Sherrie Bursey and Brenda Joyce Presley v. United States

466 F.2d 1059 1 Media L. Rep. 2652 Sherrie BURSEY and Brenda Joyce Presley, Appellants, v. UNITED STATES of America, Appellee. No. 26479. United States Court of Appeals, Ninth Circuit. June 30, 1972. Rehearing Denied Oct. 5, 1972. Arne Werchick (argued), Richard J. Massa, Garry, Dreyfus, McTernan & Brotsky, San Francisco, Cal., for appellants. Robert C. Mardian, Asst. Atty. Gen., James L. Browning, Jr., U.S. Atty., N.D. Cal., Robert L.Keuch, Garvin Lee Oliver, Victor C. Woerheide, Jr., Jerome K. Heilbron, Attys., U.S. Dept. of Justice, Washington, D.C., for appellee. Before MERRILL, KOELSCH, and HUFSTEDLER, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 Bursey and Presley, who are members of the staff of The Black Panther newspaper, were held in contempt when they refused to answer certain questions propounded by a federal grand jury. Throughout the grand jury proceedings and the proceedings before the district court, the witnesses consistently asserted the First and Fifth Amendments as the bases upon which they refused to answer the grand jury's inquiries. The appeal presents searching questions about the impact of the First and Fifth Amendments in the context of federal grand…

Bursey and Presley, who are members of the staff of The Black Panther newspaper, were held in contempt when they refused to answer certain questions propounded by a federal grand jury. Throughout the grand jury proceedings and the proceedings before the district court, the witnesses consistently asserted the First and Fifth Amendments as the bases upon which they refused to answer the grand jury’s inquiries. The appeal presents searching questions about the impact of the First and Fifth Amendments in the context of federal grand jury investigations.

The grand jury investigation, of which this appeal is an outgrowth, was triggered by a speech given by David Hilliard, Chief of Staff of the Black Panther Party, during Moratorium Day demonstrations on November 15, 1969. Hilliard delivered the speech in a public park in San Francisco before a large crowd. The speech was televised and widely reported by the news media across the country. In the course of the speech, Hilliard said, “We will kill Richard Nixon.” The investigation began as an effort to determine the identity of the persons, if any, to whom Hilliard referred when he said “We” will kill the President. Later, the…

OPINION ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

In seeking a rehearing, the Government makes three contentions: (1) The rationale of the Supreme Court’s decisions in Branzburg v. Hayes, In Matter of Pappas, and United States v. Caldwell (1972) 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 , is inconsistent with our reasoning in Bursey, requiring us to reconsider our disposition of the First Amendment issues. (2) Our distinction between relevancy of questions to the subject matter of the grand jury investigation and relevancy of the same questions to the subject matter of the investigation as to which the witnesses were immunized is contrary to prior authority. (3) Our requirement that the grand jury must show a logical connection between the subject of the question and the subject matter of the investigation for which the witness was immunized to enable it to lay the foundation for contempt impermissibly invades the traditional secrecy of grand jury proceedings. We reject all three contentions.

First, Branzburg, Pappas, and Caldwell are not inconsistent with either our reasoning or the result we have reached. The central issue in the newsmen’s trilogy was…