
USCA1 Opinion

	




          February 7, 1992                                 ___________________          No. 92-1028                                      IN RE: LAWRENCE J. COSTELLO, JR.,                                     Petitioner.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Lois M. Lewis on brief for appellant.               _____________               Wayne  A. Budd, United States Attorney and Elizabeth Keeley,               ______________                             ________________          Assistant United States Attorney, on brief for appellee.                                  __________________                                  __________________                    Per  Curiam.  The appellant, Lawrence J. Costello, Jr.,                    ___________          appeared before a grand jury on September 12, 1991, pursuant to a          subpoena.  The  grand jury was investigating a possible violation          of  18 U.S.C.    2114, relating to  an armed robbery  of a postal          employee  and truck  occurring  on  April  19,  1991.    Costello          appeared without counsel.  He was sworn and advised of his  Fifth          Amendment  privilege  against  self-incrimination and  his  Sixth          Amendment  right  to counsel.    He  was  then asked  to  provide          fingerprint and  palmprint exemplars and to be  photographed.  He          refused to do so.  That  same day, the grand jury voted to  order          Costello  to  furnish  the requested  material  and  Costello was          informed of the grand jury order.  He again refused to comply.               The government then moved in the district court for an order          to compel  Costello to  comply with the  grand jury  directive to          furnish   fingerprint   and   palmprint  exemplars   and   to  be          photographed.  The district court granted the motion to compel on          October 8, 1991.               On  October 24, 1991,  Costello was again  subpoenaed before          the grand  jury.   He  again appeared  without counsel.   He  was          served with  a copy of the court order of  October 8th.  He again          refused to comply and claimed a Fifth Amendment privilege against          self-incrimination.               On November 7, 1991,  the government moved, in the  district          court,  for  an  order  of contempt.    28  U.S.C.     1826.   At          Costello's  request, the government also moved for appointment of          counsel on Costello's behalf.  Counsel was appointed for Costello          on December 2, 1991 and a hearing was held on January 6, 1992.               At that hearing, counsel expressly disavowed any reliance on          the  Fifth   Amendment.1     Rather,  counsel   made  two   other          contentions.  First,  counsel argued that Costello had just cause          for  non-compliance because,  counsel  contended, the  government          already had the sought-after items within its possession or could          easily obtain them from other law  enforcement agencies.  Counsel          based this contention on the following.  Costello was arrested on          May  8,  1991,  in  Medfield, Massachusetts  by  a  local  police          officer,  who allegedly  witnessed  Costello  robbing an  armored          car.2   Costello was transported  to the Medfield  police station          where, according to Costello, he  was fingerprinted, palmprinted,          and  extensively photographed.   Also according to  Costello, two          F.B.I. agents  were present  at the  scene of  arrest and  at the          Medfield  station  and,  in  Costello's  presence,  these  agents          requested copies of  the prints  and the  photographs.   Costello          claims that two postal inspectors were at the Medfield station as                                        ____________________               1Counsel obviously  was cognizant  of  the settled  caselaw.          "It has long been held that the compelled display of identifiable          physical characteristics infringes no  interest protected by  the          privilege against compulsory  self-incrimination."  United States                                                              _____________          v. Dionisio, 410  U.S. 1, 5-6 (1973) (noting  with approval prior             ________          cases which  held that the  Fifth Amendment privilege  offered no          protection  against compulsion  to submit  to fingerprinting  and          photographing).       Nor   would    compelled   submission    to          fingerprinting,  palmprinting,  and  photographing  infringe  any          Fourth  Amendment right.    See id.  at 11,  14; see  also United                                      ___ ___              _________ ______          States v. Mara, 410 U.S. 19, 21 (1973).          ______    ____               2A second individual was arrested  along with Costello and a          manhunt was  undertaken to locate  a third suspect.   This second          individual  also  was subsequently  subpoenaed  before the  grand          jury, refused  to  comply  with  the  court's  order  to  furnish          fingerprint and palmprint  exemplars and to be  photographed, and          was held in contempt.  He has not appealed that contempt finding.          We, therefore, do not discuss him further.                                          3          well.    After  his  arraignment   the  next  day,  Costello  was          transported to  the Norfolk  County House  of Correction,  where,          according   to  Costello,   he   was   again  fingerprinted   and          palmprinted.3               Second,  counsel argued  that the  court  should direct  the          government to file affidavits detailing (1) the relevance of each          item   sought  to  the   grand  jury's  investigation,   (2)  the          jurisdiction of the grand jury  to request the item and (3)  that          the government  requests the item  for the purposes of  the grand          jury  and  no other  reasons.    Counsel  suggested that  such  a          requirement  was appropriate to  ensure against grand  jury abuse          and  so  that  Costello,  "already  subject  to  extensive  state          prosecution, is not exposed unnecessarily to other crimes."               Government counsel responded that (1) it was not required to          provide information as to the basis for the request for the items          sought and  (2) in any event, it would  not be seeking a contempt          order if, in  fact, it had access  to the items sought.   Counsel          conceded that fingerprints  of Costello existed, but  stated that          John Dunn,  the postal  inspector in charge  of the  April postal          truck robbery,  had inquired as  to palmprints  and a  right-side          profile photograph of  Costello and was told that those materials                                        ____________________               3According  to counsel,  in  connection  with  the  May  8th          arrest,  Costello has  been charged  in  fifteen indictments  for          attempted  murder, armed  robbery  while masked,  attempted armed          robbery,  unlawful possession  of  a  stolen  motor  vehicle  and          possession of stolen motor vehicle  license plates.  Prior to his          being transferred to  federal custody as a result  of the finding          of contempt,  Costello had been  held in state custody  since his          May 8th arrest,  unable to post the  required bail amount  of one          million dollars.                                          4          did not exist.               John Dunn  thereafter was sworn  in and  testified that  the          taking of palmprints  is not standard procedure in routine cases.          He opined  that identification was  not an issue with  respect to          the May armored  car robbery and testified  that the taking of  a          profile  photograph is  not standard  procedure  with many  local          police departments.   He had  spoken to State Trooper  Nagle, the          officer in charge  of the May armored  car robbery investigation,          who informed Dunn that he had no palmprints or right-side profile          photographs of  Costello.  Dunn stated  that he had seen  a front          facial photograph of Costello that Nagle had in his file.               Dunn  further  testified  that,  after  Costello  filed  his          affidavit  in which  he stated  that  extensive photographs  were          taken, he  phoned Trooper Nagle.  He  told Nagle of the affidavit          and  asked him to check  his file again.  With  Dunn still on the          line, Nagle pulled his  file and said that he had  photographs of          tattoos on Costello's body, but not any profile shot of his face.          Dunn testified:                    I told him  that there had been  an affidavit                    filed saying  that this  happened --  I mean,                    from  a  practical   standpoint,  if  they're                    there, I'm wasting my time.  I said, "Look in                    your  file again."   He  looked  in his  file                    again and he  said, "He may be  talking about                    the  tattoo  pictures  I took  of  his body."                    That was his response to me, "I have pictures                    of different  tattoos on  the body  and maybe                    they4  thought at  the time  I  was taking  a                    side shot of their [sic] face."  That was his                    response to me.                                        ____________________               4The plural  refers to  Costello and  the second  individual          arrested, who also had tattoos.                                          5               Dunn  also testified  that he  had  obtained a  photographed          record  of   Costello's  fingerprints  from   California,  where,          according  to Dunn, Costello  had previously served  prison time,          but there were  no palmprints or right-side  profile photographs.          Dunn stated that he had learned, from the U.S. Attorney's office,          that the FBI did not  have any palmprints or profile photographs.          He testified that,  in his opinion, he had  exhausted the avenues          from which to obtain those sought-after items.               Thereafter,  the court heard argument from counsel.  Counsel          pointed  out  that  the  government  had  conceded  that  it  had          fingerprints, yet  was asking for  an additional set,  and argued          that it was reasonable to assume that palmprints and side profile          photographs were  taken.   She  reiterated the  request that  the          court require  the government to  disclose the nexus  between the          items sought and the grand jury investigation.               The district court concluded,  based on Costello's affidavit          and Dunn's  testimony, that Costello  had failed to show,  as his          counsel urged, that the grand jury was seeking something to which          it already had access and, in light of that finding, the question          whether the  government ought to  be required to  file affidavits          relating why  it is  seeking these items,  despite being  able to          obtain them from other sources, was moot.               The district court found Costello in contempt of his October          8th order.  28 U.S.C.   1826.  Two days later, counsel moved  for          reconsideration, stating that  she had been informed  by Costello          that he was willing to be fingerprinted and palmprinted, but that                                          6          he was still unwilling tobe photographed.  That motionwas denied.               Counsel filed a  notice of appeal and sought  a stay pending          appeal.  The  court denied a  stay of the contempt  order pending          appeal.    It also  denied  a  motion by  Costello  for an  order          directing the government to inform him of the termination date of          the grand jury.   Costello appealed the order  of contempt and we          denied a stay pending appeal.  We now resolve the appeal.               In  view of  counsel's  representation  in  the  motion  for          reconsideration filed in the district court that Costello is  now          willing  to provide the  fingerprint and palmprint  exemplars, we          focus  on the  only  remaining  item  which  Costello  apparently          currently  contests, i.e., allowing  himself to be photographed.5          We  reiterate that this  grand jury directive  to be photographed          impinges on no constitutional privilege of Costello.  See note 1,                                                                ___          supra.          _____               Costello's arguments on appeal are meritless.  First of all,          they  seem misplaced.    Counsel argues  that  the government  is          seeking material  which it  already has in  its possession  or to          which it has access.   Based on the evidence before the  district          court, however, we cannot say that the district court was clearly          erroneous in finding  that the government,  in fact, had  neither          possession of, nor access to, a right-side  profile photograph of                                        ____________________               5In any event,  the result would not change  because we view          the   compelled   display   of   these   identifiable    physical          characteristics in the same light.  See note 1, supra.                                              ___         _____                                          7          Costello.6   In  re  Grand Jury  Subpoenas  (Anderson), 906  F.2d                       _________________________________________          1485, 1488 (10th Cir. 1990)  (a district court's findings of fact          in a  contempt matter  are reviewed  under the clearly  erroneous          standard).   So,  Costello's starting  premise  is factually  and          fatally wrong.  Consequently, insofar  as he suggests he is being          harassed  for duplicative material, his next contention, that the          government ought to be required to make a preliminary showing, by          affidavit, of the general purpose for the subpoena, is misplaced.               Costello may be  making a broader  contention, however.   He          cites  caselaw from  the  Third Circuit  which,  pursuant to  the                                        ____________________          6.  In affirming  this finding of  the district court, we  do not          suggest that government was required  to show that it neither had          possession of, nor access to,  the items sought.  Though Costello          denies that  he is suggesting  that the government should  show a          "need" for the material sought, we think his  claim of good cause          for  refusing  to  comply  because  the  government  already  has          possession  of, or  access to,  what it seeks  is, in  essence, a          claim that the  grand jury does not  "need" him to submit  to any          additional  photographing.  Whatever  the viability  of requiring          the  government to show "need and relevance" prior to enforcement          of  a grand  jury  subpoena,  see In  re  Grand Jury  Proceedings                                        ___ _______________________________          (Hill), 786 F.2d 3, 5  n.1 (1st Cir. 1986), a question  we do not          ______          resolve,  such  a  requirement  in  this  case which  involves  a          physical  characteristic  "constantly  exposed  to  the  public,"          United  States  v.  Dionisio,  410  U.S. at  14,  strikes  us  as          ______________      ________          particularly unwarranted, when considering the resulting costs.                    Requiring the  government to  show both  that                    the information it hopes  to obtain from [the                    summoned  witness]  is significant  and  that                    that  information is  unavailable from  other                    sources would obviously impair the efficiency                    of  grand juries.   Such a  requirement would                    bring    investigations    to    intermittent                    standstills  as  the  government set  out  to                    prove  the   necessity  of   each  piece   of                    information it sought to obtain.          In re Grand Jury Proceedings (John Doe), 862 F.2d 430, 431-32 (2d          _______________________________________          Cir. 1988).                                          8          federal courts' supervisory powers,  requires the government,  in                                                                         __          every case, to make a  preliminary showing by affidavit that each          __________          item is (1) at least relevant to an investigation being conducted          by the  grand jury and  properly within its jurisdiction  and (2)          not  sought primarily  for another  purpose.   In  re Grand  Jury                                                         __________________          Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973); In  re          _________________________                                  ______          Grand  Jury Proceedings  (Schofield II),  507  F.2d 963,  966 (3d          _______________________________________          Cir.),  cert.  denied,  421  U.S.  1015 (1975).    But,  we  have                  _____________          previously considered, and rejected,  adopting such a supervisory          role.   In In re Pantojas, 628 F.2d  701, 704-05 (1st Cir. 1980),                     ______________          we declined to impose the Schofield procedure, finding "little to                                    _________          convince us that  prosecutors are regularly overreaching  or that          the  district courts have been insensitive to irregularities that          may occur."  There is nothing in the record before  us suggesting          that,  in  the interim  since  Pantojas, grand  jury  abuses have                                         ________          either regularly  occurred or  escaped district  court attention.          And,  we certainly  see  no  such evidence  with  respect to  the          particular case before us.               We acknowledge  that  the Supreme  Court recently  suggested          that "a court  may be justified in a  case where unreasonableness          is  alleged in  requiring the  Government to  reveal  the general          subject  of the grand  jury's investigation before  requiring the          challenging  party to  carry its  burden of persuasion."   United                                                                     ______          States v. R. Enterprises, Inc., 111 S.  Ct. 722, 728 (1991).  The          ______    ____________________          Court went on to say that "[w]e need not resolve this question in          the present case, however, as  there is no doubt that respondents                                          9          knew  the subject  of the  grand jury  investigation pursuant  to          which the business records subpoenas were  issued."  Id.  So too,                                                               ___          in the  case before  us,  we need  not address  this concern  as,          without  a  doubt,  Costello  knew   that  the  grand  jury   was          investigating the April  1991 postal truck robbery,  as evidenced          by his response to the government's  petition for contempt, filed          three days before the contempt hearing.7               Lastly, Costello contests the district court's denial of his          request  for an  order directing the  government to  disclose the          termination date of the grand jury.   The government urges us not                                        ____________________          7.  And, in fact, Costello may  have received some indulgence.  A          subpoena recipient,  who claims that compliance  is unreasonable,          may not necessarily be entitled  to know even the general subject          of the grand jury's investigation.                    In cases where the recipient  of the subpoena                    does   not   know    the   nature   of    the                    investigation, we are confident that district                    courts  will  be  able to  craft  appropriate                    procedures that balance the  interests of the                    subpoena   recipient   against   the   strong                    governmental    interests   in    maintaining                    secrecy,       preserving       investigatory                    flexibility, and avoiding  procedural delays.                    For example, to ensure that subpoenas are not                    routinely challenged as a  form of discovery,                    a  district   court  may  require   that  the                    Government   reveal   the  subject   of   the                    investigation to the  trial court in  camera,                                                      __________                    so that the  court may determine whether  the                    motion to quash has a reasonable prospect for                    success  before  it   discloses  the  subject                    matter to the challenging party.          Id. at  728-29.  The  government disclosed the subject  matter of          ___          the grand jury investigation to the district court in camera when                                                             _________          it initially sought  the order to  compel in October 1991.   Even          considering  this recent  pronouncement  by  the  Supreme  Court,          therefore, there is  simply no basis for  Costello's challenge to          the issuance of this grand jury subpoena.                                          10          to address it, claiming that it was not timely raised and, in any          event,   would  not  excuse  Costello's  contempt  of  the  order          compelling  him to provide the  exemplars and to be photographed.          We  agree that  the refusal  to provide  Costello with  the grand          jury's  termination date  is not  just cause  for his  failing to          comply with the  prior court order.  Nonetheless,  this issue was          raised  in the district court, even if  during the hearing on the          stay  request  after the  finding  of  contempt issued,  and  the          district court ruled  on this motion.  We  believe, therefore, it          was timely raised.               We are unable to review its merits, however, for the lack of          a  sufficient record.   Although  the record  contains a  copy of          Costello's motion seeking  disclosure of the termination  date of          the  grand jury,  with  a  margin order  by  the district  court,          "1/8/92    Denied  after hearing  this  date,"  Costello has  not          provided us  with a transcript  of that January 8th  hearing, nor          has he told us of the basis for the court's ruling.  In re  Grand                                                               ____________          Jury Investigation (DiLoreto), 903 F.2d 180, 185 (3d Cir.  1990),          _____________________________          upon which Costello  relied, assumed, without deciding,  that the          standard  of review of a district  court order denying disclosure          of the termination  date of a grand jury is  abuse of discretion.          Costello does not argue for a less deferential standard of review          and  we also  shall assume,  without deciding, that  the district          court's  ruling on  this matter  may not  be disturbed  without a          showing of an abuse of discretion.  But without any indication of          the basis for  the ruling, we cannot find any abuse of discretion                                          11          or   undertake  any   otherwise   meaningful  appellate   review.          Costello, as appellant,  is responsible for providing  this court          with a sufficient  record upon which  to review the ruling  he is          challenging.   See, e.g.,  United States v.  Lebron-Gonzalez, 816                         _________   _____________     _______________          F.2d 823, 827 (1st Cir.) (the  burden of seeing that a record  is          adequate to present issues on appeal  rests on appellants), cert.                                                                      _____          denied, 484  U.S. 843 (1987).  He has not  done so.  We therefore          ______          decline to disturb the district  court's denial of his motion for          disclosure.               Affirmed.               _________                                          12
