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In re Grand Jury Proceedings. Allen W. Schmidt

argued: May 3, 1977.

IN RE GRAND JURY PROCEEDINGS. ALLEN W. SCHMIDT, APPELLANT


APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 6736).

Seitz, Chief Judge, Rosenn, Circuit Judge, Meanor,*fn* District Judge.

Author: Per Curiam

Allen W. Schmidt appeals from a judgment of the district court holding him in contempt pursuant to 28 U.S.C. § 1826(a)*fn1 and ordering his confinement until the contempt is purged by his compliance with an order to testify before a grand jury.*fn2

Schmidt previously had been indicted in three counts for conspiracy, manufacture and possession of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Prior to trial on that charge, he made a motion to suppress, which was denied. At the following non-jury trial he was convicted on all three counts, and an appeal from that conviction is pending here.*fn3

Thereafter, on Friday, March 18, 1977, Schmidt was subpoenaed to appear before a grand jury on March 22, 1977. Schmidt appeared and refused to testify. He was then brought before the district court and, pursuant to the Government's application, was granted immunity under 18 U.S.C. §§ 6001-03. Following the grant of immunity, Schmidt's attorney requested a postponement of his grand jury appearance because

we have not had sufficient time to confer about what course of action he should follow should immunity be granted. We are requesting a postponement of his appearance to fully explore all of the various ramifications of what has happened here today.

Following this statement, the attorney for the Government argued that Schmidt's motion was premature because no contempt proceeding could ensue until Schmidt once again appeared before the grand jury and refused to testify. To this Schmidt's attorney replied: "That is precisely what we want to confer about as to a course of action." He thereafter requested a delay of a "few days." The court consented and ordered Schmidt to appear before the grand jury two days later on March 24, 1977.

On March 24, Schmidt again refused to testify. He was brought promptly before the district court where his attorney requested a continuance in order to prepare a defense to "these contempt proceedings." The court pointed out that Schmidt had had a day and a half to consider his course of action and invited testimony on the need for a continuance. Schmidt then testified that he refused to testify because his life had been threatened and "on my Fourth Amendment right and my right to privacy. . . ." He refused to say who had threatened his life.

The district court found Schmidt had had sufficient time between March 22 and 24 to consult with counsel, decide upon a course of action, and prepare a defense to the inevitable contempt charge upon his continued refusal to testify. Impliedly rejecting the merits of the fourth amendment defense, the court then held Schmidt in contempt.

In this appeal, Schmidt attacks the validity of his citation for contempt on two grounds. Procedurally, he maintains that the failure of the district court to grant his request for a continuance after his refusal to testify on March 24 deprived him of a reasonable time to prepare a defense to the contempt charges. Going to the merits, Schmidt asserts that the fourth amendment prevents the district court from compelling him to answer questions before the grand jury, where the questions were based on evidence which Schmidt contends was illegally seized from him. It is clear from Schmidt's brief and his counsel's statements at oral argument that the fourth amendment contention is the only substantive defense now being asserted to the charge of contempt. It is Schmidt's position that the subject of the grand jury inquiry had its genesis in an illegal search of his farm, and that it is impermissible to question him before a grand jury upon a topic discovered through an illegal search and seizure. He is referring to the same search as to which his pretrial motion to suppress was denied on the indictment mentioned above. The propriety of that search is before this court on his pending appeal.

I

It is settled that one cited for contempt under 28 U.S.C. § 1826, because of refusal to obey an order to testify before a grand jury, is entitled to a reasonable time to prepare his defense. In re Grand Jury Investigation (Appeal of Bruno), 545 F.2d 385 (3d Cir. 1976). The determination of what constitutes a reasonable time is committed to the sound discretion of the district court and will, of course, vary with the circumstances. Id. at 388; United States v. Alter, 482 F.2d 1016, 1023 (9th Cir. 1973). If there is a need for resolution of factual disputes, or if the legal issues are complex, more time will be needed for preparation than might otherwise be the case. Here, no fact issue was raised and the one legal defense - that based on the fourth amendment - is neither complex nor meritorious. The district court determined that Schmidt had adequate time between March 22 and 24 to decide whether to testify and to prepare to defend the contempt citation that inexorably would follow a decision not to do so. We cannot say under the circumstances present that this determination amounted to a mistaken exercise of discretion. In re Sadin, 509 F.2d 1252, 1255-56 (2d Cir. 1975). Appellant's reliance upon our recent decision in Bruno, supra, is misplaced. There, Bruno was given only 15 minutes between his refusal to testify and the start of his contempt hearing, which was the only time he had to prepare a defense. That is a far cry from the nearly 48 hours given to Schmidt, whose counsel was fully familiar with the facts, having represented Schmidt in the trial on the substantive offense.

II

The record before us is clear in two respects: (1) Schmidt is not a target of the current grand jury investigation;*fn4 and (2) the fourth amendment defense to the contempt charge is the only one raised on this appeal. In support of his fourth amendment thesis, Schmidt presses Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182 (1920) while the ...


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