                UNITED STATES COURT OF APPEALS

                    FOR THE FIRST CIRCUIT

                                        

No. 93-2316

                 IN RE: GRAND JURY PROCEEDING

                                         

                        UNITED STATES,

                    Petitioner, Appellee,

                              v.

                          JOHN DOE,

                    Respondent, Appellant.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]
                                                    

                                        

                            Before

                     Breyer, Chief Judge,
                                        
                Cyr and Stahl, Circuit Judges.
                                             

                                        

   Peter B. Krupp on brief for appellant.
                 
   Donald K. Stern, United States Attorney, and Fred M. Wyshak,
                                                              
Jr., Assistant United States Attorney, on brief for appellee.


                                        
                       January 10, 1994
                                        

     Per  Curiam.  Respondent John Doe has refused to testify
                

before  a  grand jury  investigating alleged  organized crime

figures,  explaining that he was fearful of reprisals against

himself  and  his family  and  was  opposed on  principle  to

providing evidence against  others.  The district  court held

respondent in  civil contempt  and ordered him  incarcerated.

It  found that his  proffered explanations failed  to provide

"just cause"  for his recalcitrance, see 28 U.S.C.   1826(a),
                                        

and  that incarceration  was reasonably  likely  to induce  a

change of heart.   On appeal, respondent now  challenges this

determination  on procedural  grounds:  he alleges  that  the

district court abridged his right to a meaningful evidentiary

hearing by restricting his ability to present live testimony.

We disagree and therefore affirm.

                              I.

     In  September 1993, in  response to a  subpoena from the

grand  jury, respondent  indicated that  he  would refuse  to

testify.  His  reasons apparently  included a  desire not  to

incriminate himself, for the government thereafter obtained a

court  order  granting  him  immunity  and  ordering  him  to

testify.  On November 18, respondent was again called  before

the  grand jury.   Despite  the  court order,  and despite  a

government   offer  to  place  him  in  the  federal  witness

protection  program,  respondent  reiterated  his refusal  to

                             -2-

testify.  The government thereupon filed the instant petition

for contempt.

     The district  court held  three hearings  on the  matter

during the first  week of December.   Respondent there sought

to establish that there was no realistic possibility  that he

would  ever testify,  such that  his  incarceration would  be

punitive  rather  than  coercive and  thus  violative  of due

process.   Respondent himself took  the stand and  so stated,

reaffirming  that  he  was  fearful  of  reprisals  and  that

testifying was not  "the right thing to do."   This testimony

came  in response  to queries  from  the court;  respondent's

counsel   declined   an   invitation   to   conduct   further

examination.   Beyond this,  respondent sought permission  to

secure testimony from the following four individuals, for the

reasons indicated: 

          (1) A witness who had  earlier appeared before
     the  grand jury and  had since entered  the witness
     protection program.    It was  proffered that  this
     witness   was  the   source  of   the  government's
     information about respondent  and so could  testify
     as to the need for his testimony, as well as to the
     dangers posed by the targets of the investigation; 

          (2) A  state trooper, present  under subpoena,
     who likewise could document such dangers; 

          (3) Another trooper, also under subpoena,  who
     could testify that respondent, following his arrest
     for a drug  offense in 1990, rejected  a government
     offer of leniency in exchange  for his cooperation;
     and 

          (4)   Respondent's   sister,  who   could   explain
     respondent's unwillingness ever to jeopardize the safety
     of his family. 

                             -3-

     The district court  declined to hear such  testimony, at

least in the first instance.  Instead, it directed respondent

to  submit appropriate affidavits  (where feasible) or offers

of proof,  indicating that it  would reconsider the  need for

live testimony upon  review of such submissions.   Respondent

accordingly filed  four affidavits from friends and relatives

opining that  he  would never  testify, one  from his  former

attorney describing  the events surrounding his  1990 arrest,

and   one  from  his   current  attorney  attesting   to  the

dangerousness  of the  grand  jury  targets  as  depicted  in

newspaper accounts.   The court  subsequently concluded  that

such  procedures were sufficient both to satisfy the dictates

of due process and to  provide a suitable basis for decision.

Based  on  respondent's  testimony  and  the  sundry  written

submissions,   it   found   a   reasonable  likelihood   that

incarceration  would  eventually   succeed  in  coercing  his

testimony.  Respondent  was therefore ordered confined  for a

period of eighteen months, until the  expiration of the grand

jury's  term,  or  until  he  purged  himself  of  contempt--

whichever occurred first.   Respondent now contends  that, by

limiting the scope of the evidentiary presentation, the court

deprived  him  of  a meaningful  opportunity  to  explain the

gravity and sincerity of his fears of reprisal,  in violation

of due process.   We review the decision  below for abuse  of

                             -4-

discretion.  See,  e.g., In re Grand Jury  Proceedings (Doe),
                                                            

943 F.2d 132, 136 (1st Cir. 1991) (per curiam). 

                             II.

     Respondent's  desire to document the nature and scope of

his  fears   was  not   necessarily   inappropriate  to   the

proceedings below.  Of course, it has been widely held that a

witness' fear of reprisal against himself or  his family does

not constitute  just cause  for refusing  to  testify.   See,
                                                            

e.g., Piemonte v. United States, 367 U.S. 556, 559 n.2 (1961)
                               

(dicta); Doe, 943 F.2d at 135 (listing cases); In re Farrell,
                                                            

611  F.2d  923,  924-25  (1st  Cir.  1979).1    Yet  a  civil

contemnor's  incarceration  can   be  transformed  from   the

permissibly  coercive  into  the  improperly  punitive  where

"there  is no realistic possibility that  he will comply with

the order to testify."   In re Grand Jury, 851  F.2d 499, 502
                                         

(1st Cir. 1988) (per curiam); accord, e.g.,  Simkin v. United
                                                             

States, 715 F.2d 34, 37 (2d Cir. 1983).  And some courts have
      

indicated  that fear  of  reprisal  can  be  relevant,  under

certain  circumstances, to  the determination of  whether any

                    

1.  As the Ninth Circuit has explained: 

     Were  it  otherwise,  any  person  involved with  a
     criminal  enterprise could  point  to the  possible
     danger  that comes from giving testimony.  The more
     vicious  or   sophisticated  the   enterprise,  the
     greater  the danger.   Thus, grand juries  would be
     deprived of information when they most needed it.  

In re  Grand Jury  Proceedings (Lahey),  914 F.2d  1372, 1375
                                      
(9th Cir. 1990).  

                             -5-

such possibility  exists.    See,  e.g.,  In  re  Grand  Jury
                                                             

Proceedings  Empanelled May 1988  (Freligh I), 894  F.2d 881,
                                             

883-85  (7th Cir. 1989) (duress, demonstrated by reference to

palpable, imminent danger, might constitute equitable defense

to  civil contempt); In re Grand  Jury Proceedings (Doe), 862
                                                        

F.2d 430, 432  (2d Cir. 1988) (per curiam)  (fear of reprisal

is  one  factor  to  be  considered  in  determining  whether

"confinement will produce  the desired effect"); In  re Grand
                                                             

Jury Proceedings (Gravel), 605 F.2d 750,  752 (5th Cir. 1979)
                         

(per  curiam)  (fear  of reprisal  is  "legitimate  factor in

mitigation").

     We need  not further  explore the  applicability of  any

such  "duress"  defense,  however, for  it  is  apparent that

respondent was afforded ample  opportunity to adduce evidence

with  respect thereto.   We  have noted  that, where  a civil

contemnor  is faced with incarceration, "due process has been

considered   by  many  courts   to  require  an  'uninhibited

adversary  hearing'   where  the  witness   can  'probe   all

nonfrivolous  defenses to the contempt charge.'"  In re Grand
                                                             

Jury Proceedings  (Campaigner Publications,  Inc.), 795  F.2d
                                                  

226, 234 (1st Cir. 1986),  cert. denied, 479 U.S. 1064 (1987)
                                       

(quoting United  States v.  Alter, 482  F.2d 1016,  1024 (9th
                                 

Cir.  1973)).  Yet this requirement  is subject to reasonable

limitations,  depending on the  circumstances involved.  See,
                                                            

e.g., In re Bianchi, 542 F.2d 98, 101 (1st Cir. 1976) ("While
                   

                             -6-

a witness must  be given a meaningful opportunity  to present

his  defense ...,  this summary  procedure  does not  require

meaningless  formalities that would  only serve to  delay the

proceedings.").  Where  there is no genuine  factual dispute,

or  where  proposed  third-party  testimony  will  likely  be

repetitive or  of marginal  relevance, a  court may  properly

call for offers of proof or otherwise restrict the ability to

call  witnesses.     See,  e.g.,  In  re  Grand  Jury  Matter
                                                             

(Backiel), 906 F.2d  78, 85-86 (3d  Cir.), cert. denied,  498
                                                       

U.S. 980 (1990);  Campaigner Publications, Inc., 795  F.2d at
                                               

235; In re  Kitchen, 706 F.2d 1266, 1273 (2d Cir. 1983).  The
                   

court's discretion in this regard is "very broad."  Id.
                                                       

     Far  from  constituting  an  abuse  of  discretion,  the

procedure  followed by the district court here was abundantly

fair.2  At  the first hearing, the court granted respondent's

request for a continuance to permit further  preparation.  At

the  second,  respondent  was  permitted  to testify  without

limitation.  We note that, to the extent the nature and scope

                    

2.  In  the  related  context where  contemnors  have  sought
release from  custody on  the ground  that incarceration  had
       
lost  its  coercive  effect, the  Second  Circuit  has upheld
orders  reached  on   the  basis  of  far   more  abbreviated
proceedings.  See  Sanchez v. United States, 725  F.2d 29, 32
                                           
(2d   Cir.  1984)  (based  on  witness'  affidavit  and  oral
argument);  Simkin v.  United States,  715 F.2d  at 38  &amp; n.2
                                    
(based on witness' affidavit  only).  Indeed, the  court went
so  far  as to  say  that  "a  district judge  has  virtually
unreviewable discretion both as to the procedures he will use
to  reach  his  conclusion,  and  as to  the  merits  of  his
conclusion."  Id. at 38 (footnote  omitted).  See also In  re
                                                             
Crededio, 759 F.2d 589, 591-92 (7th Cir. 1985).  
        

                             -7-

of  his fears  of reprisal  were  not fully  elucidated, such

failure is largely attributable to the fact that respondent's

counsel   declined   the   invitation   to  conduct   further

examination.   Thereafter,  respondent  was afforded  time to

submit affidavits  from, or  offers of  proof regarding,  the

proposed third-party witnesses and others.  

     Respondent's principal contention--that  the court erred

in preventing such witnesses from taking the stand--fails for

several  reasons.     First,  the   testimony  of   relatives

concerning  respondent's refusal to  jeopardize the safety of

his family would have been cumulative--and was, in any event,

adequately proffered by way of affidavit.  Second, the events

surrounding respondent's 1990  arrest were likewise described

in an affidavit.  Respondent could have elaborated thereon in

his own testimony but did not.  We are left to speculate what

could have  been  added by  the  testimony of  the  arresting

officer.3   Third, any  evidence regarding the  necessity for

                    

3.  To the extent such evidence was  intended to buttress his
assertion that  he would never  testify against  others as  a
matter  of principle,  it was  of  marginal relevance.   See,
                                                            
e.g., Backiel, 906  F.2d at 88 ("moral beliefs"  do not alter
             
duty to testify); In re Crededio, 759  F.2d 589, 593 n.2 (7th
                                
Cir.  1985) (same).  Compare In  re Parrish, 782 F.2d 325 (2d
                                           
Cir. 1986)  (affirming  decision to  release contemnor  after
seven months'  confinement due  to lack  of coercive  effect;
witness had claimed that to answer grand jury questions would
be betrayal of "black liberation movement").  
     We  also note  that respondent's disinclination  to turn
against his drug  confederates in public fashion in  1990 has
scant bearing  on  what  actions he  might  take  within  the
private  confines of  the  grand  jury.   There  has been  no
suggestion here that  the secrecy of the grand  jury has been

                             -8-

respondent's  testimony before the grand jury would have been

irrelevant.  There is no requirement that the government show

either "that the  information it hopes to obtain  from Doe is

significant [or]  that that information  is unavailable  from

other sources."  Doe, 862 F.2d at 431; accord, e.g., Backiel,
                                                            

906 F.2d at  87-88 (grand jury "is free  to pursue cumulative

leads"); In re Grand Jury, 851 F.2d at 502 (same).
                         

     Finally, prospective testimony as to the danger posed by

the  targets  of  the  investigation  would  have  been  both

cumulative and of  minimal relevance.  The court  accepted as

an offer of  proof counsel's affidavit and  various newspaper

articles  exploring this  issue at  length.   The  government

effectively  conceded the matter,  and the court  expressed a

readiness to assume it to be true.    Yet all this proves  to

have  been largely  beside the  point in  any event,  for two

reasons.  To have any relevance  at all in this context, fear

of  reprisal  must  be  based  on  more  than  simply  vague,

unsubstantiated apprehension.  Rather, as the Seventh Circuit

has  held, such fear  must be "genuine"  and "reasonable," as

demonstrated by  reference  to  "palpable  imminent  danger."

Freligh  I,  894 F.2d  at  883;  see also  In  re Grand  Jury
                                                             

Proceedings of  December 1989  (Freligh II),  903 F.2d  1167,
                                           

                    

jeopardized.  Compare In re Grand Jury Proceedings (Mallory),
                                                            
797  F.2d 906 (10th Cir.  1986) (affirming denial of contempt
petition where witness  was thought to be in  real danger due
to breach of grand jury secrecy). 

                             -9-

1170  (7th  Cir.  1990)  ("overwhelming  sense  of  immediate

danger").  Respondent's complaints in  this regard are of the

former sort.   In addition, he has  rejected the government's

offer to enroll him in the witness protection program.  As we

recently  observed: "'The witness may not frustrate the grand

jury's access to the information on the basis that he will be

put in danger by giving it, and, at the same time,  reject an

offer to remove  or minimize the danger.'"  Doe,  943 F.2d at
                                               

135 (quoting Gravel, 605  F.2d at 752-53)); accord,  e.g., In
                                                             

re Grand  Jury Proceedings  (Burns), 652 F.2d  413, 414  (5th
                                   

Cir.  1981) (noting  that  disruption inherent  in relocation

must yield  to powerful  societal interest  in ensuring  that

grand juries have  access to relevant information).   Compare
                                                             

Freligh I, 894 F.2d at 883 (remanding for further proceedings
         

where witness was  given "no opportunity to  demonstrate that

he  or   his  family  was   in  danger"  and  "no   offer  of

protection").4 

                             III.

                    

4.  In In re  Grand Jury Proceedings (Doe), 790  F. Supp. 422
                                          
(E.D.N.Y.  1992), on which respondent relies, the court noted
that  all of the choices faced by the witness--incarceration,
endangering  his  life,  or  changing  it  radically  through
relocation--were  unpalatable.  As a result, prior to issuing
a contempt citation, the  court required that the grand  jury
be informed of the reasons for the witness' recalcitrance and
that  it  then   make  an   explicit  request   that  he   be
incarcerated.  Id. at 427.   Respondent can derive no comfort
                  
from this decision.  The fact that one court chooses,  in the
exercise of  discretion, to  adopt such  safeguards does  not
mean that  another court's  failure to  do so  constitutes an
abuse of discretion.  

                             -10-

     Finally,  we  find no  error  in  the  substance of  the

district  court's  finding  that  incarceration will  have  a

realistic possibility of  causing respondent to testify.   As

respondent  has not challenged this finding directly, we note

only  the following.   The  determination to  be made  by the

district   court  in  this   regard  "is  far   removed  from

traditional factfinding"--the court "is  obliged to look into

the future and gauge, not  what will happen, but the prospect
                                                             

that something  will happen."   In re Parrish, 782  F.2d 325,
                                             

327  (2d Cir.  1986) (emphasis  in original).   "Even  if the

judge  concludes that it is the contemnor's present intention

never  to  testify,  that conclusion  does  not  preclude the

possibility that continued confinement will cause the witness

to  change his mind."   Simkin v. United  States, 715 F.2d at
                                                

37.   Given the "speculative"  nature of such inquiry, United
                                                             

States  v. Jones,  880 F.2d  987,  989 (7th  Cir. 1989),  the
                

district  court  enjoys  wide  latitude  in  gauging  whether

incarceration will be (or will remain)  coercive.  See, e.g.,
                                                            

Simkin  v.  United   States,  715  F.2d  at   38  ("virtually
                           

unreviewable discretion"). 

     The court  here conducted  a careful  evaluation of  the

individual  circumstances  pertaining   to  respondent.    It

properly  discounted   the  claim  that   respondent  (having

recently completed a three-year term on the drug offense) was

sufficiently familiar with  prison life as to  render further

                             -11-

incarceration  noncoercive.   Unlike earlier,  respondent now

carries  "the keys  of  [the] prison  in  [his] own  pocket."

Hicks v. Feiock, 485 U.S. 624, 633 (1988) (internal quotation
               

omitted).  It properly determined  that his family ties might

eventually induce a change of heart.  And it was justified in

concluding  that his present  resolve never to  testify might

soften over  time.   See, e.g.,  Freligh I, 894  F.2d at  883
                                          

("faced with  protracted  incarceration  [the  contemnor]  is

quite likely  to reduce  his estimate of  the gravity  of the

threat [of reprisal]"). 

     Affirmed. 
              

                             -12-
