Unpublished Disposition, 899 F.2d 18 (9th Cir. 1990)

MEMORANDUM^** 

Steven Lee Peterson appeals the district court's judgment holding him in civil contempt for refusing to testify before the grand jury.¹  Peterson contends that his refusal to testify is justified by fear for both his life and that of his family's. We reject this contention.² 

A grand jury witness may be held in civil contempt for refusal to testify without just cause. 28 U.S.C. § 1826. Fear of retribution against oneself or one's family does not constitute just cause. Dupey v. United States, 518 F.2d 1295 (9th Cir. 1975). The district court, therefore, did not abuse its discretion when it held Peterson in contempt.

In the order setting the briefing schedule for this appeal, we ordered appellant's counsel to show cause why he should not be sanctioned for failure to comply with Ninth Cir.R. 3-2. Rule 3-2 explicitly requires an appellant to notify the Criminal Motions Unit of this court both orally and in writing of the pendency of a recalcitrant witness appeal within 24 hours of filing the notice of appeal.

Peterson filed his notice of appeal in this matter on December 20, 1989. He failed, however, to notify the Criminal Motions Unit in any manner. The Criminal Motions Unit therefore was not apprised of the pendency of this appeal until February 15, 1990, when the Clerk of this Court filed the notice of appeal.

Peterson's counsel has submitted an affidavit in response to the order to show cause why he should not be sanctioned for the above violation. Counsel admits that he was at fault and acknowledges that ignorance of Rule 3-2 is no excuse. Nonetheless, counsel asks not to be sanctioned, arguing that his negligence did not prejudice Peterson since the contempt order merely interrupted a separate prison sentence. If successful on appeal, the sentence will be deemed never to have been interrupted. If unsuccessful, the sentence will remain interrupted just as if no appeal had been filed.

Nevertheless, lack of prejudice does not excuse counsel's failure to comply with this court's rules. Accordingly, counsel for Peterson is sanctioned in the amount of $250.00, payable to the Clerk of this Court within 30 days of the filing of this opinion, for his failure to comply with Rule 3-2.

The district court's judgment of contempt is affirmed.

AFFIRMED.