In Re: Grand Jury v. Doe

• Court: Court of Appeals for the First Circuit
• Decided: March 23, 1993
• Docket: 93-1203
• Status: Published

Opinion

USCA1 Opinion

March 23, 1993        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 93-1203

                           IN RE:  GRAND JURY PROCEEDINGS,
                              _______________________  

                              UNITED STATES OF AMERICA,

                                Petitioner, Appellee,

                                          v.

                                      JOHN DOE,

                                Respondent, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________

                    Joseph  James  Balliro,  Jr.  and  Balliro,  Mondano  &
                    ____________________________       ____________________
          Balliro, P.C. on brief for appellant.
          _____________
               A.  John Pappalardo,  United  States Attorney,  and Fred  M.
               ___________________                                 ________
          Wyshak, Jr., Assistant U.S. Attorney, on brief for appellee.
          ___________

__________________

                                  __________________

Per  Curiam.   This  is an  appeal of  the district
                      ___________

            court's judgment of contempt.  We affirm.

                                I.  Background  
                                    __________

                      On November  6, 1992, a subpoena to  testify and to

            produce certain documents  before a grand jury  was issued to

            "John  Doe, Jr." ("Doe").1    The subpoena apparently related

            to the restaurant and  lounge where Doe worked and  which was

            owned  by Doe's  parents.   Doe's  attorney, Richard  Egbert,

            informed  Assistant United States  Attorney Fred  Wyshak that

            Doe  was  not an  authorized  officer of  the  restaurant and

            lounge.  Nevertheless, Egbert agreed to provide the documents

            sought, but he told Wyshak in a letter that  Doe would refuse

            to answer any questions before the grand jury, relying on his

            Fifth Amendment right not to incriminate himself.  

                        Pursuant to 18 U.S.C.   6001 et seq., Wyshak then

            sought  Justice  Department  authorization  to  apply to  the

            district  court  for  an  immunity order  compelling  Doe  to

            testify.   Wyshak's application  named "John Doe"  (not "John

            Doe,  Jr.") as the witness  for whom immunity  was sought and

            provided  Doe's  birthdate  and  social  security  number  as

            identifying  information.    The  Deputy  Assistant  Attorney

            General of  the Criminal  Division of the  Justice Department

            approved Wyshak's request.  On January 15, 1993, the district

____________________

            1.  The  subpoena was  issued  in the  appellant's name.   We
            follow  the  government's lead,  however,  and  refer to  the
            appellant in this opinion by the pseudonym Doe.  

                                         -2-

court issued its order  directing "John Doe" (not  "John Doe,

            Jr.")  to  testify before  the grand  jury  under a  grant of

            immunity.  Thereafter, a  second subpoena ordering "John Doe"

            to appear on January  28 and the court's immunity  order were

            delivered in hand to Doe.     The  day  before  Doe   was  to

            testify, his attorney moved the court to continue Doe's grand

            jury appearance.   As grounds for  the motion, Egbert  stated

            that  a conflict in  his continued representation  of Doe had

            arisen, requiring Doe to find new counsel, and that Doe would

            be out of the state on vacation on the date he was ordered to

            appear.    Egbert  did  not  object  to  the  fact  that  the

            designation  "Jr." was not used after Doe's name in the court

            order or in  the January  subpoena.  (Indeed,  his motion  to

            continue Doe's  grand jury  appearance began "Now  comes John
                                                                     ____

            Doe, and  respectfully requests [a continuance  of] the Grand
            ___

            Jury appearance of Mr.  Doe . . . ." (our emphasis))  After a

            hearing, the district court continued Doe's appearance  until

            late February.  Doe  subsequently informed the agent who  had

            served him with the subpoena and court order that he would be

            consulting with  Egbert and would appear  as scheduled before

            the grand jury.  

                      On  February  25,  1993,  Doe appeared  before  the

            district  court, accompanied by  new counsel, Joseph Balliro,

            Jr.   He claimed that his  name was "John Doe,  Jr." and that

            the "John Doe" named in the court order was his  father.  The

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court held a hearing, during which  Balliro conceded that the

            social security number  and date of birth in  the application

            were those of  Doe and not his father.   The court found that

            the John Doe, who was then present before the court,  and who

            had been  identified by  social security  number and  date of

            birth in  Wyshak's application  for immunity, was  the person

            whom  the court  had  ordered to  testify  under a  grant  of

            immunity.  The court  also pointed out that the same John Doe

            had  been the one who had invoked Fifth Amendment rights, and

            who had sought to continue his appearance without challenging

            either the  January subpoena  or the court's  immunity order.

            Consequently, the court found that the immunity order applied

            to Doe.  At the  end of the hearing, it  specifically assured

            Doe  that "you  have  been granted  immunity"  and also  told

            Balliro that "anything he says cannot be used against him nor

            can it lead  to any evidence that could be used against him."

Doe then appeared before the grand jury and refused

            to  testify.   The  government petitioned  for a  judgment of

            contempt,  which  the court  granted.    During the  contempt

            hearing, Balliro  agreed that "there [was  no] question" that

            Doe was the man who was  supposed to testify, but stated that

            "I'm here to  suggest to you that  the technical requirements

            of the [immunity statute] have not been complied with, that's

            all."  After the court assured Doe once more that he had been

-4-

immunized and could  not be prosecuted  because of his  grand

            jury testimony,  Doe again  declined to testify.   The  court

            then found  Doe to be in  contempt of the court's  order, and

            denied his request  for bail  and/or a stay  of the  contempt

            order pending appeal.   The next day  Doe moved the  court to

            stay its contempt order  pending decision on his accompanying

            motion for disclosure of  information regarding the selection

            of  the grand jury, asserting  that the order  to testify and

            the  contempt judgment would be invalid if the grand jury had

            not  been  "duly"  empanelled.   The  court  denied the  stay

            motion.   

                      Doe  appealed  the  district  court's  judgment  of

            contempt and moved in this court for bail pending appeal.  We

            denied the motion for bail pending appeal.  We now affirm the

            judgment of contempt.     

                                II.  Discussion  
                                     __________

                      A.  Alleged Misnaming of Doe in the Immunity Order
                          ______________________________________________

                      Doe  argues that  the requirements  of 18  U.S.C.  

            6001 et seq. were violated technically when the court ordered

            "John  Doe" and  not "John  Doe, Jr."  to testify  before the

            grand  jury, and  that  strict compliance  with the  immunity

            statute is required since Doe's refusal to testify led to his

            incarceration.  He further suggests  that the court could not

            "amend"  its immunity order to  clarify that Doe  and not his

            father  had been  ordered to  testify since  the  decision to

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grant or  withhold immunity  is the exclusive  prerogative of

            the  executive branch.   Finally,  he states  that he  had no

            obligation to inform the government that it had immunized the

            wrong  person and that he therefore could not have waived any

            argument  by not  doing  so.2   Doe's  arguments are  without

            merit.  

                      As counsel  for Doe conceded, there  is no question

            that John  Doe, Jr. and not his father is the witness who was

            subpoenaed to testify before  the grand jury and who  refused

            to  do so  on  the  basis  of  his  privilege  against  self-

            incrimination.   The first  subpoena issued in  November 1992

            was  addressed  to  "John Doe,  Jr."    In  response to  that

            subpoena, Doe's attorney notified  AUSA Wyshak by letter that

            "John Doe,  Jr. . .  . would  refuse to answer  any questions

            [before  the  grand  jury]  relying on  his  Fifth  Amendment

            privilege."    Doe's  refusal  to  testify prompted  Wyshak's

            application  for   authorization  to  seek   a  court   order

            compelling Doe's testimony.  

                      Obviously,  the government  has some  obligation to

            correctly identify the witness  subject to an immunity order.

            The underlying justification for  requiring a witness to give

            up  his  constitutional privilege  against self-incrimination

            and  compelling him to testify  under a grant  of immunity is

____________________

            2.  In view of our disposition of Doe's misnomer argument, we
            do not address his waiver argument.  

                                         -6-

that the grant  of immunity  will protect  that witness  from

            prosecution  based  on  his  compelled  testimony except,  of

            course, for  perjury.   Kastigar v.  United States,  406 U.S.
                                    ________     _____________

            441, 449, 453 (1972).   Therefore, we assume that  a witness,

            based  on  his  constitutional   privilege  not  to  have  to

            incriminate himself, may require the government to show that,

            if he is compelled to testify under a court order,  he is the

            one who will receive the  protection of the immunity  granted

            by the order.  

                      If we had any concern that  Doe could be prosecuted

            on  the basis of his compelled testimony (except for perjury)

            because the grant of  immunity at issue here did  not clearly

            apply to  him, we would likely vacate  the contempt judgment.

            But, on this record, we have no such doubt.  Clearly, Doe was

            the person  who had been  immunized, and  all parties  agreed

            that he was  the person immunized.  The application submitted

            to  the Department of  Justice sought immunity  for the "John

            Doe"  who had  Doe's  (and not  his  father's) birthdate  and

            social security number.  At the  hearing, the court confirmed

            that it had intended to issue its order to that John Doe, who

            had been the only  Doe active in this matter  since the first

            subpoena had  issued in November, and  the court specifically

            told Doe  and his counsel  that Doe was the  one immunized by

            the order.   Furthermore, the  government willingly  concedes

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that Doe is covered by the grant of immunity at issue in this

            case. 

                      Since the  record plainly shows  that the  immunity

            order pertained to Doe and not to his father, the  failure of

            the immunity application and the court's order to include the

            designation  "Jr." after  Doe's name  is of  no significance.

            That this is  so is also shown readily  by reference to cases

            amending  indictments which misstated  the defendants' names.
                      ___________

            See, e.g., Faust v.  United States, 163 U.S. 452,  452 (1896)
            ________________     _____________

            (indictment naming  "W.J. Foust" instead of  "W.J. Faust" was

            not material variance); United States v. Mason, 869 F.2d 414,
                                    _____________    _____

            417 (8th Cir.) (district court properly amended indictment of

            "John H. Borton" to read "John R. Borton" where the defendant

            acknowledged that the grand jury  had intended to indict him,

            the amendment did not change the substance of the indictment,

            and  defendant had  not  been prejudiced  by the  amendment),

            cert.  denied, 492 U.S.  907 (1989);  United States  v. Young
            _____________                         _____________     _____

            Brothers,  Inc., 728  F.2d  682, 693  (5th  Cir.) (the  court
            _______________

            properly  amended  a  misnomer  in an  indictment  where  the

            defendant's rights  were not  affected and the  defendant had

            been adequately apprised of  the charges, preventing surprise

            at  trial or  subsequent prosecution  for the  same offense),

            cert.  denied, 469  U.S.  881 (1984);  cf.  United States  v.
            _____________                          __________________

            Alessi,  638 F.2d 466, 477-79 (2d  Cir. 1980) (the government
            ______

            had shown  that defendant  "Gaetano Carcone" was  the "Thomas

-8-

Carcone" indicted by showing that the grand jury had intended

            to indict the person who had the defendant's phone number and

            address).  

                      We do not agree  that the court's confirmation that

            John Doe,  Jr. was  the John  Doe in  its  order usurped  the

            United States  Attorney's right to determine  that Doe should

            be immunized.    The  record makes  clear  that  the  process

            whereby  Doe received  immunity was  initiated by  the United

            States Attorney  pursuant  to his  determination  that  Doe's

            testimony  was necessary  and that  Doe should  be immunized.

            Moreover, we have no  doubt that the court could  clarify any

            ambiguity in its own order.  A court need not issue a written

            immunity  order  under the  statute,  but may  issue  an oral

            order.  See United States v.  Lach, 874 F.2d 1543, 1547 (11th
                    _________________     ____

            Cir.  1989); United States v.  Leyva, 513 F.2d  774, 776 (5th
                         _____________     _____

            Cir. 1975).  If the court  may grant an oral immunity  order,

            then  certainly it has  full authority to  clarify orally any

            alleged  ambiguity in a written order it has issued under the

            statute.3     Finally, we  think it  apparent from  the birth

            date  and  social  security  number that  the  Department  of

            Justice intended to approve immunity for Doe, rather than his

            father, and we reject the suggestion that the district  court

____________________

            3.  In view of our disposition of  this point, we see no need
            to determine  whether the  court "amended" its  written order
            during  the hearing  as Doe  claims, or  whether it  issued a
            separate oral order which rendered "any alleged defect in the
            written order . . . a nullity" as the government suggests.   

                                         -9-

in  any way infringed on  the authority of  the Department to

            decide who should be immunized.   

                           B.  Selection of the Grand Jury
                               ___________________________

                      Doe's argument that he is entitled to challenge the

            composition of the grand jury and thus entitled to disclosure

            of  such information is also meritless.  Doe asserts that the

            court's failure  to permit him to  discover information about

            the  composition of  the  grand jury  violated his  statutory

            rights  under  the  Jury  Selection and  Service  Act  ("Jury

            Selection  Act"), 28  U.S.C.    1861 et  seq., and  under the

            Constitution. 

                      Doe  appears to  find  support  for  his  statutory

            argument  in Test v. United  States, 420 U.S.  28 (1975) (per
                         ____    ______________

            curiam), in  which the  Supreme Court  held that  a convicted

            defendant  had the right to inspect  jury lists pertaining to

            the grand jury which indicted him and to a pending petit jury

            in his case.   The Court  found that  section 1867(f) of  the

            Jury Selection Act gives a "litigant" an unqualified right to

            inspect  jury lists.  In  a footnote, which  Doe seizes upon,

            the Supreme Court essentially  defined the term "litigant" to

            mean "the United States and the defendant in a criminal case,

            and . . . any party in a civil case."  

                      The  Court's language, taken  out of context, might

            suggest that  a civil  contemnor like  Doe is a  "party in  a

            civil  case" who would have  a right to  challenge grand jury

-10-

selection procedures.  (We assume that it is obvious that Doe

            is  not a  "defendant in a  criminal case.")   Even a cursory

            reading  of   the  statute,  however,  shows   that  such  an

            interpretation  would be  wrong.   The provision  in question

            permits  parties  in civil  cases in  which  a petit  jury is
                                              ___________________________

            empanelled  to challenge  jury selection  procedures, see  28
            __________                                            ___

            U.S.C.   1867(c), and  so does not  apply to persons held  in

            civil  contempt by a  court or witnesses  testifying before a

            grand jury.      

                      Indeed, Doe's  argument that he  may challenge  the

            composition  or selection of the grand jury has no support at

            all in case law.  As  far as we have been able to  determine,

            all  courts which  have considered  this question,  including

            this  court, have  held that  a recalcitrant  witness has  no

            standing  to challenge  the composition  or selection  of the

            grand jury, whether under the Jury Selection Act or under the

            Constitution.   See In re  Maury Santiago, 533  F.2d 727, 730
                            ___ _____________________

            (1st Cir.  1976) (a recalcitrant  witness has no  standing to

            challenge the composition of a grand  jury); United States v.
                                                         _____________

            Duncan,  456  F.2d  1401,  1403 (9th  Cir.)  (a  recalcitrant
            ______

            witness did not have standing under the Jury Selection Act to

            challenge grand jury selection procedures because she was not

            a "defendant" and had  not been indicted by the  grand jury),

            vacated on other grounds, 409 U.S. 814 (1972);  United States
            ________________________                        _____________

            v. Caron, 551 F. Supp. 662,  665 (E.D. Va. 1982) (neither the
               _____

-11-

language nor the purpose of the Jury Selection Act supports a

            witness's  right to challenge  the grand  jury's composition,

            nor  did  a  recalcitrant  witness have  standing  under  the

            Constitution  to raise  irregularities in the  empanelling of

            the grand jury), aff'd,  722 F.2d 739 (4th Cir.  1983), cert.
                             _____                                  _____

            denied, 465 U.S. 1103 (1984); cf. Matter of  Special February
            ______                        _______________________________

            1975  Grand Jury, 565 F.2d 407, 412 (7th Cir. 1977) (although
            ________________

            an  indicted  defendant   would  clearly  have  standing   to

            challenge  the  composition  of  the grand  jury,  the  court

            doubted that  witnesses subpoenaed to testify  before a grand

            jury had standing to challenge the composition of the jury on

            equal  protection  grounds)  (dictum).    We  have  found  no

            contrary  authority on point.4   Because Doe had  no right to

            challenge the grand  jury's empanellment, he had  no right to

            obtain discovery about grand jury  selection procedures under

            the  Jury Selection  Act.   See Matter  of Archuleta,  432 F.
                                        ________________________

____________________

            4.  In United States  ex rel. Chestnut  v. Criminal Court  of
                   _______________________________     __________________
            New York, 442 F.2d 611, 615 n.7 (2d  Cir.), cert. denied, 404
            ________                                    ____________
            U.S. 856 (1971), the court  concluded that defendants who had
            been convicted  of criminal  contempt for refusing  to answer
            questions before a state grand jury under a grant of immunity
            could  challenge the selection of the grand jury where it was
            the grand jury who  had ordered the filing of  an information
            charging criminal  contempt.   The Second Circuit  itself has
            indicated that that case would be a "weak reed" to rely  upon
            for any witness held in civil contempt who tries to challenge
            a grand jury array  under the Jury Selection Act.  See Matter
                                                               __________
            of Archuleta, 561  F.2d 1059,  1063 n.7 (2d  Cir. 1977);  see
            ____________                                              ___
            also Matter of Archuleta, 432 F.  Supp. 583, 590-93 (S.D.N.Y.
            ________________________
            1977)  (stating, after  extensive discussion  of more  recent
            case law, that "we have substantial doubt whether Chestnut, .
                                                              ________
            . . is still controlling").  

                                         -12-

Supp.  583,  587, 600  (S.D.N.Y.  1977)  (denying grand  jury

            witness's  motion for discovery  of materials regarding grand

            jury selection procedures after concluding that a  subpoenaed

            witness  had no  standing to challenge  the selection  of the

            grand jury on a motion to quash the subpoena).  

                      Doe further alleges that  imprisoning him for civil

            contempt "without affording him the opportunity to review the

            Grand Jury is  a violation  of his rights  to Due Process  of

            Law,  as well  as,  the  Fourth,  Fifth,  Sixth,  and  Eighth

            Amendments to the  Constitution of the  United States."   But

            Doe makes no attempt to support his allegation with case law,

            nor does  he explain precisely how  his constitutional rights

            under the  specific amendments  he names have  been violated.

            The  tone of his brief  is purely hortatory  -- without legal

            support or  any argument, he urges the  court to give Doe the

            same  right as  criminal defendants  to question  whether the

            grand  jury  was  duly  empanelled  simply  because,  like  a

            convicted  criminal  defendant,  he  has  been  incarcerated.

            Arguments not seriously developed  on appeal are, as  is well

            settled in this circuit, deemed waived.  See United States v.
                                                     ___ _____________

            Zannino,  895 F.2d 1, 17  (1st Cir.), cert.  denied, 494 U.S.
            _______                               _____________

            1082 (1990).  

                                     III.  Conclusion
                                           __________

                      The reasons Doe has advanced to support his refusal

            to  testify are without merit.   Accordingly, he  has not met

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his  burden  respecting  the  existence  of  just  cause  for

            refusing  to testify and the district court did not abuse its

            discretion  in ordering him held  in civil contempt.   See 28
                                                                   ___

            U.S.C.      1826(a)  (the  court  may   summarily  order  the

            confinement of a witness who  refuses "without just cause" to

            testify  pursuant   to  court   order);  In  re   Grand  Jury
                                                     ____________________

            Proceedings, 943 F.2d 132,  136 (1st Cir. 1991) (we  review a
            ___________

            contempt finding for abuse of discretion).  

                      The judgment of contempt is affirmed.   
                                                  _________

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