United States v. Paul A. Boe

491 F.2d 970, 1974 U.S. App. LEXIS 10545

• Court: Court of Appeals for the Eighth Circuit
• Decided: January 16, 1974
• Docket: 73-1917
• Status: Published

Opinions

PER CURIAM.

Appellant, Paul A. Boe, a Lutheran minister, was found in contempt of court pursuant to 28 U.S.C. § 1826 for refusing to answer certain questions directed to him by a Grand Jury investigation of the Wounded Knee incident. He was ordered confined until he answers the Grand Jury’s question or until the Grand Jury’s term expires.

The appellant makes the following arguments on appeal:

1. The appellant was entitled to a trial by jury on the contempt charge.

2. He was deprived of due process in that he was not given adequate notice of the contempt hearing and was not given' an opportunity to present argument at the contempt hearing.

3. The government’s affidavits denying the appellant’s claims of illegal'eleetronic surveillance were insufficient and, therefore, the appellant’s claims constitute a defense to the contempt charges.¹

4. The Grand Jury sought information which had been conveyed to him in the course of a confidential communication ; and as a clergyman, he has a privilege to refuse to disclose this information.²

5. The government was improperly using the vehicle of the Grand Jury to gather evidence against those already indicted.³

We hold that the appellant was not entitled to a jury trial. This is clearly a case of civil contempt. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Bacon v. United States, 446 F.2d 667 (9th Cir. 1971), vacated on other grounds, 408 U.S. 915, 92 S.Ct. 2501, 33 L.Ed.2d 328 (1972); United States v. Handler, 476 F.2d 709 (2nd Cir. 1973).

We hold that the appellant was denied the due process requirements of notice and a meaningful opportunity to present his defense. Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972); Shillitani v. United States, supra; United States v. Alter, 482 F.2d 1016 (9th Cir. 1973).

We express no opinion as to the merits of appellant’s other contentions.

Judgment of contempt reversed.

1 . For example, see United States v. Alter, 482 F.2d 1016 (9th Cir. 1973) ; Beverly v. United States, 468 F.2d 732 (5th Cir. 1972).

2 . For example, see Proposed Federal Rules of Evidence Rule 506, 56 F.R.D. 183, 247 (1972) ; Mullen v. United States, 263 F.2d 275 (D.C.Cir. 1958) ; In re Verplank, 329 F.Supp. 433 (C.D.Calif.1971).

3 . For example, see Beverly v. United States, supra; In re Schofield, 486 F.2d 85 (3rd Cir. 1973).