518 F2d 1295 Dupuy v. United States Witness Before Grand Jury

518 F.2d 1295

Theodore William DUPUY, Jr., Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.
In the Matter of a WITNESS BEFORE the GRAND JURY.

No. 75-2135.

United States Court of Appeals,
Ninth Circuit.

June 11, 1975.

Landon R. Estep, Seattle, Wash., for plaintiff-appellant.

Stanley G. Pitkin, U. S. Atty., Harry McCarthy, Asst. U. S. Atty., Seattle, Wash., for defendant-appellee.


Before CHAMBERS, WRIGHT and SNEED, Circuit Judges.


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The case is submitted without oral argument.


Dupuy is a prisoner serving a state imposed sentence at the Washington state penitentiary at Walla Walla. He was brought before a federal grand jury in Seattle, where he refused to answer questions put to him on the ground of his Fifth Amendment privilege against self-incrimination and on the ground that his fear that his life would be endangered by his fellow prisoners if he testified constituted "just cause" under 28 U.S.C. § 1826(a) to refuse to testify. Dupuy's Fifth Amendment claim was disposed of when the district court granted him testimonial immunity under 18 U.S.C. § 6002. The district court imposed a civil contempt sanction.


No federal court in a reported decision has held that fear of retaliation is sufficient reason to refuse to testify. To do so in this case would mean that virtually every prisoner in the United States, and many millions of people at large, would be freed of the duty to appear and testify before a grand jury. We choose to follow the reported decisions of those courts which have already held that fear of physical harm does not excuse a witness from testifying. United States v. Doe, 478 F.2d 194 (1st Cir. 1973); In re Kilgo, 484 F.2d 1215 (4th Cir. 1973); In re Grand Jury Proceedings, 509 F.2d 1349 (5th Cir. 1975); LaTona v. United States, 449 F.2d 121 (8th Cir. 1971).