Petitioner refused to answer a grand jury's questions despite a
grant of immunity. A trial judge found the questions to be proper
and directed petitioner to answer. Petitioner refused, and the
judge found that, by
"his contumacious and unlawful refusal . . . to answer any legal
and proper interrogatories and for his willful disobedience to the
lawful mandate of this Court,"
petitioner had "committed a criminal contempt of court" in
violation of N.Y.Judiciary Law § 750. He was sentenced to 30 days
and fined $250. His offer to testify thereafter was refused, and he
paid his fine and served his sentence. Petitioner was then indicted
under N.Y.Penal Law § 600 "for his contumacious and unlawful
refusal . . . to answer legal and proper interrogatories." The
trial court dismissed the indictment on double jeopardy grounds,
but the appellate court reversed . The New York Court of Appeals,
sustaining the reversal, held that there were two acts of contempt,
one before the grand jury and the other the refusal to obey the
court order, and that the trial judge had committed petitioner for
civil, not criminal, contempt.
Petitioner was penalized for criminal contempt
for purposes of the Double Jeopardy Clause, and, in view of the
state court's misconception of the nature of the contempt judgment,
and the substantial question of state law arising from the State's
response that it considers the two acts of contempt as being
partially intertwined, the judgment is vacated and the case is
remanded to the state court.
Certiorari granted; 29 N.Y.2d 1, 271 N.E.2d 694, vacated and
Despite a grant of immunity in response to the assertion of his
Fifth Amendment privilege not to be a witness against himself,
petitioner refused to answer questions put to him before a Kings
County, New York, grand jury. On December 7, 1965, a trial judge
Page 405 U. S. 10
the questions put had been proper, and directed petitioner to
answer them. Petitioner refused; the trial court, after allowing
petitioner a week's time to change his mind, signed a commitment
order stating that, by
"his contumacious and unlawful refusal after being sworn as a
witness to answer any legal and proper interrogatories and for his
willful disobedience to the lawful mandate of this Court,"
"committed a criminal contempt of court in the immediate view
and presence of the Court, and that said contempt was willful and
unlawful and in violation of Section 750 of the Judiciary Law of
the State of New York. . . ."
Petitioner was sentenced to 30 days and fined $250.
Appellate proceedings proved fruitless. Petitioner then offered
to testify, the offer was refused, and petitioner paid his fine and
served his sentence. On October 10, 1966, petitioner was indicted
under § 600, subd. 6, of the New York Penal Law of 1909 "for his
contumacious and unlawful refusal, after being duly sworn as a
witness, to answer legal and proper interrogatories." The trial
court dismissed the indictment on double jeopardy grounds but the
appellate court reversed. The reversal was sustained by the Court
of Appeals, which concluded that the Fourteenth Amendment and the
double jeopardy provision of the Fifth Amendment did not bar the
indictment. The court reasoned that petitioner had committed two
acts of contempt -- one on October 14, 1965, before the grand jury,
and the other on December 7 when he refused to obey the order of
the judge -- and that the trial judge had committed petitioner for
civil, not criminal, contempt.
The judgment of the Court of Appeals must be vacated. The
judgment of the New York trial court entered on December 15, 1965,
was for "criminal contempt," petitioner was sentenced to a definite
term in jail and ordered to pay a fine, and neither the prosecutor
nor the trial court
Page 405 U. S. 11
considered his offer to testify as sufficient to foreclose
execution of the sentence. For purposes of the Double Jeopardy
Clause, petitioner was confined and penalized for criminal
contempt. Yates v. United States, 355 U. S.
(1957); see also Cheff v. Schnackenberg,
384 U. S. 373
(1966); Shillitani v. United States, 384 U.
(1966); Oriel v. Russell, 278 U.
(1929). To the extent that the judgment of the
Court of Appeals rested on a contrary view, it must be set aside.
It also appears from its supplemental response that the State
considers the two acts of contempt on October 14 and on December 7
as being partially intertwined. As we understand it from the
State's response, petitioner's refusal to answer on October 14 did
not mature into a complete contempt until December 7, when the
trial court passed on the propriety of the grand jury's inquiry and
petitioner thereafter refused to obey the court's direction to
return to the grand jury and answer the questions properly put to
him. In view of the New York Court of Appeals' misconception of the
nature of the contempt judgment entered against petitioner for
purposes of the Double Jeopardy Clause, and in view of the
substantial question of New York law that has emerged, we are
disinclined at this juncture to entertain and determine the double
jeopardy question presented by petitioner. The better course is to
grant the petition for writ of certiorari, vacate the judgment of
the New York Court of Appeals, and remand the case to that court
for further proceedings not inconsistent with this opinion, thus
affording that court the opportunity to reconsider the validity of
the indictment under the Double Jeopardy Clause of the
MR. JUSTICE DOUGLAS, dissenting.
On October 14, 1965, petitioner refused to testify when called
before a Kings County, New York, grand jury. When, on December 15,
after a grant of immunity
Page 405 U. S. 12
and a judicial inquiry into the validity of the grand jury
investigation under state law, the petitioner persisted in his
refusal to testify, the presiding judge cited him for contempt and
imposed a sentence of 30 days and a fine of $250. [Footnote 1
] Despite petitioner's later
willingness to testify, the sentence was executed.
The grand jury then returned an indictment against petitioner
charging him with criminal contempt for his refusal to testify.
successfully moved to quash the indictment, but, on appeal, it was
reinstated and upheld against petitioner's contention that it put
him twice in jeopardy for the same offense in violation of the
Fifth Amendment. People v. Colombo,
25 N.Y.2d 641, 254
N.E.2d 340. We granted the petition for certiorari, vacated the
judgment of the New York Court of Appeals, and remanded for
consideration in light of Waller v. Florida, 397 U.
. 400 U. S. 16
remand, however, the Court of Appeals adhered to its earlier
decision, reasoning that the first citation was for civil contempt,
while the indictment charged a criminal offense, and that
"two distinct acts [were] being punished -- refusal to testify
before the Grand Jury and a separate refusal to obey the lawful
mandate of a Supreme Court Justice."
29 N.Y.2d 1, 3, 271 N.E.2d 694, 695.
The Court of Appeals' characterization of the December 15
citation as "civil," rather than criminal, is not dispositive of
the question before us. To be sure, federal courts normally are
bound by state court interpretations of state law, but involved
here is a question of federal right under the Double Jeopardy
Clause. In such cases, federal, rather than state, law governs.
Suffice it to say that a 30-day sentence and a $250 fine imposed
Page 405 U. S. 13
to testify before a grand jury constitutes criminal punishment
within the meaning of the double jeopardy provision of the Bill of
Rights, at least where the witness' willingness to purge himself of
contempt by testifying does not result in the vacation of the
sentence. Shillitani v. United States, 384 U.
, relied upon by respondent, is not to the
contrary. There, we held
"that the conditional nature of [the] sentences [allowing the
contemnors to purge themselves by agreeing to testify] render[ed]
each of the actions a civil contempt proceeding. . . ."
at 384 U. S. 365
In the present case, by contrast, the jail sentence and fine was
imposed despite petitioner's willingness to testify.
Nor does the characterization of the two contempts as involving
different acts avoid the prohibition against twice being put in
jeopardy for the same offense. The 30-clay sentence and $250 fine
were imposed, inter alia,
for the petitioner's "refusal,
after being sworn as a witness, to answer any legal and proper
interrogatories." This is precisely the offense charged in the
present indictment. Respondent lists five elements [Footnote 3
] for the offense of
Page 405 U. S. 14
criminal contempt. All of these elements were necessarily
included in the trial court's earlier citation for "civil"
contempt. Petitioner need not "run the gauntlet" on this offense a
second time. [Footnote 4
Green v. United States, 355 U. S. 184
355 U. S.
This contempt citation rested upon § 750 of the New York
The present indictment is founded upon the former § 600 of the
New York Penal Law.
Respondent says that,
"[i]n order to prove the crime of criminal contempt, the
following elements must be shown: "
"1. That the defendant did unlawfully and contumaciously refuse
to answer a legal and proper question before the Grand Jury."
"2. That the quorum of the Grand Jury was present at all times,
on any such day when the defendant testified and when the
indictment was voted."
"3. That the question which is claimed that the defendant
refused to answer was a legal and proper one."
"4. That any such question asked of the defendant, and which, it
is charged he refused to answer, was relevant and germane to the
investigation being conducted by the Grand Jury."
"5. That the defendant was duly sworn as a witness and
contumaciously and unlawfully refused to answer any such legal and
Supplemental Brief 6.
All of these elements -- with the exception of the proviso "when
the indictment was voted," which relates to the sufficiency of the
indictment, rather than being a separate element of the offense --
were plainly included in the "civil" contempt. The "witness's
contumacious and unlawful refusal to answer questions,"
stems from the refusal to obey the trial court's
order which also formed the basis for the December 15 citation.
I agree with ME. JUSTICE BRENNAN's concurring opinion in
Ashe v. Swenson, 397 U. S. 436
397 U. S.
-454, where he said:
"In my view, the Double Jeopardy Clause requires the
prosecution, except in most limited circumstances, to join at one
trial all the charges against a defendant that grow out of a single
criminal act, occurrence, episode, or transaction. This 'same
transaction' test of 'same offence' not only enforces the ancient
prohibition against vexatious multiple prosecutions embodied in the
Double Jeopardy Clause, but responds as well to the increasingly
widespread recognition that the consolidation in one lawsuit of all
issues arising out of a single transaction or occurrence best
promotes justice, economy, and convenience."
It would be repugnant to these views to allow a separate
criminal prosecution and punishment for each day, hour, or minute
that a witness refused to testify before a grand jury.