herein, we are constrained to agree that Mr. Frank has not been afforded procedural due process.
HISTORY OF THE PROCEEDINGS
On May 27, 1970, Stanford Frank appeared before the Federal Grand Jury in response to a subpoena duces tecum. Of the questions put to him he declined, on the basis of his privilege under the Fifth Amendment, to answer all but certain preliminary questions concerning routine matters of identification. Thereupon, he was personally handed a second subpoena directing him to reappear on Wednesday, June 10, 1970.
On Tuesday, June 9, 1970, counsel for Mr. Frank was informed by telephone by an individual who identified herself as Mr. Ozer's secretary (Robert C. Ozer, being a Department of Justice attorney handling the investigation) that Mr. Ozer planned to "immunize" Mr. Frank the following morning and that Mr. Frank should, therefore, appear in this Court on June 10, 1970, instead of reporting to the Grand Jury room. Mr. Frank's attorney eventually reached the Government attorney by telephone later the same afternoon and confirmed the foregoing. Mr. Frank's counsel then informed the government attorney of his inability at that time to contact Mr. Frank and consequently Mr. Frank did not appear on June 10. Due to Mr. Frank's absence on June 10, 1970, we continued the matter until June 11, 1970. On that date the Government proceeded to make an oral application to compel Mr. Frank to testify and to grant him immunity from prosecution for so doing pursuant to 18 U.S.C. § 2514. The United States Attorney for the Eastern District of Pennsylvania took no part in the proceedings, nor did the Government produce evidence showing that the approval of the Attorney General of the United States had been obtained. Over objections then raised by Mr. Frank's counsel we granted the immunity requested and entered an oral order directing Mr. Frank to appear and testify before the Grand Jury on June 22, 1970. This order was subsequently reduced to writing and signed for purposes of appeal.
As no formal motion papers had been filed, the notes of testimony were transcribed and docketed for the purpose of filing a notice of appeal to the Third Circuit. On June 17, 1970, a motion for supersedeas was filed in the Court of Appeals for the Third Circuit and the Court, per curiam, held that the order was interlocutory and hence non-appealable. In re Grand Jury Investigation, Stanford Frank, a Witness, 427 F.2d 714 (3rd Cir. filed June 19, 1970).
Mr. Frank accordingly returned to the Grand Jury on Monday, June 22, 1970. However, upon advice of counsel, he again refused to testify asserting his Fifth Amendment privilege. Before he left the Grand Jury room on that day, Mr. Frank was handed a document entitled "Notice of Hearing" which purported to be notice of a hearing to be held on July 8, 1970, in this Court on a charge of civil contempt. Subsequently, this matter came before us on July 22, 1970, on a petition to show cause why Stanford Frank should not be held in civil contempt.
The immunization proceedings in the instant case were instituted pursuant to the Congressional Authorization of 18 U.S.C. § 2514 which provides as follows:
Whenever in the judgment of a United States Attorney the testimony of any witness, or the production of books, papers, or other evidence by any witness, in any case or proceeding before any grand jury * * * of the United States involving any violation of this chapter or any of the offenses enumerated in section 2516, or any conspiracy to violate this chapter or any of the offenses enumerated in section 2516 is necessary to the public interest, such United States attorney, upon the approval of the Attorney General, shall make application to the court that the witness shall be instructed to testify or produce evidence subject to the provisions of this section, and upon order of the court such witness shall not be excused from testifying or from producing books, papers, or other evidence on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture. No such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except in a proceeding described in the next sentence) against him in any court. No witness shall be exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this section.