                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-1999

In Re: Grand Jury
Precedential or Non-Precedential:

Docket 98-6415




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Recommended Citation
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Filed March 19, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6415

IN RE: THE GRAND JURY EMPANELING
OF THE SPECIAL GRAND JURY

On Appeal from an Order Entered in the
United States District Court For the District of
New Jersey
(Misc. No. 97-389)
District Judge: Honorable William H. Walls

Argued January 26, 1999

Before: SLOVITER, McKEE and RENDELL, Circuit Judges

(Filed March 19, 1999)

       James A. Plaisted (Argued)
       Christopher M. Farella
       Walder, Sondak & Brogan
       Roseland, N.J. 07068
        Attorneys for Appellants

       Faith S. Hochberg
       United States Attorney
       George S. Leone
       Holly K. Kulka (Argued)
       Assistant United States Attorneys
       Newark, N.J. 07102
        Attorneys for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Three witnesses appeal from the final order of the District
Court holding them in civil contempt and ordering them
confined for refusing to testify before a grand jury
investigating their father. The witnesses justify their refusal
to testify on religious grounds and contend that the District
Court failed to follow the procedures mandated by the
Religious Freedom Restoration Act ("RFRA"), 42 U.S.C.
SS 2000bb to 2000bb-4. This appears to be thefirst Court
of Appeals decision to consider the application of that Act
to a grand jury subpoena.

I.

A federal grand jury is currently sitting in Newark, New
Jersey, to investigate various crimes allegedly committed by
an Orthodox Jewish Rabbi. Between August and September
1998, the government subpoenaed three of the Rabbi's
daughters to testify before the grand jury concerning, inter
alia, the roles of the witnesses as employees of their father.
By mutual agreement, the return date of the subpoenas
was eventually adjourned until October 29, 1998. On
October 27, 1998, the District Court issued an order
immunizing the witnesses in order to overcome any Fifth
Amendment obstacle to their giving testimony. The next
day, the witnesses responded by filing a Motion to Quash,
which the government opposed by memorandum submitted
on the following day. In support of its opposition, the
government filed with the court, ex parte and in camera, a
Schofield affidavit, see generally In re Grand Jury
Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973), setting
forth the nature of the grand jury proceedings and the
government's interest in and need for the witnesses'
testimony.

The District Court denied the motion to quash. It also
denied the request made on behalf of the witnesses for an
evidentiary hearing and for an opportunity to review the

                               2
government's Schofield affidavit. On October 29, 1998, the
court ordered the witnesses to comply with the subpoenas.
All three witnesses appeared before the grand jury but
refused to testify on the ground that to do so would violate
their deeply held religious beliefs. The same day, the
District Court held each in contempt and ordered them
remanded to the custody of the United States Marshal for
the duration of the term of the grand jury. The court stayed
its imprisonment order pending an expedited appeal, and
the witnesses filed a Notice of Appeal on November 4, 1998.
On November 18, 1998, the District Court issued a written
opinion describing the earlier proceedings and explaining
its oral decisions of October 29, 1998.

The District Court had subject matter jurisdiction under
18 U.S.C. S 3231. This court has jurisdiction to consider
the witnesses' appeal under 28 U.S.C. S 1291. We expedited
our hearing and consideration.

II.

In 1963, the Supreme Court stated, "[A]ny incidental
burden [a statute imposes] on the free exercise of . . .
religion may be justified by a `compelling state interest in
the regulation of a subject within the State's constitutional
power to regulate.' " Sherbert v. Verner, 374 U.S. 398, 403
(1963) (quoting NAACP v. Button, 371 U.S. 415, 438
(1963)). As the Court further explained in Wisconsin v.
Yoder, 406 U.S. 205, 220 (1972), "activities of individuals,
even when religiously based, are often subject to regulation
by the States in the exercise of their undoubted power to
promote the health, safety, and general welfare, or the
Federal Government in the exercise of its delegated
powers." However, the Court noted, "only those interests of
the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of
religion." Id. at 215. We, along with the other courts,
interpreted these passages to mean that a statute that
imposed an incidental burden on religion would survive
First Amendment scrutiny only if it were the least
restrictive means of furthering a compelling state interest.
See, e.g., United States v. Dickens, 695 F.2d 765, 772 (3d
Cir. 1983).

                                3
The Supreme Court called the validity of this prevalent
interpretation of the Free Exercise Clause into significant
doubt in Employment Division, Department of Human
Resources v. Smith, 494 U.S. 872 (1990). There it held,
"[the] right of free exercise does not relieve an individual of
the obligation to comply with a valid and neutral law of
general applicability on the ground that the law proscribes
(or prescribes) conduct that his religion prescribes (or
proscribes)." Id. at 879 (quotation marks and citation
omitted).

It is against this background that Congress enacted the
Religious Freedom and Restoration Act. In so doing,
Congress stated, "laws `neutral' toward religion may burden
religious exercise as surely as laws intended to interfere
with religious exercise." 42 U.S.C. S 2000bb(a)(2). It thus
attempted "to restore the compelling interest test as set
forth in Sherbert v. Verner and Wisconsin v. Yoder." Id.
S 2000bb(b)(1) (citations omitted).

Thereafter, in City of Boerne v. Flores, 521 U.S. 507
(1997), the Supreme Court held RFRA unconstitutional as
applied to the actions of a local zoning authority, based in
part on the Tenth Amendment. Courts have since disagreed
over whether RFRA is constitutional as applied to the
federal government. See Christians v. Crystal Evangelical
Free Church, 141 F.3d 854, 860-61 (8th Cir.), cert. denied,
119 S. Ct. 43 (1998); United States v. Grant, 117 F.3d 788,
792 n.6 (5th Cir. 1997); cf. United States v. Muhammad,
165 F.3d 327, 336-37 (5th Cir. 1999) (declining to consider
in the first instance on appeal argument that RFRA
protected federal prisoner from involuntary civil
commitment for psychiatric treatment). In our recent
decision in Adams v. CIR, No. 98-7200, 1999 WL 111126
(3d Cir. March 4, 1999), we noted the issue, but assumed
without deciding that RFRA is constitutional as applied to
the federal government. Here also, we need not decide
whether any part of RFRA survives Flores, because we
conclude that the federal government's actions in this case
would survive constitutional scrutiny even under the
rigorous RFRA standard.

                               4
III.

RFRA states, in relevant part:

       (a) In general

        Government shall not substantially burden a
       person's exercise of religion even if the burden results
       from a rule of general applicability, except as provided
       in subsection (b) of this section.

       (b) Exception

        Government may substantially burden a person's
       exercise of religion only if it demonstrates that
       application of the burden to the person --

       (1) is in furtherance of a compelling governmental
       interest; and

       (2) is the least restrictive means of furthering that
       compelling governmental interest.

42 U.S.C. S 2000bb-1. Thus, once a party has shown that
the application of a neutral law substantially burdens his
or her religion, the government bears the burden of proving
that enforcement of the law is the least restrictive means of
advancing a compelling state interest.

The witnesses argue (1) that the District Court failed to
properly apply RFRA by underestimating the burden that
forcing them to testify will place on their free exercise of
religion, (2) that the government failed to prove that its
interest in securing their testimony is compelling, and (3)
that enforcing the subpoenas is not the least restrictive
means of furthering whatever interest the government may
have. We consider each issue in turn.

A.

The witnesses contend that their religion, Orthodox
Judaism, prohibits them from providing testimony to be
used against their father. The prohibition, they explain,
stems from the commandment of the Old Testament,
"Honor thy father and thy mother." In support, they cite the
affirmation of Rabbi Feivel Cohen, the family's Decisor,1
_________________________________________________________________

1. As the witnesses explain, "A Decisor makes religious rulings on
matters of religious significance and these rulings are binding on the
observant Orthodox Jew." Appellants' Br. at 5.
5
which was submitted together with the Motion to Quash, to
the effect that it would be "a fundamental sin which cannot
be expunged on Yom Kippur (the Day of Atonement)" for the
children to "testify[ ] before members of the public in order
to provide the prosecutors evidence to be used against their
father." App. at 12.

The District Court expressed some skepticism about
whether Jewish tenets in general, or the witnesses' religious
beliefs in particular, actually prohibit them from testifying
before the grand jury. See App. at 60 n.1. For purposes of
decision, however, it "accept[ed] the religious beliefs of the
witnesses as such." App. at 60.

The witnesses argue on appeal that, in expressing such
skepticism, the District Court underestimated the burden
that enforcement of the subpoenas will place on the
witnesses' practice of their religion.2 The witnesses contend,
"To the extent the district court determined that the weight
to be accorded the religious burden was lightened by these
factors, it was inappropriate and the judgment below
should be vacated." Appellants' Br. at 38. They further note
that the District Court improperly described the burden on
their religion as "incidental." Appellants' Br. at 36.

The witnesses misapprehend the District Court's use of
the term "incidental" in this context. It was used in
precisely this manner by the Supreme Court in Smith,
where the Court said:

       [I]f prohibiting the exercise of religion (or burdening the
       activity of printing) is not the object of the tax but
       merely the incidental effect of a generally applicable
       and otherwise valid provision, the First Amendment
       has not been offended.

Smith, 494 U.S. at 878.

As to the witnesses' objection to what appears to be the
_________________________________________________________________

2. The witnesses argue that the District Court erroneously blamed them
for the delays which occurred in scheduling a time for them to appear
before the grand jury. We find no evidence in the record that attribution
of blame on the issue of delay in any way affected the District Court's
decision.

                               6
District Court's questioning of the sincerity of their beliefs
and its attempt to interpret for itself the strictures of
Orthodox Judaism, we note, first, that the government
assumed that the witnesses had shown a substantial free
exercise burden and, second, that the District Court
assumed for purposes of decision both that the witnesses'
religious beliefs were sincere and that testifying against
their father would violate these beliefs. In light of the
court's assumption, the witnesses were not injured by any
skepticism the District Court may have expressed.

B.

The witnesses next complain that the government failed
to establish a compelling interest in securing their
testimony. The District Court found that the government
has an interest in "investigating and successfully
prosecuting crimes, which invariably includes taking the
grand jury testimony of witnesses." App. at 61. Citing
Branzburg v. Hayes, 408 U.S. 665, 687-88 (1972), a case in
which the Supreme Court refused to recognize under the
First Amendment a blanket reporters' privilege to refuse to
testify in grand jury proceedings, and the general principle
that the "public has a right to every man's evidence . . .
particularly . . . [in] grand jury proceedings," id. at 688, the
District Court concluded that the government's interest was
compelling. It stated, "That the government should
investigate suspected criminal wrongdoing is essential and
implements its paramount responsibility for the general
safety and welfare of all its citizens." App. at 61.

The witnesses contend that, rather than relying on
Branzburg in basing its finding of a compelling state
interest on the generalized need for criminal investigation,
the court should have conducted a more particularized
inquiry into the facts and circumstances of this case. They
contend that the District Court was required to consider
the nature of the investigation and the relationship between
that investigation and the testimony sought before deciding
whether the government's interest in questioning the
witnesses was compelling. They assume that the crime
under investigation is a revenue crime, rather than a
capital one, and therefore assert that this fact reduces the

                               7
weight of the government's interest in investigation. The
witnesses further contend that the criminal process is more
of a burden on religious beliefs than civil or administrative
processes because of the "dramatic" nature of the effect.
Appellants' Br. at 35. In support they quote the portion of
Justice O'Connor's concurrence in Smith, where she wrote,
"A neutral criminal law prohibiting conduct that a State
may legitimately regulate is, if anything, more burdensome
than a neutral civil statute placing legitimate conditions on
the award of a state benefit." 494 U.S. at 898-99.

Although the Supreme Court has not considered whether
the government's interest in securing testimony pursuant to
a grand jury subpoena is compelling, three courts of
appeals have considered a similar issue under the law as it
existed prior to Smith, and all three concluded that the
government's interest in securing the particular evidence
sought for the particular purposes alleged in those cases
was compelling. See In re Grand Jury Proceedings of John
Doe, 842 F.2d 244, 247-48 (10th Cir. 1988); Port v. Heard,
764 F.2d 423, 432-33 (5th Cir. 1985); Smilow v. United
States, 465 F.2d 802, 804-05 (2d Cir.), vacated on other
grounds, 409 U.S. 944 (1972). These cases remain a useful
aid in interpreting RFRA in light of the expressed
congressional intent to restore the status of the law before
Smith. See Adams, 1999 WL 111126, at *4.

In Smilow, a grand jury was investigating afire-bombing,
which killed a young woman. Appellant, a 17-year-old high
school student and a suspect in the bombing, refused to
answer the grand jury's questions on the grounds that
doing so would violate his faith as an observant Jew. The
district court held the student in contempt, sentenced him
to jail, and committed him to a federal detention center. On
appeal, the Court of Appeals for the Second Circuit
affirmed, reasoning that the state has a compelling interest
"in uncovering evidence of serious crimes of violence."
Smilow, 465 F.2d at 804.

In Port, Bernard and Odette Port were summoned before
a state grand jury to give testimony about Bernard's
natural son, David, the primary suspect in a murder the
grand jury was investigating. When the Ports refused to
testify, the state court held them in contempt and

                               8
sentenced them to jail. The Ports filed a petition for writ of
habeas corpus in federal court, arguing, inter alia, that, as
observant Jews, they had the right under the Free Exercise
Clause to refuse to testify against their son. On appeal, the
Court of Appeals for the Fifth Circuit rejected the Ports'
argument, holding, "in the context of this case, the state's
interest in procuring every person's testimony for the
thorough investigation of the crime of homicide outweighs
the Ports' First Amendment claims." Port, 764 F.2d at 432.

The decision of the Tenth Circuit in Doe presents a
situation parallel to the one before us: a 15-year-old
Mormon child was given immunity and called to testify
against a parent. He declined because "his deeply held
religious beliefs" prohibited him from testifying against his
mother or other members of his family. The court of
appeals decided that the government's "compelling interest
in investigating offenses against the criminal laws of the
United States" outweighed the witness's free exercise rights.
Doe, 842 F.2d at 248. These cases provide ample support
for the District Court's decision.

There are cases in which this court has recognized
traditional common law testimonial privileges over the
government's interest in securing grand jury testimony.
See, e.g., In re Grand Jury Investigation, 918 F.2d 374, 384
(3d Cir. 1990) ("Although there are countervailing
considerations, we have no doubt that the need for
protecting the [priest-penitent] relationship outweighs
them."). However, in a recent decision, we refused to
recognize a general parent-child testimonial privilege, see In
re Grand Jury, 103 F.3d 1140, 1146-56 (3d Cir.), cert.
denied sub nom, Roe v. United States, 520 U.S. 1253
(1997), thereby following the overwhelming majority of state
and federal courts on that issue.

We need not decide in this case whether the
government's interest in investigating and prosecuting
crime is always compelling under RFRA because we are
convinced that the government's interest in securing the
evidence needed to punish the criminal activity alleged here
is compelling. The District Court correctly recognized that
the duty to prosecute persons who commit serious crimes
is part and parcel of the government's "paramount

                               9
responsibility for the general safety and welfare of all its
citizens." App. at 61. Grand jury proceedings play an
essential role in the government's ability to fulfill this duty.
A review of the Schofield affidavit confirms both that the
crimes that this grand jury is investigating are weighty and
that these witnesses are likely to possess substantial
relevant information. The dissent makes much of the fact
that "[t]his is not a situation involving violence or
disruption of public safety." Although it is true that this
case does not concern crimes of extreme violence, such as
those at issue in Port and Smilow, the crimes alleged here,
like many white collar crimes, may seriously impact the
public welfare. We therefore conclude that enforcing these
subpoenas would serve a compelling state interest.

C.

RFRA imposes yet another requirement, i.e., that the
government actions, here enforcing the grand jury
subpoenas, must be the least restrictive means of serving
the government's compelling interest. According to the
witnesses, the subpoenas are not a narrowly drawn means
to this end. They contend that the government can secure
similar evidence from other sources and that, under RFRA,
it has an obligation to do so. They insist that other
witnesses can provide, and may already have provided, the
same or similar evidence. And, they assert that"there are
records that establish some of the operative facts."
Appellants' Br. at 33.

The government denies that "there were other means of
obtaining the information." Appellee's Br. at 26. It further
memorialized this denial in a sworn Schofield affidavit
explaining the circumstances under investigation and the
witnesses' relationship thereto, which affidavit was
submitted under seal to the District Court in thefirst
instance and to us on appeal. The District Court reviewed
the affidavit in camera and found that the government
needs the witnesses' testimony "with regard to their
employment status . . . [and] the various business interests
of the target." App. at 48.

After reviewing the government's submission ourselves,
we reach the same conclusion. There is substantial reason

                               10
to believe that the witnesses possess relevant information
necessary for the prosecution of serious crimes. Their role
as employees of the target of the investigation suggests that
they are uniquely situated to have first-hand knowledge of
the target's past business conduct. Moreover, the witnesses
have submitted no evidence beyond their own self-serving
allegations to contradict that suggestion or to establish that
the government can conveniently obtain comparable
information from other sources.

The dissent's contentions to the contrary
notwithstanding, see Dissenting Op. at 26-27, we do not
suggest that the witnesses bore the burden of proving that
less restrictive means were available. We merely point out
that the evidence of record, which is contained in the
government's sworn affidavit and which supports its
position, remains uncontradicted. Although the witnesses
were denied an evidentiary hearing, they were not denied
an opportunity to submit evidence, as the dissent implies.
See Dissenting Op. at 26-27. The witnesses were aware that
they could submit evidence in the form of affidavits because
they did submit an affirmation of Rabbi Feivel Cohen.
Nothing prevented them from submitting affidavits
concerning the availability of relevant business records or
the potential testimony of other witnesses, which their
counsel argue exist.

The dissent contends that although we owe at least some
deference to the District Court's conclusion, that conclusion
was faulty because it relied on the untested affidavit of the
prosecution. See Dissenting Opinion at 26. The dissent fails
to note, however, that the affidavit was sworn by an
Assistant United States Attorney, an officer of the court.
Under these circumstances, there is nothing inappropriate
about relying on the affidavit. We therefore conclude that,
in this case, enforcing the subpoenas is the least restrictive
means of advancing the government's compelling interest.3
_________________________________________________________________

3. The witnesses rely on In re Grand Jury Proceedings (Greenberg), 11
Fed. R. Evid. Serv. (Callaghan) 579, 1982 U.S. Dist. LEXIS 18355
(D.Conn. 1982), which held that "the grand jury's particular interest in
obtaining testimony from [the witness] against her daughter does not
outweigh [the witness's] First Amendment interests" in freely exercising

                               11
IV.

In addition to the substantive arguments discussed
above, the witnesses raise several procedural objections to
the District Court's determination. They argue that RFRA
and pre-Smith precedent required the District Court to hold
a hearing regarding the constitutionality and
reasonableness of enforcing the subpoenas, and they claim
that it was error under RFRA for the District Court to
refuse to disclose the government's affidavit.

A.

The witnesses interpret RFRA, and the pre-Smith
precedent that it draws on, to mandate an evidentiary
hearing whenever a free exercise defense to the enforcement
of a grand jury subpoena is raised. They cite language from
Justice O'Connor's concurrence in Smith suggesting that
"the First Amendment at least requires a case-by-case
determination . . . , sensitive to the facts of each particular
claim," 494 U.S. at 899, as well as a passage from Justice
Blackmun's dissent in which he states: "[T]his court's prior
decisions have not allowed a government to rely on mere
speculation about potential harms, but have demanded
evidentiary support for a refusal to allow a religious
exception." 494 U.S. at 911.

There is a difference between requiring evidentiary
support and requiring a hearing. Neither Supreme Court
precedent nor our prior decisions require that a hearing be
held whenever a subpoena is challenged on reasonableness
grounds. Indeed, this court has specifically rejected any
such suggestion, leaving the decision to hold a hearing to
_________________________________________________________________

her religion. Id. at 584, 1982 U.S. Dist. LEXIS at *11. As a district
court
decision, this does not have the broader precedential value of an opinion
by a court of appeals. Moreover, in addition to the differences in the
factual situations (such as that the grand jury in Connecticut had little
need for the mother's testimony as the daughter was not the target in
that proceeding), the court acknowledged that "[i]n general . . . the
interest of the grand jury in obtaining testimony must prevail over a
witness's First Amendment religious rights." Id. at 583, 1982 U.S. Dist.
LEXIS 18355, at *10.

                               12
the district court's discretion. See In re Grand Jury Matter
(District Council 33 Health & Welfare Fund), 770 F.2d 36, 39
(3d Cir. 1985); In re Grand Jury Proceedings (Schofield II),
507 F.2d 963, 966 (3d Cir. 1975). Nor does precedent or
policy require a different rule when the challenge is a
constitutional one.

In Schofield II, we explained the procedure that a district
court must follow when asked to enforce a grand jury
subpoena:

        [T]he party seeking enforcement of a grand jury
       subpoena [must] make some minimal showing by
       affidavit of the existence of a proper purpose. . . . "[T]he
       Government [is] required to . . . [show] that each item
       is at least relevant to an investigation being conducted
       by the grand jury and properly within its jurisdiction,
       and is not sought primarily for another purpose."

        [Although] the burden is generally on the witness to
       show abuse of the grand jury process, Schofield I
       requires the government to present affidavits in every
       case irrespective of whether the witness has challenged
       the propriety of the subpoena. . . .

        [W]here the district court is not satisfied with the
       affidavits presented by the government, whether
       because the matters set forth challenge the court's
       credibility or because the witness has made some
       colorable challenge to the affidavits, the court can
       require something more.

507 F.2d at 964-65 (footnote and citation omitted) (quoting
Schofield I, 486 F.2d at 93).

We went on to discuss the broad discretion a district
court enjoys in exercising this supervisory role:

        The district judge is vested with considerable
       discretion in determining whether additional
       proceedings are warranted. Various avenues of inquiry
       are open to a court which questions the sufficiency of
       the affidavits, among them discovery, in camera
       inspection, additional affidavits and a hearing . . . .
       [W]e emphasize . . . that the decision to require

                               13
       additional investigation is committed to the sound
       discretion of the court.

Id. at 965. We set forth the factors that should inform a
district court's decision whether to order further inquiry
into whether the government is abusing the subpoena
process:

        [T]he court must in deciding that request (for
       additional proceedings,) weigh the quite limited scope
       of an inquiry into abuse of the subpoena process, and
       the potential for delay, against any need for additional
       information which might cast doubt upon the accuracy
       of the Government's representations.

Id. (quoting Schofield I, 486 F.2d at 93). We treated "the
realization that the grand jury must be given broad
investigative powers" as a primary consideration in crafting
appropriate procedures and rejected "any holding that
would `saddle' a grand jury with minitrials . . . [thereby]
imped[ing] its investigative duty." Id. at 966. Finally, we
emphasized that our review of a district court's
determination would be deferential: "We will not disturb a
decision to deny additional review unless we find that the
district court's `weighing' was an abuse of discretion." Id. at
965.

The same considerations are applicable here; therefore,
similar procedures are appropriate. The District Court had
a duty to satisfy itself that the witnesses' testimony was
necessary to serve the government's compelling interest
without unduly delaying or interfering with the functioning
of the grand jury. The government bore responsibility for
establishing the propriety of enforcing the subpoenas. We
therefore conclude that the submission of a Schofield
affidavit was a suitable means for the government to fulfill
its obligation. And, we hold that, in deciding whether to
order further proceedings, it was appropriate for the
District Court to weigh the same factors outlined in
Schofield I and Schofield II: the scope of inquiry (here under
RFRA), the potential for delay, and "any need for additional
information which might cast doubt upon the accuracy of
the Government's representations." Schofield II, 507 F.2d at
965; Schofield I, 486 F.2d at 93. Because, weighing these

                                14
factors in this case, we cannot say it was an abuse of
discretion for the District Court not to order further
inquiry, we will not disturb its determination.

The dissent misinterprets our statement that "similar
procedures are appropriate" to mean that the same
substantive standard applies whenever a grand jury
subpoena is challenged, whether on abuse of process or
First Amendment grounds. Lest there be any confusion, we
reiterate: in deciding whether to enforce a grand jury
subpoena over a RFRA objection, the district court must
satisfy itself that the witness's testimony is necessary to
serve a compelling state interest. In its discretion, the
district court may permit the government, which bears the
burden of proving the existence of a compelling purpose
and the unavailability of less restrictive means, to meet that
burden through the ex parte in camera submission of a
sworn affidavit.

The witnesses argue that, although the procedures set
forth above may be appropriate in the context of an abuse
of process inquiry, RFRA heightens the need for a hearing.
They point to RFRA's requirement of individualized
judgments and a balancing of facts and circumstances in
every case, and they note that RFRA shifts the burden of
proof to the government.

It is true that our past decisions have relied in part on a
division of the burdens of proof that does not apply under
RFRA. For example, in District Council 33, we upheld the
district court's decision to enforce a subpoena without
requiring an evidentiary hearing on the grounds that
"[g]rand jury proceedings are entitled to`a presumption of
regularity' " and that "the party objecting to the
enforcement of a grand jury subpoena has the burden of
demonstrating some irregularity in those proceedings." 770
F.2d at 40 (quoting Schofield I, 486 F.2d at 92). In doing so,
we reaffirmed our previous holding that " `the decision to
require additional investigation' beyond the Schofield
affidavit, `is committed to the sound discretion of the
district court.' " Id. at 39 (quoting Schofield II, 507 F.2d at
965).

Under RFRA, the government, rather than the party
challenging the subpoena, bears the burden of proof as to

                                15
compelling interest and least restrictive means. Nothing in
this different distribution of the burdens of proof, however,
undercuts our determination that similar procedures are
appropriate. The fact that the witnesses did not bear the
burden of proof on the issues they sought to explore by a
hearing makes it less, not more, likely that they were
injured by the District Court's denial of that request. We
thus reject the witnesses' claim that an evidentiary hearing
is always required under RFRA. Of course, we do not
suggest that an evidentiary hearing would never be
required when the party subpoenaed claims both a
substantial burden on his or her religious beliefs and either
the absence of a compelling government interest or the
availability of a less restrictive alternative. We merely hold
that in this case the District Court, which had the
discretion to decide, did not abuse that discretion in
rejecting the request.

B.

In addition to seeking an evidentiary hearing, the
witnesses' counsel requested a copy of the government's
Schofield affidavit, which request the District Court denied.
The witnesses challenge that denial on appeal, noting that
"[i]n Schofield, the affidavit was not only turned over to the
defense, it was replicated in the body of the opinion."
Appellants' Br. at 43. They ask this court (without making
a formal motion) to "order that [the affidavit] be turned over
and permit a supplementary brief by the petitioners to
address its application to the merits." Id. at 44. We find no
merit to the witnesses' challenge and will deny their
request.

We have consistently endorsed the use of in camera
proceedings to preserve grand jury secrecy. In re Grand
Jury, 103 F.3d at 1145 ("Ex parte in camera hearings have
been held proper in order to preserve the ongoing interest
in grand jury secrecy."); In the Matter of Grand Jury
Empaneled Oct. 18, 1979 (Hughes), 633 F.2d 282, 288 (3d
Cir. 1980). This procedure is consistent with Supreme
Court precedent. See United States v. R. Enters., Inc., 498
U.S. 292, 302 (1991).

                               16
Our decision in In re Grand Jury, 103 F.3d 1140 (3d Cir.
1997), resolved a similar issue under similar
circumstances. A 16-year-old, asserting a parent-child
privilege, moved to quash a grand jury subpoena seeking to
elicit her testimony about her father's involvement in an
alleged kidnaping. The district court held a hearing and
ordered additional briefing "on the issue of whether the
daughter's testimony would be material and non-
duplicative," and it required the government to"make a
substantial showing that this threshold was met." Id. at
1143 & n.6 (citation omitted). The government filed a
Schofield affidavit and voluntarily furnished further
particulars at an in camera ex parte hearing. Based on
these in camera and ex parte submissions, the district
court concluded, " `the government's interests in compelling
the testimony outweigh the privacy interests asserted by
the moving parties' and denied the motion to quash on
those grounds." Id. at 1144. We affirmed on appeal, stating:

        [W]e find little merit in the arguments . . . pertaining
       to the Schofield affidavit and the in camera proceedings
       before the district court. . . . Ex parte in camera
       hearings have been held proper in order to preserve the
       ongoing interest in grand jury secrecy. The secrecy of
       the grand jury proceedings in the present matter might
       have been compromised by divulging the specific
       questions that the government intended to ask during
       the daughter's testimony. Judicial supervision and
       interference with grand jury proceedings should always
       be kept to a minimum. . . . We hold that the district
       court did not abuse its discretion in hearing the
       government's proffer in camera and ex parte.

Id. at 1145-46 (citations omitted).

The only relevant difference we can see between In re
Grand Jury and this case is that the witnesses there based
their claims on the need to protect the parent-child
relationship, whereas here the witnesses assert religious
beliefs in support of their privilege claims. The question
remaining then is whether more protective procedures are
mandated when a claim to privilege is based on religious
beliefs than when it is based on secular beliefs about the
same parent-child relationship.

                                17
The witnesses argue that more protective procedures are
required because they view RFRA as "amending" Federal
Rule of Criminal Procedure 6(e) to ease the stringency of
grand jury secrecy in order to assure the witnesses a
meaningful opportunity to contest the burden on their free
exercise of religion. RFRA, however, does not purport to
amend the rule of grand jury secrecy. To the extent there is
a substantial burden on the witnesses' free exercise of
religion, it is created by the grand jury subpoena and not
by the maintenance of grand jury secrecy. And, although
we have accepted the substantiality of the burden alleged,
we have concluded that in light of the government's
compelling need and the unavailability of less restrictive
alternatives, the subpoenas can be enforced.

V.

For the reasons set forth, we will affirm the order of the
District Court holding the witnesses in contempt. In light of
the impending expiration of the grand jury, the mandate
shall issue forthwith.

                               18
McKEE, Circuit Judge, dissenting:

I respectfully dissent from the opinion of my colleagues.
I do not believe the government satisfied its burden of
proving that requiring these witnesses to testify against
their father in violation of what we assume to be a devoutly
held religious belief is the least restrictive means of
furthering the government's purported compelling interest
in this investigation. For the reasons that follow, I believe
that we should remand to the district court for an ex parte
hearing. Following that hearing the district court can
determine if disclosure of the affidavit and further
proceedings are warranted. It is only after such a probing,
fact-specific inquiry that the district court can properly
conduct the weighing that is required under RFRA. Absent
at least an ex parte hearing, there is no way to insure the
compelling nature of the government's inquiry or that there
is no less intrusive way to gather the evidence the
government is seeking. Forcing these witnesses to testify
without requiring such a showing is inconsistent with
Congress's attempt "to restore the compelling interest test"
to enforce generally applied rules over conflicting religious
beliefs. See Maj. Op. at 4.

I.

The majority cites Smilow v. United States, 465 F.2d 802,
804-05 (2d Cir.), vacated on other grounds, 409 U.S. 944
(1972); Port v. Heard, 764 F.2d 423, 432-33 (5th Cir. 1985);
and In re Grand Jury Proceedings of John Doe, 842 F.2d
244, 247-48 (10th Cir. 1988), to conclude that "[t]hese
cases remain a useful aid in interpreting RFRA in light of
the expressed congressional intent to restore the status of
the law before Smith." See Maj. Op. at 8. However, I do not
think those cases support the majority's analysis.

Although a religious objection was the basis of a
challenge to a grand jury subpoena in Smilow, I believe that
case argues for, not against, granting a hearing here. The
same is true of Port v. Heard. In both cases, grand juries
were investigating serious crimes of violence resulting in
death. In Port, the grand jury subpoenaed the parents of a
suspect in an effort to get them to supply information that

                               19
could be used to indict their son for murder; in Smilow, the
grand jury subpoenaed a 17-year old potential witness in a
fatal fire bombing. Both witnesses asserted a privilege
against testifying based on their First Amendment freedom
of religion.1 Although the Courts of Appeals for the Second
and Fifth Circuits ruled against the witnesses, both courts
were careful to limit the scope of their holdings to the facts
of the particular case. In Port, the court stated:

       We hold that in the context of this case, the states's
       interest in procuring every person's testimony for the
       thorough investigation of the crime of homicide
       outweighs the Ports' First Amendment claims, but only
       if the state's procurement of the testimony was `the
       least restrictive means of achieving' that interest.

764 F.2d at 432 (emphasis added). Similarly, the court in
Smilow noted "the compelling state interest in this case in
uncovering serious crimes of violence." 465 F.2d at 804.
Thus, although the language in Smilow, Port, and their
progeny provides some basis for the majority's holding, I
am concerned that the majority has expanded those cases
beyond the point supported by those courts' opinions.

Branzburg v. Hayes, 408 U.S. 665 (1972), is the
foundation for many of the cases relied upon by the
majority, including Smilow and Port. However, those cases
rely upon the language of Branzburg without giving
adequate consideration to the facts of that case, or the
actual holding of the Supreme Court. In Branzburg, the
Court considered the consolidated appeals of several
different reporters who had independently been subpoenaed
in connection with unrelated grand jury investigations. The
various investigations included allegations of drug
trafficking, civil unrest, and even Presidential
assassination. The reporters argued that the First
Amendment guarantee of Free Speech and Free Press
implicitly established a qualified privilege against disclosing
news sources. The Court summarized the reporters'
argument as follows:
_________________________________________________________________

1. The parents in Port also asserted a parent-child privilege based on
their fundamental right of privacy and the Equal Protection Clause.

                               20
       Petitioners . . . press First Amendment claims that may
       be simply put: that to gather news it is often necessary
       to agree either not to identify the source of information
       published or to publish only part of the facts revealed,
       or both; that if the reporter is nevertheless forced to
       reveal these confidences to a grand jury, the source so
       identified and other confidential sources of other
       reporters will be measurably deterred from furnishing
       publishable information, all to the detriment of the free
       flow of information protected by the First Amendment.
       Although the newsmen in these cases do not claim an
       absolute privilege against official interrogation in all
       circumstances, they assert that the reporter should not
       be forced either to appear or to testify before a grand
       jury or at trial until and unless sufficient grounds are
       shown for believing that the reporter possesses
       information relevant to a crime the grand jury is
       investigating, that the information the reporter has is
       unavailable from other sources, and that the need for
       the information is sufficiently compelling to override
       the claimed invasion of First Amendment interests
       occasioned by the disclosure.

408 U.S. at 679-80. The Court held that no such privilege
exists. In so holding, the Court noted that had it recognized
such a conditional privilege, the privilege would require
courts to conduct a fact-specific analysis each time a
reporter was subpoenaed:

       In each instance where a reporter is subpoenaed to
       testify, the courts would also be embroiled in
       preliminary factual and legal determinations with
       respect to whether the proper predicate had been laid
       for the reporter's appearance: Is there probable cause
       to believe a crime has been committed? Is it likely that
       the reporter has useful information gained in
       confidence? Could the grand jury obtain the
       information elsewhere? Is the official interest sufficient
       to outweigh the claimed privilege?

Branzburg, 408 U.S. at 795. The Court reasoned that
Congress was free to determine whether a statutory
newsman's privilege is necessary and desirable, id. at 706,
but until Congress did so, reporters were not entitled to

                               21
resist grand jury subpoenas on First Amendment grounds.
The Court stated:

       [a]lthough the powers of the grand jury are not
       unlimited and are subject to the supervision of a judge,
       the longstanding principle that `the public . . . has a
       right to every man's evidence,' except for those persons
       protected by a constitutional, common-law, or
       statutory privilege, is particularly applicable to grand
       jury proceedings.

Id. at 688 (emphasis added).

RFRA creates the privilege absent in Branzburg, and the
cases relying upon it. Thus, Branzburg is of dubious
assistance to our inquiry. In Branzburg, as well as the other
cases where claims of privilege have been struck down
because the law did not recognize the particular privilege,
there was no weighing of interests because there was
nothing to weigh on the witnesses' side of the balance.
Under RFRA's statutory framework, however, Congress
expressly requires the government to prove that it has a
compelling governmental interest and that enforcing a
grand jury subpoena is the least restrictive means for
furthering that interest.2 Therefore, I do not believe we can
determine whether coercing the testimony in this case
satisfies RFRA's dictates without requiring a hearing to
determine whether the government can meet its burdens.3
_________________________________________________________________

2. Indeed, in Branzburg, the Supreme Court never applied the fact-
intensive "least restrictive means" test required by RFRA; rather, the
Court merely noted that compelling the testimony in that case "bears a
reasonable relationship to the achievement of the governmental
purpose." Branzburg, 408 U.S. at 700. Thus, Branzburg provides no
guidance for determining whether the fact-specific, statutory "least
restrictive means" test is satisfied.

3. On remand, I would leave it to the district court's discretion to
decide
whether a full evidentiary hearing after disclosure of the Schofield
affidavit is required, or whether the ex parte hearing will suffice. The
ex
parte hearing would involve probing into the nature of the alleged crime
and the precise conduct alleged to be criminal, the specific testimony
sought from the witnesses, whether other witnesses exist, and if so, who
they are and what they will likely testify to, whether the government has
already interviewed other witnesses, and if so, the nature of their

                               22
The Court in Branzburg did state, in dicta, that "[t]he
requirement of those cases which hold that a State's
interest must be compelling or paramount to justify even
an indirect burden on First Amendment rights, are also met
here." 408 U.S. at 700 (internal quotation marks and
citations omitted). The Court then explained:

       If the test is that the government `convincingly show a
       substantial relation between the information sought
       and a subject of overriding and compelling state
       interest,' it is quite apparent . . . that the State has the
       necessary interest in extirpating the traffic in illegal
       drugs, in forestalling assassination attempts on the
       President, and in preventing the community from being
       disrupted by violent disorders endangering both
       persons and property. . .

Id. at 701. That is not our case. The violent nature of the
crimes being investigated in Branzburg was an important
factor in the Court's conclusion; thus, to the extent that the
Court's mention of the "compelling interest test" provides
precedent for our analysis at all, neither the district court
nor the majority opinion gives adequate consideration to
the nature of the charges here.
_________________________________________________________________

testimony, whether documentary evidence might exist and whether it will
corroborate witness testimony, whether the government can obtain
personal financial statements of the three children, and any other facts
that may shed light on the government's need for the testimony.

With respect to disclosure of the Schofield affidavit, I believe the
district court should also weigh the government's interest in secrecy in
this particular case against the witnesses' substantial interests in
arguing their position. At oral argument, the government asserted that it
opposed disclosure of the Schofield affidavit in this case because such
disclosure could result in the fabrication of testimony or evidence. That
is, of course, a risk in any prosecution involving the testimony of
witnesses, and there are sanctions for such conduct including
prosecution for perjury. Thus, I fail to see how the government's concern
for perjury outweighs the witnesses' substantial interest in reviewing the
affidavit to determine whether some alternative, less restrictive means
for
furthering the governmental interest exists. Nevertheless, here, I would
leave the disclosure decision up to the district court following an ex
parte
hearing.

                                23
Smilow and Port only highlight the distinctions between
Branzburg and this case. See Maj. Op. at 8-9. In Smilow,
the witness resisting a grand jury subpoena in a fatal fire
bombing investigation claimed that he was an " `observant
and committed Jew' [and therefore] must refuse to answer
the grand jury questions or else suffer `Divine punishment
and ostracism from the Jewish Community' as an
`informer.' " 465 F.2d at 804. However, the privilege that he
asserted was not recognized under law at the time. 4 The
court noted: "The legal claim is apparently a novel one and
its precise religious basis is not clear from the record before
us." Id. The court then relied in part upon Branzburg to
find a compelling state interest that overcame the religious
objection. The court stated: "[W]e do not believe that
appellant's right to refuse to answer highly relevant
questions is any greater than those claimed by petitioners
in Branzburg, in the face of the compelling state interest in
this case in uncovering evidence of serious crimes of
violence." Id.

The courts in Smilow and Port also relied largely on the
fact that the crimes being investigated by the grand jury
involved extreme violence. The court in Smilow explained:
"we believe that appellant's first amendment claim is
outweighed by the compelling state interest in having the
grand jury hear `every man's evidence' bearing on alleged
criminal activity that resulted in the death of an innocent
person." 465 F.2d at 805 (citing Branzburg) (emphasis
added). Similarly, in Port, the court repeatedly recognized
the need for a complete investigation because the
underlying crime involved a murder. See, e.g., 764 F.2d at
432 ("in the context of this case, the state's interest in
procuring every person's testimony for the thorough
investigation of the crime of homicide outweighs the Ports'
First Amendment claims"); id. at 433 ("First Amendment
interests may be subjugated to [the state's interest in
_________________________________________________________________

4. Similarly, when Port was decided no parent-child privilege was
recognized under the First Amendment, the Equal Protection Clause, or
the fundamental right to privacy. Texas had recognized a marital
privilege, but not a parental privilege. The court held that "[t]he right
to
refuse to testify against one's child is not a fundamental right. Nor does
the distinction between the marital and parental privileges involve a
suspect class." 764 F.2d at 431.

                               24
discovering the truth about a crime] in the proper
circumstances" and holding that pursuing investigation of a
murder presents proper circumstances) (emphasis added).

Given the nonviolent nature of the crimes being
investigated here, I am far more reluctant than my
colleagues to rely on precedent where the courts were
obviously influenced by the violent nature of the crimes
being investigated.

II.

Absent an ex parte hearing at the very least, I remain
unconvinced that the underlying crimes here justify a rule
elevating the government's claimed compelling interest over
the religious rights of these witnesses. This is not to say
that the crimes being investigated are not serious, or that
they are not worthy of prosecution. Rather, I submit that
the nature of the investigation here has not been properly
placed on the RFRA scale. Indeed, it does not appear to
have been considered at all. This is not a situation involving
violence or disruption or a threat to public safety. Indeed,
it does not even appear that the alleged crimes are
continuing. Rather, it is an investigation into past conduct.
The majority asserts that "[t]he District Court correctly
recognized that the duty to prosecute persons who commit
serious crimes is part and parcel of the government's
`paramount responsibility for the general safety and welfare
of all its citizens.' " See Maj. Op. at 9-10. But the record
simply does not establish that the "general safety and
welfare" of the citizenry is implicated here.

Moreover, I do not believe that the deference we owe to
the district court's conclusion justifies upholding the
deference it showed to the untested affidavit of the
prosecution, as opposed to taking adequate steps to protect
the religious rights asserted by the witnesses and protected
under RFRA. The majority states, "the witnesses have
submitted no evidence beyond their own self-serving
allegations to contradict [the suggestion that, as employees,
they are uniquely situated to have first hand knowledge] or
to establish that the government can conveniently obtain
comparable information from other sources." Maj. Op. at

                               25
11. However, the witnesses do not dispute that they may
possess relevant information; nor do they deny (or confirm)
that they were employees of the target (although it is
unclear why that makes them "uniquely situated" compared
to other employees). Instead, the witnesses argue that the
government has failed to establish that similarly probative
information cannot be obtained elsewhere, either from other
witnesses or through documentary evidence, without
burdening their religious beliefs.

In addition, the majority's approach shifts the
government's burden under RFRA to the witnesses. This is
exacerbated by the "Catch 22" in which the witnesses are
ensnared. They have made only bare and unsupported
assertions because they have been denied a hearing, and
are therefore forced to shoot blindly at an affidavit they
have not seen. Yet, the majority partially relies on their
inability to assert more than bald allegations to affirm the
district court's refusal to grant them a hearing.

The majority's analysis suggests that the procedures
routinely used to review grand jury subpoenas under
Schofield are necessarily adequate to review RFRA
challenges. I can not agree. In Schofield II , we held, "[T]he
Government [is] required to . . . [show] that each item is at
least relevant to an investigation being conducted by the
grand jury and properly within its jurisdiction, and is not
sought primarily for another purpose." In re Grand Jury
Proceedings, 507 F.2d 963, 966 (3rd Cir. 1975). Such an
inquiry is totally inadequate to afford the protections
Congress intended under RFRA. The usual Schofield
affidavit does not establish the compelling nature of the
government's interest nor address whether there are
alternative means of obtaining the evidence.5 That is not
the purpose of the Schofield affidavit; rather, it merely
seeks to insure that the subpoena process is not being
abused. To the extent we hold that a Schofield inquiry is
_________________________________________________________________

5. In fairness to the government, and to its credit, the affidavit that
was
submitted here is far more specific than the usual boilerplate that is
pasted into a Schofield affidavit. However, the procedure utilized here is
inadequate to insuring that the government can satisfy both prongs of
RFRA.

                               26
sufficient under RFRA, we lower the statutory bar Congress
has erected. Indeed, we may well eliminate that bar as the
Schofield inquiry does not address the compelling need of
the prosecutor nor the existence of alternative avenues of
investigation at all. Therefore, I disagree with the
conclusion that "similar procedures are appropriate." See
Maj. Op. at 14. An inquiry along the lines set out in
Schofield may be necessary for the government to meet its
burden under RFRA, but it is by no means sufficient to do
so.

Thus, I fear that our holding today will have the
unintended consequence of creating a per se rule that will
preclude a court from ever concluding that there is a less
restrictive means for obtaining information than actually
compelling grand jury testimony. At oral argument before
the district court, the district court essentially held that to
satisfy its burden in any criminal investigation the
government merely has to assert that it has a compelling
interest in "pursu[ing] all avenues in the search for the
truth in a criminal investigation," app. at 48 (emphasis
added), and that there is no practical alternative. We now
endorse that low threshold by holding that so long as
"[t]here is substantial reason to believe that the witnesses
possess relevant information necessary for the prosecution
of serious crimes," enforcing the subpoena is the least
restrictive means of advancing the government's compelling
interest in protecting "the general safety and welfare of all
its citizens." See Maj. Op. at 10-11 & 10.

We are told that these witnesses will be forced to commit
a grave sin under the tenets of their religion, and we
assume that is so. It is a sin for which there is no
atonement. Yet, we do not even grant an ex parte hearing
to make the government prove that the need for their
testimony is sufficiently compelling and the alternatives so
nonexistent as to justify this affront to their religion under
RFRA. The language of RFRA, and the First Amendment
doctrine from which RFRA evolved, require more. See, e.g.,
Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) ("courts must
move with great circumspection in performing the sensitive
and delicate task of weighing a State's legitimate social
concern when faced with religious claims for exemption

                                27
from generally applicable [laws]" and noting particularized
showing as to the adequacy of the alternatives);
Employment Div. Dept. of Human Resources v. Smith, 494
U.S. 872, 899 (1990) (O'Connor, J., concurring) ("Even if, as
an empirical matter, a government's criminal laws might
usually serve a compelling interest in health, safety, or
public order, the First Amendment requires a case-by-case
determination of the question, sensitive to the facts of each
particular claim. . . .").

Because I believe the government's Schofield affidavit
alone does not satisfy those burdens, and the district
court's scrutiny was wholly inadequate, I would remand for
a more searching examination of the government's need for
the testimony in this particular case and a determination of
whether alternatives might exist. Accordingly, I respectfully
dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               28
