Appeal from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, denying a motion to dismiss a criminal contempt indictment on double jeopardy grounds. Affirmed.
Friendly, Hays and Mansfield, Circuit Judges.
Appellant, John David Hughey, III, served a sentence as a Young Adult Offender, a sentence imposed after his guilty plea to a charge of conspiracy arising out of a series of bombings in New York City in 1969. Patricia Swinton, charged in the same indictment, was apprehended in 1975, after Hughey's sentence had been served and his conviction had been set aside pursuant to 18 U.S.C. § 5021.
The Swinton trial before Judge Pollack of the United States District Court for the Southern District of New York commenced on September 22, 1975. Hughey, under Government subpoena, was called to the witness stand twice on that day. Before the jury was selected, Hughey was sworn and granted use immunity pursuant to 18 U.S.C. § 6002. At that point, Judge Pollack asked Hughey's attorney to advise Hughey "of the legal and factual significance of the legal proceedings which have just been taking place." After affirming that he had been adequately so advised, Hughey refused to testify, apparently fearing that use immunity would not protect him from prosecution for lying to an F.B.I. agent.*fn1 At that point, Judge Pollack warned Hughey that he could be imprisoned for civil and criminal contempt for refusing to testify.*fn2
After the jury was sworn, Hughey again took the witness stand and again was warned of possible sanctions for refusal to testify.*fn3 Hughey, however, remained recalcitrant, reaffirming his position that he had "just grounds for not testifying," and adding that his "conscience would not permit [him] to testify against Pat Swinton. . . ."
After permitting sufficient fruitless questioning to establish a record, Judge Pollack adjudged Hughey to be in contempt and directed that Hughey "be forthwith confined for the duration of the trial." The Judge then invited the Government to "consider whether it . . . desires to proceed on the basis of obstruction of justice against this witness."
In language indicating that he thought Judge Pollack had cited Hughey for civil contempt,*fn4 Hughey's attorney immediately sought a stay to permit time to apply for bail pending appeal of the contempt adjudication. Judge Pollack denied the application and Hughey was remanded into custody.
In his Notice of Appeal filed September 24, 1975,*fn5 in his successful argument that Hughey should receive witness fees and travel expenses for his September 22, 1975, court appearance,*fn6 and in his affidavit in support of Hughey's motion for bail filed in the Court of Appeals,*fn7 Hughey's attorney again and again acknowledged that Hughey had been sentenced for civil, not criminal, contempt.
On September 26, 1975, at the conclusion of testimony in the Swinton trial, Judge Pollack signed an order reciting that Hughey had been adjudged in "civil contempt" and directing that Hughey be released immediately. On the same day, the jury acquitted Swinton on all charges in the bombing indictment.
Hughey's appeal was subsequently withdrawn, and the motion for bail filed in the Court of Appeals was never heard.
On May 21, 1976, a criminal indictment was filed, charging Hughey with contempt in connection with his refusal to testify at the Swinton trial. Hughey moved to dismiss the indictment, claiming that the proceedings before Judge Pollack were in criminal contempt, and that therefore the indictment violated the Fifth Amendment guarantee against double jeopardy. Hughey argued that the absence of a "purge clause," detailing conditions under which Hughey could obtain his release before the end of the Swinton trial, necessarily rendered Judge Pollack's order a citation for criminal contempt.
On June 10, 1977, Judge Griesa of the United States District Court for the Southern District of New York conducted a hearing on this motion, but Hughey refused to testify. On July 22, 1977, after oral argument, Judge Griesa denied Hughey's motion in an oral opinion. The Judge
conclude[d] on the basis of the record before Judge Pollack without any other factual considerations that the proceedings were civil contempt proceedings, and that the bringing of these criminal ...