U.S. Appeal of Contempt Order Fails : Courts: The request is denied because the cited FBI agent remains unpunished. He refused to testify in a trial involving the slaying of three robbers.

The U.S. Justice Department’s emergency appeal of a contempt order against an FBI agent who refused to testify in a civil rights trial about a Los Angeles police shooting was denied Wednesday on an unusual technicality--the judge did not punish the agent for failing to testify.

The ruling by the 9th Circuit Court of Appeals sets the stage for the possible fining or jailing of FBI Agent Richard Boeh today because the appeals court can only review Judge J. Spencer Letts’ contempt ruling after Boeh receives some sort of punishment from the judge.

Stephen Yagman, an attorney who subpoenaed Boeh to testify in the trial of a lawsuit charging that officers conspired to execute four robbers in Sunland, said he asked Wednesday that Boeh be jailed to expedite the matter. He said Letts scheduled a hearing for 10:30 a.m. today.

Letts ordered Boeh to testify a week ago about his investigation of the Feb. 12, 1990, police shooting that left three robbers dead after a holdup at a McDonald’s restaurant. A fourth robber who survived and the families of the dead men are suing the city and police, alleging that the officers opened fire without provocation on unarmed men.

The officers of the Special Investigations Section said they opened fire after the men pointed weapons at them.

Boeh has been investigating the shooting for a year and apparently has supplied information to a federal grand jury, according to documents filed in the case. The federal government sought to block his testimony in the trial on the grounds that it would reveal the identities of informants, compromise the investigation and violate rules of secrecy governing grand jury testimony.

But Letts ordered Boeh to testify and held the agent in contempt when he refused. Ironically, he put off taking any punitive action against Boeh so the government could file an emergency appeal and thus expedite the matter. The quick review was sought because the trial was recessed while a ruling was awaited.

In its brief ruling Wednesday, the appeals court dismissed the government’s appeal and request for quick consideration on the grounds that the contempt order against Boeh had not been made final because Letts had not imposed any sanctions on the agent.

“The order means that until Judge Letts puts the FBI agent in jail, the court of appeals does not have jurisdiction,” Yagman said. “The judge needs to take punitive action against the agent to get this to move forward.”

A spokeswoman for the U.S. attorney’s office said it was weighing options in the case but would have no further comment.

Yagman said he believed that government attorneys would ask Letts to impose a fine on Boeh instead of jailing him. But Yagman said he has asked the court to jail the FBI agent because a fine may not insure that the appeals court would quickly consider the matter.