ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 6597)
Aldisert and Gibbons, Circuit Judges, and McGlynn, District Judge.*fn*
The appellant, Steve Bruno, was adjudged in contempt of court and ordered confined for failing to answer questions propounded by a Grand Jury after receiving immunity. We vacate and remand for further proceedings because Bruno was denied an opportunity to show just cause for refusing to respond to the Grand Jury's questions.
Bruno and four others entered pleas of guilty to one or both counts of an indictment charging them with conspiracy to operate an illegal gambling business (18 U.S.C. § 371) and the substantive offense (18 U.S.C. § 1955). In due course, sentence was imposed on all five defendants. However, six months later, on June 28, 1976, the court vacated the sentence of one of Bruno's co-defendants, Robert Ianelli, and permitted him to withdraw his plea of guilty.
On September 17, 1976, while the Ianelli case was still pending, Bruno was served with a subpoena directing him to appear and testify before the Grand Jury at 10:00 A.M. on September 20, 1976. Bruno immediately contacted his counsel, who requested a rescheduling of Bruno's appearance because counsel was engaged in a protracted criminal trial. This request was refused by the Special Attorney of the United States Department of Justice, who was conducting the Grand Jury investigation. Accordingly, on September 20, 1976, Bruno appeared before the Grand Jury and asserted his rights under the Sixth Amendment stating that he had retained counsel but had not had an opportunity to consult with him. Bruno was instructed to return to the Grand Jury on Wednesday, September 22, 1976. He appeared as directed, but again refused to answer because he still had not had an opportunity to discuss the matter fully with his attorney.
At a hearing conducted that afternoon during the luncheon recess, when counsel was available, Bruno was ordered by the hearing Judge to proceed immediately before the Grand Jury where he was to refuse to answer on Fifth Amendment grounds and then to return for a hearing before the Court at 3:00 P.M. that same day.*fn1 During this hearing, the Court also directed the Special Attorney to provide Bruno's counsel with an affidavit of purpose.*fn2
Bruno, after consulting with his attorney, returned to the Grand Jury room and, after answering several preliminary questions, refused to answer any questions concerning an illegal gambling operation involving himself or Robert Ianelli on Fifth Amendment grounds.
At 3:10 P.M., Bruno, accompanied by his attorney, who in the meantime had been supplied with the Schofield affidavit,*fn3 again appeared before the hearing Judge at which time the Special Attorney presented to the Court an application for a grant of immunity to Bruno. The Court granted the application, and at 3:15 P.M., signed an order granting Bruno immunity in accordance with the provisions of 18 U.S.C. §§ 6002-6003.
Bruno immediately returned to the Grand Jury room, and when he again was asked questions concerning the operation of an illegal gambling business, he refused to answer. At this session, Bruno did not assert any grounds for his refusal.
Within fifteen minutes, Bruno, accompanied by counsel, was brought before the hearing Judge for the third time that afternoon. The Court, after ascertaining that Bruno refused to answer any questions relating to his knowledge of gambling activities, summarily adjudged him guilty of contempt of court and committed him to the custody of the United States Marshal.
It is Bruno's contention that before he can be adjudged in contempt of court, he is entitled to the full panoply of procedural rights prescribed by Fed. R. Crim. P. 42(b).*fn4
The Government, on the other hand, contends that the requirements of Fed. R. Crim. P. 42(b) do not apply to summary civil contempt proceedings initiated pursuant to the Recalcitrant Witness Statute, 28 U.S.C. § 1826(a).*fn5
This precise issue has been decided by the Second and Ninth Circuits which had no difficulty in accommodating § 1826 to Rule 42. In In re Sadin, 509 F.2d 1252 (2d Cir. 1975), the Court held that "where, after a grant of immunity, a witness before the Grand Jury persists in his refusal to testify, he is basically entitled to the 'procedural regularities' prescribed by Rule 42(b)." 509 F.2d at 1255. And, United States v. Alter, 482 F.2d 1016 (9th Cir. 1973) in a similar factual setting held that the witness was "entitled to notice prescribed by Rule 42(b) and to a reasonable time to prepare his defense, i.e., to show 'just cause' for refusing to respond." 482 F.2d at 1023. This Court in In re Grand Jury Investigation, Alexander Hartzell, 542 F.2d 166 (3d Cir. 1976) ...