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16-P-215                                            Appeals Court

           IN THE MATTER OF A GRAND JURY INVESTIGATION.


                            No. 16-P-215.

      Middlesex.        October 5, 2017. - December 11, 2017.

             Present:    Sullivan, Blake, & Singh, JJ.


Witness, Compelling giving of evidence, Self-incrimination.
     Constitutional Law, Self-incrimination. Cellular
     Telephone. Grand Jury. Privacy. Public Records.
     Practice, Criminal, Assistance of counsel. Contempt.


     Motion filed in the Superior Court Department on January
22, 2016.

     The proceeding was heard by Kimberly S. Budd, J., and entry
of a judgment of contempt was ordered by her.


     Joanne M. Daley, Committee for Public Counsel Services, for
the petitioner.
     Kevin J. Curtin, Assistant District Attorney, for the
Commonwealth.


    BLAKE, J.   The petitioner appeals from an order directing

him to enter his personal identifying number (PIN) access code

(hereinafter PIN code) into his Apple iPhone (a "smart" cellular
                                                                     2


telephone, hereinafter iPhone), and a subsequent judgment of

contempt for refusing to comply.     We affirm.

    Background.   A Middlesex County grand jury requested that

an assistant district attorney seek an order from a Superior

Court judge as part of an ongoing investigation of an assault

and battery on two children.   The Commonwealth thus moved for an

order that the petitioner produce the PIN code and any other

electronic key or password required for the iPhone.     A search

warrant previously issued in the Lowell Division of the District

Court Department had authorized a search of the contents of the

iPhone.

    The motion, the proposed order, and two additional

documents were filed in court under seal.     The motion and the

proposed order were served on counsel for the petitioner; the

additional documents were not.     One of the additional documents

was a statement showing the petitioner's ownership and control

of the iPhone and the Commonwealth's knowledge thereof.     The

other document was an affidavit of the assistant district

attorney, which summarized the evidence before the grand jury;

appended to the affidavit was a transcript of the grand jury

proceedings.

    The petitioner filed a reply.     After a hearing, in which

petitioner's counsel participated, the Commonwealth's motion was

allowed, and an order entered detailing the protocol by which
                                                                    3


the petitioner would enter the PIN code so that the search

warrant could be executed.     The order also prohibited the

Commonwealth from introducing evidence of the petitioner's act

of production in any prosecution of him.

    When the petitioner refused to comply with the order, the

Commonwealth filed a petition for civil contempt.      The same day,

the petitioner was adjudicated in civil contempt and was ordered

held in custody until he purged the contempt by complying with

the order.    A stay of execution of the judgment was allowed by

agreement.    This appeal followed.

    Discussion.     A.   Order to enter PIN code.   The Fifth

Amendment to the United States Constitution provides that "[n]o

person . . . shall be compelled in any criminal case to be a

witness against himself."     The protections of the Fifth

Amendment apply to testimonial statements that may support a

conviction, and to those that "would furnish a link in the chain

of evidence needed to prosecute" a defendant.       Hoffman v. United

States, 341 U.S. 479, 486 (1951).     See Couch v. United States,

409 U.S. 322, 328 (1973).

    When the Commonwealth compels a witness to produce

evidence, the act of production itself may implicate Fifth

Amendment concerns.      Commonwealth v. Gelfgatt, 468 Mass. 512,

520 (2014).   This is so because the act itself could be
                                                                    4


considered testimonial.    Id. at 520-521.   The Supreme Judicial

Court has summarized the applicable law as follows:


     "Although the Fifth Amendment privilege typically applies
     to oral or written statements that are deemed to be
     testimonial, . . . the act of producing evidence demanded
     by the government may have 'communicative aspects' that
     would render the Fifth Amendment applicable. . . . Whether
     an act of production is testimonial depends on whether the
     government compels the individual to disclose 'the contents
     of his own mind' to explicitly or implicitly communicate
     some statement of fact. . . . More particularly, the act
     of complying with the government's demand could constitute
     a testimonial communication where it is considered to be a
     tacit admission to the existence of the evidence demanded,
     the possession or control of such evidence by the
     individual, and the authenticity of the evidence."

Ibid.   Nonetheless, the law provides that the compelled

information may lose its testimonial character in certain

limited circumstances.    Id. at 522.   That is, even if the

compelled production does force the accused to disclose a

statement of fact, the sought-after information may lose its

testimonial character and not violate the defendant's Fifth

Amendment rights if the information provided is a "foregone

conclusion."   Ibid.

     "The 'foregone conclusion' exception to the Fifth Amendment

privilege against self-incrimination provides that an act of

production does not involve testimonial communication where the

facts conveyed already are known to the government, such that

the individual 'adds little or nothing to the sum total of the

Government's information.'"    Ibid., quoting from Fisher v.
                                                                     5


United States, 425 U.S. 391, 411 (1976).    To establish the

foregone conclusion exception, the Commonwealth bears the burden

to show "its knowledge of (1) the existence of the evidence

demanded; (2) the possession or control of that evidence by the

defendant; and (3) the authenticity of the evidence."       Ibid.   In

short, where the Commonwealth's motion compels a defendant to

tell "the government what it already knows," the motion "does

not violate the defendant's rights under the Fifth Amendment."

Id. at 524.    Contrast United States v. Hubbell, 530 U.S. 27, 43-

45 (2000).

       The foregone conclusion exception has applied when the

government independently and with specificity established the

authenticity, existence, and possession of the compelled

information.   Gelfgatt, supra at 522.   In Gelfgatt, the

Commonwealth possessed "detailed evidence" of fraudulent

mortgages linked to a financial services company.    468 Mass. at

523.   When the defendant was arrested, he admitted to the police

that he worked for the financial services company and had

communications with the company contained on his home computers,

which he had encrypted and only he could decrypt.    Id. at 517.

Although the court acknowledged that by entering an encryption

key into his computers, "the defendant implicitly would be

acknowledging that he has ownership and control of the computers

and their contents[,] . . . facts that would be relevant to the
                                                                     6


Commonwealth's case," id. at 522, the court found that "the

factual statements that would be conveyed" were a "foregone

conclusion," id. at 523, because "the defendant's act of

decryption would not communicate facts . . . beyond what the

defendant already . . . admitted to investigators."     Id. at 519.

    Here, the Commonwealth contends that the act of the

petitioner entering the correct PIN code, in light of the

evidence already known to the Commonwealth, communicates only

evidence that is merely a foregone conclusion and "adds little

or nothing to the sum total of the Government's information."

Id. at 522, quoting from Fisher, supra.    We agree.   To meet its

burden under this doctrine, the Commonwealth was required to

demonstrate knowledge of the petitioner's ownership and control

of the iPhone and its contents, as well as "knowledge of the

fact of [PIN code protection], and knowledge of the [existence

of the PIN code]."   Id. at 524.   The Commonwealth was not

required to show that it knew the specific content of the

iPhone, but it did need to demonstrate knowledge of the

existence and the location of the content.    Id. at 523, citing

United States v. Fricosu, 841 F. Supp. 2d 1232, 1237 (D. Colo.

2012) ("Fifth Amendment not implicated by requiring production

of unencrypted contents of computer where government knew of

existence and location of files, although not specific content
                                                                   7


of documents, and knew of defendant's custody or control of

computer").

    Here, the Commonwealth demonstrated sufficient knowledge to

show that the factual statements that the petitioner's act of

entering his PIN code would convey are foregone conclusions.     As

summarized in the grand jury materials submitted to the judge

under seal, the Commonwealth already knew that the iPhone

contained files that were relevant to its investigation based,

in part, on information provided by the petitioner.   In

addition, the Commonwealth knew that a PIN code was necessary to

access the iPhone, that the petitioner possessed and controlled

the iPhone, and that the petitioner knows the PIN code and is

able to enter it.   Accordingly, the Commonwealth established

independently and with specificity the authenticity, existence,

and possession of the compelled information.

    Thus, the order does not require the petitioner to

communicate information that would fall within constitutional

self-incrimination protection.   The affidavit in support of the

search warrant application established that the Commonwealth had

probable cause to believe that the iPhone contained evidence of

the crimes that are the subject of the grand jury investigation.

The order simply allows execution of that warrant.    See ibid.,

quoting from Fisher, 425 U.S. at 411 ("In those instances when

the government produces evidence to satisfy the 'foregone
                                                                      8


conclusion' exception, 'no constitutional rights are touched.

The question is not of testimony but of surrender'").

     B.    Discovery.   The petitioner contends that he was

entitled to discovery and to review the documents submitted to

the judge under seal.    The petitioner has not been charged with

a crime.   No member of the public, including the petitioner, has

any right to access matters occurring before the grand jury

during the preindictment phase of an ongoing criminal

investigation.   WBZ-TV4 v. District Attorney for the Suffolk

Dist., 408 Mass. 595, 599-602 (1990).1    Until he is a criminal

defendant, the petitioner is not entitled to discovery of any

grand jury materials or the status of the grand jury

investigation.   See Mass.R.Crim.P. 14(a)(1)(A)(ii), as amended,

444 Mass. 1501 (2005).     This is so because grand jury

investigations are secret.     Mass.R.Crim.P. 5(d), as appearing in

442 Mass. 1505 (2004) (prosecutors required to maintain secrecy

of grand jury proceedings).     See generally Opinion of the

Justices, 373 Mass. 915, 918-919 (1977) (reviewing history of

secrecy of grand jury proceedings).     In addition, a judge may

examine the Commonwealth's ex parte grand jury submission, and


     1
       The petitioner argues that the denial of his access to the
grand jury materials was compounded by a remark made by the
Commonwealth at the motion hearing suggesting that he had the
burden to establish that the foregone conclusion exception was
inapplicable. The remark, when read in context, does not
support the petitioner's position.
                                                                        9


an appellate court will examine that submission as well to

review the accuracy of the judge's determination.    See Pixley v.

Commonwealth, 453 Mass. 827, 836-837 (2009) (determination

whether judge erred in finding valid invocation of Fifth

Amendment privilege can be made to appellate court without

disclosure to parties of content of privilege hearing).     See

also In re:    Sealed Case, 162 F.3d 670, 673 n.3 (D.C. Cir. 1998)

(appellate court reviewed in camera grand jury materials to

determine whether government had established crime-fraud

exception to justify calling attorney to grand jury).

    The judge did not abuse her discretion in declining to

release the grand jury materials.

    C.    Ineffective assistance of counsel.    The petitioner next

contends that he was denied the effective assistance of counsel

because he was denied access to the Commonwealth's ex parte

submissions.    We disagree.   As conceded by the Commonwealth,

G. L. c. 277, § 14A, inserted by St. 1977, c. 770, provides that

"[a]ny person shall have the right to consult with counsel and

to have counsel present at . . . [the] examination before the

grand jury."    See Commonwealth v. Griffin, 404 Mass. 372, 373

(1989).   However, "[t]he attorney who accompanies a client into

the grand jury room has, by statute, a very limited role."        Id.
                                                                       10


at 375.2    Here, the petitioner neither was charged with a crime

nor testified before the grand jury when invited to do so.

Nevertheless, counsel was appointed on his behalf, and her role

was appropriately limited by the nature of the proceedings.

Even in this limited role, counsel was quite effective, as the

contempt judgment was stayed pending this appeal.       In addition,

the judge put parameters and limitations on the Commonwealth as

set forth in the order.     There was no ineffective assistance of

counsel.

     D.     Contempt judgment.   Finally, the petitioner's

contention that the judge abused her discretion in adjudicating

him in contempt for failure to comply with the order is

misplaced.    "[T]o constitute civil contempt there must be a

clear and undoubted disobedience of a clear and unequivocal

command."    Birchall, petitioner, 454 Mass. 837, 851 (2009),

quoting from Manchester v. Department of Envtl. Quality Engr.,

381 Mass. 208, 212 (1980).       The petitioner has the "burden of

proving his inability to comply with the court order."       Mahoney

v. Commonwealth, 415 Mass. 278, 286 (1993).       The petitioner made

no such showing.     This burden of production is also not


     2
       By statute, an attorney can advise her client on
privileges and can consult with her client upon reasonable
request for the opportunity to do so, but is not entitled to
discovery and may not make "objections or arguments or otherwise
address the grand jury or the district attorney." G. L. c. 277,
§ 14A.
                                                                 11


violative of the prohibition against self-incrimination.   Matter

of a Care & Protection Summons, 437 Mass. 224, 237-239 (2002).

The judge did not abuse her discretion in finding the petitioner

in civil contempt or in committing him until he purged the

contempt.   See Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125, 129

(1999).

                                    Order dated January 26, 2016,
                                     affirmed.

                                    Judgment dated January 29,
                                     2016, affirmed.
