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United States v. Handler

decided: April 3, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
ALLAN A. HANDLER, APPELLANT. IN THE MATTER OF THE CONTEMPT CITATION V. GRAND JURY WITNESS, ALLAN A. HANDLER, APPELLANT



Feinberg, Mulligan and Timbers, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge:

Allan A. Handler appeals from a summary order of civil contempt entered against him as a grand jury witness on December 1, 1972 in the Southern District of New York by Murray I. Gurfein, District Judge, ordering that he be confined pursuant to 28 U.S.C. § 1826(a) (1970) for refusal to answer questions before a grand jury after having been granted immunity under 18 U.S.C. §§ 6002 and 6003 (1970).

The issues on appeal are directed exclusively to the procedure which led to Handler's current confinement for contempt. He claims a denial of due process at various points in that procedure. We find such claims to have been afterthoughts which even as forethoughts would have been unproductive. We affirm.

I.

On August 22, 1972, a special grand jury was empanelled in the Southern District of New York to investigate gambling activities in violation of 18 U.S.C. § 1955 (1970).

On October 30, Handler, then serving a prison term on a state gambling charge, was subpoenaed to testify before the federal grand jury. He refused to answer any questions, invoking his privilege against self-incrimination.

On October 31, upon application by the government, Judge Weinfeld entered an order granting immunity to Handler under 18 U.S.C. §§ 6002 and 6003, thereby precluding the use against him in any criminal proceeding of his testimony before the grand jury.*fn1

On November 1, despite the order granting him immunity, Handler again refused to answer any questions before the grand jury. He continued his refusal on November 2 when, accompanied by counsel, he was brought before Judge Weinfeld.

Handler next appeared before the grand jury on November 22. He again asserted his Fifth Amendment privilege and refused to answer each question asked of him before the grand jury. The government then applied to Judge Gurfein, before whom the grand jury had appeared, to adjudge Handler in contempt and to order him confined in accordance with 28 U.S.C. § 1826(a) (1970).*fn2

On November 29, following submission by the government of a brief in response to the court's inquiry as to the proper procedure,*fn3 Judge Gurfein entertained the government's contempt application. Handler, in the presence of his counsel, was given an opportunity to state why he should not be held in contempt. In addition to a statement by his counsel, Handler himself responded in pertinent part:

"Before I went up to the Grand Jury, two Federal Agents. . . told me that if I testified in the Grand Jury pertaining to this case, the people, whatever it might be, that they felt that I was in some danger and they would move me to a different part of the country, if I wanted to, relocate me.

All my family ties, and so on, are in that community. Excuse my expression, but I would have to -- based on what the Federal Agents told me -- I would have to almost be a little paranoid for the rest of my life. . . .

Because of this, I don't want to get myself involved in something like this and look back over my shoulder for the rest of my life based on what the agents told ...


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