Grand Jury v.
Opinion
USCA1 Opinion
June 17, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1560
IN RE GRAND JURY PROCEEDINGS
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UNITED STATES,
Petitioner,
v.
JOHN DOE,
Appellant, Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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Brian J. McMenimen and Burke & McMenimen on brief for
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appellant.
Donald K. Stern, United States Attorney, Paul V. Kelly,
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Assistant United State Attorney, and Frank A. Libby, Jr.,
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Assistant United States Attorney, on brief for appellee.
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-2-
Per Curiam. Respondent John Doe appeals a district
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court order holding him in civil contempt for refusing to
comply, without just cause, with a court order directing him
to testify before a grand jury. 28 U.S.C. 1826. We
affirm.
Respondent was subpoenaed to appear before a grand
jury on April 26, 1994. Relying on his fifth amendment
right, respondent refused to answer questions on that day.
After the government obtained a court order granting him
immunity and ordering him to testify, respondent again
appeared before the grand jury on May 10 and again refused to
answer any questions put to him. The government filed a
petition for contempt the next day.
On May 13 and May 19, 1994, the district court held
a hearing on the government's petition. Respondent testified
that his refusal to answer the grand jury's questions was
based on his fear for his own safety and that of his family.
He further testified that he would never answer questions
from a grand jury on this matter. Doe's wife testified that
she too feared for her life and that of her children if Doe
were to testify, and that, in her opinion, he would never
change his mind in this matter. Both Doe and his wife
testified, that although they are separated, Doe remains very
close to his children.
-3-
At the conclusion of the hearing, the district
court found that Doe had refused to obey the court order
directing him to testify. The court also found that his
refusal was based on a "genuine and reasonable fear of harm
to himself and/or to his family" and that it was Doe's
present intention not to testify. Nevertheless, the court
found that there was a realistic possibility that Doe would
change his mind either because of his desire to see his
children or because evolution of events might diminish his
fear of retribution. The court, therefore, entered the order
for civil contempt.
"Confinement under Section 1826 is coercive, not
punitive, and its sole purpose is to compel the contemnor to
provide the requested testimony." In re Grand Jury
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Proceedings, 862 F.2d 430, 432 (2d Cir. 1988). "[A] civil
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contemnor's incarceration can be transformed from the
permissibly coercive into the improperly punitive where
'there is no realistic possibility that he will comply with
the order to testify.'" United States v. Doe (In re Grand
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Jury Proceeding), 13 F.3d 459, 461 (1st Cir. 1994) (quoting
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In re Grand Jury, 851 F.2d 499, 502 (1st Cir. 1988)).
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However, given the "speculative nature" of this inquiry, "the
district court enjoys wide latitude in gauging whether
incarceration will be (or will remain) coercive." Id. at 463
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(citations omitted). We review only for abuse of discretion.
-4-
In re Grand Jury Proceedings, 943 F.2d 132, 136 (1st Cir.
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1991).
Respondent claims that the district court abused
its discretion because its findings that he has a reasonable
fear of reprisal and that he has affection for his children
make it unreasonable to conclude that he will ever change his
present intention not to testify. He also contends that
there is no support for the court's finding that the
situation may change in such a way as to diminish his fear.
While a reasonable fear of reprisal may be relevant
to the determination of whether there is a realistic
possibility that coercion will lead to compliance with the
order to testify, Doe, 13 F.3d at 461, fear of reprisal
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against himself or his family does not constitute just cause
for a respondent to refuse to testify, In re Grand Jury, 943
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F.2d at 135 (citing cases). Were the rule
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Related
In the Matter of Milton Parrish. United States of America v. Milton Parrish
782 F.2d 325 (Second Circuit, 1986)
In Re Grand Jury
851 F.2d 499 (First Circuit, 1988)
In Re Grand Jury Proceedings. United States of America v. John Doe
862 F.2d 430 (Second Circuit, 1988)
In Re Grand Jury Proceedings. United States of America v. John Doe
943 F.2d 132 (First Circuit, 1991)
In Re Grand Jury Proceeding. United States v. John Doe
13 F.3d 459 (First Circuit, 1994)