United States v. John Doe. Appeal of Samuel L. Popkin

460 F.2d 328, 1972 U.S. App. LEXIS 9762
CourtCourt of Appeals for the First Circuit
DecidedMay 3, 1972
Docket72-1090
StatusPublished
Cited by20 cases

This text of 460 F.2d 328 (United States v. John Doe. Appeal of Samuel L. Popkin) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John Doe. Appeal of Samuel L. Popkin, 460 F.2d 328, 1972 U.S. App. LEXIS 9762 (1st Cir. 1972).

Opinions

COFFIN, Circuit Judge.

This is an appeal by Samuel Popkin from an order of the district court holding him in civil contempt for refusing to answer certain questions propounded to him by a federal grand jury in Massachusetts. An assistant professor of government at Harvard University, Pop-kin has written numerous articles on the war in Indochina.1 He contends first that he should not be forced to respond without a demonstration by the government of the relevance of both the gen[330]*330eral inquiry and the specific questions. He urges also that he should be excused from answering those questions by virtue of a scholar’s First Amendment privilege not to divulge his sources of information insofar as those sources are confidential and supply him with information relating to his field. Finally, he claims that he need not testify until the government has disclaimed the use of illegal electronic surveillance.

The grand jury which issued a subpoena to Popkin is the same as that involved in United States v. Doe (Mike Gravel, United States Senator, Intervenor), 455 F.2d 753 (1st Cir. 1972), cert. granted, 405 U.S. 916, 92 S.Ct. 1243, 30 L.Ed.2d 785 (Feb. 22, 1972 [hereinafter Gravel]).

In ordering Popkin to testify, the district court found that the grand jury is “engaged in an inquiry into alleged violations of Chapter 37 [Espionage and Censorship] and Sections 2314 [Transportation of stolen goods etc.] and 2315 [Sale or receipt of stolen goods etc.] of Title 18, United States Code”, with its primary focus the dissemination of the classified Defense Department study known as the Pentagon Papers.

Popkin was first subpoenaed to appear before the grand jury on August 19, 1971. Before that date, he moved to quash the subpoena and for disclosure of electronic surveillance, which motions were denied. The grand jury did not, however, ask him to testify at that time. He received a second subpoena to appear before the grand jury on October 13. Having refused to testify on October 14, he was ordered to reappear on October 27. On that date, he filed motions, supported by his own affidavit and those of twenty-four other social scientists, for an order to protect him from inquiry as to “information obtained by him in his capacity as a scholar, author and teacher”, for a transcript of his testimony, and for disclosure of surveillance. After these motions were denied on October 28, Popkin was granted immunity from prosecution and ordered to testify. Again excused, he was not subsequently required to appear until January 18, 1972. His renewed motions for a protective order and for a transcript were denied. Upon his refusal to answer three questions, the government sought and obtained a contempt order on March 21. Popkin purged himself of contempt by answering these three questions on March 27, then answered further questions but, relying on his asserted First Amendment privilege as a scholar, refused to answer a number of other questions. Motions for a protective order and for disclosure were again denied on March 29, and he was held in contempt. He now appeals from the March 29 contempt order.

The district court, without opinion, based its contempt order on Popkin’s refusal to answer nine questions, of which the government now presses seven. In order to understand the scope of Popkin’s refusal to testify, it may be useful first to sketch the relevant parts of his testimony in response to the questions he did answer. He did state, among other things, that he had never seen a copy of the Pentagon Papers other than those in mass distribution, that he had not discussed with Daniel Ellsberg the possibility of releasing a copy of the Pentagon Papers to Neil Sheehan (of the New York Times), that he had no knowledge other than from public sources as to how various newspapers had obtained copies of the Pentagon Papers, and that he “was never given definitive information that someone possessed” the Pentagon Papers in Massachusetts. In addition, Pop-kin admitted having an opinion that certain unnamed persons had possession of the Pentagon Papers in Massachusetts, explaining that this opinion was formed on the basis of conversations “with numerous persons about numerous decisions and documents, I see now that a lot of those decisions and documents are in the Pentagon Papers”.

The questions Popkin refused to answer represent three lines of inquiry which, while overlapping, we will consider separately. One line of inquiry attempted to identify the participants in [331]*331the Pentagon Papers study or, more precisely, persons having knowledge as to who participated in the study. This inquiry began with the question: “Who are the persons you interviewed in order to acquire this knowledge of who participated in the Pentagon Papers study?” (chronologically, question 2). This was followed, after Popkin had declined to answer and had indicated in response to subsequent questions that it had never been his research object to discover who participated in the study, by the colloquy (question 3):

“Q. Who are those persons to whom you are referring with regard to conversations in the District of Massachusetts which led you to the knowledge of who are the participants in the Pentagon Papers study?”
******
“Q. Would you please name them?
A. I respectfully and regretfully decline [etc.].”

The second line of inquiry is more explicit and is self-explanatory. Popkin refused to answer the question “Did Daniel Ellsberg ever discuss with you the content or existence of the Pentagon Papers between January 1, 1971 and June 13, 1971?” (question 4).

The third line of inquiry, finally, related to his conceded opinion as to possession of the Pentagon Papers, beginning with the question: “[W]hat is the opinion as to persons you believe possessed a copy of the Pentagon Papers in Massachusetts prior to June 13, 1971” (question 1). The line of inquiry was then temporarily dropped, but was later resumed by repetition of the question (question 5). Subsequently, he refused to answer the question “Would you please name them, those persons who furnished you information which caused you to form an opinion as to persons you believe possessed a copy of the Pentagon Papers in Massachusetts prior to June 13, 1971?” (question 6) and the similar, but somewhat more focussed, question “Who was the conversation with discussing the documents or decisions indicating that person had knowledge or possession of the Pentagon Papers?” (question 7).

We first discuss appellant’s concept that, at least when a grand jury inquiry impinges on the First Amendment rights of a witness, a preliminary showing of relevancy is required. Despite the longstanding doctrine of Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919), that a grand jury witness is “not entitled to urge objections of incompetency or irrelevancy” appellant relies on such legislative inquiry eases as Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957) and Scull v. Commonwealth of Virginia, etc., 359 U.S. 344

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460 F.2d 328, 1972 U.S. App. LEXIS 9762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-doe-appeal-of-samuel-l-popkin-ca1-1972.