
USCA1 Opinion

	




        March 8, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1137                                        IN RE:                               GRAND JURY PROCEEDINGS.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                                 ____________________            Michael C. Andrews on brief for appellant.            __________________            Donald K.  Stern, United States Attorney,  and Ernest S.  DiNisco,            ________________                               __________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  This is an appeal from an order of the                      __________            district court  refusing to terminate  appellant's commitment            for civil contempt.                                          I.                                          _                      A grand jury  in the district of  Massachusetts has            been  investigating  the  operation  of  an  alleged  illegal            gambling racket.   Appellant  was one of  the targets  of the            investigation.   He was  indicted in  February  1992 and,  in            October 1992, he pleaded guilty.  Shortly before he was to be            sentenced, appellant  was  subpoenaed to  appear  before  the            grand jury.  Appellant refused  to testify and, on January 8,            1993, the  court granted  use immunity.   18 U.S.C.     6002,            6003.   Upon his continued  refusal to answer  questions, the            government filed a petition for contempt.  The district court            held a  hearing on  January 22.   At the  hearing appellant's            lawyer  stated that the reasons appellant refused to testify,            despite the grant  of immunity, were that he  was morally and            ethically  opposed to testifying  against anyone and  that he            feared for his  own safety and the safety of  his ex-wife and            children.                      Appellant did  not testify on his own  behalf.  His            attorney  added  the  information   that  appellant  had  not            cooperated during the two and a half years leading up to  his            indictment,  despite   government  efforts   to  secure   his            cooperation.  He also emphasized that the  government had not                                         -2-            sought  indictments  against  some  of  the  individuals  who            decided to  cooperate and, as  for others who  pleaded guilty            pursuant  to plea bargains,  the government  was recommending            probation.  In light of  this and the long sentence appellant            was  facing due  to  his non-cooperation,  he argued,  it was            plain  that  18  months of  further  incarceration  would not            coerce appellant to testify.  The court, relying, in part, on            the fact that  appellant had not yet spent any  time in jail,            held him in contempt and ordered him incarcerated pursuant to            28  U.S.C.     1826(a).    Four  days  later,  appellant  was            sentenced to a term  of imprisonment of 78 months and  a term            of supervised  release of  three  years.   This sentence  was            stayed during the  term of his civil  contempt incarceration.            Appellant did not pursue an appeal from the  initial contempt            order.                      He then  filed  a motion  to  vacate the  order  of            contempt  on September 23, 1993 -- approximately eight months            after he was held in  contempt.  The court denied  the motion            without  a hearing and  without findings of  fact.  Appellant            also did not  pursue an appeal  from this denial.   A  second            motion to vacate the contempt  order was filed on January 20,            1994 --  a year from the order of  contempt.  In this motion,            appellant repeated the arguments made in the initial hearing.            He added that even after  being indicted, he had continued to            refuse to cooperate despite the  promise of some leniency  in                                         -3-            the  government's  sentencing  recommendation.   Further,  he            argued,  he had  spent 12  of the  maximum 18  months without            changing his mind.  Given the long criminal sentence he faces            and  the now three and  a half years  of silence, he asserted            that there was  no chance he would ever testify.   Again, the            court denied the  motion by endorsement, without  stating its            reasons.                                         II.                                         __                      Appellant only argues, on appeal, that the district            court,  in denying his  motion to vacate  the contempt order,            failed to make the required individualized determination that            there  still  was  a  realistic  possibility  that  continued            incarceration  would  likely  result in  compliance  with the            order to testify.  Thus,  his only request is that we  remand            the case.                      Appellant relies on  Simkin v.  United States,  715                                           ______     _____________            F.2d 34 (2d Cir.  1983).  Simkin acknowledged the  "virtually                                      ______            unreviewable  discretion"  a  district  court  judge  has  in            deciding whether a  civil commitment has lost  "any realistic            possibility of having a coercive effect."  Id. at 38.   Given                                                       ___            the  speculative nature of  the decision, however,  the court            held that such deference is due "only  if it appears that the            judge  has assessed the likelihood of  a coercive effect upon            the  particular  contemnor"  by   making  "an  individualized            decision."   Id.   Appellant argues that  the record  here is                         ___                                         -4-            ambiguous and that  there is evidence that the  judge did not            make   an  "individualized"   determination  concerning   the            coercive  nature  of  his  incarceration.   Specifically,  he            points to a question by the judge, at the initial hearing, as            to whether appellant understood "the penalty" for refusing to            testify.                      We find appellant's argument  unpersuasive.  By the            time of  appellant's second motion,  the court had  before it            the transcript from the initial  hearing, appellant's current            affidavit  stating that  he would  never  testify before  the            grand jury, and the memoranda filed by the parties.  The only            new "evidence" presented for the court's consideration is the            length of time -- one year -- that appellant now has spent in            jail  under the  contempt  order.   Because  this factor  was            central   to  the  court's  initial  decision  to  order  the            incarceration of appellant, we think that it is reasonable to            assume  that  the   district  court,  in  deciding   to  deny            appellant's  motion for release, in fact, considered the time            appellant has served without testifying.                      Unlike  Simkin, there is no evidence that the court                              ______            here considered any  factors other than the  continued impact                                         __________            of   incarceration  on  appellant.    The  reference  to  the            "penalty" for not testifying was made in the initial hearing.                                                         _______            The district court's  decision arising out of that hearing is            not before us.  To the extent that appellant is arguing for a                                         -5-            mechanical  rule requiring a  formal statement or  finding in            every case, we think  that this case -- in which the district            court's view is  evident from context -- is  not the occasion            to consider imposing such a requirement.  Apart from the lack            of a  formal  finding,  appellant  has not  argued  that  the            district  court's action is subject to reversal (for example,            as  clearly  erroneous  or  demonstrably  based  on  improper            factors).                      Nothing we say  is intended to discourage  district            courts   from  explaining  their   actions  in  continuing  a            defendant's imprisonment for civil contempt.  The longer such            incarceration continues  without effect,  the more  uncertain            are  the prospects  that further  incarceration  will produce            compliance.    At  some  point  and  in  some  circumstances,            continued  incarceration might be hard  to justify or, at the            very  least,  would  call  for  some  explanation.   But  the            district court has considerable latitude in  evaluating these            prospective effects, In  re Grand Jury Proceeding  (Doe), No.                                 ___________________________________            93-2316, slip op. at 10-11 (1st  Cir., Jan. 10, 1994), and we            cannot say here that it has exceeded permissible bounds.                      Affirmed.                      ________                                         -6-
