to displace appellants’ Fifth Amendment rights because of the possibility of prosecution in Colombia, South America. The other three assignments are (1) the trial court erred in denying appellant’s motion to quash the grand jury subpoena in that the questions to be propounded to the witness were a result of a seizure effected beyond the jurisdiction of the Coast Guard, (2) the trial court erred in refusing to grant appellant adequate notice and time to prepare for the contempt hearing and (3) the trial judge erred in not recusing himself pursuant to appellant’s affidavit of bias. We affirm.
On July 12, 1977, defendant appeared, pursuant to subpoena, before the Grand Jury in the Fort Lauderdale Division of the Southern District of Florida. The Grand Jury was conducting an investigation into the circumstances surrounding the possession, transportation and importation of 8,300 pounds of marijuana seized by the United States Coast Guard after search of a foreign vessel, the LA ROSA, registered in the Cayman Islands. Appellant and two others were aboard the vessel.
This same Grand Jury had previously indicted all three for importation of marijuana, possession with intent to distribute, and conspiracy to commit the substantive offenses. After a trial before Judge C. Clyde Atkins,
the substantive charges were dismissed and they were all convicted of the
conspiracy count. Appeals are pending in this court.
On July 11 and 12, 1977, appellant filed with the District Court various motions and memoranda concerning all issues and defenses which would be raised in the event of a subsequent contempt hearing. A motion for continuance was filed on July 12, 1977, in 'which appellant gave notice of his intention to invoke the Fifth Amendment and refuse to testify even with a grant of use immunity.
Appellant appeared before the Grand Jury that same day represented by counsel and refused to answer one question, in particular, “How much money did you have invested in the marijuana aboard the LA ROSA, seized by the Coast Guard?”
At a 4:00 P. M. hearing that afternoon, appellant was granted use immunity upon motion of the Government. Appellant returned to the Grand Jury room and again refused to testify.
An hour later the Government commenced a civil contempt hearing before Judge Norman Roettger over appellant’s objection that he had not been given adequate prior notice and opportunity to prepare for the hearing. Judge Roettger overruled this objection stating that he found “[tjhere was no surprise.”
The Supreme Court has not reached the constitutional “. . claim that a grant of immunity cannot supplant the Fifth Amendment privilege with respect to an individual who has a real and substantial fear of foreign prosecution.”
Zicarelli v. New Jersey Investigation Commission,
406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972). The decision in
Zicarelli
did note that “. . the [Fifth Amendment] privilege protects against real dangers, not remote and speculative possibilities.” [Footnote omitted].
Supra,
p. 478, 92 S.Ct. p. 1675.
Appellant asserts several factors which expose him to a “real danger” of foreign prosecution. First he submits that answering questions asked before the Grand Jury would tend to incriminate him under Colombian law. Second, he urges that there is a reasonable fear of prosecution under Colombian law and that, third, this testimony might be used against him in such a prosecution. Last he asserts the Fifth Amendment privilege protects him from testifying.
There is no doubt that if allegedly incriminating testimony and evidence was available to the Colombian authorities, charges under Colombian drug laws could be brought against Postal and extradition requested.
However, the key words above are “if . . . available”. This Circuit held in
In Re Tierney,
465 F.2d 806 (5th Cir. 1972), that:
. because of the secrecy of the grand jury proceedings no substantial risk of foreign prosecution is posed. Rule 6(e), F.R.Crim.P., provides for this secrecy. The same court which grants immunity is the court which prevents violation of the secrecy. The government represented that it could not violate the secrecy, even under the first sentence of allowing it to disclose matters in the performance of its duties, without a court order. This is answer enough to the contention of appellants that the government might
disclose their testimony. [Footnote omitted].
In Re Tierney, supra,
p. 811. Thus, in this case, we find there is no real danger of foreign prosecution.
The motion to quash based on a seizure which was effected allegedly beyond the jurisdiction of the Coast Guard is without merit.
Appellant attempts to draw a distinction from the Supreme Court case which provides that a witness summoned to appear and testify before a grand jury may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure.
United States v. Calandra,
414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
[The grand jury] is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. [Citation omitted]
Calandra, supra,
p. 343, 94 S.Ct. p. 617.
Whether appellant’s claim is one of illegal search and seizure or the proper jurisdiction of the Coast Guard (which we decline to decide here),'
Calandra
controls. The motion to quash was properly denied.
Appellant next suggests that he was not given adequate notice and time to prepare for the contempt hearing citing
Harris v. United States,
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PER CURIAM:
Appellant, Robert Postal, appeals from an adjudication of civil contempt for failure to testify before a federal grand jury after having been given use immunity under 18 U.S.C. §§ 6002, 6003.
Appellant was incar
cerated and was denied bail pending appeal under 28 U.S.C. § 1826(a) and (b).
There are four assignments of error. The principal assignment is that use immunity was insufficient to displace appellants’ Fifth Amendment rights because of the possibility of prosecution in Colombia, South America. The other three assignments are (1) the trial court erred in denying appellant’s motion to quash the grand jury subpoena in that the questions to be propounded to the witness were a result of a seizure effected beyond the jurisdiction of the Coast Guard, (2) the trial court erred in refusing to grant appellant adequate notice and time to prepare for the contempt hearing and (3) the trial judge erred in not recusing himself pursuant to appellant’s affidavit of bias. We affirm.
On July 12, 1977, defendant appeared, pursuant to subpoena, before the Grand Jury in the Fort Lauderdale Division of the Southern District of Florida. The Grand Jury was conducting an investigation into the circumstances surrounding the possession, transportation and importation of 8,300 pounds of marijuana seized by the United States Coast Guard after search of a foreign vessel, the LA ROSA, registered in the Cayman Islands. Appellant and two others were aboard the vessel.
This same Grand Jury had previously indicted all three for importation of marijuana, possession with intent to distribute, and conspiracy to commit the substantive offenses. After a trial before Judge C. Clyde Atkins,
the substantive charges were dismissed and they were all convicted of the
conspiracy count. Appeals are pending in this court.
On July 11 and 12, 1977, appellant filed with the District Court various motions and memoranda concerning all issues and defenses which would be raised in the event of a subsequent contempt hearing. A motion for continuance was filed on July 12, 1977, in 'which appellant gave notice of his intention to invoke the Fifth Amendment and refuse to testify even with a grant of use immunity.
Appellant appeared before the Grand Jury that same day represented by counsel and refused to answer one question, in particular, “How much money did you have invested in the marijuana aboard the LA ROSA, seized by the Coast Guard?”
At a 4:00 P. M. hearing that afternoon, appellant was granted use immunity upon motion of the Government. Appellant returned to the Grand Jury room and again refused to testify.
An hour later the Government commenced a civil contempt hearing before Judge Norman Roettger over appellant’s objection that he had not been given adequate prior notice and opportunity to prepare for the hearing. Judge Roettger overruled this objection stating that he found “[tjhere was no surprise.”
The Supreme Court has not reached the constitutional “. . claim that a grant of immunity cannot supplant the Fifth Amendment privilege with respect to an individual who has a real and substantial fear of foreign prosecution.”
Zicarelli v. New Jersey Investigation Commission,
406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972). The decision in
Zicarelli
did note that “. . the [Fifth Amendment] privilege protects against real dangers, not remote and speculative possibilities.” [Footnote omitted].
Supra,
p. 478, 92 S.Ct. p. 1675.
Appellant asserts several factors which expose him to a “real danger” of foreign prosecution. First he submits that answering questions asked before the Grand Jury would tend to incriminate him under Colombian law. Second, he urges that there is a reasonable fear of prosecution under Colombian law and that, third, this testimony might be used against him in such a prosecution. Last he asserts the Fifth Amendment privilege protects him from testifying.
There is no doubt that if allegedly incriminating testimony and evidence was available to the Colombian authorities, charges under Colombian drug laws could be brought against Postal and extradition requested.
However, the key words above are “if . . . available”. This Circuit held in
In Re Tierney,
465 F.2d 806 (5th Cir. 1972), that:
. because of the secrecy of the grand jury proceedings no substantial risk of foreign prosecution is posed. Rule 6(e), F.R.Crim.P., provides for this secrecy. The same court which grants immunity is the court which prevents violation of the secrecy. The government represented that it could not violate the secrecy, even under the first sentence of allowing it to disclose matters in the performance of its duties, without a court order. This is answer enough to the contention of appellants that the government might
disclose their testimony. [Footnote omitted].
In Re Tierney, supra,
p. 811. Thus, in this case, we find there is no real danger of foreign prosecution.
The motion to quash based on a seizure which was effected allegedly beyond the jurisdiction of the Coast Guard is without merit.
Appellant attempts to draw a distinction from the Supreme Court case which provides that a witness summoned to appear and testify before a grand jury may not refuse to answer questions on the ground that they are based on evidence obtained from an unlawful search and seizure.
United States v. Calandra,
414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
[The grand jury] is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. [Citation omitted]
Calandra, supra,
p. 343, 94 S.Ct. p. 617.
Whether appellant’s claim is one of illegal search and seizure or the proper jurisdiction of the Coast Guard (which we decline to decide here),'
Calandra
controls. The motion to quash was properly denied.
Appellant next suggests that he was not given adequate notice and time to prepare for the contempt hearing citing
Harris v. United States,
382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). In this case, appellant had adequate time to prepare for the contempt hearing. The defendant was subpoenaed more than a month prior to his scheduled Grand Jury appearance. On that scheduled date, July 12, 1977, appellant’s counsel filed numerous motions, which included a memorandum of law in which the above issues were exhaustively briefed. Appellant’s motion for continuance states in part:
The witnesses intend to invoke their Fifth Amendment rights before the Grand Jury. If granted immunity, they still intend to invoke their Fifth Amendment rights. Undoubtedly, the Government will seek to have the witnesses held in contempt. The defenses that the witnesses will raise are set forth in their simultaneously filed motion to quash. (R. 81)
The realities of this situation indicate appellant knew exactly what was going to happen and was prepared to raise all applicable issues and defenses. Appellant’s suggestion that in this case Judge Roettger should have set a hearing for another date is without merit.
Appellant’s motion to recuse Judge Roettger is insufficient in that the alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and that prejudice and bias must result in an opinion on the merits on some basis other than what the Judge was exposed to in his participation in this case.
Davis v. Board of School Commissioners of Mobile County,
517 F.2d 1044 (5th Cir. 1975)
cert denied,
425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188.
On the basis of the foregoing, we affirm the judgment of the district court.