In Re James Frederick Weir. United States of America v. James Frederick Weir

(concurring):

I concur in the majority’s disposition, but not without grave reservations.

On this appeal, Weir has contended that his refusal to answer the questions asked him by the grand jury was justified because the questions were based on a statement forced from him by torture in Mexico. He unsuccessfully presented the same claim to the majority of another panel of our court as he appealed his first judgment of contempt. In re Weir, 495 F.2d 879 (9th Cir.), cert. denied, 419 U.S. 1038 , 95 S.Ct. 525 , 42 L.Ed.2d 315 (1974) (hereinafter referred to as “Weir I”). As I interpret the majority’s opinion in the present appeal, my Brothers Koelsch and Carter have considered Weir’s arguments but have concluded to adhere to the majority opinion in Weir I.

Without intervention by our court sitting en banc, I am, of course, bound by the majority’s holding in Weir I. Nevertheless, I wish to state that I wholly disagree with that holding, and it is difficult for me to accept the fact that the cogent reasoning of Judge Goodwin’s Weir I dissent ( 495 F.2d at 881-82 ) was rejected. In my view, Weir’s uncontradicted allegations that Mexican officers held his head under water until he…

This appeal involves a contempt proceeding against James Frederick Weir, a grand jury witness. The prior history of the case is shown in In Re Weir, 377 F.Supp. 919 (S.D.Cal.1974) holding Weir in contempt, aff’d, In Re Weir, 495 F.2d 879 (9 Cir.), cert. denied, 419 U.S. 1038 , 95 S.Ct. 525 , 42 L.Ed.2d 315 (1974).

Pursuant to 28 U.S.C. § 1826 , Weir was originally held in contempt for refusing to answer questions before a grand jury and the circuit affirmed on April 19, 1974 (citations supra).

On May 13, 1974, the term of the grand jury before which Weir had refused to answer questions ended. On May 28, 1974, Weir voluntarily accepted service of a subpoena for appearance before a new grand jury. On June 17, 1974, the district court stayed proceedings pending disposition of the petition for certiorari. The petition was denied by the Supreme Court on November 25, 1974.

In the prior proceeding the district court, on November 1, 1973, made a combination grant of immunity under 18 *664 U.S.C. §§ 6002 and 6003 1 and an order to testify under 28 U.S.C. § 1826 . 2 It read as follows:

Subsequently, the trial court examined evidence presented to it in camera on November 1,…

520 F.2d 662 In re James Frederick WEIR. UNITED STATES of America, Plaintiff-Appellee, v. James Frederick WEIR, Defendant-Appellant. No. 75-2039. United States Court of Appeals, Ninth Circuit. July 18, 1975. Rehearing Denied Aug. 28, 1975. James Brannigan, Sp. Atty. (argued), U. S. Dept. of Justice, San Diego, Cal., for plaintiff-appellee. H. Peter Young (argued), Venice, Cal., for defendant-appellant. OPINION Before KOELSCH, ELY and CARTER, Circuit Judges. JAMES M. CARTER, Circuit Judge: 1 This appeal involves a contempt proceeding against James Frederick Weir, a grand jury witness. The prior history of the case is shown in In Re Weir, 377 F.Supp. 919 (S.D.Cal.1974) holding Weir in contempt, aff'd, In Re Weir, 495 F.2d 879 (9 Cir.), cert. denied, 419 U.S. 1038 , 95 S.Ct. 525 , 42 L.Ed.2d 315 (1974). 2 Pursuant to 28 U.S.C. § 1826 , Weir was originally held in contempt for refusing to answer questions before a grand jury and the circuit affirmed on April 19, 1974 (citations supra ). 3 On May 13, 1974, the term of the grand jury before which Weir had refused to answer questions ended. On May 28, 1974, Weir voluntarily accepted service of a subpoena for appearance before a new…