Colombo v. New York (405 U.S. 9)/Dissent Douglas

by William O. Douglas

[p11] MR. JUSTICE DOUGLAS, dissenting.

On October 14, 1965, petitioner refused to testify when called before a Kings County, New York, grand jury. When, on December 15, after a grant of immunity [p12] and a judicial inquiry into the validity of the grand jury investigation under state law, the petitioner persisted in his refusal to testify, the presiding judge cited him for contempt and imposed a sentence of 30 days and a fine of $250.^[1] Despite petitioner's later willingness to testify, the sentence was executed.

The grand jury then returned an indictment against petitioner charging him with criminal contempt for his refusal to testify.^[2] Petitioner successfully moved to quash the indictment, but on appeal it was reinstated and upheld against petitioner's contention that it put him twice in jeopardy for the same offense in violation of the Fifth Amendment. People v. Colombo, 25 N.Y. 2d 641, 254 N.E. 2d 340. We granted the petition for certiorari, vacated the judgment of the New York Court of Appeals, and remanded for consideration in light of Waller v. Florida, 397 U.S. 387. 400 U.S. 16. On remand, however, the Court of Appeals adhered to its earlier decision, reasoning that the first citation was for civil contempt while the indictment charged a criminal offense and that "two distinct acts [were] being punished—refusal to testify before the Grand Jury and a separate refusal to obey the lawful mandate of a Supreme Court Justice." 29 N.Y. 2d 1, 3, 271 N.E. 2d 695, 695.

The Court of Appeals' characterization of the December 15 citation as "civil" rather than criminal is not dispositive of the question before us. To be sure, federal courts normally are bound by state court interpretations of state law, but involved here is a question of federal right under the Double Jeopardy Clause. In such cases, federal rather than state law governs. Suffice it to say that a 30-day sentence and a $250 fine imposed for refusal [p13] to testify before a grand jury constitutes criminal punishment within the meaning of the double jeopardy provision of the Bill of Rights, at least where the witness' willingness to purge himself of contempt by testifying does not result in the vacation of the sentence. Shillitami v. United States, 384 U.S. 364, relied upon by respondent, is not to the contrary. There, we held "that the conditional nature of [the] sentences [allowing the contemnors to purge themselves by agreeing to testify] render[ed] each of the actions a civil contempt proceeding..." Id., at 365. In the present case, by contrast, the jail sentence and fine was imposed despite petitioner's willingness to testify.

Nor does the characterization of the two contempts as involving different acts avoid the prohibition against twice being put in jeopardy for the same offense. The 30-day sentence and $250 fine were imposed, inter alia, for the petitioner's "refusal after being sworn as a witness to answer any legal and proper interrogatories." This is precisely the offense charged in the present indictment. Respondent lists five elements^[3] for the offense of [p14] criminal contempt. All of these elements were necessarily included in the trial court's earlier citation for "civil" contempt. Petitioner need not "run the gauntlet" on this offense a second time.^[4] Green v. United States, 355 U.S. 184, 190.

Notes

1. This contempt citation rested upon § 750 of the New York Judiciary Law.
2. The present indictment is founded upon the former § 600 of the New York Penal Law.
3. Respondent says that "[i]n order to prove the crime of criminal contempt, the following elements must be shown:

   "1. That the defendant did unlawfully and contumaciously refuse to answer a legal and proper question before the Grand Jury.

   "2. That the quorum of the Grand Jury was present at all times, on any such day when the defendant testified and when the indictment was voted.

   "3. That the question which is claimed that the defendant refused to answer was a legal and proper one.

   "4. That any such question asked of the defendant, and which, it is charged he refused to answer, was relevant and germane to the investigation being conducted by the Grand Jury.

   "5. That the defendant was duly sworn as a witness and contumaciously and unlawfully refused to answer any such legal and proper question." Supplemental Brief 6.

   All of these—with the exception of the proviso "when the indictment was voted" which relates to the sufficiency of the indictment rather than being a separate element of the offense—where plainly included in the "civil" contempt. The "witness's contumacious and unlawful refusal to answer questions," ibid., stems from the refusal to obey the trial court's order which also formed the basis for the December 15 citation.
4. I agree with MR. JUSTICE BRENNAN's concurring opinion in Ashe v. Swenson, 397 U.S. 436, 453-454, where he said:

   "In my view, the Double Jeopardy Clause requires the prosecution, except in most limited circumstances, to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction. This 'same transaction' test of 'same offense' not only enforces the ancient prohibition against vexatious multiple prosecutions embodied in the Double Jeopardy Clause, but responds as well to the increasingly widespread recognition that the consolidation in one lawsuit of all issues arising out of a single transaction or occurrence best promotes justice, economy, and convenience." (Footnotes omitted.)

   It would be repugnant to these views to allow a separate criminal prosecution and punishment for each day, hour, or minute that a witness refused to testify before a grand jury.