In Re Federal Grand Jury Witness. United States of America v. Robert Lawrence Lemieux

597 F.2d 1166 In re FEDERAL GRAND JURY WITNESS. UNITED STATES of America, Appellee, v. Robert Lawrence LEMIEUX, Appellant. No. 79-1228. United States Court of Appeals, Ninth Circuit. April 23, 1979. Rehearing Denied June 21, 1979. Walter B. Nash, III, Tucson, Ariz., for appellant. John G. Hawkins, Asst. U. S. Atty., Tucson, Ariz., for appellee. Appeal from the United States District Court For the District of Arizona. Before HUFSTEDLER, TRASK and GOODWIN, Circuit Judges. PER CURIAM: 1 Robert Lawrence Lemieux appeals his commitment for civil contempt after he refused to answer questions under a grant of immunity before a federal grand jury. He argues that his testimony could leak out and subject him to prosecution in Mexico and elsewhere. He therefore contends that the Fifth Amendment shields him from the duty to testify. 2 The law of this circuit denies relief. In re Weir, 495 F.2d 879, 881 (9th Cir.), Cert. denied, 419 U.S. 1038 , 95 S.Ct. 525 , 42 L.Ed.2d 315 (1974). The Weir case rejected a similar claim, holding that there was no real and substantial danger of foreign prosecution because the district court had the power and duty to preserve the secrecy of the grand jury.…

concurring specially:

I concur with the majority under the compulsion of In re Weir (9th Cir. 1974) 495 F.2d 879 .

Lemieux was subpoenaed to testify before a federal grand jury investigating a marihuana smuggling conspiracy allegedly operating in the United States, Mexico, and Colombia. After he was immunized, Lemieux continued his refusal to testify, claiming that the immunity grant did not protect him from foreign prosecution. The Government stipulated that it intended to question Lemieux about the conspiracy, including overt acts by Lemieux in Colombia and Mexico, and that it would not be possible to limit the questions or the responses to avoid statements that could incriminate Lemieux in those foreign countries. The district court found that Lemieux could be prosecuted in Mexico for offenses carrying a penalty of six years’ imprisonment and in Colombia for offenses carrying a penalty of from five to 14 years’ imprisonment.

In Zicarelli v. New Jersey State Commission of Investigation (1972) 406 U.S. 472 , 92 S.Ct. 1670 , 32 L.Ed.2d 234 , the Court did not reach the Fifth Amendment question because it concluded .that the possibility of foreign prosecution was “remote and…

Robert Lawrence Lemieux appeals his commitment for civil contempt after he refused to answer questions under a grant of immunity before a federal grand jury. He argues that his testimony could leak out and subject him to prosecution in Mexico and elsewhere. He therefore contends that the Fifth Amendment shields him from the duty to testify.

The law of this circuit denies relief. In re Weir, 495 F.2d 879, 881 (9th Cir.), cert. denied, 419 U.S. 1038 , 95 S.Ct. 525 , 42 L.Ed.2d 315 (1974). The Weir case rejected a similar claim, holding that there was no real and substantial danger of foreign prosecution because the district court had the power and duty to preserve the secrecy of the grand jury. Fed.R.Crim.P. 6(e). Because there was no real and substantial danger, we followed Zicarelli v. New Jersey State Investigation Commission, 406 U.S. 472 , 92 S.Ct. 1670 , 32 L.Ed.2d 234 (1972), and affirmed Weir’s judgment of contempt. We again affirm.

The district court in this case correctly held that its power to prevent, disclosure of the grand jury testimony obviated any need for further immunity beyond that already provided.

Lemieux lists a number of hypothetical scenarios in which his…