In Re: Grand Jury v.

Opinion

USCA1 Opinion

          July 22, 1994         [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-1704

IN RE:  GRAND JURY PROCEEDINGS

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                              UNITED STATES OF AMERICA,
                                      Appellee,

                                          v.

                                      JOHN DOE,
                                      Appellant.
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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
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                                 ____________________

                                        Before

                               Torruella, Cyr and Stahl,
                                   Circuit Judges.
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                                 ____________________

            Peter B. Krupp on brief for appellant.
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            Donald K. Stern, United States Attorney,  and Fred M. Wyshak, Jr.,
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        Assistant United States Attorney, on brief for appellee.

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Per Curiam.  Respondent John Doe appeals from the denial
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            of a second motion to vacate an order of civil contempt.  For

            the reasons that follow, we affirm.  

                                         I. 

                 In the  fall of  1993, respondent  was called  to appear

            before  a grand  jury investigating  alleged organized  crime

            figures.   Citing a fear of reprisals against himself and his

            family,  respondent  refused  to  testify.     He  thereafter

            persisted in his recalcitrance  despite receiving an order of

            immunity and a government  offer of placement in  the federal

            witness protection program.  On December 8, 1993, after three

            separate  hearings,  the district  court  held  him in  civil

            contempt.  Finding a reasonable likelihood that incarceration

            would eventually succeed in coercing his testimony, the court

            ordered  that  respondent  be  imprisoned  for  a  period  of

            eighteen  months, until  the expiration  of the  grand jury's

            term,  or  until  he  purged  himself  of contempt--whichever

            occurred  first.   See 28  U.S.C.    1826(a).   We thereafter
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            affirmed the  order of contempt, rejecting various procedural

            challenges advanced  by respondent to the  proceedings below.

            In  re Grand  Jury Proceeding  (Doe), 13  F.3d 459  (1st Cir.
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            1994). 

                 In March 1994,  respondent filed a motion  to vacate the

            contempt order.  In  a memorandum and accompanying affidavit,

            he  contended that three months in prison had done nothing to

weaken  his resolve not to  testify.  He  reiterated that his

            concerns for the safety  of himself and his family  were such

            that  he would  never relent.   He  also stated  that he  had

            recently learned  from the  government that the  grand jury's

            term was due  to expire  in September 1994,  with the  result

            that his incarceration would  necessarily end, at the latest,

            by  that date.  The  serendipitous prospect of being released

            nine  months   earlier   than  originally   anticipated,   he

            explained,   only   strengthened   his  resolve   to   remain

            recalcitrant.    In  response,  the  government  argued  that

            respondent   had  failed  to  establish  that  his  continued

            incarceration would have no realistic possibility of inducing

            a change of  heart.  See,  e.g., In re  Grand Jury, 851  F.2d
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            499,  502 (1st Cir. 1988).   It also  contended that, because

            the grand  jury investigation  was ongoing and  because other

            witnesses  were involved  in contempt  proceedings, releasing

            respondent after such a  short period would encourage similar

            defiance by others and undermine the efficacy of the contempt

            sanction.   The district court, in a margin order, denied the

            motion to  vacate  "after a  thorough  review of  the  entire

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record,  upon  the   grounds  urged   by  the   government."1

            Respondent filed no appeal from this ruling.

                 In June 1994, respondent filed a second motion to vacate

            the  contempt  order.     His  accompanying   memorandum  and

            affidavit largely  echoed those submitted earlier.   He again

            insisted  that  his  resolve remained  unshaken  despite  his

            ongoing imprisonment.   And he again argued that the prospect

            of  being released no later than September 12, 1994, when the

            grand jury's  term was  due to  expire,  only reinforced  his

            determination.  In his view, because six months in prison had

            failed to  induce his  testimony, another three  months would

            likewise  fail  to  do so.    The  district  court, prior  to

            receiving a  response from  the government,  summarily denied

            the motion  in a margin order.   Respondent now appeals.   He

            contends that the  court ignored  pertinent factual  matters,

            applied incorrect legal standards, and abused  its discretion

            in finding  that incarceration continued to  pose a realistic

            possibility of inducing him to testify. 

                                         II.

                 Due to the  absence of district court findings,  much of

            respondent's argument on appeal  proceeds by indirection.  He

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            1.  On the same day  of this ruling, respondent sought  leave
            to  file  a  reply  brief in  response  to  the  government's
            opposition.  The court later acted on this motion as follows:
            "While the court allows the motion and has carefully reviewed
            the attached reply brief, it adheres to its earlier denial of
            the petition to vacate the finding of contempt." 

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suggests  that, in order to  infer the basis  for the court's

            ruling on the second motion, one must turn to the articulated

            basis  for its  ruling  on  the  first  motion.    There,  as

            mentioned, the  court relied  on  the "grounds  urged by  the

            government."  Respondent therefore undertakes  an examination

            of those "grounds" and  proffers several alleged deficiencies

            therein.    He contends  that  the government  there  made no

            mention  of his  supporting  affidavits or  of the  scheduled

            termination  of the grand  jury, improperly characterized the

            maximum  eighteen-month term  as presumptively  coercive, and

            impermissibly  relied on  the effect  that his  release might

            have on other would-be contemnors.  In turn, respondent deems

            it   appropriate  to   attribute  these   alleged  analytical

            shortcomings to  the district court, thereby  concluding that

            the denial of the second motion to vacate was in error. 

                 This line  of  reasoning falters  on  various  grounds.2

            First,  it  is  of  course  speculative  to assume  that  the

            district  court,  in  denying  the first  motion  to  vacate,

            adopted   every  proposition  advanced  in  the  government's

            opposition, and  that it  thereafter relied on  the identical

            reasoning  in  denying  the   second  motion.    Second,  the

            suggestion that the district court overlooked certain factual

            matters--such as the scheduled  termination of the grand jury

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            2.  We  need not  decide whether,  as the  government argues,
            respondent has waived these  contentions by failing to appeal
            from the denial of his first motion to vacate.  

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and  other  subjects mentioned  in  respondent's affidavits--

            appears  entirely misplaced.   These matters were prominently

            addressed by respondent in the  papers supporting both of his

            motions  to  vacate.   As  mentioned above,  the  court twice

            stated   that   it   had   carefully   reviewed  respondent's

            submissions concerning his first motion.  There is  no reason

            to suspect that the  court was any less diligent  with regard

            to the second motion.  

                 Moreover, even if we  were to assume that the  court did

            adopt  the government's  opposition  in its  entirety as  the

            basis  for denying the second motion, we find nothing therein

            so  amiss  as to  necessitate  a  remand.   The  government's

            allusion  to the  eighteen-month statutory  maximum as  being

            presumptively coercive  consisted simply of a  quotation from

            In re Grand Jury Investigation (Braun), 600 F.2d 420, 427 (3d
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            Cir. 1979) (endorsed in Simkin v. United States, 715 F.2d 34,
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            37  (2d Cir.  1983)).   This  reference  fell well  short  of

            proposing   the  type   of   rigid,  virtually   irrebuttable

            presumption condemned in  In re Parrish,  782 F.2d 325,  326,
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            328 (2d Cir. 1986).  At no point  did the government question

            the notion  that district  courts retain "a  broad discretion

            ...  to determine that a civil contempt sanction has lost its

            coercive  effect upon  a particular  contemnor at  some point

            short of  eighteen months."   Sanchez v.  United States,  725
                                          _______     _____________

            F.2d  29, 31 (2d Cir. 1984) (per curiam) (quoting Simkin, 715
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F.2d at  37)).  Nor  did the government  dispute that  such a

            determination must be an individualized one "based on all the

            circumstances pertinent to th[e]  contemnor."  In re Parrish,
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            782 F.2d at 328.  

                 In  turn, the  government's reference  to the  effect of

            respondent's   release   on  other   potential  contemnors--a

            consideration specifically  endorsed in  In re  Crededio, 759
                                                     _______________

            F.2d 589, 592 (7th Cir. 1985)--was benign.   Whether reliance

            on such  external factors  might under some  circumstances be

            improper is a question we need not decide, for it is apparent

            that no impropriety occurred here.  Respondent complains that

            this  argument created  the risk  that his  incarceration was

            imposed    without   due   regard   to   his   individualized

            circumstances.   Yet  the government's  contention fell  well

            short of a plea, of the type condemned in Simkin, 715 F.2d at
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            38, that respondent be imprisoned "as a warning to others who

            might be  tempted to violate  their testimonial obligations."

            And it is apparent that the district court's inquiry here was

            properly  focused.  We noted  in the earlier  appeal that the

            court had  "conducted a careful evaluation  of the individual

            circumstances pertaining  to respondent."   In re  Grand Jury
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            Proceeding  (Doe),   13  F.3d  at  463.     The  government's
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            opposition to the first motion  highlighted such factors.  We

            have no reason to believe that the district court, in denying

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the  second  motion,  suddenly  switched   gears  and  placed

            principal reliance on other, possiblyimpermissible criteria.3

III.

                 Respondent  also contends  that  the  court  abused  its

            discretion in determining that  further incarceration posed a

            realistic possibility of inducing him to testify.  Given that

            the inquiry to be  made in this regard  "is far removed  from

            traditional factfinding," In re  Parrish, 782 F.2d at 327,  a
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            district  court  enjoys  "wide  latitude  in  gauging whether

            incarceration will  ... remain  ... coercive."   In re  Grand
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            Jury (Doe), 13 F.3d at 463; accord, e.g., Simkin, 715 F.2d at
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            38.   Although respondent contends that  his persistence over

            the past seven months has established his unshakable resolve,

            it  must  be  observed  that  "the  desire  for freedom,  and

            concomitantly the willingness to testify, increases  with the

            time  spent  in  prison."   In  re  Grand  Jury Investigation
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            (Braun), 600 F.2d at  428.  And,  we note, other courts  have
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            upheld  similar   orders  after  even  lengthier  periods  of

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            3.  Respondent  has  requested,  as  an  alternative form  of
            relief, that the case be remanded for particularized findings
            of fact.   Yet we  do not understand  him to be  arguing that
            such findings are required in all such cases.  Given that the
            court's view here is readily inferable from the context,  see
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            Ticketmaster-New York,  Inc. v. Alioto, ___ F.3d ___, 1994 WL
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            114817, at *2 (1st Cir. Apr.  13, 1994) (court of appeals may
            affirm district court on any independently  sufficient ground
            reflected in  the record), we see no  need to remand for this
            reason,  much  less any  need  to  consider  imposing such  a
            requirement across-the-board.

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imprisonment.  See,  e.g., In  re Crededio, 759  F.2d at  589
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            (ten  months); In  re Grand  Jury Investigation  (Braun), 600
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            F.2d at 420 (eight months).  We find no abuse of discretion.

                 Affirmed.
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