In Re: v. Costello

• Court: Court of Appeals for the First Circuit
• Decided: February 7, 1992
• Docket: 92-1028
• Status: Published

Opinion

USCA1 Opinion

February 7, 1992

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No. 92-1028

IN RE: LAWRENCE J. COSTELLO, JR.,

                                     Petitioner.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________
                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ___________________

               Lois M. Lewis on brief for appellant.
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               Wayne  A. Budd, United States Attorney and Elizabeth Keeley,
               ______________                             ________________
          Assistant United States Attorney, on brief for appellee.

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                                  __________________

Per  Curiam.  The appellant, Lawrence J. Costello, Jr.,
                    ___________

          appeared before a grand jury on September 12, 1991, pursuant to a

          subpoena.  The  grand jury was investigating a possible violation

          of  18 U.S.C.    2114, relating to  an armed robbery  of a postal

          employee  and truck  occurring  on  April  19,  1991.    Costello

          appeared without counsel.  He was sworn and advised of his  Fifth

          Amendment  privilege  against  self-incrimination and  his  Sixth

          Amendment  right  to counsel.    He  was  then asked  to  provide

          fingerprint and  palmprint exemplars and to be  photographed.  He

          refused to do so.  That  same day, the grand jury voted to  order

          Costello  to  furnish  the requested  material  and  Costello was

          informed of the grand jury order.  He again refused to comply.

               The government then moved in the district court for an order

          to compel  Costello to  comply with the  grand jury  directive to

          furnish   fingerprint   and   palmprint  exemplars   and   to  be

          photographed.  The district court granted the motion to compel on

          October 8, 1991.

               On  October 24, 1991,  Costello was again  subpoenaed before

          the grand  jury.   He  again appeared  without counsel.   He  was

          served with  a copy of the court order of  October 8th.  He again

          refused to comply and claimed a Fifth Amendment privilege against

          self-incrimination.

               On November 7, 1991,  the government moved, in the  district

          court,  for  an  order  of contempt.    28  U.S.C.     1826.   At

          Costello's  request, the government also moved for appointment of

          counsel on Costello's behalf.  Counsel was appointed for Costello

          on December 2, 1991 and a hearing was held on January 6, 1992.

At that hearing, counsel expressly disavowed any reliance on

          the  Fifth   Amendment.1     Rather,  counsel   made  two   other

          contentions.  First,  counsel argued that Costello had just cause

          for  non-compliance because,  counsel  contended, the  government

          already had the sought-after items within its possession or could

          easily obtain them from other law  enforcement agencies.  Counsel

          based this contention on the following.  Costello was arrested on

          May  8,  1991,  in  Medfield, Massachusetts  by  a  local  police

          officer,  who allegedly  witnessed  Costello  robbing an  armored

          car.2   Costello was transported  to the Medfield  police station

          where, according to Costello, he  was fingerprinted, palmprinted,

          and  extensively photographed.   Also according to  Costello, two

          F.B.I. agents  were present  at the  scene of  arrest and  at the

          Medfield  station  and,  in  Costello's  presence,  these  agents

          requested copies of  the prints  and the  photographs.   Costello

          claims that two postal inspectors were at the Medfield station as
                              
          ____________________

               1Counsel obviously  was cognizant  of  the settled  caselaw.
          "It has long been held that the compelled display of identifiable
          physical characteristics infringes no  interest protected by  the
          privilege against compulsory  self-incrimination."  United States
                                                              _____________
          v. Dionisio, 410  U.S. 1, 5-6 (1973) (noting  with approval prior
             ________
          cases which  held that the  Fifth Amendment privilege  offered no
          protection  against compulsion  to submit  to fingerprinting  and
          photographing).       Nor   would    compelled   submission    to
          fingerprinting,  palmprinting,  and  photographing  infringe  any
          Fourth  Amendment right.    See id.  at 11,  14; see  also United
                                      ___ ___              _________ ______
          States v. Mara, 410 U.S. 19, 21 (1973).
          ______    ____

               2A second individual was arrested  along with Costello and a
          manhunt was  undertaken to locate  a third suspect.   This second
          individual  also  was subsequently  subpoenaed  before the  grand
          jury, refused  to  comply  with  the  court's  order  to  furnish
          fingerprint and palmprint  exemplars and to be  photographed, and
          was held in contempt.  He has not appealed that contempt finding.
          We, therefore, do not discuss him further.

                                          3

well.    After  his  arraignment   the  next  day,  Costello  was

          transported to  the Norfolk  County House  of Correction,  where,

          according   to  Costello,   he   was   again  fingerprinted   and

          palmprinted.3

               Second,  counsel argued  that the  court  should direct  the

          government to file affidavits detailing (1) the relevance of each

          item   sought  to  the   grand  jury's  investigation,   (2)  the

          jurisdiction of the grand jury  to request the item and (3)  that

          the government  requests the item  for the purposes of  the grand

          jury  and  no other  reasons.    Counsel  suggested that  such  a

          requirement  was appropriate to  ensure against grand  jury abuse

          and  so  that  Costello,  "already  subject  to  extensive  state

          prosecution, is not exposed unnecessarily to other crimes."

               Government counsel responded that (1) it was not required to

          provide information as to the basis for the request for the items

          sought and  (2) in any event, it would  not be seeking a contempt

          order if, in  fact, it had access  to the items sought.   Counsel

          conceded that fingerprints  of Costello existed, but  stated that

          John Dunn,  the postal  inspector in charge  of the  April postal

          truck robbery,  had inquired as  to palmprints  and a  right-side

          profile photograph of  Costello and was told that those materials
                              
          ____________________

               3According  to counsel,  in  connection  with  the  May  8th
          arrest,  Costello has  been charged  in  fifteen indictments  for
          attempted  murder, armed  robbery  while masked,  attempted armed
          robbery,  unlawful possession  of  a  stolen  motor  vehicle  and
          possession of stolen motor vehicle  license plates.  Prior to his
          being transferred to  federal custody as a result  of the finding
          of contempt,  Costello had been  held in state custody  since his
          May 8th arrest,  unable to post the  required bail amount  of one
          million dollars.

                                          4

did not exist.

               John Dunn  thereafter was sworn  in and  testified that  the

          taking of palmprints  is not standard procedure in routine cases.

          He opined  that identification was  not an issue with  respect to

          the May armored  car robbery and testified  that the taking of  a

          profile  photograph is  not standard  procedure  with many  local

          police departments.   He had  spoken to State Trooper  Nagle, the

          officer in charge  of the May armored  car robbery investigation,

          who informed Dunn that he had no palmprints or right-side profile

          photographs of  Costello.  Dunn stated  that he had seen  a front

          facial photograph of Costello that Nagle had in his file.

               Dunn  further  testified  that,  after  Costello  filed  his

          affidavit  in which  he stated  that  extensive photographs  were

          taken, he  phoned Trooper Nagle.  He  told Nagle of the affidavit

          and  asked him to check  his file again.  With  Dunn still on the

          line, Nagle pulled his  file and said that he had  photographs of

          tattoos on Costello's body, but not any profile shot of his face.

          Dunn testified:

                    I told him  that there had been  an affidavit
                    filed saying  that this  happened --  I mean,
                    from  a  practical   standpoint,  if  they're
                    there, I'm wasting my time.  I said, "Look in
                    your  file again."   He  looked  in his  file
                    again and he  said, "He may be  talking about
                    the  tattoo  pictures  I took  of  his body."
                    That was his response to me, "I have pictures
                    of different  tattoos on  the body  and maybe
                    they4  thought at  the time  I  was taking  a
                    side shot of their [sic] face."  That was his
                    response to me.
                              
          ____________________

               4The plural  refers to  Costello and  the second  individual
          arrested, who also had tattoos.

                                          5

Dunn  also testified  that he  had  obtained a  photographed

          record  of   Costello's  fingerprints  from   California,  where,

          according  to Dunn, Costello  had previously served  prison time,

          but there were  no palmprints or right-side  profile photographs.

          Dunn stated that he had learned, from the U.S. Attorney's office,

          that the FBI did not  have any palmprints or profile photographs.

          He testified that,  in his opinion, he had  exhausted the avenues

          from which to obtain those sought-after items.

               Thereafter,  the court heard argument from counsel.  Counsel

          pointed  out  that  the  government  had  conceded  that  it  had

          fingerprints, yet  was asking for  an additional set,  and argued

          that it was reasonable to assume that palmprints and side profile

          photographs were  taken.   She  reiterated the  request that  the

          court require  the government to  disclose the nexus  between the

          items sought and the grand jury investigation.

               The district court concluded,  based on Costello's affidavit

          and Dunn's  testimony, that Costello  had failed to show,  as his

          counsel urged, that the grand jury was seeking something to which

          it already had access and, in light of that finding, the question

          whether the  government ought to  be required to  file affidavits

          relating why  it is  seeking these items,  despite being  able to

          obtain them from other sources, was moot.

               The district court found Costello in contempt of his October

          8th order.  28 U.S.C.   1826.  Two days later, counsel moved  for

          reconsideration, stating that  she had been informed  by Costello

          that he was willing to be fingerprinted and palmprinted, but that

6

he was still unwilling tobe photographed.  That motionwas denied.

               Counsel filed a  notice of appeal and sought  a stay pending

          appeal.  The  court denied a  stay of the contempt  order pending

          appeal.    It also  denied  a  motion by  Costello  for an  order

          directing the government to inform him of the termination date of

          the grand jury.   Costello appealed the order  of contempt and we

          denied a stay pending appeal.  We now resolve the appeal.

               In  view of  counsel's  representation  in  the  motion  for

          reconsideration filed in the district court that Costello is  now

          willing  to provide the  fingerprint and palmprint  exemplars, we

          focus  on the  only  remaining  item  which  Costello  apparently

          currently  contests, i.e., allowing  himself to be photographed.5

          We  reiterate that this  grand jury directive  to be photographed

          impinges on no constitutional privilege of Costello.  See note 1,
                                                                ___

          supra.
          _____

               Costello's arguments on appeal are meritless.  First of all,

          they  seem misplaced.    Counsel argues  that  the government  is

          seeking material  which it  already has in  its possession  or to

          which it has access.   Based on the evidence before the  district

          court, however, we cannot say that the district court was clearly

          erroneous in finding  that the government,  in fact, had  neither

          possession of, nor access to, a right-side  profile photograph of

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               5In any event,  the result would not change  because we view
          the   compelled   display   of   these   identifiable    physical
          characteristics in the same light.  See note 1, supra.
                                              ___         _____

                                          7

Costello.6   In  re  Grand Jury  Subpoenas  (Anderson), 906  F.2d
                       _________________________________________

          1485, 1488 (10th Cir. 1990)  (a district court's findings of fact

          in a  contempt matter  are reviewed  under the clearly  erroneous

          standard).   So,  Costello's starting  premise  is factually  and

          fatally wrong.  Consequently, insofar  as he suggests he is being

          harassed  for duplicative material, his next contention, that the

          government ought to be required to make a preliminary showing, by

          affidavit, of the general purpose for the subpoena, is misplaced.

               Costello may be  making a broader  contention, however.   He

          cites  caselaw from  the  Third Circuit  which,  pursuant to  the
                              
          ____________________

          6.  In affirming  this finding of  the district court, we  do not
          suggest that government was required  to show that it neither had
          possession of, nor access to,  the items sought.  Though Costello
          denies that  he is suggesting  that the government should  show a
          "need" for the material sought, we think his  claim of good cause
          for  refusing  to  comply  because  the  government  already  has
          possession  of, or  access to,  what it seeks  is, in  essence, a
          claim that the  grand jury does not  "need" him to submit  to any
          additional  photographing.  Whatever  the viability  of requiring
          the  government to show "need and relevance" prior to enforcement
          of  a grand  jury  subpoena,  see In  re  Grand Jury  Proceedings
                                        ___ _______________________________
          (Hill), 786 F.2d 3, 5  n.1 (1st Cir. 1986), a question  we do not
          ______
          resolve,  such  a  requirement  in  this  case which  involves  a
          physical  characteristic  "constantly  exposed  to  the  public,"
          United  States  v.  Dionisio,  410  U.S. at  14,  strikes  us  as
          ______________      ________
          particularly unwarranted, when considering the resulting costs.

                    Requiring the  government to  show both  that
                    the information it hopes  to obtain from [the
                    summoned  witness]  is significant  and  that
                    that  information is  unavailable from  other
                    sources would obviously impair the efficiency
                    of  grand juries.   Such a  requirement would
                    bring    investigations    to    intermittent
                    standstills  as  the  government set  out  to
                    prove  the   necessity  of   each  piece   of
                    information it sought to obtain.

          In re Grand Jury Proceedings (John Doe), 862 F.2d 430, 431-32 (2d
          _______________________________________

          Cir. 1988).

                                          8

federal courts' supervisory powers,  requires the government,  in
                                                                         __

          every case, to make a  preliminary showing by affidavit that each
          __________

          item is (1) at least relevant to an investigation being conducted

          by the  grand jury and  properly within its jurisdiction  and (2)

          not  sought primarily  for another  purpose.   In  re Grand  Jury
                                                         __________________

          Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973); In  re
          _________________________                                  ______

          Grand  Jury Proceedings  (Schofield II),  507  F.2d 963,  966 (3d
          _______________________________________

          Cir.),  cert.  denied,  421  U.S.  1015 (1975).    But,  we  have
                  _____________

          previously considered, and rejected,  adopting such a supervisory

          role.   In In re Pantojas, 628 F.2d  701, 704-05 (1st Cir. 1980),
                     ______________

          we declined to impose the Schofield procedure, finding "little to
                                    _________

          convince us that  prosecutors are regularly overreaching  or that

          the  district courts have been insensitive to irregularities that

          may occur."  There is nothing in the record before  us suggesting

          that,  in  the interim  since  Pantojas, grand  jury  abuses have
                                         ________

          either regularly  occurred or  escaped district  court attention.

          And,  we certainly  see  no  such evidence  with  respect to  the

          particular case before us.

               We acknowledge  that  the Supreme  Court recently  suggested

          that "a court  may be justified in a  case where unreasonableness

          is  alleged in  requiring the  Government to  reveal  the general

          subject  of the grand  jury's investigation before  requiring the

          challenging  party to  carry its  burden of persuasion."   United
                                                                     ______

          States v. R. Enterprises, Inc., 111 S.  Ct. 722, 728 (1991).  The
          ______    ____________________

          Court went on to say that "[w]e need not resolve this question in

          the present case, however, as  there is no doubt that respondents

9

knew  the subject  of the  grand jury  investigation pursuant  to

          which the business records subpoenas were  issued."  Id.  So too,
                                                               ___

          in the  case before  us,  we need  not address  this concern  as,

          without  a  doubt,  Costello  knew   that  the  grand  jury   was

          investigating the April  1991 postal truck robbery,  as evidenced

          by his response to the government's  petition for contempt, filed

          three days before the contempt hearing.7

               Lastly, Costello contests the district court's denial of his

          request  for an  order directing the  government to  disclose the

          termination date of the grand jury.   The government urges us not

____________________

          7.  And, in fact, Costello may  have received some indulgence.  A
          subpoena recipient,  who claims that compliance  is unreasonable,
          may not necessarily be entitled  to know even the general subject
          of the grand jury's investigation.

                    In cases where the recipient  of the subpoena
                    does   not   know    the   nature   of    the
                    investigation, we are confident that district
                    courts  will  be  able to  craft  appropriate
                    procedures that balance the  interests of the
                    subpoena   recipient   against   the   strong
                    governmental    interests   in    maintaining
                    secrecy,       preserving       investigatory
                    flexibility, and avoiding  procedural delays.
                    For example, to ensure that subpoenas are not
                    routinely challenged as a  form of discovery,
                    a  district   court  may  require   that  the
                    Government   reveal   the  subject   of   the
                    investigation to the  trial court in  camera,
                                                      __________
                    so that the  court may determine whether  the
                    motion to quash has a reasonable prospect for
                    success  before  it   discloses  the  subject
                    matter to the challenging party.

          Id. at  728-29.  The  government disclosed the subject  matter of
          ___
          the grand jury investigation to the district court in camera when
                                                             _________
          it initially sought  the order to  compel in October 1991.   Even
          considering  this recent  pronouncement  by  the  Supreme  Court,
          therefore, there is  simply no basis for  Costello's challenge to
          the issuance of this grand jury subpoena.

                                          10

to address it, claiming that it was not timely raised and, in any

          event,   would  not  excuse  Costello's  contempt  of  the  order

          compelling  him to provide the  exemplars and to be photographed.

          We  agree that  the refusal  to provide  Costello with  the grand

          jury's  termination date  is not  just cause  for his  failing to

          comply with the  prior court order.  Nonetheless,  this issue was

          raised  in the district court, even if  during the hearing on the

          stay  request  after the  finding  of  contempt issued,  and  the

          district court ruled  on this motion.  We  believe, therefore, it

          was timely raised.

               We are unable to review its merits, however, for the lack of

          a  sufficient record.   Although  the record  contains a  copy of

          Costello's motion seeking  disclosure of the termination  date of

          the  grand jury,  with  a  margin order  by  the district  court,

          "1/8/92    Denied  after hearing  this  date,"  Costello has  not

          provided us  with a transcript  of that January 8th  hearing, nor

          has he told us of the basis for the court's ruling.  In re  Grand
                                                               ____________

          Jury Investigation (DiLoreto), 903 F.2d 180, 185 (3d Cir.  1990),
          _____________________________

          upon which Costello  relied, assumed, without deciding,  that the

          standard  of review of a district  court order denying disclosure

          of the termination  date of a grand jury is  abuse of discretion.

          Costello does not argue for a less deferential standard of review

          and  we also  shall assume,  without deciding, that  the district

          court's  ruling on  this matter  may not  be disturbed  without a

          showing of an abuse of discretion.  But without any indication of

          the basis for  the ruling, we cannot find any abuse of discretion

11

or   undertake  any   otherwise   meaningful  appellate   review.

          Costello, as appellant,  is responsible for providing  this court

          with a sufficient  record upon which  to review the ruling  he is

          challenging.   See, e.g.,  United States v.  Lebron-Gonzalez, 816
                         _________   _____________     _______________

          F.2d 823, 827 (1st Cir.) (the  burden of seeing that a record  is

          adequate to present issues on appeal  rests on appellants), cert.
                                                                      _____

          denied, 484  U.S. 843 (1987).  He has not  done so.  We therefore
          ______

          decline to disturb the district  court's denial of his motion for

          disclosure.

               Affirmed.
               _________

12