                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-2-2006

In Re: Grand Jury
Precedential or Non-Precedential: Precedential

Docket No. 06-2819




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                                    PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                __________

                    No. 06-2819
                    No. 06-2820
                    __________

               IN RE GRAND JURY

                        and

     IN THE MATTER OF THE SEARCH OF
            JELANIE SOLOMON,

                                    Appellant.
                  _____________

   On Appeal from the United States District Court
      For the Western District of Pennsylvania
     (Misc. No. 06-15 and Mag. No. 06-122M)
   District Judge: Honorable Terrence F. McVerry
                    ___________

    Submitted Under Third Circuit L.A.R. 34.1(a)
               September 15, 2006
                  ___________

Before: SLOVITER, WEIS, and GARTH, Circuit Judges
              (Opinion Filed: October 2, 2006)
                       __________

                OPINION OF THE COURT
                      __________


MARTIN A. DIETZ, ESQ.
Grant Building, 36th Floor
Pittsburgh, PA 15219

ROBERT E. STEWART ESQ.
1710 Lawyers Building
Pittsburgh, PA 15219

Attorneys for Appellant
Jelanie Solomon

Mary Beth Buchanan
Tina O. Miller
Office of United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219

Attorneys for Appellee
United States of America




                             -2-
Garth, Circuit Judge:

                               I.

        In the present consolidated appeals, Appellant Jelanie
Solomon seeks review of the district court’s orders: (1) finding
Solomon guilty of criminal contempt for failing to comply with
a grand jury subpoena and a subsequent court order, and
imposing a five-month prison sentence therefor (order of March
28, 2006); and (2) denying Solomon’s motion to quash a post-
indictment search warrant to obtain samples of his blood and
saliva (order of May 1, 2006).

        With respect to the criminal contempt conviction, we
hold that the district court properly found Solomon guilty of
criminal contempt. We also hold that the five-month sentence
imposed is excluded from guidelines coverage and, pursuant to
that holding, was not an abuse of discretion. We will therefore
affirm.

        As to the district court’s order denying Solomon’s motion
to quash the search warrant issued for samples of his blood and
saliva, we are without jurisdiction to consider Solomon’s appeal
because it is interlocutory, and does not fall within any of the
limited exceptions to the general rule that our jurisdiction is
limited to final orders or decisions.




                               -3-
                                II.

        In January 2004, Solomon was convicted in Pennsylvania
state court of various narcotics violations.              Solomon
subsequently became the subject of a federal grand jury
investigation concerning his alleged narcotic trafficking
activities, as well as his involvement in the murder of the father
of a confidential informant who had assisted in the state’s
investigation of Solomon’s narcotics activities. It is alleged that
while in state prison, Solomon corresponded with associates
concerning uncollected drug debts.

        On March 1, 2006, Solomon was served with a federal
grand jury subpoena for handwriting exemplars. Solomon did
not object, move to quash, or otherwise challenge the validity of
the subpoena. Counsel arranged for Solomon to provide the
exemplars to United States Postal Inspector Joseph Bellisimo on
March 9, 2006 at the Washington County Jail, where Solomon
was then incarcerated. Bellisimo met with Solomon and his
attorney at the appointed time and place, and presented them
with a typewritten version of an allegedly incriminating letter
Solomon had written to an associate concerning the collection
of drug debts. Solomon began providing the exemplars but,
after nearly completing one of the handwriting forms, indicated
that he would not provide the exemplars and tore the form he
had completed into shreds.


                                -4-
        The government filed a motion to compel Solomon to
provide the exemplars. Solomon did not respond to this motion
and, on March 16, 2006, the district court entered an order
compelling Solomon to provide handwriting exemplars. On
March 22, 2006 Bellisimo again appeared at the Washington
County Jail to take Solomon’s handwriting exemplars. Again,
Solomon refused. The government then filed a motion for rule
to show cause why Solomon should not be held in contempt for
failing to comply with the court’s March 16, 2006 order.

        A contempt hearing was held on March 24, 2006. At the
hearing, Solomon’s attorney conceded that Solomon had refused
to comply with the court’s March 16, 2006 order. Though
requested by the court, Solomon also refused to provide any
reason for not complying. Solomon’s attorney advised the court
that, just prior to the hearing, the government had provided him
with a handwritten copy of the allegedly incriminating letter it
sought to compare to exemplars of Solomon’s handwriting. At
no time did Solomon object to the relevance of the letter or
handwriting exemplars to the grand jury investigation. After
colloquy with the government’s attorney, the court advised
Solomon of the potential penalties he faced for his continued
refusal to comply with the court’s order. The court then asked
Solomon if he wished to “change his mind.” Solomon
responded that he did not, and that he would not comply with
the subpoena or the March 16, 2006 order. The court then stated
the following:


                              -5-
       Therefore, the court makes a finding on the record
       that Mr. Jelanie Solomon has, in open court,
       through his attorney, refused to comply with the
       subpoena and provide handwriting exemplars as
       he has been ordered by the order of this court on
       March 16, 2006. His failure to comply with that
       order results in a finding of criminal contempt for
       his disobedience or resistance to a lawful writ,
       process, order, rule, decree or command. For that
       criminal contempt, he is sentenced to five months
       incarceration and will be remanded to the Bureau
       of Prisons for that period of time.

                               III.

        A nine-count indictment was subsequently returned
against Solomon, charging him and two other defendants with
conducting a drug trafficking conspiracy, and various firearms
and narcotics violations, including a charge of murder during
and in relation to a drug trafficking crime. After his indictment,
on April 4, 2006, the government obtained a search warrant for
Solomon’s blood and saliva. In support of its application for the
search warrant, the government submitted an affidavit by a
member of the Pennsylvania State Police, which stated that the
government had probable cause to believe that Solomon was
involved in the murder of Frank Halisek.



                               -6-
       In short, the affidavit asserted that Frank Halisek’s son
Shawn was an informant for the Pennsylvania State Attorney
General’s Office, and that Shawn Halisek was instrumental in
the investigation leading to the successful state prosecution of
Solomon. On January 19, 2004, the night before Solomon’s
state court trial, an individual named Claron Hanner shot and
killed Frank Halisek at his home. According to the affidavit, a
confidential informant who had at one point owned the gun used
in the murder, stated that he had later sold the gun to Solomon
for drugs. Laboratory tests performed on the gun indicated the
presence of two unidentified DNA profiles in addition to
Hanner’s. The affidavit concluded by stating that samples of
Solomon’s blood and saliva were needed to determine whether
Solomon’s DNA matched one of the unidentified DNA profiles
found on the gun.

        Before the warrant was executed, Solomon filed a motion
to quash. The motion asserted that there was not sufficient
probable cause for the issuance of the search warrant and that its
execution would violate his Fourth Amendment right against
unreasonable searches and seizures. On April 14, 2006, a
magistrate judge denied the motion. Solomon appealed to the
district court and, on May 1, 2006, the district court affirmed.1

       1
          Although the search warrant had expired on April 14, 2006,
the district court properly found that the motion to quash was not
moot because the Government stated that it intended to re-issue the
search warrant. See Cal. Coastal Com v. Granite Rock Co., 480 U.S.
572, 578 (1987) (case not mooted where the controversy is one

                                -7-
These appeals followed.

                                IV.

        We review the district court’s order holding Solomon in
contempt for an abuse of discretion. Harris v. City of
Philadelphia, 47 F.3d 1311, 1321 (3d Cir. 1995). Under this
standard, factual findings will be upheld in the absence of clear
error, but legal questions must be reviewed de novo. Id.; Wright
v. Nichols, 80 F.3d 1248, 1250 (8th Cir. 1996).

        Solomon challenges his criminal contempt conviction on
the solitary ground that the government failed to provide him
with a Schofield affidavit. As Solomon correctly states, this
court has held that, when a subpoena for purposes of a grand
jury proceeding is challenged, the government is required to
make some preliminary showing by affidavit 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,
486 F.2d 85, 93 (3d Cir. 1973) (Schofield I); see also In re
Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir.) (Schofield
II) (identifying this burden of proof as a "three-pronged showing
requirement"), cert. denied sub nom. Schofield v. United States,
421 U.S. 1015 (1975)(“What Schofield I did require, however,
was a minimum showing by affidavit in every case. .
.”)(emphasis added).


capable of repetition yet evading review).

                                -8-
       Unlike the present case which involves a conviction for
criminal contempt, the Schofield cases involved the imposition
of sanctions for civil contempt pursuant to 28 U.S.C. § 1826.
We have previously suggested that the Schofield requirements
may not apply to criminal contempt proceedings because, unlike
the imposition of civil contempt sanctions, which may be
summarily imposed, a criminal contempt defendant is afforded
the full panoply of due process protections. See In re Grand
Jury Proceedings Harrisburg Grand Jury 79-1, 658 F.2d 211,
217 (3d Cir. 1981)(hereinafter “Harrisburg Grand Jury 79-1”).

       In Harrisburg Grand Jury 79-1, the defendant had been
convicted for criminal contempt after he evaded a bench warrant
issued for his failure to comply with a grand jury subpoena. On
appeal, the defendant challenged his criminal contempt
conviction on the grounds that he was never provided a
Schofield affidavit. We rejected this argument, distinguishing
criminal contempt from the civil context at issue in Schofield:

      It should be stressed that in this context the
      procedural safeguards embodied in the Schofield
      rule are unnecessary, and any possible defect in
      the bench warrant here is rendered harmless
      precisely because a defendant in criminal
      contempt proceedings has the full panoply of
      safeguards accorded a criminal defendant. While
      Fed. R. Crim. P. 42, governing criminal contempt,
      authorizes summary punishment for contumacious

                              -9-
       acts committed in the presence of the court, see
       subsection (a), it otherwise requires notice and a
       full hearing. Rule 42(b). In addition to the
       guarantee set forth in Rule 42(b) of “a reasonable
       time for the preparation of the defense,” a
       criminal contempt defendant has the right to
       counsel and the right to refuse to testify. He is
       favored with a presumption of innocence, and
       must be found guilty beyond a reasonable doubt.
       Indeed, the very absence of constitutional and
       Fed. R. Crim. P. 42(b) safeguards for civil
       contemnors, and the uncertainty over the
       procedural rights required in section 1826
       proceedings -- the type of proceeding involved in
       Schofield -- assists in explaining the judicially
       devised Schofield protection for witnesses
       charged with contempt pursuant to section 1826.


Harrisburg Grand Jury 79-1, 658 F.2d at 216-217.

       It is not necessary to decide at this time, however,
whether failure to comply with Schofield requires the reversal
of a conviction for criminal contempt, because we find that, in
the present case, the government’s actions satisfied all Schofield
objectives. Schofield requires a showing by the government that
the items sought by a grand jury subpoena are (1) relevant to an
investigation being conducted by the grand jury; (2) properly
within its jurisdiction;and (3) is not sought primarily for another

                               -10-
purpose. Schofield I; 486 F.2d at 93. The government made the
necessary showing under Schofield when Postal Inspector
Bellisimo first met with Solomon and his attorney on March 9,
2003, and showed them a typewritten version of a letter,
allegedly written by Solomon, concerning the collection of
outstanding drug debts. At no time did Solomon object to the
relevance of the handwriting exemplars to the grand jury
proceedings or otherwise suggest that they were being sought
primarily for another purpose.

       Prior to the contempt hearing, the government again
produced the letter, this time a photocopy of the handwritten
original, to Solomon’s attorney. Again, the letter showed the
relevance of Solomon’s handwriting exemplars to the grand jury
investigation into Solomon’s drug trafficking activities. At the
hearing, Solomon objected, not to the relevance of the letter, but
to how it was obtained. Under these circumstances, we find that
the government fully satisfied its requirements under Schofield.

                               V.

        The parties disagree on the standard of review to be
applied with respect to Solomon’s sentence. The government
contends that we are to review Solomon’s sentence for criminal
contempt for abuse of discretion. Green v. United States, 356
U.S. 165, 187 (1958); United States v. Ray, 683 F.2d 1116,
1122 (3d Cir. 1982) (criminal contempt sentence “is within the
discretion of the judge and is reviewable only for an abuse of
that discretion”); United States v. Patrick, 542 F.2d 381, 392-93

                              -11-
(7th Cir. 1976), cert. denied, 430 U.S. 931 (1977).

        Solomon, on the other hand, argues that we must review
his sentence for “reasonableness,” the standard set forth by the
Supreme Court in United States v. Booker, 543 U.S. 220 (2005),
after the Court held that mandatory application of the Federal
Sentencing Guidelines was unconstitutional. Id. at 261-262. In
addition to eliminating those portions of the Sentencing Reform
Act of 1984 (the “Act”) that made the Guidelines mandatory,
Booker also excised, “because of its critical cross-references” to
the Guidelines, 18 U.S.C. § 3742(e), the statutory provision of
the Act governing the standard for reviewing sentences on
appeal. Id. In its place, the Court mandated review of sentences
under a standard of “reasonableness.” See United States v.
Cooper, No. 05-1447, 2006 U.S. App. LEXIS 8075 (3d Cir.
April 4, 2006) (setting forth a framework for conducting
reasonableness analysis).

                               1.

        Most federal crimes are classified by felony or
misdemeanor letter grades on the basis of the maximum
sentence that can be imposed. See 18 U.S.C. §§ 19, 3559(a).
Contempt, however, cannot be classified in this manner because
there is no maximum sentence imposed by statute. Instead, to
classify Solomon’s criminal contempt we look to the actual
sentence imposed. See Frank v. United States, 395 U.S. 147,
166 (1969)(“[I]n prosecutions for criminal contempt where no
maximum penalty is authorized, the severity of the penalty

                              -12-
actually imposed is the best indication of the seriousness of the
particular offense”); Cheff v. Schnackenberg, 384 U.S. 373, 380
(1966)(“Since Cheff received a sentence of six months'
imprisonment [for criminal contempt] . . .Cheff's offense can be
treated only as ‘petty’ in the eyes of the statute and our prior
decisions.”); United States v. Gedraitis, 690 F.2d 351, 354 (3d
Cir. 1982) (contempt deemed a misdemeanor within
magistrate’s jurisdiction because the penalty actually imposed
would not exceed six months’ imprisonment).

        Here, the sentence actually imposed by the district court
was five months’ imprisonment. It should therefore be
classified a Class B misdemeanor. See 18 U.S.C. § 3559(a)(7)
(offenses for which the maximum term of imprisonment
authorized is six months or less but more than thirty days are
classified as Class B misdemeanors). Such offenses are
specifically exempted from coverage under the Guidelines:

       The sentencing guidelines do not apply to any
       count of conviction that is a Class B or C
       misdemeanor or an infraction.

U.S.S.G. § 1B1.9.

       The commentary states that these offenses are excepted
from the Guidelines for reasons of judicial economy, and that,
“[n]otwithstanding any other provision of the guidelines, the
court may impose any sentence authorized by statute for each
count that is a Class B or C misdemeanor or an infraction.”

                              -13-
U.S.S.G. § 1B1.9 cmt. n.1, background.

                               2.

        While the Guidelines were in place, courts divided on the
standard of appellate review of sentences imposed for Class B
and C misdemeanors. Some courts held that, despite the
inapplicability of the Guidelines to such offenses, the standard
of review to be applied was nevertheless the one stated in 18
U.S.C. § 3742(e) for review of sentences imposed pursuant to
the Guidelines. These courts reviewed Class B and C
misdemeanor sentences under § 3742(e)(4)’s “plainly
unreasonable” standard, which applies to offenses “for which
there is no applicable sentencing guideline.” See United States
v. De Jesus, 277 F.3d 609, 612 (1st Cir. 2002); United States v.
Sharpton, 252 F.3d 536, 540 (1st Cir. 2001); United States v.
Bichsel, 156 F.3d 1148, 1151 (11th Cir. 1998).

       Others held that the “plainly unreasonable” standard of
review set forth in 18 U.S.C. § 3742(e)(4) does not apply to
Class B and C misdemeanor offenses, which are entirely
excluded from guidelines coverage. See United States v.
Gibson, 896 F.2d 206, 210 (6th Cir. 1990); United States v.
Snow, No. 98-5439, 1999 U.S. App. LEXIS 8349 (6th Cir. April
27, 1999); United States v. Clements, No. 91-5813, 1992 U.S.
App. LEXIS 7348 (4th Cir. April 16, 1992). These courts
continued to review sentences imposed for Class B and C
misdemeanors under the highly deferential pre-Guidelines
standard.

                              -14-
       We did not have the opportunity to consider the standard
of review for sentences for Class B and C misdemeanors while
the mandatory guidelines regime was in place. Upon present
consideration, we find that the exclusion of Class B and C
misdemeanors from the Guidelines provisions was intended to
place those offenses entirely outside the statutory scheme,
including the review provisions contained in § 3742(e).
Accordingly, we hold that our review of sentences imposed for
Class B and C misdemeanors must be conducted under the pre-
Guidelines standard applicable to those offenses, rather than the
reasonableness test set forth in Booker.2

                                 VI.

       The court’s power to impose penalties for criminal


       2
           We therefore need not confront the question of the
continued viability of the “plainly reasonable” standard of review
after Booker. Compare United States v. Johnson, 403 F.3d 813, 816-
17 (6th Cir. 2005); United States v. Soto, No. 05-2190, 2006 U.S.
App. LEXIS 18552 at *4 n.2 (6th Cir. July 20, 2006) (finding the
“plainly unreasonable” standard still viable after Booker for
sentences with no applicable sentencing guideline) with United States
v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005); United States v.
Cotton, 399 F.3d 913, 916 (8th Cir. 2005); United States v. Fleming,
397 F.3d 95, 99 (2d Cir. 2005) (holding that Booker's excision of §
3742(e), and its establishment of a reasonableness standard of review,
rendered the “plainly unreasonable” standard of § 3742(e) obsolete).


                                -15-
contempt derives from 18 U.S.C. § 401, which provides, in
relevant part:

       A court of the United States shall have power to
       punish by fine or imprisonment, or both, at its
       discretion, such contempt of its authority . . . as--
                            ....
       (3) Disobedience or resistance to its lawful writ,
       process, order, rule, decree, or command
       (emphasis added).

        Consistent with the statutory language, courts have been
afforded broad discretion in imposing an appropriate sentence,
whether fine or imprisonment, for disobedience of its orders
resulting in criminal contempt. United States v. United Mine
Workers, 330 U.S. 258, 303 (1947); Green v. United States, 356
U.S. 165, 188 (1958); Frank v. United States, 395 U.S. 147, 149
(1969)(“Congress, perhaps in recognition of the scope of
criminal contempt, has authorized courts to impose penalties but
has not placed any specific limits on their discretion.”); Ray,
683 F.2d at 1122; Patrick, 542 F.2d at 392-93. Indeed, there are
no statutory limits on the court’s discretion to impose penalties
for criminal contempt.3 The proper standard by which the court
is to determine the nature and extent of criminal contempt


       3
         Rule 42(a)(3) of the Federal Rules of Criminal Procedure,
which deals with criminal contempt, provides only that "upon a
finding or verdict of guilty [of criminal contempt] the court must
impose the punishment."

                               -16-
sanctions has long ago been stated by the Supreme Court:

       Sentences for criminal contempt are punitive in
       their nature and are imposed for the purpose of
       vindicating the authority of the court. . . .The
       interests of orderly government demand that
       respect and compliance be given to orders issued
       by courts possessed of jurisdiction of persons and
       subject matter. One who defies the public
       authority and willfully refuses his obedience, does
       so at his peril. In imposing a fine for criminal
       contempt, the trial judge may properly take into
       consideration the extent of the willful and
       deliberate defiance of the court's order, the
       seriousness of the consequences of the
       contumacious behavior, the necessity of
       effectively terminating the defendant's defiance as
       required by the public interest, and the importance
       of deterring such acts in the future. Because of the
       nature of these standards, great reliance must be
       placed upon the discretion of the trial judge.

United Mine Workers, 330 U.S. at 303.

       The sentence, left to the broad discretion of the trial
judge, is therefore reviewable only for an abuse of that
discretion. Green, 356 U.S. at 188; Patrick, 542 F.2d at 392-93;
Ray, 683 F.2d at 1122-1123; United States v. Sorrells, 877 F.2d
346, 348 (5th Cir.1989); United States v. Kimble, 305 F.3d 480,

                              -17-
485 (6th Cir. 2002).

        In the present case, we have no difficulty concluding that
the district court did not abuse its discretion by imposing a five-
month sentence upon Solomon for his refusal to provide
handwriting exemplars pursuant to subpoena and court order.
Solomon had been given numerous opportunities to provide the
samples, including the two occasions he was visited by Postal
Inspector Bellisimo at the Washington County Jail as well as in
open court at the contempt hearing. Solomon repeatedly refused
to comply. Moreover, the handwriting samples sought by the
subpoena were and are necessary for the investigation of the
crime of capital murder – certainly a matter of great public
interest. Accordingly, we hold that the five-month sentence
imposed was not an abuse of discretion.

                               VII.

       Solomon also seeks this court’s review of the district
court’s order denying his motion to quash the April 4, 2006
search warrant seeking samples of his blood and saliva.
However, Solomon cites no jurisdictional basis for this
interlocutory appeal. The order denying Solomon’s motion to
quash the search warrant is not a “final decision” under 28
U.S.C. § 1291. Midland Asphalt Corp. v. United States, 489
U.S. 794, 798 (1989) (“In criminal cases, [28 U.S.C. § 1291]
prohibits appellate review until after conviction and imposition
of sentence.”); Flanagan v. United States, 465 U.S. 259, 263
(1984); Berman v. United States, 302 U.S. 211, 212

                               -18-
(1937)(“Final judgment in a criminal case means sentence. The
sentence is the judgment.”); Catlin v. United States, 324 U.S.
229, 233 (1945) (“A ‘final decision’ generally is one which ends
the litigation on the merits and leaves nothing for the court to do
but execute the judgment.”); see also United States v. Peachtree
Nat'l Distributors, 456 F.2d 442, 444 (5th Cir. 1972) (holding
that an order authorizing the issuance of a search warrant was
not a final order under 28 U.S.C. § 1291 and hence not
appealable).

       Nor does the order denying Solomon’s motion to quash
qualify for interlocutory review pursuant to the collateral order
doctrine set out in Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949). The collateral order doctrine permits appellate
review of interlocutory orders that (1) conclusively determine
the disputed question, (2) resolve an issue completely separate
from and collateral to the merits of the litigation, and (3) involve
an important right that will be effectively unreviewable if
intermediate review is not granted. United States v. Levine, 658
F.2d 113, 117 (3d Cir. 1981) (citing Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978)).
       The denial of Solomon’s motion to quash the search
warrant does not satisfy the collateral order doctrine because it
does not satisfy the third requirement-i.e., it will not be
“effectively unreviewable” in the absence of interlocutory
consideration. If Solomon’s DNA matches, or does not match,
the DNA found on the gun, he may move to suppress the
evidence if there is a valid legal theory for doing so. If that
motion is denied, and if Solomon is convicted, the denial of the

                               -19-
motion to suppress may then be asserted as a ground for appeal
from the final judgment.

        “Adherence to [the] rule of finality has been particularly
stringent in criminal prosecutions because the delays and
disruptions attendant upon intermediate appeal, which the rule
is designed to avoid, are especially inimical to the effective and
fair administration of the criminal law.” Abney v. United States,
431 U.S. 651, 658 (1977). As we have previously stated:

       When the right to be tried in a particular manner
       is not vindicated prior to trial, the defendant can
       still avail himself of post-conviction remedies
       after the fact. This is true even if the defendant
       has already endured a trial that he should not have
       endured, and even if the proper remedy for the
       constitutional or statutory violation is dismissal of
       the charges or reversal of the conviction.

United States v. Liotard, 817 F.2d 1074, 1080 (3d Cir. 1987).

      As there is no authority providing us with jurisdiction to
review this interlocutory order, we cannot consider it.

                              VIII.

      For these reasons, we will affirm the Solomon’s five-
month sentence for contempt. We dismiss Solomon’s appeal
from the denial of his motion to quash the search warrant for

                               -20-
lack of jurisdiction.




                        -21-
