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In re Special September

decided: August 7, 1974.

IN RE SPECIAL SEPTEMBER, 1972 GRAND JURY, NO. 71 GJ 4509, EUGENE LUFMAN, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 GJ 4509 Edwin A. Robson, Chief Judge.

Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Cummings, Circuit Judge.

Author: Hastings

HASTINGS, Senior Circuit Judge.

This appeal concerns matters arising out of a criminal contempt proceeding where the Government sought to compel a grand jury witness to produce voice exemplars for a grand jury. The grand jury was investigating gambling activities. The relevant facts are undisputed and will first be set out herein to properly frame the issues upon which review is sought.

On February 8, 1973, petitioner Eugene Lufman was granted immunity pursuant to Title 18, U.S.C. ยงยง 6002-6003, and was ordered to appear and testify before the Special September, 1972 Grand Jury in the United States District Court for the Northern District of Illinois, by the Honorable Richard J. Austin, Judge presiding. Lufman's testimony was sought in an attempt to secure evidence of criminal activity by other persons. Lufman refused to comply with the court's order after the grant of immunity had been given and persisted in invoking his rights under the Fourth and Fifth Amendments. Thereafter, on the same day, Judge Austin adjudged Lufman to be in civil contempt of court and remanded him to the custody of the United States Marshal until such time as he obeyed the February 8, 1973 order. The validity of this order of civil contempt and the finding of civil contempt were not further challenged by Lufman and are not in issue here. At the time of briefing and oral argument before our court Lufman was still serving his sentence under Judge Austin's order.

On July 17, 1973, Lufman was brought before the same grand jury in an attempt to secure identification evidence which could be used against Lufman himself, and for that purpose the Government sought to compel Lufman to give voice exemplars for the grand jury. Lufman's counsel's law partner, Mr. Reiff, appeared before the Honorable Edwin A. Robson, chief judge of the district court, at 10:30 a.m. that day, and informed him that Lufman's attorney, Mr. Frank G. Whalen, was currently in court before District Judge McMillen. Chief Judge Robson put the matter over until 2:00 p.m. that day so that Mr. Whalen could be present. At 2:00 p.m., Mr. Whalen was present in court and requested that the matter be continued in order that he might confer with his client. It was conceded that Lufman's counsel had received at least three weeks' notice of the Government's intended action concerning the giving of voice exemplars. Lufman was present and the chief judge offered to recess the hearing for 15 or 20 minutes to allow counsel to confer with Lufman. Counsel rejected this offer.

That same afternoon, Lufman, with his counsel present, was personally interrogated by the chief judge in open court and advised of the nature of the proceeding and warned of the penalty which might be imposed. In answer to a direct question by the court, Lufman expressly stated that he refused to give voice exemplars before the same grand jury, after a direct order of the court to do so had been given to him, and persisted in invoking his rights under the Fourth and Fifth Amendments. The chief judge thereupon found Lufman to be in direct criminal contempt of court and sentenced him to 177 days of confinement. Execution of sentence was stayed until Lufman had completed serving his term under Judge Austin's judgment of civil contempt.

Lufman subsequently filed an amended motion to vacate the order of July 17, 1973, and this motion was denied. Petitioner has appealed only from the judgment committing him for criminal contempt. We affirm.

The issues presented for review are (1) may a grand jury witness who has been held in civil contempt for refusing to testify about the criminal activity of other persons under a grant of immunity, be held in criminal contempt for refusing, five months later, to give voice exemplars which could be used against himself to the same grand jury; and (2) whether the trial court prejudicially erred in denying Lufman a continuance at the time of the criminal contempt hearing.

I.

The civil contempt was predicated upon Lufman's refusal to give evidence before the grand jury relating to possible criminal activity by other persons. The second refusal, to furnish voice exemplars to the same grand jury, more than five months later, related to Lufman's own possible criminal activities. In our considered judgment, and we so hold, these two refusals constituted separate and distinct acts of contempt and could properly be punished as such under the well established authority hereinafter set out.

A decision of our own court generated the latest pronouncements by the Supreme Court concerning the production of voice exemplars for identification purposes before a grand jury.

In Dionisio v. United States, 7th Cir., 442 F.2d 276 (1971), we considered an appeal from the same district court and its chief judge. Dionisio and Smith had each been subpoenaed, with 18 others, to give voice exemplars for identification purposes before a grand jury. On Fourth and Fifth Amendment grounds, each refused to comply. The district court rejected both claims and adjudged them in contempt. On appeal, we affirmed the rejection of the Fifth Amendment claim but reversed on the Fourth Amendment claim for the reason that it required a preliminary showing of reasonableness before a grand jury witness could be compelled to furnish a voice exemplar. We further held that the proposed "seizures" would be unreasonable because of the large number of witnesses subpoenaed to produce the exemplars.

In United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973), the Court agreed that the compelled production of voice exemplars would not violate the Fifth Amendment privilege against compulsory self-incrimination since they were to be used for identification purposes only, and not for the testimonial or communicative content of the utterances. However, the Court held the Fourth Amendment claim to be invalid and reversed. It held that such subpoenas did not constitute a "seizure" within the meaning of the Fourth Amendment, and that the grand jury's directive to make the voice ...


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