Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
On Petition for Rehearing
Upon consideration of the petition for rehearing in this case and the government's reply thereto, the petition for rehearing will be denied.
KALODNER, Circuit Judge (dissenting).
The appellant was brought before the District Court because of his refusal to answer certain questions as a Grand Jury witness on the ground of self-incrimination. In a brief hearing the Assistant United States Attorney asserted that since the questions "obviously" related to possible violation of 47 U.S.C. § 501, the witness was immune to prosecution under 47 U.S.C. § 409(l). The District Judge thereupon directed the appellant to answer the questions of the United States Attorney. Counsel for the appellant said that the latter had previously told him that he did not intend to answer the questions. The Court then asked appellant his intention, to which he replied: "I refuse to answer any more questions, Your Honor." Thereupon, the Court held him in contempt and directed that he be committed until he purge himself. This occurred on October 25, 1963. After the appeal was taken the District Judge filed a certificate under Rule 42(a), F.R.Crim.P. The appeal was especially listed for argument on November 6, 1963. On November 1, 1963, the same grand jury returned an indictment against the appellant, charging him with conspiracy to violate 18 U.S.C. § 1952 and travelling in interstate commerce in violation of 18 U.S.C. § 1952. This indictment was brought to the attention of this Court in the brief for the appellant.
On November 8, 1963 in a per curiam opinion, this Court affirmed the District Court's judgment in the light of Marcus v. United States, 310 F.2d 143 (3 Cir. 1962), cert. den. 372 U.S. 944, 83 S.St. 933, 9 L. Ed. 2d 969 (1963). It added, however, that such affirmance is "without prejudice to the right of the appellant to apply to the district court for such relief as may be necessary and proper in the light of any events which have occurred since the imposition of sentence." On the same day the appellant applied to the District Court for relief, based upon the subsequent indictment, but such relief was immediately denied*fn1
All of this information comes from the record on the appeal in this case, supplemented by the Petition for Rehearing, and the Answer filed by the Government, which includes a copy of the indictment.
The per curiam opinion of this Court in this appeal suggests, if it does not direct, that appellant should apply to the District Court for relief based on the indictment filed after he was held in contempt. But whether this was necessary or desirable is itself questionable. cf. Bartone v. United States, 375 U.S. 52, 84 S. Ct. 21, 11 L. Ed. 2d 11 (1963).
Implicit in the Court's per curiam opinion, is its holding that the filing of the indictment subsequent to the contempt adjudication, (fully argued at the hearing of the appeal as the Government concedes in its brief), was not of such proportion as to compel vacation of the contempt commitment.
I do not agree with the view expressed in our per curiam opinion that Marcus is dispositive here, since the indictment which followed the contempt commitment, which is clearly before us on this appeal, distinguishes the instant case from Marcus. The circumstance of the indictment presents a novel, substantial issue which compels specific disposition by this Court. Pertinent is the expression of Mr. Justice Douglas (concurred in by Mr. Justice Black) in his dissenting opinion in Piemonte v. United States, 367 U.S. 556 at pages 565-566, 81 S. Ct. 1720, at pages 1725-1726, 6 L. Ed. 2d 1028 (1961):
"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, 562, [12 S. Ct. 195, 35 L. Ed. 1110]; United States v. Monia, 317 U.S. 424, 427 [63 S. Ct. 409, 87 L. Ed. 376]. When the citizen is formally accused by indictment, he has a constitutional right to stand mute and to refuse 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 [13 S. Ct. 765, 37 L. Ed. 650]; Stewart v. United States, 366 U.S. 1 [81 S. Ct. 941, 6 L. Ed. 2d 84]. 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 the 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."
It must be observed that the majority opinion in Piemonte did not advert to the fact that there an indictment had been returned after the contempt commitment, presumably because the indictment pending when certiorari was granted, had been dismissed on the government's motion prior to the Supreme Court's disposition. Since in the instant appeal the indictment which followed the contempt commitment is still pending, the views expressed by Justices Black and Douglas are assuredly of sufficient significance and weight to require their consideration by this Court. For my part, I am in accord with the views of Justices Black and Douglas.
I am further of the opinion that this Court should give merited consideration to the very substantial question as to whether Marcus is ...