Unpublished Disposition, 931 F.2d 896 (9th Cir. 1992)

Nos. 91-35382, 91-35384 and 91-35385.

United States Court of Appeals, Ninth Circuit.

Before TANG, REINHARDT and DAVID R. THOMPSON, Circuit Judges

MEMORANDUM^** 

Appellants Rodney Alan Dilger, David George Henderson and Steven Sullivan Hanna appeal the district court's judgment holding them in civil contempt for refusing to testify before the grand jury subsequent to a grant of use immunity. We affirm the district court's adjudication of contempt.¹ 

ANALYSIS

This court reviews the district court's finding of contempt under 28 U.S.C. § 1826 for abuse of discretion. In re Grand Jury Proceedings, 801 F.2d 1164, 1167 (9th Cir. 1986). A grand jury witness may be held in civil contempt if he refuses without just cause to testify. 28 U.S.C. § 1826.

Appellants contend that their refusal to testify is justified because the United States Attorney used 18 U.S.C. § 3621(d) to secure their presence before the grand jury in lieu of a subpoena or a writ of habeas corpus ad testificandum.²  This contention lacks merit.³ 

Generally, an individual's presence before a grand jury is secured by the issuance of a grand jury subpoena. See Fed. R. Crim. P. 17(a); Fed. R. Civ. P. 45(a). However, as appellants concede, when an incarcerated person's presence before a grand jury is sought, a federal judge may issue a writ of habeas corpus ad testificandum. See United States v. Hayman, 342 U.S. 205, 221 n. 35 (1952); United States v. Lach, 874 F.2d 1543, 1548 (11th Cir. 1989); Gilmore v. United States, 129 F.2d 199, 202 (10th Cir.), cert. denied, 317 U.S. 631 (1942). See generally 28 U.S.C. §§ 2241(a), (c) (5). The writ of habeas corpus ad testificandum, which means "you have the body to testify," Black's Law Dictionary 639 (5th ed.1979), directs the custodian of the incarcerated witness to bring the witness into court to give testimony. Thus, the subpoena and the writ of habeas corpus ad testificandum are both vehicles for obtaining the physical presence of a desired witness before the grand jury.

In this case, appellants' transfer from prison to the grand jury proceedings was accomplished by means of a written request from the United States Attorney to the marshal pursuant to 18 U.S.C. § 3621(d). Appellants' contention that the Government's use of 18 U.S.C. § 3621(d) was improper is irrelevant to the question of whether appellants were in contempt of a subsequent district court order directing them to testify before the grand jury. See In re Lopreato, 511 F.2d 1150, 1152 (1st Cir. 1975) (alleged failure of service of subpoena was irrelevant to subsequent court order of contempt). Any claimed abuse of process was abrogated by the district court's supervision of these proceedings. Appellants were protected against abuse of process by the requirement of a court order, independent of the Government's transport request, as the premise for these contempt proceedings. See id. at 1153.

We therefore conclude that appellants' refusal to testify on the basis of the Government's use of 18 U.S.C. § 3621(d) did not constitute just cause.⁴ 

Appellants next contend that a grant of use immunity will not protect their Fourth and Fifth Amendment rights because they have entered conditional pleas, and their appeals are currently pending before this court. Appellants fear that if they prevail on their appeals, statements made before the grand jury could be used against them at a later trial or at resentencing.

This argument is unavailing. We have held that "a witness whose appeal is pending may be compelled to testify by a grant of use immunity...." In re Grand Jury Proceedings (Garcia-Rosell), 889 F.2d 220, 222 (9th Cir. 1989). If appellants prevail on their Fourth Amendment claims in this court and their cases ultimately proceed to trial, the Government will bear the burden of proving that its evidence is derived from sources independent of appellants' compelled and immunized testimony. See United States v. Lipkis, 770 F.2d 1447, 1450 (9th Cir. 1985) (citing Kastigar v. United States, 406 U.S. 441, 460-61, reh'g denied, 408 U.S. 931 (1972)).⁵