
USCA1 Opinion

	




          June 17, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1560                                         IN RE GRAND JURY PROCEEDINGS                                 ____________________                                    UNITED STATES,                                     Petitioner,                                          v.                                      JOHN DOE,                                Appellant, Respondent.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Brian J.  McMenimen  and  Burke &  McMenimen  on  brief  for               ___________________       __________________          appellant.               Donald  K. Stern,  United  States Attorney,  Paul V.  Kelly,               ________________                             ______________          Assistant  United  State  Attorney,  and  Frank  A.  Libby,  Jr.,                                                    _____________________          Assistant United States Attorney, on brief for appellee.                                   __________________                                  __________________                                         -2-                      Per Curiam.  Respondent John Doe appeals a district                      __________            court order  holding him  in civil contempt  for refusing  to            comply, without just cause, with  a court order directing him            to testify  before a  grand  jury.   28 U.S.C.     1826.   We            affirm.                      Respondent was subpoenaed to  appear before a grand            jury  on  April 26,  1994.   Relying  on his  fifth amendment            right, respondent  refused to  answer questions on  that day.            After  the government  obtained  a court  order granting  him            immunity  and  ordering  him  to  testify,  respondent  again            appeared before the grand jury on May 10 and again refused to            answer  any questions  put to  him.   The government  filed a            petition for contempt the next day.                        On May 13 and May 19, 1994, the district court held            a hearing on the government's petition.  Respondent testified            that his  refusal to  answer the  grand jury's questions  was            based on  his fear for his own safety and that of his family.            He  further testified  that he  would never  answer questions            from a grand jury  on this matter.  Doe's wife testified that            she too feared for her  life and that of her children  if Doe            were to testify,  and that,  in her opinion,  he would  never            change  his mind  in  this matter.   Both  Doe  and his  wife            testified, that although they are separated, Doe remains very            close to his children.                                           -3-                      At  the  conclusion of  the  hearing,  the district            court  found that  Doe had  refused to  obey the  court order            directing  him to  testify.   The court  also found  that his            refusal was based on  a "genuine and reasonable fear  of harm            to  himself and/or  to  his family"  and  that it  was  Doe's            present intention  not to  testify.  Nevertheless,  the court            found  that there was a  realistic possibility that Doe would            change  his  mind either  because of  his  desire to  see his            children or  because evolution  of events might  diminish his            fear of retribution.  The court, therefore, entered the order            for civil contempt.                        "Confinement  under Section  1826 is  coercive, not            punitive,  and its sole purpose is to compel the contemnor to            provide  the   requested  testimony."    In   re  Grand  Jury                                                     ____________________            Proceedings,  862 F.2d 430, 432  (2d Cir. 1988).   "[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.'"   United States v.  Doe (In re  Grand                                      _____________     ___  ____________            Jury Proceeding), 13  F.3d 459, 461 (1st Cir.  1994) (quoting            _______________            In  re  Grand  Jury, 851  F.2d  499,  502  (1st Cir.  1988)).            ___________________            However, given the "speculative nature" of this inquiry, "the            district  court  enjoys  wide  latitude  in  gauging  whether            incarceration will be (or will remain) coercive."  Id. at 463                                                               __            (citations omitted).  We review only for abuse of discretion.                                         -4-            In re Grand  Jury Proceedings,  943 F.2d 132,  136 (1st  Cir.            _____________________________            1991).                      Respondent  claims that  the district  court abused            its discretion because its findings that he has a  reasonable            fear of reprisal and  that he has affection for  his children            make it unreasonable to conclude that he will ever change his            present  intention not  to testify.   He  also  contends that            there  is  no  support  for  the  court's  finding  that  the            situation may change in such a way as to diminish his fear.                        While a reasonable fear of reprisal may be relevant            to  the  determination  of   whether  there  is  a  realistic            possibility that  coercion will  lead to compliance  with the            order  to  testify, Doe,  13 F.3d  at  461, fear  of reprisal                                ___            against himself or his family  does not constitute just cause            for a respondent to refuse to testify, In re Grand  Jury, 943                                                   _________________            F.2d at 135  (citing cases).   Were the  rule otherwise,  the            grand jury would be deprived of information  against the most            vicious   and  sophisticated   criminal  enterprises.     Id.                                                                      __            Moreover, a finding that a contemnor has no present intent to            testify  does not  preclude  the  possibility that  continued            confinement  will cause the witness to change his mind.  Doe,                                                                     ___            13 F.3d at 463.  Finally,  the finding that the situation may            change so  as to  diminish respondent's fear  of retaliation,            while speculative, does have support in the record.                                         -5-                      The determination of whether the possibility exists            that  incarceration  will  coerce  a  contemnor   to  testify            requires  the court to "look  into the future  and gauge, not            what  will  happen,  but  the prospect  that  something  will                                          ________            happen."  Id. (quoting In re  Parrish, 782 F.2d 325, 327  (2d                      __           ______________            Cir. 1986)) (emphasis in original).  In the instant case, the            court  undertook  a  careful  evaluation  of  the  individual            circumstances  relating  to  respondent.   It  then  made  an            informed speculation as to the future.  While the case may be            a  close one and we  agree that the  appeal is not frivolous,            the  district  court  was   well  within  its  discretion  in            determining  that there  was  a  realistic  possibility  that            incarceration would  lead the  contemnor to change  his mind.            See id. at 463 (assuming that respondent had reasonable fear,            ___ __            court nonetheless properly determined that "family ties might            eventually induce a change of heart").                      In the present case, the district court's  judgment            that family  ties might persuade respondent to cooperate is a            judgment  call,  but it  is not  illogical; and  the district            judge,  having  heard  the   evidence,  is  due  considerable            deference in his evaluation of the circumstances.  We are not            sure that  the district  court's second ground,  comprising a            brief reference to "the evolution of events", is sufficiently            explained; and  if this were the only basis for the order, we            might ask for further explanation.  Here, however, the family                                         -6-            ties ground  was given  first, was concretely  explained, and            has as  much basis in the  record as such a  prophecy is ever            likely to  have.   At this  stage, we do  not think  that any            purpose  would  be served  by  asking the  district  court to            elaborate its second ground.                      In the alternative, respondent  asks that we remand            this case to  the district court for a  hearing on what steps            the government can take  to protect him and  his family.   It            does  not  appear  that any  such  request  was  made to  the            district  court; indeed,  Doe's counsel  said at  the hearing            that he "very much doubted" that an offer of protection would            affect  his   client's  refusal   to  testify.     If  during            incarceration   respondent  decides  that  the  provision  of            protection  by the  government  would affect  his refusal  to            testify, there  is nothing to  prevent the  issue from  being            raised in the district court at that time.                      Affirmed.                      ________                                         -7-
