
USCA1 Opinion

	




                            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  & 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-
