In re Russo

53 F.R.D. 564, 1971 U.S. Dist. LEXIS 10737
CourtDistrict Court, C.D. California
DecidedNovember 17, 1971
DocketMisc. No. 2832
StatusPublished
Cited by32 cases

This text of 53 F.R.D. 564 (In re Russo) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Russo, 53 F.R.D. 564, 1971 U.S. Dist. LEXIS 10737 (C.D. Cal. 1971).

Opinion

[566]*566MEMORANDUM OPINION AND ORDER

FERGUSON, District Judge.

The issue presented by this proceeding is whether the court has the power to purge a grand jury witness of civil contempt of court upon his promise to testify upon the condition that he be furnished a transcript of his testimony.

The contempt proceedings involving the witness are reported in Anthony Russo, Jr. v. United States, 448 F.2d 369 (9th Cir. 1971). In summary:

(1) The government began an investigation and presented evidence before a grand jury of this district in regard to possible violations of Title 18 of the United States Code.
(2) As a result of those investigations, Daniel Ellsberg was indicted relative to documents pertaining to the involvement of the United States in Southeast Asia, which documents have been referred to as the Pentagon Papers. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).
(3) On June 23, 1971, Anthony Russo, Jr. was subpoenaed to appear and testify before the grand jury. He refused, claiming the privilege against self-incrimination. The government then filed an application with the court to grant him immunity pursuant to 18 U.S.C. § 2514.
(4) The court granted immunity, but Mr. Russo nevertheless refused to testify. He was then brought before the court and ordered to answer the questions the jury had asked. When he refused, the court adjudged him in civil contempt, and committed him to the custody of the Attorney General until such time as he purged himself of that contempt.
(5) The order of contempt was affirmed by the Court of Appeals for the Ninth Circuit on August 17, 1971. Russo v. United States, supra. He was then committed to custody.
(6) On October 1, 1971, Mr. Russo filed a motion for an order (a) to require the government to record and transcribe all matters occurring before the grand jury while he was before it; (b) to require the government to furnish him with a copy of the transcript of his testimony; and (c) to prohibit the government from taking any action against him on account of any disclosures the witness may make regarding any matters which may occur in his presence before the grand jury.
(7) At the conclusion of the hearing, the court ordered that conditioned upon the government’s furnishing Mr. Russo with a copy of his testimony, he will have purged himself of contempt of court if he appeared before the grand jury on October 18, 1971, and answered all questions put to him.
(8) On October 18, 1971, the witness appeared before the grand jury ready to answer questions. However, the attorney for the Department of Justice informed him that the government would not furnish him with a transcript of his testimony.
(9) The parties then appeared before the court and the government moved the court to vacate the condition that a copy of the transcript of the witness’ testimony be furnished to him.

The government’s request is, in effect, a motion for a finding that the witness has not purged himself of civil contempt of court. The motion is denied and the court finds that Mr. Russo has purged himself.

The motion raises two questions. The first is the power and propriety of this court to require that the testimony of Mr. Russo be recorded and transcribed. The second is the power to purge the witness of civil contempt of court by accepting his promise to testify if he is furnished a transcript of his testimony.

In regard to the first question, Rule 6(d) of the Federal Rules of Criminal Procedure states that “for the pur[567]*567pose of taking evidence, a stenographer or operator of a recording device may be present while the grand jury is in session”, except while the jury is deliberating or voting. That rule along with Rule 6(e), relating to disclosure of matters occurring before the grand jury, unquestionably. empower this court to require all or any part of grand jury proceedings to be recorded and transcribed, with the exception of jury deliberations and voting. See United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970); Herzog v. United States, 226 F.2d 561, 566 (9th Cir. 1955), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956).

The rule in the Ninth Circuit is that the recording or transcribing of grand jury testimony is permissible, not mandatory. United States v. Thoresen, swupra; Loux v. United States, 389 F.2d 911, 916 (9 Cir. 1968). Because the testimony before a grand jury may have a substantial effect upon the rights and interests of those who appear before it and those indicted by it, this rule has come under heavy attack from many courts and commentators who contend that the recording of grand jury proceedings should be made mandatory. See, e. g., ABA Special Committee on Federal Rules of Pi’ocedure, 38 F.R.D. 95, 106; 8 J. Moore, Federal Practice ¶ 6.-02[2] at 11 (2nd ed. 1970); United States v. Gramolini, 301 F.Supp. 39 (D.R.I.1969). While no circuit has yet gone this far, several have held that the better procedure is to record and transcribe grand jury testimony. United States v. Aloisio, 440 F.2d 705, 708 (7th Cir. 1971) (appeal pending); United States v. Hensley, 374 F.2d 341, 352 (6th Cir. 1967), cert. denied, 388 U.S. 923, 87 S. Ct. 2139, 18 L.Ed.2d 1373, reh. denied, 389 U.S. 891, 88 S.Ct. 25, 19 L.Ed.2d 210; United States v. Cianchetti, 315 F.2d 584, 591 (2nd Cir. 1963). This circuit recently observed:

“Where a defendant, anticipating future grand jury proceedings involving himself, gives notice in advance that he will seek a transcript of the proceedings if an indictment is returned and offers to pay the expense of having a reporter in attendance or shows inability to pay, a sound exercise of discretion would ordinarily call for the granting of a motion that a reporter be in attendance.” United States v. Thoresen, supra, 428 F.2d at 666.

Although Thoresen referred to a request by a “defendant” that the grand jury proceedings be recorded, the holding cannot be limited in that regard. In that case, the first indictment returned against the defendants was dismissed when the statute upon which a portion of the indictment was based was held unconstitutional by the Supreme Court.

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Cite This Page — Counsel Stack

Bluebook (online)
53 F.R.D. 564, 1971 U.S. Dist. LEXIS 10737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-russo-cacd-1971.