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In re Grand Jury Witness Russell Bongiorno

December 2, 1982; as amended.

IN RE GRAND JURY WITNESS RUSSELL BONGIORNO, APPELLANT.


Appeal from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, adjudging grand jury witness to be in contempt of court pursuant to 28 U.S.C. § 1826. Affirmed.

Author: Kearse

Before:

LUMBARD, FRIENDLY, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Russell Bongiorno appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, adjudging him to be in contempt of court pursuant to 28 U.S.C. § 1826 (1976) for his refusal to answer questions posed by a federal grant jury after being ordered to do so by the court. Appellant challenges the contempt order on the grounds that (1) the hearing at which his contempt was adjudicated was not fully open to the public, and (2) the evidence was insufficient to support a finding of contempt. Finding no merit in appellant's contentions, we affirm the order of contempt.*fn1

On October 19, 1982, the district court signed an order granting Bongiorno immunity with respect to an ongoing grand jury investigation of the activities of one Louis Attanasio. On October 26, 1982, appellant appeared before the grand jury. During approximately two hours of questioning, appellant answered some questions with respect to his own activities; but when questioned as to activities of or relating to Attanasio, appellant generally stated that he could not remember. He answered "I don't recollect," or its equivalent, more than 50 times.

Because of these responses, the government moved pursuant to 18 U.S.C. § 1826(a)*fn2 to have Bongiorno held in contempt of the court's October 19 order. After hearing excerpts from the grand jury proceedings, the court indicated that it did not believe appellant's answers were candid. The court ruled that appellant must, in light of the grant of immunity, answer the questions forthrightly, and it gave him an opportunity to return to the grand jury to do so that day. The court stated that if appellant persisted in his refusals to answer, the court would determine whether or not he was in contempt.

Appellant returned to the grand jury, and the Assistant United States Attorney repeated a number of the questions asked earlier. Again, in response to some 30 questions, appellant denied recollection before the court. The court heard excerpts from the second grant jury session and found the witness to be in contempt. Appellant's request for time to research the law was opposed by the government and denied by the court, and appellant was remanded to the custody of the marshal.

By October 29, 1982, however, the government apparently had had second thoughts about the denial of appellant's request for time to prepare a defense to the contempt charge. The government therefore moved to have appellant released from custody pending further proceedings and to allow appellant a reasonable period of time to prepare for a contempt hearing. The court granted Bongiorno's release and ordered the parties to reappear on November 3, 1982 for a new contempt proceeding.

On the eve of the November 3, hearing, Bongiorno applied for an adjournment because of his wife's impending parturition, supporting his request with a doctor's letter stating that birth could occur at any time. At the outset of the November 3 hearing, when appellant's counsel stated his request for an adjournment, the following colloquy ensued:

MS. NORDENBROOK [Assisstant United States Attorney]: I'm sorry, I know the witness' wife was brought here to impress the Court with her current status --

MR. WALES [counsel for appellant]: That's not a nice statement.

MS. NORDENBROOK: She shouldn't be in this room.

MR. WALES: This is a public room.

THE COURT: No, this is a private ...


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