In Re: Grand v.

Opinion

USCA1 Opinion

        March 8, 1994           [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 94-1137

IN RE:

                               GRAND JURY PROCEEDINGS.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

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

                        Selya, Cyr and Boudin, Circuit Judges.
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            Michael C. Andrews on brief for appellant.
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            Donald K.  Stern, United States Attorney,  and Ernest S.  DiNisco,
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        Assistant United States Attorney, on brief for appellee.

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Per Curiam.  This is an appeal from an order of the
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            district court  refusing to terminate  appellant's commitment

            for civil contempt.

                                          I.
                                          _

                      A grand jury  in the district of  Massachusetts has

            been  investigating  the  operation  of  an  alleged  illegal

            gambling racket.   Appellant  was one of  the targets  of the

            investigation.   He was  indicted in  February  1992 and,  in

            October 1992, he pleaded guilty.  Shortly before he was to be

            sentenced, appellant  was  subpoenaed to  appear  before  the

            grand jury.  Appellant refused  to testify and, on January 8,

            1993, the  court granted  use immunity.   18 U.S.C.     6002,

            6003.   Upon his continued  refusal to answer  questions, the

            government filed a petition for contempt.  The district court

            held a  hearing on  January 22.   At the  hearing appellant's

            lawyer  stated that the reasons appellant refused to testify,

            despite the grant  of immunity, were that he  was morally and

            ethically  opposed to testifying  against anyone and  that he

            feared for his  own safety and the safety of  his ex-wife and

            children.

                      Appellant did  not testify on his own  behalf.  His

            attorney  added  the  information   that  appellant  had  not

            cooperated during the two and a half years leading up to  his

            indictment,  despite   government  efforts   to  secure   his

            cooperation.  He also emphasized that the  government had not

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sought  indictments  against  some  of  the  individuals  who

            decided to  cooperate and, as  for others who  pleaded guilty

            pursuant  to plea bargains,  the government  was recommending

            probation.  In light of  this and the long sentence appellant

            was  facing due  to  his non-cooperation,  he argued,  it was

            plain  that  18  months of  further  incarceration  would not

            coerce appellant to testify.  The court, relying, in part, on

            the fact that  appellant had not yet spent any  time in jail,

            held him in contempt and ordered him incarcerated pursuant to

            28  U.S.C.     1826(a).    Four  days  later,  appellant  was

            sentenced to a term  of imprisonment of 78 months and  a term

            of supervised  release of  three  years.   This sentence  was

            stayed during the  term of his civil  contempt incarceration.

            Appellant did not pursue an appeal from the  initial contempt

            order.

                      He then  filed  a motion  to  vacate the  order  of

            contempt  on September 23, 1993 -- approximately eight months

            after he was held in  contempt.  The court denied  the motion

            without  a hearing and  without findings of  fact.  Appellant

            also did not  pursue an appeal  from this denial.   A  second

            motion to vacate the contempt  order was filed on January 20,

            1994 --  a year from the order of  contempt.  In this motion,

            appellant repeated the arguments made in the initial hearing.

            He added that even after  being indicted, he had continued to

            refuse to cooperate despite the  promise of some leniency  in

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the  government's  sentencing  recommendation.   Further,  he

            argued,  he had  spent 12  of the  maximum 18  months without

            changing his mind.  Given the long criminal sentence he faces

            and  the now three and  a half years  of silence, he asserted

            that there was  no chance he would ever testify.   Again, the

            court denied the  motion by endorsement, without  stating its

            reasons.

                                         II.
                                         __

                      Appellant only argues, on appeal, that the district

            court,  in denying his  motion to vacate  the contempt order,

            failed to make the required individualized determination that

            there  still  was  a  realistic  possibility  that  continued

            incarceration  would  likely  result in  compliance  with the

            order to testify.  Thus,  his only request is that we  remand

            the case.

                      Appellant relies on  Simkin v.  United States,  715
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            F.2d 34 (2d Cir.  1983).  Simkin acknowledged the  "virtually
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            unreviewable  discretion"  a  district  court  judge  has  in

            deciding whether a  civil commitment has lost  "any realistic

            possibility of having a coercive effect."  Id. at 38.   Given
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            the  speculative nature of  the decision, however,  the court

            held that such deference is due "only  if it appears that the

            judge  has assessed the likelihood of  a coercive effect upon

            the  particular  contemnor"  by   making  "an  individualized

            decision."   Id.   Appellant argues that  the record  here is
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ambiguous and that  there is evidence that the  judge did not

            make   an  "individualized"   determination  concerning   the

            coercive  nature  of  his  incarceration.   Specifically,  he

            points to a question by the judge, at the initial hearing, as

            to whether appellant understood "the penalty" for refusing to

            testify.

                      We find appellant's argument  unpersuasive.  By the

            time of  appellant's second motion,  the court had  before it

            the transcript from the initial  hearing, appellant's current

            affidavit  stating that  he would  never  testify before  the

            grand jury, and the memoranda filed by the parties.  The only

            new "evidence" presented for the court's consideration is the

            length of time -- one year -- that appellant now has spent in

            jail  under the  contempt  order.   Because  this factor  was

            central   to  the  court's  initial  decision  to  order  the

            incarceration of appellant, we think that it is reasonable to

            assume  that  the   district  court,  in  deciding   to  deny

            appellant's  motion for release, in fact, considered the time

            appellant has served without testifying.

                      Unlike  Simkin, there is no evidence that the court
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            here considered any  factors other than the  continued impact
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            of   incarceration  on  appellant.    The  reference  to  the

            "penalty" for not testifying was made in the initial hearing.
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            The district court's  decision arising out of that hearing is

            not before us.  To the extent that appellant is arguing for a

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mechanical  rule requiring a  formal statement or  finding in

            every case, we think  that this case -- in which the district

            court's view is  evident from context -- is  not the occasion

            to consider imposing such a requirement.  Apart from the lack

            of a  formal  finding,  appellant  has not  argued  that  the

            district  court's action is subject to reversal (for example,

            as  clearly  erroneous  or  demonstrably  based  on  improper

            factors).

                      Nothing we say  is intended to discourage  district

            courts   from  explaining  their   actions  in  continuing  a

            defendant's imprisonment for civil contempt.  The longer such

            incarceration continues  without effect,  the more  uncertain

            are  the prospects  that further  incarceration  will produce

            compliance.    At  some  point  and  in  some  circumstances,

            continued  incarceration might be hard  to justify or, at the

            very  least,  would  call  for  some  explanation.   But  the

            district court has considerable latitude in  evaluating these

            prospective effects, In  re Grand Jury Proceeding  (Doe), No.
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            93-2316, slip op. at 10-11 (1st  Cir., Jan. 10, 1994), and we

            cannot say here that it has exceeded permissible bounds.

                      Affirmed.
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