Brown v. United States , 79 S. Ct. 539 ( 1959 )

Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was sentenced to 15 months’ imprisonment for criminal contempt stemming from his refusal to testify before a federal grand jury. His conviction was affirmed by the Court of Appeals, 247 F. 2d 332. The case was brought here primarily to review the validity of the procedure which resulted in the contempt adjudication. 356 U. S. 926. Other issues relate to the nature and extent of immunity from prosecution conferred by § 205 (e) of the Interstate Commerce Act, as amended,¹ and the severity of the punishment imposed by the District Court.

A grand jury in the Southern District of New York investigating possible violations of Part II of the Interstate Commerce Act² issued a subpoena directing the petitioner to appear and testify as to “all and everything which you may know in regard to an alleged violation of Sections 309, 322, Title 49, United States Code.” In response to this subpoena the petitioner appeared and, after being sworn, answered a few preliminary questions. He was then asked six further questions concededly relevant to the grand jury’s inquiry. These he refused to answer upon the ground of possible self-incrimination. After consulting with his lawyer, who was continuously present in an adjoining anteroom, the petitioner persisted in his refusal to answer, although advised at length by the Assistant United States Attorney that the applicable statute conferred complete immunity from prosecution as to any matter concerning which the petitioner might testify, and that, therefore, “you do not have any privilege to plead the Fifth Amendment.”

Thereupon the scene of the proceedings shifted to the courtroom, where the grand jury sought the aid of the district judge. After being apprised of what had transpired in the grand jury room, the. district judge heard extensive argument by counsel as to the scope of immunity afforded a grand jury witness under the applicable statute.

Following a weekend recess the district judge ruled that under the statute the petitiqner would be accorded immunity as extensive as the privilege he had asserted, and directed that the petitioner therefore return to the grand jury room and answer the questions. Later the same day the grand jury again returned to'the courtroom “to request the aid and assistance of the Court.” The district judge was advised through the official reporter that the petitioner had refused to obey the court’s order to answer the questions.

The judge then addressed the same questions to the petitioner in the grand jury’s presence. Each question was met with a refusal to answer upon the ground of possible self-incrimination. The petitioner was thereupon explicitly directed, by the judge to answer each question, and he just as explicitly refused. The judge inquired whether, the petitioner would persist in his refusal if he returned to the grand jury room and were again asked the questions there. The petitioner replied that he would. After further argument by counsel, the district judge held the petitioner in contempt and imposed sentence.

Throughout the proceedings in the courtroom the petitioner was represented by counsel, who unsuccessfully advanced three basic contentions: (1) A witness who testifies before a grand j'ury investigating offenses under the Motor Carrier Act is accorded no statutory immunity from subsequent prosecution based upon his testimony. (2) Even if some immunity is conferred, it is not coextensive with the constitutional privilege against self-incrimination. (3) In any event, the District Court, by adjudging the petitioner in criminal contempt without following the procedural requirements of Rule 42 (b) of the Federal Rules of Criminal Procedure, deprived the petitioner of due process of law. The same contentions are advanced here. In addition, we are asked to hold that the sentence of 15 months' imprisonment was an abuse of the District Court’s discretion.

In determining that § 205 (e) of the Motor Carrier Act clothed the petitioner with statutory immunity coextensive with his constitutional privilege not to incriminate himself, the District Court and the Court of Appeals were plainly correct. The relevant statutory language is unambiguous: “. . . and any person subpenaed or testifying in connection with any matter under investigation under this chapter shall have the same rights, privileges, and immunities and be subject to the same duties, liabilities, and penalties as though such matter arose under chapter 1 of this title [Part I of the Interstate Commerce Act] . ...”³ The obvious purpose and effect of this language is to confer the same immunity upon a witness testifying in an investigation under Part II of the Interstate Commerce Act as is conferred upon one testifying in an investigation under Part I. Both Part I and Part II contain criminal sanctions, and the power of a grand jury to investigate violations of either Part is unquestioned.

. The statute which confers immunity upon a witness testifying in a grand jury investigation under Part I was enacted in 1893.⁴ . For more than half a century it has been settled that this statute confers immunity from prosecution coextensive with the constitutional privilege against self-incrimination, and that the witness may not therefore lawfully refuse to testify. Brown v. Walker, 161 U. S. 591 (1896). „The context in which the doctrine originated and the history of its reaffirmance through the years have been so recently re-examined by this Court in Ullman v. United States, 350 U. S. 422, as to make it a needless exercise to retrace that ground here. Suffice it to repeat .that Brown v. Walker has become “part of our constitutional fabric.” 350 U. S., at 438. It is thus clearly too late'in the day to question the constitutional sufficiency of the immunity provided under Part I of the Act.

In contending that this immunity is not fully imported into Part II the petitioner grasps at straws. He points out that the above-quoted language of 49 U. S. C. §305 (d) which incorporates into-Part II the immunity provisions of Part I is separated by only a semicolon from a provision whiqh gives the Commission investigative powers under Part II.. See footnote 3. He would therefore have us rewrite the section so as to make the immunity provision applicable only to witnesses appearing before the Commission, not to those appearing before a grand jury or in a court. Such a construction would not only do violence to plain language, but also, as the Court of Appeals observed, to the whole structure of the Interstate Commerce Act. See 247 F. 2d, at 336-337.

The petitioner argues alternatively that even if some immunity is granted by Part II to a grand jury witness, the immunity, is not commensurate with that of Part I, and that its scope is therefore constitutionally insufficient. The contention'is that § 305 (d) provides immunity from prosecution only for offenses related to violations of the Motor Carrier Act itself because of the clause appearing at the beginning of the section — “So far as may be necessary for the purposes of this'chapter.” See footnote 3. Assuming that this clause limits the immunity provision of the section at all, it clearly limits only .the'class of witnesses to whom the immunity will, attach, not the scope of the. immunity, conferred. The petitioner “subpoenaed ... in connection with [a] matter under investigation under this chapter . . . necessary for the purposes of this chapter” was clearly within that class.

■ Congress thus provided that the petitioner could not and would not incriminate himself by answering the questions put to him.. He could not “be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he [might] testify. . . .” 49 U. S. C. § 46. He therefore had an unqualified duty to answer the questions as he was directed to do.

We turn then to the petitioner’s attack upon the validity of the procedure which the District Court followed in adjudicating him in contempt.⁵ This procedure, it is contended, robbed the petitioner not only of the safé-guards of notice, opportunity to prepare a defense, and a hearing, but also of the presumption of innocence and other rights basic to a fair criminal trial.

In view of the apparent breadth of the petitioner’s argument, it may promote analysis of this aspect of the case to emphasize at the outset what it does not involve. This is not a situation where the contempt was in any sense personal to the judge, raising issues of possible unfairness resulting from the operation of human emotions. Cf. Cooke v. United States, 267 U. S. 517, 539; Sacher v. United States, 343 U. S. 1; Offutt v. United States, 348 U. S. 11. This is not a case of “misbehavior” involving factual issues as to the nature of the petitioner’s conduct and whether it occurred in the “presence” of the court or “so near thereto as to obstruct the administration of justice.”⁶ Cf. Ex parte Savin, 131 U. S. 267; Ex parte Cuddy, 131 U. S. 280; Nye v. United States, 313 U. S. 33, 44-53. Moreover, the petitioner does not question the power of the court to punish disobedience of its lawful order as a criminal contempt,⁷ and to do so summarily, if the disobedience occurs in the presence of the court and in the sight or hearing of the judge.⁸

The issue presented is thus considerably narrower than the broad strokes of the petitioner’s argument would .at first suggest. Indeed, the argument boils down to' the contention that when the petitioner first disobeyed the court’s order in the grand jury room the court had no choice but to initiate criminal contempt proceedings against him at once, under the provisions of Rule 42 (b) of the Federal Rules of Criminal'Procedure,⁹ and that it therefore violated his fights by calling him before it and giving him another opportunity to answer the questions before adjudicating him in contempt. This argument disregards the historic relationship between court and grand jury. It finds support, in neither precedent nor reason.

A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court’s aid, because powerless itself to compel the testimony of witnesses. It is the court’s process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.

When the petitioner first refused to answer the grand jury’s questions, he was guilty of no contempt. He was entitled to persist in his refusal until the court ordered him to answer. Unless, therefore, it was to be frustrated in its investigative purpose, , the grand jury had to do exactly what it did — turn to the court for help. If the court had ruled that the privilege against self-incrimination had been properly invoked, that would have been the end of the.matter. Even after an adverse ruling upon his. claim of privilege, the petitioner was still guilty of no contempt. It was incumbent upon the court unequivocally to order the petitioner to answer. Cf. Wong Gim Ying v. United States, 98 U. S. App. D. C. 23, 231 F. 2d 776. The court did so.

When upon his return to the grand jury room the petitioner again refused to answer the grand jury’s questions, now in direct disobedience of the court’s order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42 (b). See Carlson v. United States, 209 F. 2d 209, 216 (C. A. 1st Cir.).

A judge more intent upon punishing the witness than aiding the grand jury in its investigation might well have .taken just such a course. Instead, the court made another .effort to induce the petitioner to testify. Again unequivocally advising the petitioner that the statute afforded him complete immunity, the court directed him to answer the questions. Had the petitioner done so, he would haye purged himself of-contempt, and the grand jury’s investigation could have proceeded.¹⁰ His deliberate refusal, continuing his contempt, cf. Yates v. United States, 355 U. S. 66, 75, left the court no choice.¹¹ Since the disobedience occurred in the court’s presence, it was clearly proper to proceed under Rule 42 (a).

Rule 42 of the Federal Rules of Criminal Procedure is no innovation. It simply makes “more explicit” the long-settled usages of law governing the procedure to be followed in contempt proceedings.¹² No decision of this Court has ever questioned the propriety of summary contempt proceedings in aid of a grand jury investigation. Repeated decisions of this Court and the Courts of Appeals have, at least sub silentio, approved such a procedure, stemming as it does from the usages of the common law.¹³ Indeed less than a decade ago this Court did not consider the question sufficiently doubtful to merit discussion.¹⁴ In the light, therefore, .of both reason and authority, we hold that the court’s action in affording the petitioner a locus penitentiae before finally adjudicating him in contempt was entirely proper.

We hold, finally, that the sentence of 15 months’ imprisonment was not an abuse of the District Court’s discretion. Because there is no statutory limit upon a District Court’s sentencing power in cases of criminal contempt, Green v. United States, 356 U. S. 165, this Court is not without power to review its exercise. Cf. Yates v. United States, 356 U. S. 363; Nilva v. United States, 352 U. S. 385, 396. But the decision is one primarily for the District Court, to be made “with the utmost sense of responsibility 'and circumspection.” Green v. United States, supra, at 188. The record does not indicate that the district judge’s decision was otherwise reached.- Before sentence was imposed, the petitioner’s counsel was fully, repeatedly and patiently heard.¹⁵

Affirmed.

1 49 Stat. 550; 54 Stat. 922, 49 U. S. C. § 305 (d). .

2 Commonly known as the Motor Carrier Act, 49 Stat. 543, as amended, 54 Stat. 919, 49 U. .§>. C. § 301 et seq.

3 The full text of the subséetion, as it appears in the United States Code, is as follows: “So far as may be necessary for the purposes of this chapter, the Commission and the members and examiners thereof and joint boards shall have the same power to administer oaths, and require by subpena the attendance and testimony of witnesses and the production of books, papers, tariffs, contracts, agreements, and documents, and to take testimony by deposition, relating to any matter under investigation, as the Commission has in a matter arising under chapter 1 of-this title; and any person subpenaed or testifying in connection with any matter under investigation under this chapter shall have the same rights, privileges, and immunities and be subject to the same .duties, liabilities, and penalties as though such matter arose under chapter 1 of this title, unless otherwise provided in this chapter.” 49 U. S. C. § 305 (d).

4 27 Stat. 443, 49 U. S. C. § 46. “No person shall be excused from attending and testifying or from producing books, papérs, tariffs, contracts,- agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the commission, whether such subpoena be signed or issued' by one or more commissioners, or in any cause or .proceeding, criminal or otherwise, based upon or growing out of any alleged violation of chapter 1 of this title on the" ground or for the reason that the testimony or evidence, documentary or' otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena ,of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents, if in his power to do so, in obedience to the subpoena or lawful requirement of the commission shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $100 nor more than $5,000, or by imprisonment for not more than one year or by both such fine and imprisonment.”

See also 32 Stat; 904, 49 U. S. C. § 47, which provides: “No person shall be prosecuted or be subjected to any penalty or forfeiture for or on. account of an^- transaction, matter, or thing concerning which he may testify or produce evidence; documentary or otherwise, in any proceeding, suit, or prosecution under chapter 1 of this title or any law amendatory thereof or supplemental thereto: Provided, That no person so testifying, shall be exempt from prosecution, or punishment, for perjury committed in so testifying.”

5 The petitioner and his counsel were advised in advance what the procedure was to be. “Mr. Wachtell: The Government's understanding of the nature of this proceeding is this: At this point the grand jury is still merely requesting the assistance of the Court. What the Government’ would request is that if it appears, as will be shown by the testimony of the grand jury reporter, that the witness is persisting in his refusal, the Government will then request of this Court that the Court itself,-in the presence of the grand jury, will put the six questions to the witness and ask him, first, whether he is willing to answer them now, and, second, would he answer them if he were sent back to the grand jury again. And if the witness again refuses here and now in the. physical presence of the Court or persists in his refusal to answer, that the witness be held in summary contempt under Rule 42 (a) of the Federal Rules of Criminal Procedure.

“The Court: That is what I propose.”

6 18 U. S. C. §401 (1).

7 18 U. S. C. §401. Power of court:

“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

“(3) Disobedience or resistance to its lawful writ, process, order, rule,,decree, or command.”

8 Rule 42. Criminal Contempt:

“(a) SummaRT1'Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”

9 Rule 42. Criminal Contempt: “(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state-the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the défendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”

10 The petitioner’s contention that the court’s very act of directing him to answer somehow violated his privilege against self-incrimination is thus clearly incorrect.

11 We do not discuss the petitioner’s claim, first advanced in the Court of Appeals, that the District Court proceeding was conducted in “secrecy,” because the record does not show this to be the fact.

12 Sacher v. United States, 343 U. S. 1, 7; Notes of Advisory Committee on Rules, 18 U. S. C. A., Rule 42.

13 Rogers v. United States, 340 U. S. 367; Wilson v. United States, 221 U. S. 361, 369, semble; Hale v. Henkel, 201 U. S. 43, 46; United States v. Curcio, 234 F. 2d 470, 473 (C. A. 2d Cir.), rev’d on other grounds, 354 U. S. 118 (1957); Lopiparo v. United States, 216 F. 2d 87 (C. A. 8th Cir.); United States v. Weinberg, 65 F. 2d 394, 396 (C. A. 2d Cir.). For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 4 Thompson & Cook (N. Y. 1874) 467; People ex rel. Hackley v. Kelly, 24 N. Y. 74, 79-80 (1861); In re Belle Harris, 4 Utah 5, 8-9, 5 P. 129, 130-132 (1884); Heard v. Pierce, 8 Cush. 338, 342-345 (Mass. 1851).

14 In Rogers v. United States, 340 U. S. 367, the petitioner attacked the validity of the summary procedure by which she was found guilty of criminal contempt for refusing to testify before a grand jury. (See petitioner’s brief Ños. 20, 21, 22, O. T., 1950, pp. 54-58; brief of United States, ibid., pp. 51-53.) Neither the opinion of the Court nor the dissenting opinion discussed the question. A petition for rehearing which complained of the Court’s silence on this issue (Petition for Rehearing No. 20, O. T., 1950, pp. 6-10) was denied. 341 U. S. 912.

15 The petitioner points out that the sentence imposed was in excess of the maximum punishment authorized by statute for substantive violations of the Motor Carrier Act. A more relevant comparison might be made to the statutory offenses involving obstruction of the administration of justice, punishable by a maximum of five years’ imprisonment. 18 U. S. C. § 1503. The record shows that the grand jury was investigating suspected violations of the Motor Carrier Act not by the petitioner, but by others. The District Court was informed that the testimony the grand jury “desired to elicit from this witness ... is of the very greatest importance, and the witness’s refusal to answer is a' very great stumbling block to this investigation and to all these investigations.” If within 60 days of the termination of these proceedings the ■ petitioner indicates his willingness to testify, the District Court will no doubt consider that fact in passing upon a motion for reduction of his sentence under Rule 35 of the Federal Rules of Criminal Procedure.