Appeal from an order of civil contempt, under 28 U.S.C. § 1826 (1982), for refusal to testify before grand jury on the ground that the desired testimony is privileged under the First Amendment. Although appellant was incarcerated for more than thiry days before this appeal was decided in contravention of 28 U.S.C. § 1826(b), we conclude that we have authority to decide this appeal and affirm.
Before: FEINBERG, Chief Judge, LUMBARD and WINTER, Circuit Judges.
Appellant Ralph Hubert "Sonny" Barger is a member of the Hells Angels Motorcycle Club ("HAMC"). Judge Leisure held Barger in contempt for refusing to answer certain questions before a grand jury that is investigating criminal activity by members and associates of the HAMC. Barger claims that the First Amendment creates a privilege against his testifying before the grand jury about the membership, funding, and organizational structure of the HAMC. Because Barger was incarcerated for more than thirty days before this appeal was decided, in contravention of 28 U.S.C. § 1826(b) (1982), a question of our authority to decide this appeal arises. We conclude, however, that Section 1826(b) is not jurisdictional and affirm the district court's order of civil contempt.
This case arises out of an investigation by the Federal Bureau of Investigation into allegedly illegal activities of members and associates of the HAMC. Thus far approximately sixty individuals, including nineteen in the Southern District of New York, have been indicted on the basis of the FBI's investigation. A grand jury in that district is continuing the investigation and is currently hearing evidence concerning possible violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, and the Continuing Criminal Enterprise ("CCE") statute, 21 U.S.C. § 848.
Barger, who is not a target of the investigation, was subpoenaed to appear on July 15 before the grand jury. Prior to that date, he moved to quash or limit the subpoena on two grounds. First, he challenged the legality of certain electronic surveillance. Second, he contended that the subpoena violated the First Amendment right of freedom of association. Judge Leisure found, however, that Barger had failed to make a prima facie showing that he had been the subject of any illegal electronic surveillance. He also ruled that Barger's First Amendment claims should be asserted on a question-by-question basis.
Barger appeared before the grand jury and testified extensively under a grant of statutory immunity. On the second day of testimony, August 26, however, Barger refused on First Amendment grounds to answer the following thirteen questions:
(1) What, if any, offices have you held in connection with the Hell's Angels Motorcycle Club?
(2) When was the club founded?
(3) How many chapters are there in the Club?
(4) What is the "Filthy Few"?
(5) Does the Club have a national ...