In the Matter of Contempt Proceedings Against Grand Jury Witness James Frederick Weir, Jr. United States of America v. James Frederick Weir, Jr.

495 F.2d 879 In the Matter of Contempt Proceedings Against Grand Jury Witness James Frederick WEIR, Jr. UNITED STATES of America, Plaintiff-Appellee, v. James Frederick WEIR, Jr., Defendant-Appellant. No. 74-1439. United States Court of Appeals, Ninth Circuit. April 19, 1974. H. Peter Young (argued), Venice, Cal., for appellant. Elizabeth Meyer (argued), Dept. of Justice, Harry D. Steward, U.S. Atty., San Diego, Cal., for appellee. OPINION Before CHAMBERS, GOODWIN and WALLACE, Circuit Judges. WALLACE, Circuit Judge: 1 Weir was cited for civil contempt for failing to answer questions before a grand jury subsequent to a grant of immunity. We affirm. 2 Weir alleged in his uncontradicted affidavit that he had been captured by Mexican officials in Mexico, had been threatened and tortured and, as a result, had confessed orally and in writing to being involved in a marijuana smuggling scheme. He also alleged that United States officials in Mexico were involved with the Mexican officials in that (1) while he was being interviewed by an agent of the 'Federal Bureau of Narcotics,' Mexican officials threatened him and slapped his face; (2) that the American agent had a copy of his prior…

Weir was cited for civil contempt for failing to answer questions before a grand jury subsequent to a grant of immunity. We affirm.

Weir alleged in his uncontradicted affidavit that he had been captured by Mexican officials in Mexico, had been threatened and tortured and, as a result, had confessed orally and in writing to being involved in a marijuana smuggling scheme. He also alleged that United States officials in Mexico were involved with the Mexican officials in that (1) while he was being interviewed by an agent of the “Federal Bureau of Narcotics,” Mexican officials threatened him and slapped his face; (2) that the American agent had a copy of his prior written confessions; (3) that this agent stated to Mexican officials that more money would be paid to secure those higher up than Weir; and (4) that he was advised by another United States official that his release might be arranged if he cooperated.

Weir was subsequently released and deported to the United States, whereupon he was arrested as a material witness, admitted to bail and subpoenaed to testify before the grand jury. He declined to answer questions, claiming his Fifth Amendment privilege, and was then…

Circuit Judge (dissenting):

Although the full import of United States v. Calandra, 414 U.S. 338 , 94 S.Ct. 613 , 38 L.Ed.2d 561 (1974), is not yet evident, I do not believe that it requires us to hold that a witness before a grand jury can be held in civil contempt for refusing to answer questions which were the product of statements coerced from him through torture.

The record contains Weir’s uncontro-verted allegations that Mexican soldiers obtained statements from him after holding his head under water until he gagged and lapsed into unconsciousness, sticking knives into his legs, buttocks and neck, beating him until he was unconscious, and hanging him from a tree limb by a rope around his neck until he lost consciousness.

In Calandra the Supreme Court balanced the potential injury to the historic role and functions of the grand jury against the potential deterrent effect of the judicially created exclusionary rule *882 of the Fourth Amendment. Here we have no mere hierarchical contest between the Fourth and Fifth Amendments as the majority asserts; rather, we have the government making use of evidence obtained in a manner that cannot be countenanced by a United States…

(concurring in Circuit Judge WALLACE’S opinion):

It seems to me that Judge Wallace’s horse is not quite as black and Judge Goodwin’s horse is not quite as white as Judge Goodwin paints them with his streaking language.

All over the country there are efforts today to break down the use of the grand jury as an effective body. The method- used is that one keeps it sitting out on a side track while the crew leaves the train and goes off to fight one brush fire after another. One heckles the prosecutor about electronic eavesdropping. One complains that the prosecutor has not produced adequate proof that each of the million or more government employees who might have tapped a person’s telephone has not done so.

At a trial of a case out in the open air, if Weir were testifying as a witness I would look closely at his claims of torture in Mexico and whether there was any fruit of a poisoned tree and perhaps I would exclude testimony, founded on abuse, if there was abuse.

Weir has been granted immunity. He has been returned to this country, certainly by the intercession of American authorities. If the dissenter’s view prevails and there are barbarous practices across the border, it…