523 F. 2d 443 - Long Visitor Long Visitor

Appellants Ivis Long Visitor, Angie Long Visitor, and Joanna LeDeaux were found in civil contempt by the District Court1 for refusing to give testimony before a federal grand jury which was investigating the death of two FBI agents and an Indian resident on the Pine Ridge Reservation on June 26, 1975. The District Court ordered appellants to be confined until they should purge themselves of contempt.2 It denied their subsequent application for bail pending appeal, holding that such appeal was frivolous and taken for delay, See 28 U.S.C. § 1826(b), and that admission to bail would be detrimental to the public interest.

We expedited the appeal on the merits, together with appellants' application for bail pending appeal made to this court. Following oral argument and upon our review of the briefs of the parties and of the record before us, we affirm the order of confinement of the District Court.

On June 26, 1975, Ronald Williams and Jack Coler, Special Agents for the Federal Bureau of Investigation, were shot and killed on the Pine Ridge Indian Reservation. On the same day, Joseph Stuntz, a resident of the reservation, was found shot to death in the same general area. A federal grand jury was convened in the District of South Dakota to investigate these deaths, and appellants, considered possible eyewitnesses to the shootings, were subpoenaed to testify. Appellants Angie Long Visitor and Ivis Long Visitor appeared before the grand jury on July 14, 1975. At that time, Angie Long Visitor claimed her Fifth Amendment privilege against self-incrimination; Ivis Long Visitor protested his presence and refused to answer questions. On August 24, 1975, appellant Joanna LeDeaux was arrested on a warrant issued by the United States Magistrate for the Western Division of South Dakota alleging that she was a material witness to matters being investigated by the grand jury. On August 25, 1975, she was released on her own personal recognizance, at which time her attorneys informed the United States Magistrate and District Judge that she would claim her Fifth Amendment privilege against self-incrimination in any testimony before the grand jury.

On September 2, 1975, the District Court entered an ex parte order upon the application of the government, granting each appellant "use" immunity pursuant to 18 U.S.C. § 6003 and ordering each appellant to testify. Later that day, each appellant appeared before the grand jury and refused to testify. The grand jury thereupon requested the District Court to issue an order adjudging the appellants in contempt of court. Each appellant submitted an identical set of ten motions regarding the grand jury proceedings to the District Court. That same day, the District Court issued an order requiring the appellants and their counsel to appear for a hearing to be held September 16, 1975, to (1) hear arguments on the appellants' motions, (2) show cause why the appellants should not testify before the grand jury, and (3) show cause why the appellants should not be held in contempt.

On September 17, 1975, following the hearing, the District Court again entered an order directing the appellants to testify and granting them immunity under 18 U.S.C. § 6003. On the afternoon of September 17, 1975, the appellants appeared before the grand jury and again refused to testify. Subsequently, the grand jury renewed its request that the Court issue an order adjudging each appellant in contempt of court. On September 22, 1975, following a hearing, the District Court entered an order finding each appellant in contempt of court, and remanded appellants to the custody of the United States Marshal.3 Appellants immediately moved for a stay of execution or an order granting bail pending appeal. The District Court denied each motion in an unpublished memorandum opinion.

Appellants filed a notice of appeal in the District Court on September 23, 1975, and an application for bail pending appeal in this court on September 24, 1975. They assign two of the rulings at the September 16-17 hearing on their motions as error, contending: (1) that the District Court should have quashed the grand jury subpoenas in that a United States District Court has no jurisdiction to enforce a subpoena served upon an Indian while present in and a resident of the Pine Ridge Reservation; and (2) that the District Court should have set aside the grant of immunity and allowed appellants to decline to testify, because the immunity was inadequate to protect them from use of their grand jury testimony in any subsequent tribal court prosecutions that might arise. In addition, appellant Joanna LeDeaux raises two claims which are peculiar to her case: (1) that the District Court should have heard evidence of threats against her and members of her family; and (2) that she should not be compelled to testify in regard to an investigation of an incident in which she was encouraged by agents of the United States to act as a negotiator between agents of the United States and other individuals.

Appellants contend that tribal membership protects them from the reach of a federal grand jury subpoena. Reliance is placed upon the 1868 Treaty with the Sioux Indians, 15 Stat. 635, and the Act of 1877, 19 Stat. 254, which reaffirmed the treaty.4 The government responds that provisions of the treaty dealing with criminal offenders on Indian reservations were made inoperable by the adoption of 18 U.S.C. § 1152, which extends the application of the general enclave laws of the United States as to punishment to offenses on Indian reservations, and 18 U.S.C. § 1153,5 which extends federal jurisdiction to major crimes committed thereon. We find it unnecessary to decide this precise question because we hold that the exercise of the grand jury subpoena power is coextensive with the exercise of federal jurisdiction under § 1153.

While federal abrogation of Indian retained sovereignty is not lightly presumed, Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-13, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 77 L.Ed. 641 (1933); United States v. Payne,264 U.S. 446, 448, 44 S.Ct. 352, 68 L.Ed. 782 (1924); United States v. White, 508 F.2d 453, 456 (8th Cir. 1974), we cannot conclude otherwise than that the extension by Congress of federal jurisdiction to crimes committed on Indian reservations inherently includes every aspect of federal criminal procedure applicable to the prosecution of such crimes.6 This is particularly true of a federal grand jury, which is an arm of the district court through which it derives its power. See Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960); Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 84 L.Ed. 783 (1940); United States v. Stevens, 510 F.2d 1101, 1106 (5th Cir. 1975); Bursey v. United States, 466 F.2d 1059, 1082 (9th Cir. 1972). Major offenses committed on an Indian reservation can only be prosecuted in federal court upon a grand jury indictment. U.S.Const. Amend. V; Fed.R.Crim.P. 7(a). An Indian reservation provides no sanctuary from the reach of a federal subpoena to compel testimony before a grand jury on matters within the jurisdiction of the District Court. The jurisdictional contentions of the appellants are therefore without merit.

Appellants next contend that the grant of "use" immunity7 by the District Court was insufficient to protect them from the jeopardy of tribal prosecutions based upon evidence discovered as a result of such testimony. Appellants argue that, while the purposes of the Fifth Amendment preclude the use in state prosecutions of evidence obtained from federally compelled testimony under a grant of immunity, See United States v. Armstrong, 476 F.2d 313, 316 (5th Cir. 1973), Citing Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the same inhibition does not apply to Indian tribes, which are not states. See Wounded Head v. Tribal Council of the Oglala Sioux Tribe, 507 F.2d 1079, 1081 (8th Cir. 1975), Citing Barta v. Oglala Sioux Tribe, 259 F.2d 533, 556 (8th Cir. 1958), Cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959), and Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956). We reject this contention.

First, the Indian Civil Rights Act, 25 U.S.C. § 1302(4), expressly protects an Indian from self-incrimination.8 Second, the testimony of a witness before a federal grand jury is protected by an obligation of secrecy under court supervision. Fed.R.Crim.P. 6(e). See United States v. Armstrong, supra, 476 F.2d at 316; In re Tierney, 465 F.2d 806, 811-12 (5th Cir. 1972), Cert. denied, 410 U.S. 914, 93 S.Ct. 959, 35 L.Ed.2d 276 (1973); In re Parker, 411 F.2d 1067, 1069-70 (10th Cir. 1969), Vacated as moot sub nom., Parker v. United States, 397 U.S. 96, 90 S.Ct. 819, 25 L.Ed.2d 81 (1970). Third, and in our view decisive of the question, we think this issue has been prematurely raised. The record is silent on any pending or threatened prosecution of the appellants by any tribal court. See Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478-80, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972). The power of a federal grand jury to compel testimony cannot be circumscribed by the speculative uses to which such testimony may subsequently be put by another sovereignty not subject to the commands of the Fifth Amendment.

Two independent defenses have been advanced by Joanna LeDeaux in support of her refusal to testify. First, she contends that she and her family have been subjected to threats. The District Court rejected her offer of proof. Even if we assume such threats were in fact made, we must nonetheless reject this defense: it is well established that fear of reprisal cannot excuse a witness from testifying before a grand jury. See LaTona v. United States, 449 F.2d 121, 122 (8th Cir. 1971); See also Piemonte v. United States, 367 U.S. 556, 559 n.2, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961); In re Grand Jury Proceedings, 509 F.2d 1349, 1350 (5th Cir. 1975).

Second, LeDeaux claims immunity from giving testimony because it would compromise her quasi-official role as a negotiator during the incidents of June 26, 1975. No persuasive authority has been cited to us and we find nothing in the record before us, such as promises made by the government that information gained during negotiations would be privileged, which would support such a claim.

While some question is raised with respect to the original ex parte grant of immunity, a subsequent hearing was held and it does not appear that any issue of due process or statutory compliance remains. It is also undisputed that the appellants have refused and continue to refuse to give testimony before the grand jury with respect to the shooting. Civil contempt proceedings have been used for centuries to secure compliance with judicial decrees. See Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1965), wherein Justice Clark stated:

There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt. United States v. United Mine Workers, 330 U.S. 258, 330-332 (67 S.Ct. 677, 713-714, 91 L.Ed. 884) (1947) (Black and Douglas, JJ., concurring in part and dissenting in part); United States v. Barnett, 376 U.S. 681, 753-754 (84 S.Ct. 984, 1019-1020, 12 L.Ed.2d 23) (1964) (Goldberg, J., dissenting). And it is essential that courts be able to compel the appearance and testimony of witnesses. United States v. Bryan, 339 U.S. 323, 331 (70 S.Ct. 724, 730, 94 L.Ed. 884) (1950). A grand jury subpoena must command the same respect. Cf. Levine v. United States, 362 U.S. 610, 617 (80 S.Ct. 1038, 1043, 4 L.Ed.2d 989) (1960). Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance. McCrone v. United States, 307 U.S. 61 (59 S.Ct. 685, 83 L.Ed. 1108) (1939); Giancana v. United States, 352 F.2d 921 (C.A. 7th Cir.), cert. denied, 382 U.S. 959 (86 S.Ct. 437, 15 L.Ed.2d 362) (1965). The conditional nature of the imprisonment based entirely upon the contemnor's continued defiance justifies holding civil contempt proceedings absent the safeguards of indictment and jury, Uphaus v. Wyman, 364 U.S. 388, 403-404 (81 S.Ct. 153, 155, 5 L.Ed.2d 148) (1960) (Douglas, J., dissenting), provided that the usual due process requirements are met.

384 U.S. at 370-71, 86 S.Ct. at 1535 (footnotes omitted).

We affirm the District Court's finding that the appellants were in civil contempt. We hold that its order remanding appellants to custody until they shall have purged themselves of contempt was within its judicial power and was not an abuse of discretion.

In view of our holding, the appellants' application for bail pending appeal is rendered moot.9

Affirmed. Our mandate shall issue forthwith.