# Harris v. United States (382 U.S. 162)/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Stewart
United States Supreme Court
382 U.S. 162
Harris v. United States (382 U.S. 162)
Argued: Oct. 11, 12, 1965. --- Decided: Dec 6, 1965
Mr. Justice STEWART, with whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.
The issue in this case is the procedure to be followed when a witness has refused to answer questions before a grand jury after he has been ordered to do so by a district court. This issue, involving Rule 42(a) and Rule 42(b) of the Federal Rules of Criminal Procedure, was, as the Court says, resolved in Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609. That was six years ago. Since then this Court has made no changes in Rule 42(a) or 42(b). But today Brown is overturned, and the question it 'resolved' is now answered in the opposite way.
The particular question at issue here is of limited importance. But in this area the Court's duty is important, involving as it does the responsibility for clear and consistent guidance to the federal judiciary in the application of ground rules of our own making. We are not faithful to that duty, I think, when we overturn a settled construction of those rules for no better reasons than those the Court has offered in this case.
The limited scope of the question at issue is made clear by the present record. A grand jury in the Southern District of New York was investigating alleged violations of the Communications Act of 1934. The petitioner appeared before this grand jury pursuant to a subpoena. He refused to answer a number of questions about an interstate telephone call upon the ground of possible self-incrimination. The petitioner was then granted immunity from any possible self-incrimination under § 409(l) of the Communications Act. Only after giving the petitioner and his lawyer full opportunity to be heard did the District Judge rule that the petitioner was clothed with complete constitutional immunity from self-incrimination, and only then did he direct the petitioner to answer the grand jury's questions. The petitioner returned to the grand jury room and again refused to answer the questions, this time in direct and deliberate disobedience of the District Judge's order.
It is common ground, I suppose, that the petitioner was then and there in contempt of court. Since the petitioner's refusal to obey the judge's order did not occur within the sight and hearing of the judge, a contempt proceeding could then have been initiated only under Rule 42(b). Such a proceeding would have been fully consonant with our decision in Brown, and a judge 'more intent upon punishing the witness than aiding the grand jury in its investigation might well have taken just such a course.' 359 U.S., at 50, 79 S.Ct., at 546. In such a proceeding all that would have been required to prove the contempt would have been the testimony of the grand jury stenographer, and the judge could then have imposed sentence. Such a procedure is often followed.
Instead, however, the District Judge in this case followed the alternative procedure approved in Brown. He made one last effort to aid the grand jury in its investigation and gave the petitioner a final chance to purge himself of contempt. The petitioner and his lawyer appeared before the judge in open court. After the petitioner was sworn as a witness, the judge propounded the same questions which the petitioner had refused to answer before the grand jury. The petitioner again refused to answer. At the conclusion of the questioning the judge asked, 'Does anybody want to say anything further?' The only response from the petitioner's counsel, then or later, was a brief renewal of his attack upon the purpose of the grand jury investigation and the scope of the immunity which had been conferred upon the petitioner-legal questions which the judge had, after a complete hearing, fully determined before he had ordered the petitioner to answer the grand jury's questions in the first place.
The procedure followed by the District Court in this case was in precise conformity with Rule 42(a) and with longsettled and consistently followed practice. It is a procedure which, in this context, is at least as fair as a Rule 42(b) proceeding. The petitioner, represented by counsel, was accorded an additional chance to purge himself of contempt; he and his counsel were accorded full opportunity to offer any explanation they might have had in extenuation of the contempt-to inform the 'sentencing judge of all the facts.' And finally, there is no reason to assume that a sentence imposed for obduracy before a grand jury is likely to be more severe in a Rule 42(a) proceeding than one imposed after a proceeding under Rule 42(b). Indeed, the recent Rule 42(b) cases in the Southern District of New York referred to by the Court indicate the contrary. A sentence for contempt is reviewable on appeal in either case, and there is nothing to suggest that in the exercise of this reviewing power an appellate court will have any more information to go on in the one case than in the other.
For these reasons I would affirm the judgment of the Court of Appeals.

## Notes

* ↑ Brown v. United States was reaffirmed and followed in Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989.
* ↑ The proposed amendments to Rules of Criminal Procedure for the United States District Courts, approved on September 22-23, 1965, by the Judicial Conference of the United States, make no changes in Rule 42(a) or Rule 42(b).
* ↑ No argumentation or factual data are contained in the Court's opinion today which were not fully revealed in the dissenting opinion in Brown, 359 U.S., at 53-63, 79 S.Ct., at 548 553, passim, and considered by the Court there. Nor is it suggested that the Brown rule has proved to be unclear or difficult of application. The considerations attending the overruling of Brown are quite unlike those involved in the overruling that occurred in Swift & Co., Inc. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, where the Court changed a procedural rule which it found unworkable in actual practice.
* ↑ 48 Stat. 1070 and 1100, 47 U.S.C. §§ 203(c) and 501, (1964 ed.), and 18 U.S.C. § 1952 (1964 ed.).
* ↑ 48 Stat. 1096, 47 U.S.C. § 409(l) (1964 ed.).
* ↑ The prevailing opinion today says, 'The real contempt, if such there was, was contempt before the grand jury * * *.' But a grand jury is without power itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify, if, after appearing, he refuses to do so.
* ↑ 'When upon his return to the grand jury room the petitioner again refused to answer the grand jury's questions, now in direct disobedience of the court's order, he was for the first time guilty of contempt. At that point a contempt proceeding could unquestionably and quite properly have been initiated. Since this disobedience of the order did not take place in the actual presence of the court, and thus could be made known to the court only by the taking of evidence, the proceeding would have been conducted upon notice and hearing in conformity with Rule 42(b). See Carlson v. United States, 209 F.2d 209, 216 (C.A.1st Cir.).' 359 U.S., at 50, 79 S.Ct., at 546.
* ↑ See cases cited in note 5 of the Court's opinion, supra, p. 167.
* ↑ The record shows that the court was 'opened by proclamation.'
* ↑ Before imposing sentence, the judge gave petitioner and his counsel still another opportunity to offer any explanation they might have of the petitioner's obduracy:
* ↑ See, in addition to Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, and Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Wilson v. United States, 221 U.S. 361, 369, 31 S.Ct. 538, 539, 55 L.Ed. 771; Hale v. Henkel, 201 U.S. 43, 46, 26 S.Ct. 370, 372, 50 L.Ed. 652; United States v. Curcio, 234 F.2d 470, 473 (C.A.2d Cir.), rev'd on other grounds, 354 U.S. 118, 77 S.Ct. 1145, 1 L.Ed.2d 1225 (1957); Lopiparo v. United States, 216 F.2d 87 (C.A.8th Cir.); United States v. Weinberg, 65 F.2d 394, 396 (C.A.2d Cir.). For the earlier practice at common law, see People ex rel. Phelps v. Fancher, 4 Thompson & Cook 467 (N.Y.1874); People ex rel. Hackley v. Kelly, 24 N.Y. 74, 79-80 (1861); In re Harris, 4 Utah 5, 8-9, 5 P. 129, 130-132 (1884); Heard v. Pierce, 8 Cush. 338, 342-345, 62 Mass. 338, 342 345 (1851).
* ↑ See note 5 of the Court's opinion, supra, p. 167. United States v. Castaldi, 338 F.2d 883 (two years); United States v. Tramunti, 343 F.2d 548 (one year); United States v. Shillitani, 345 F.2d 290 (two years); United States v. Papadio, 346 F.2d 5 (two years).
* ↑ See Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672; Yates v. United States, 356 U.S. 363, 78 S.Ct. 766, 2 L.Ed.2d 837; Nilva v. United States, 352 U.S. 385, 396, 77 S.Ct. 431, 437-438, 1 L.Ed.2d 415; Brown v. United States, 359 U.S. 41, 52, 79 S.Ct. 539, 547, 3 L.Ed.2d 609.
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