While serving a sentence for a federal narcotics offense,
petitioner was summoned before a federal grand jury and asked
questions concerning his crime, as well as other transactions in
narcotics. He invoked his privilege against self-incrimination
under the Fifth Amendment and refused to answer. Acting pursuant to
18 U.S.C. § 1406, which grants immunity from prosecution to a
witness compelled to testify before a grand jury concerning
violations of the narcotics laws, the United States Attorney
obtained a court order granting petitioner immunity and directing
him to testify. On his refusal to do so, partly because he feared
for his life and that of his family, he was adjudged guilty of
criminal contempt.
Held: the conviction is sustained.
Reina v. United
States, 364 U. S. 507. Pp.
367 U. S.
556-561.
276 F.2d 148 affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Petitioner, Armando Piemonte, while serving a six-year sentence
for the sale and possession of heroin, was brought by writ of
habeas corpus ad testificandum before a federal grand jury
inquiring into narcotics offenses. Having consulted his counsel
prior to his appearance before the grand jury, he refused to answer
all questions
Page 367 U. S. 557
concerning his crime, as well as other transactions in
narcotics, under the claim of his privilege against
self-incrimination. Three days later, the United States Attorney
petitioned for an order directing Piemonte to answer the questions
put to him. The petition stated that the grand jury was conducting
an investigation of illegal narcotics activities, that Piemonte's
testimony was required for the investigation in the public
interest, that, having been questioned on matters relating to
narcotics, Piemonte claimed his privilege against
self-incrimination, wherefore request was made that Piemonte be
required to testify pursuant to 18 U.S.C. § 1406. That provision of
the Narcotic Control Act of 1956 gives immunity from future
prosecution to any witness who is compelled by court order to
testify before a federal court or grand jury concerning violations
of the narcotics laws. [
Footnote
1]
Page 367 U. S. 558
The section's breadth and constitutionality were considered
earlier this Term in
Reina v. United States, 364 U.
S. 507.
The district judge, having granted Piemonte immunity from
"prosecution which might arise from any answers that you give to
this Grand Jury concerning the matter of their investigation,"
ordered him to testify "relative to the aforementioned inquiry of
said Grand Jury. . . ." Piemonte was granted an opportunity to
consult his lawyer, and his duty to appear before the grand jury
was delayed for a day. The next morning, he renewed his refusal to
answer the questions propounded to him about narcotics activities,
and again invoked his Fifth Amendment privilege.
That afternoon, he was taken back before the District Court to
answer an order to show cause why he should not be cited for
contempt for deliberately disobeying the previous order to testify.
He was represented by his counsel at this proceeding. Having
examined the transcript of the grand jury's morning proceedings,
the judge asked petitioner if he persisted in refusing to answer
the questions, to which Piemonte replied in the affirmative. The
judge gave Piemonte's counsel four days to prepare for a plenary
hearing of the charge of contumacy, but denied Piemonte's motion
for a jury trial.
At the subsequent hearing, the Government stood on its case
based on the grand jury transcripts and the court's order to
testify. The judge again asked Piemonte if he persisted in his
refusal to obey the court's order.
Page 367 U. S. 559
Piemonte took the stand in his own behalf, and made the
following explanation for his refusal to testify:
"Well. I am doing time in the penitentiary. I fear for my life.
I fear for the life of my wife, my two stepchildren, and my family.
I can't do something like that. I want to live, too."
After his counsel's elaboration of this argument, the judge
again asked Piemonte if he would testify. Upon his refusal, the
judge declared him guilty of contempt of court for willful failure
to obey a lawful order. After hearing argument on the sentence, the
judge once again offered to give petitioner the opportunity to
answer the questions. The refusal having been made definitive,
sentence was fixed at eighteen months, to commence at the
termination of the imprisonment he was serving.
The contempt judgment was affirmed by the Court of Appeals for
the Seventh Circuit, 276 F.2d 148, and we granted certiorari, 364
U.S. 811.
This record surely evinces the utmost solicitude by the trial
court for the defendant's interests. His only claim for reversal
here is based upon alleged defects in the proceedings which
resulted in his conviction of criminal contempt. [
Footnote 2]
Page 367 U. S. 560
Petitioner's first claim is that he was subjected to so many
differing interpretations of whether he had a privilege to refrain
from testifying as to certain questions that the order commanding
him to answer lacked sufficient clarity. This is a sheer
afterthought. Neither Piemonte nor his counsel ever claimed
confusion in the District Court as a basis for his refusal to
testify. Nor do the facts reveal that petitioner could have been
misled by the out-of-context statements he pieces together for
purposes of review.
The first morning before the grand jury, the government attorney
asked petitioner:
"Didn't your lawyer advise you, Mr. Piemonte, on those matters
that you pleaded guilty to in the indictment, that you have no
Constitutional privilege against self-incrimination?"
However, the Government, in order to avoid any argumentative
opportunities as to the scope of the area for which it sought
immunity, did not attempt to secure an order directing answers for
the particular questions relating to matters involved in his former
conviction. It requested a broad order of immunity to cover the
entire scope of what was under investigation by the grand jury. The
United States Attorney told the district judge in seeking the order
compelling testimony:
"[S]o that the Court would not have any misconception of the
idea of the Government counsel on this matter, we, too, think that
the constitutional privilege claimed by the witness is well taken
in this matter."
Petitioner plainly must have known -- and gave every indication
that he knew -- that he was required to answer all questions put to
him by the grand jury in return for equivalent, compensating
immunity. We find no merit in an argument which is contradicted by
petitioner's own
Page 367 U. S. 561
assertion, supported by his counsel's argument, that he refused
to testify solely because of fear.
Secondly, petitioner argues that the oral grant of immunity by
the district judge was null and void, because the judge said "this
Court now grants you immunity from prosecution . . . " and "I now
grant you immunity from such prosecution . . . " when, in reality,
the statute, not the court, grants the immunity. The puerility of
this contention is emphasized by petitioner's disregard of the
judge's introductory basis of his pronouncement as "in accordance
with the provisions of the Narcotic Control Act."
The remaining contentions of petitioner are of even less
substantiality, and accordingly the judgment below is
Affirmed.
[
Footnote 1]
"Whenever in the judgment of a United States attorney the
testimony of any witness, or the production of books, papers, or
other evidence by any witness, in any case or proceeding before any
grand jury or court of the United States involving any violation of
--"
"(1) any provision of part I or part II of subchapter A of
chapter 39 of the Internal Revenue Code of 1954 the penalty for
which is provided in subsection (a) or (b) of section 7237 of such
Code,"
"(2) subsection (c), (h), or (i) of section 2 of the Narcotic
Drugs Import and Export Act, as amended (21 U.S.C., sec. 174),
or"
"(3) the Act of July 11, 1941, as amended (21 U.S.C., sec.
184a), is necessary to the public interest, he, upon the approval
of the Attorney General, shall make application to the court that
the witness shall be instructed to testify or produce evidence
subject to the provisions of this section, and, upon order of the
court, such witness shall not be excused from testifying or from
producing books, papers, or other evidence on the ground that the
testimony or evidence required of him may tend to incriminate him
or subject him to a penalty or forfeiture. But no such witness
shall be prosecuted or subjected to any penalty or forfeiture for
or on account of any transaction, matter, or thing concerning which
he is compelled after having claimed his privilege against
self-incrimination, to testify or produce evidence, nor shall
testimony so compelled be used as evidence in any criminal
proceeding (except prosecution described in the next sentence)
against him in any court. No witness shall be exempt under this
section from prosecution for perjury or contempt committed while
giving testimony or producing evidence under compulsion as provided
in this section."
[
Footnote 2]
Neither before the Court of Appeals nor here was fear for
himself or his family urged by Piemonte as a valid excuse from
testifying. Nor would this be a legal excuse. Every citizen, of
course, owes to his society the duty of giving testimony to aid in
the enforcement of the law.
See Brown v. Walker,
161 U. S. 591,
161 U. S. 600.
Lord Chancellor Hardwicke's pithy phrase cannot be too often
recalled: "[T]he public has a right to every man's evidence." 12
Hansard's Debates 693; 8 Wigmore, Evidence (3d ed.), p. 64, §
2192.
If two persons witness an offense -- one being an innocent
bystander and the other an accomplice who is thereafter imprisoned
for his participation -- the latter has no more right to keep
silent than the former. The Government, of course, has an
obligation to protect is citizens from harm. But fear of reprisal
offers an immunized prisoner no more dispensation from testifying
than it does any innocent bystander without a record.
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE DOUGLAS concurs,
dissenting.
This case represents another long step in the constantly
expanding use by the federal district judges of their summary
contempt power to mete out severe prison sentences without
according the defendants the benefit of a jury trial and the other
rights guaranteed by the Fifth and Sixth Amendments. [
Footnote 2/1] In an ordinary case of this
nature, I would content myself with saying that the conviction
Page 367 U. S. 562
should be reversed on the ground that a federal district judge
has no power to impose such punishment in a summary proceeding.
See Green v. United States, 356 U.
S. 165,
356 U. S. 193
(dissenting opinion);
Reina v. United States, 364 U.
S. 507,
364 U. S. 515
(dissenting opinion). However, the facts of this case are so
disquieting that I am compelled to add a few additional
comments.
In 1958, the petitioner was convicted of selling and possessing
narcotics in violation of the federal narcotics laws, and was
sentenced by a Federal District Court to six years' imprisonment.
In 1959, while serving his sentence at the Leavenworth
Penitentiary, the petitioner was subpoenaed to testify before a
federal grand jury conducting an investigation of possible
narcotics offenses. He was asked to indicate where he had obtained
the narcotics which he was convicted of having possessed and sold.
Invoking his Fifth Amendment privilege against self-incrimination,
the petitioner refused to answer the question. [
Footnote 2/2] He was then asked whether he knew
several named
Page 367 U. S. 563
individuals and whether he had obtained the narcotics from any
of those individuals. Still relying upon his Fifth Amendment
privilege, the petitioner refused to answer each of the questions.
On petition of the Government, the District Court authorized the
granting of immunity to the petitioner pursuant to 18 U.S.C. §
1406, and instructed him to answer the questions asked by the grand
jury. Upon being recalled before the grand jury, the petitioner
again invoked the Fifth Amendment and refused to identify those
from whom he had obtained the narcotics which constituted the basis
for his 1958 conviction. [
Footnote
2/3] In response to a subsequent order to show cause why he
should not be held in contempt of court, the petitioner asserted,
as an additional reason for not answering, that the lives of his
wife and children, as well as his own life, would be endangered
were he to answer the questions. Having denied the petitioner's
request for a jury trial, the district judge summarily found the
petitioner guilty of contempt of court and sentenced
Page 367 U. S. 564
him to eighteen months' imprisonment, to be served after the
completion of the six-year sentence imposed in 1958.
In my opinion, the Government has subjected the petitioner to
unjustifiable harassment. The petitioner has been convicted for his
admittedly illegal conduct, and is presently paying his debt to
society for that conduct. However, not being satisfied with this
punishment, the Government sought to extract from the petitioner,
under the threat of a contempt conviction, testimony which it could
not have compelled at the original trial in 1958, and which it
knows might well endanger petitioner's life and the lives of his
loved ones. In my view, the Government's attempt to compel the
petitioner to testify about conduct for which he has already been
punished, and the District Court's imposition of an additional term
in the penitentiary for petitioner's refusal to testify about such
conduct represents the type of harassment which violates the spirit
of the Double Jeopardy Clause of the Fifth Amendment.
Cf.
Abbate v. United States, 359 U. S. 187,
359 U. S. 196
(separate opinion of MR. JUSTICE BRENNAN);
Ciucci v. State of
Illinois, 356 U. S. 571,
356 U. S. 573
(dissenting opinion). I think it can fairly be said that the
treatment which the petitioner has received from the Government and
the District Court falls far short of that fundamental fairness
which the Constitution guarantees and to which even the basest
prisoner in the penitentiary is entitled. [
Footnote 2/4] Therefore, even if the Court is unwilling
to recognize that the Constitution prohibits the imposition of
punishment in a summary proceeding, it ought to exercise its
supervisory power over the lower federal courts to rectify the
abuse of the summary contempt power which the record in this case
makes manifest.
See Offutt v. United States, 348 U. S.
11.
Page 367 U. S. 565
[
Footnote 2/1]
Only in the last few years has it become the fashion for
district judges to use the summary contempt power as a device for
imposing long terms of imprisonment.
See, e.g., Reina v. United
States, 364 U. S. 507 (two
years' imprisonment);
Brown v. United States, 359 U. S.
41 (fifteen months' imprisonment);
Green v. United
States, 356 U. S. 165
(three years' imprisonment);
Collins v. United States, 269
F.2d 745 (three years' imprisonment);
Tedesco v. United
States, 255 F.2d 35 (two years' imprisonment);
Corona v.
United States, 250 F.2d 578 (two years' imprisonment). Prior
to this recent trend, the summary contempt power was seldom used to
impose more than a nominal fine or a short term of imprisonment.
See Brown v. United States, supra, at
359 U. S. 58-59
(dissenting opinion).
[
Footnote 2/2]
"Q. You are now incarcerated in the penitentiary, are you not,
Mr. Piemonte?"
"A. That's right."
"Q. Which one?"
"A. Leavenworth Penitentiary."
"Q. You are serving a term of six years?"
"A. Six years."
"Q. And that is for the sale and possession of heroin?"
"A. Yes, sir."
"Q. Mr. Piemonte, that sale and possession of heroin, there were
two sales, were there not, one ounce and 95 grains of heroin that
you sold for $3,100.00, and another sale -- the first one was on
November 23, 1957, and the second one was on November 27, 1957,
when you sold eight ounces 354 grains for $3,000.00 to Agent Davis;
those were the charges in the indictment?"
"A. Right."
"Q. Now, Mr. Piemonte, our information is that you were in the
narcotic business -- strike that question."
"These two sales of heroin, the first one for $3,100.00, and the
second one for $3,000.00, on November 23, 1957, and November 27,
1957, will you tell the Grand Jury, please, where you got the
heroin?"
"A. Sir, I am taking the 5th Amendment. I decline to answer any
questions under the Constitution, the 5th Amendment."
[
Footnote 2/3]
"Q. Now I am going to go over some of those questions that you
claimed your privilege on and repeat them to you."
"Now you were convicted in the Federal Court here in Chicago for
the sale of heroin on November 23, 1957, that you got $3,100 for
and another sale on the 27th day of November 1957 that you got
$3,000 for."
"Now those were the two sales upon which you were convicted and
sentenced to the penitentiary at Leavenworth, is that right?"
"A. Right."
"Q. Now the question:"
"These two sales of heroin, the first one for $3,100 and the
second one for $3,000 on November 23, 1957, and November 27, 1957,
will you tell the Grand Jury, please, where you got that
heroin?"
"A. I stand on the Fifth Amendment. I decline to answer as it
may tend to incriminate me."
[
Footnote 2/4]
I do not mean to imply that a person who is incarcerated may,
for that reason alone, be excused from testifying before a grand
jury. However, I do believe that he cannot be compelled to testify
concerning the illegal activity for which he has been
incarcerated.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
Petitioner, while a prisoner in a federal penitentiary serving a
six-year sentence on a narcotics conviction, was summoned before a
grand jury and interrogated about transactions in narcotics.
I
One series of questions was opened with the following: "Mr.
Piemonte, were you in the narcotics business in 1954?" Following
the tender of immunity, petitioner was again asked a series of
questions, some of them relating to transactions in narcotics in
that year. Among the questions was the following: "Have you
supplied Jeremiah Pullings with any heroin?"
These questions and these refusals to answer were on August 10
and 14, 1959. The sentence for contempt was imposed on August 18,
1959. After that date and before February 29, 1960, the date when
the Court of Appeals affirmed the appeal, the grand jury returned
another indictment against petitioner. This was on September 2,
1959. This indictment charged petitioner and others with a
conspiracy to buy and sell narcotics commencing in August, 1954.
One of the overt acts charged was a conversation in 1955 between
Jeremiah Pullings and one of petitioner's co-conspirators under the
September 2, 1959, indictment. These 1954 and 1955 transactions,
for which petitioner now stands indicted, were ones on which he
refused to testify, and for which he has been committed for
contempt.
Once an indictment was returned, the proceedings of this grand
jury became a part of a criminal prosecution directed against
petitioner.
Counselman v. Hitchcock, 142 U.
S. 547,
142 U. S. 562;
United States v. Monia, 317 U. S. 424,
317 U. S. 427.
When the citizen is formally accused by indictment, he has a
constitutional right to stand mute and to refuse
Page 367 U. S. 566
to testify. His right not to take the stand in a federal
criminal trial transcends his privilege against self-incrimination.
No immunity statute, no pressure of government, no threats of the
prosecution can be used to deprive the citizen of this right.
See Wilson v. United States, 149 U. S.
60;
Stewart v. United States, 366 U. S.
1. And it is unthinkable that a district judge would
ever hold a defendant in contempt because he refused to take the
stand at his own trial. The district judge did no such thing here.
But that was the posture of the case when it was decided by the
Court of Appeals. For, by then, the matters about which petitioner
refused to answer had become in form and in effect an indictment
against him.
There is no power in our free society to compel a person to talk
about a matter on which he has been indicted or to penalize him for
failure to do so. We might as well say that an accused can be
committed for contempt for failure to take the stand at his own
trial.
We are advised that, after we granted certiorari, the indictment
against petitioner was dismissed on motion of the Government for
lack of evidence. That seems irrelevant. The truth is that the
grand jury before which petitioner was summoned did indict him.
Petitioner was in fact held in contempt for refusal to testify in a
criminal proceeding against him. That is not permissible under the
procedures of our free society, whatever may have been the ultimate
fate of that criminal proceeding.
II
I think the imposition of an eighteen months' sentence was
beyond the power of a federal court in a summary proceeding. That
was the view stated by MR. JUSTICE BLACK in his dissenting opinion
in
Green v. United States, 356 U.
S. 165,
356 U. S. 193,
with which I agreed then and still agree. There is nothing I can
find in the Constitution
Page 367 U. S. 567
which permits those who defy a court's decree to be tried in one
way and those who defy a mandate of the Congress [
Footnote 3/1] or an order of the Executive
[
Footnote 3/2] to be tried in
another way. Whatever the criminal charge may be, an accused is
entitled to the protections afforded by the Constitution --
indictment by a grand jury and trial before a petit jury which sits
to determine guilt. Determination of guilt by a judge, without
these safeguards interposed between the accused and government,
marks a continuing erosion of civil rights. The evil is compounded
here by reason of the fact that contempt is used to increase a
punishment already imposed for an offense as respects which no
second indictment could ever be returned. Criminal contempt is used
to undermine not only the guarantees of an indictment by a grand
jury and a trial by one's peers, but also to destroy the protection
of double jeopardy.
Plainly this judgment of conviction should not stand.
[
Footnote 3/1]
See Watkins v. United States, 354 U.
S. 178.
[
Footnote 3/2]
See Hirabayashi v. United States, 320 U. S.
81;
Korematsu v. United States, 323 U.
S. 214.