
USCA1 Opinion

	




          July 22, 1994         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1704                            IN RE:  GRAND JURY PROCEEDINGS                                                                                      ____________________                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                      JOHN DOE,                                      Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Peter B. Krupp on brief for appellant.            ______________            Donald K. Stern, United States Attorney,  and Fred M. Wyshak, Jr.,            _______________                               ___________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Respondent John Doe appeals from the denial                 __________            of a second motion to vacate an order of civil contempt.  For            the reasons that follow, we affirm.                                           I.                  In the  fall of  1993, respondent  was called  to appear            before  a grand  jury investigating  alleged organized  crime            figures.   Citing a fear of reprisals against himself and his            family,  respondent  refused  to  testify.     He  thereafter            persisted in his recalcitrance  despite receiving an order of            immunity and a government  offer of placement in  the federal            witness protection program.  On December 8, 1993, after three            separate  hearings,  the district  court  held  him in  civil            contempt.  Finding a reasonable likelihood that incarceration            would eventually succeed in coercing his testimony, the court            ordered  that  respondent  be  imprisoned  for  a  period  of            eighteen  months, until  the expiration  of the  grand jury's            term,  or  until  he  purged  himself  of contempt--whichever            occurred  first.   See 28  U.S.C.    1826(a).   We thereafter                               ___            affirmed the  order of contempt, rejecting various procedural            challenges advanced  by respondent to the  proceedings below.            In  re Grand  Jury Proceeding  (Doe), 13  F.3d 459  (1st Cir.            ____________________________________            1994).                  In March 1994,  respondent filed a motion  to vacate the            contempt order.  In  a memorandum and accompanying affidavit,            he  contended that three months in prison had done nothing to            weaken  his resolve not to  testify.  He  reiterated that his            concerns for the safety  of himself and his family  were such            that  he would  never relent.   He  also stated  that he  had            recently learned  from the  government that the  grand jury's            term was due  to expire  in September 1994,  with the  result            that his incarceration would  necessarily end, at the latest,            by  that date.  The  serendipitous prospect of being released            nine  months   earlier   than  originally   anticipated,   he            explained,   only   strengthened   his  resolve   to   remain            recalcitrant.    In  response,  the  government  argued  that            respondent   had  failed  to  establish  that  his  continued            incarceration would have no realistic possibility of inducing            a change of  heart.  See,  e.g., In re  Grand Jury, 851  F.2d                                 ___   ____  _________________            499,  502 (1st Cir. 1988).   It also  contended that, because            the grand  jury investigation  was ongoing and  because other            witnesses  were involved  in contempt  proceedings, releasing            respondent after such a  short period would encourage similar            defiance by others and undermine the efficacy of the contempt            sanction.   The district court, in a margin order, denied the            motion to  vacate  "after a  thorough  review of  the  entire                                         -3-            record,  upon  the   grounds  urged   by  the   government."1            Respondent filed no appeal from this ruling.                 In June 1994, respondent filed a second motion to vacate            the  contempt  order.     His  accompanying   memorandum  and            affidavit largely  echoed those submitted earlier.   He again            insisted  that  his  resolve remained  unshaken  despite  his            ongoing imprisonment.   And he again argued that the prospect            of  being released no later than September 12, 1994, when the            grand jury's  term was  due to  expire,  only reinforced  his            determination.  In his view, because six months in prison had            failed to  induce his  testimony, another three  months would            likewise  fail  to  do so.    The  district  court, prior  to            receiving a  response from  the government,  summarily denied            the motion  in a margin order.   Respondent now appeals.   He            contends that the  court ignored  pertinent factual  matters,            applied incorrect legal standards, and abused  its discretion            in finding  that incarceration continued to  pose a realistic            possibility of inducing him to testify.                                          II.                 Due to the  absence of district court findings,  much of            respondent's argument on appeal  proceeds by indirection.  He                                            ____________________            1.  On the same day  of this ruling, respondent sought  leave            to  file  a  reply  brief in  response  to  the  government's            opposition.  The court later acted on this motion as follows:            "While the court allows the motion and has carefully reviewed            the attached reply brief, it adheres to its earlier denial of            the petition to vacate the finding of contempt."                                          -4-            suggests  that, in order to  infer the basis  for the court's            ruling on the second motion, one must turn to the articulated            basis  for its  ruling  on  the  first  motion.    There,  as            mentioned, the  court relied  on  the "grounds  urged by  the            government."  Respondent therefore undertakes  an examination            of those "grounds" and  proffers several alleged deficiencies            therein.    He contends  that  the government  there  made no            mention  of his  supporting  affidavits or  of the  scheduled            termination  of the grand  jury, improperly characterized the            maximum  eighteen-month term  as presumptively  coercive, and            impermissibly  relied on  the effect  that his  release might            have on other would-be contemnors.  In turn, respondent deems            it   appropriate  to   attribute  these   alleged  analytical            shortcomings to  the district court, thereby  concluding that            the denial of the second motion to vacate was in error.                  This line  of  reasoning falters  on  various  grounds.2            First,  it  is  of  course  speculative  to assume  that  the            district  court,  in  denying  the first  motion  to  vacate,            adopted   every  proposition  advanced  in  the  government's            opposition, and  that it  thereafter relied on  the identical            reasoning  in  denying  the   second  motion.    Second,  the            suggestion that the district court overlooked certain factual            matters--such as the scheduled  termination of the grand jury                                            ____________________            2.  We  need not  decide whether,  as the  government argues,            respondent has waived these  contentions by failing to appeal            from the denial of his first motion to vacate.                                           -5-            and  other  subjects mentioned  in  respondent's affidavits--            appears  entirely misplaced.   These matters were prominently            addressed by respondent in the  papers supporting both of his            motions  to  vacate.   As  mentioned above,  the  court twice            stated   that   it   had   carefully   reviewed  respondent's            submissions concerning his first motion.  There is  no reason            to suspect that the  court was any less diligent  with regard            to the second motion.                   Moreover, even if we  were to assume that the  court did            adopt  the government's  opposition  in its  entirety as  the            basis  for denying the second motion, we find nothing therein            so  amiss  as to  necessitate  a  remand.   The  government's            allusion  to the  eighteen-month statutory  maximum as  being            presumptively coercive  consisted simply of a  quotation from            In re Grand Jury Investigation (Braun), 600 F.2d 420, 427 (3d            ______________________________________            Cir. 1979) (endorsed in Simkin v. United States, 715 F.2d 34,                                    ______    _____________            37  (2d Cir.  1983)).   This  reference  fell well  short  of            proposing   the  type   of   rigid,  virtually   irrebuttable            presumption condemned in  In re Parrish,  782 F.2d 325,  326,                                      _____________            328 (2d Cir. 1986).  At no point  did the government question            the notion  that district  courts retain "a  broad discretion            ...  to determine that a civil contempt sanction has lost its            coercive  effect upon  a particular  contemnor at  some point            short of  eighteen months."   Sanchez v.  United States,  725                                          _______     _____________            F.2d  29, 31 (2d Cir. 1984) (per curiam) (quoting Simkin, 715                                                              ______                                         -6-            F.2d at  37)).  Nor  did the government  dispute that  such a            determination must be an individualized one "based on all the            circumstances pertinent to th[e]  contemnor."  In re Parrish,                                                           _____________            782 F.2d at 328.                   In  turn, the  government's reference  to the  effect of            respondent's   release   on  other   potential  contemnors--a            consideration specifically  endorsed in  In re  Crededio, 759                                                     _______________            F.2d 589, 592 (7th Cir. 1985)--was benign.   Whether reliance            on such  external factors  might under some  circumstances be            improper is a question we need not decide, for it is apparent            that no impropriety occurred here.  Respondent complains that            this  argument created  the risk  that his  incarceration was            imposed    without   due   regard   to   his   individualized            circumstances.   Yet  the government's  contention fell  well            short of a plea, of the type condemned in Simkin, 715 F.2d at                                                      ______            38, that respondent be imprisoned "as a warning to others who            might be  tempted to violate  their testimonial obligations."            And it is apparent that the district court's inquiry here was            properly  focused.  We noted  in the earlier  appeal that the            court had  "conducted a careful evaluation  of the individual            circumstances pertaining  to respondent."   In re  Grand Jury                                                        _________________            Proceeding  (Doe),   13  F.3d  at  463.     The  government's            _________________            opposition to the first motion  highlighted such factors.  We            have no reason to believe that the district court, in denying                                         -7-            the  second  motion,  suddenly  switched   gears  and  placed            principal reliance on other, possiblyimpermissible criteria.3                                         III.                 Respondent  also contends  that  the  court  abused  its            discretion in determining that  further incarceration posed a            realistic possibility of inducing him to testify.  Given that            the inquiry to be  made in this regard  "is far removed  from            traditional factfinding," In re  Parrish, 782 F.2d at 327,  a                                      ______________            district  court  enjoys  "wide  latitude  in  gauging whether            incarceration will  ... remain  ... coercive."   In re  Grand                                                             ____________            Jury (Doe), 13 F.3d at 463; accord, e.g., Simkin, 715 F.2d at            __________                  ______  ____  ______            38.   Although respondent contends that  his persistence over            the past seven months has established his unshakable resolve,            it  must  be  observed  that  "the  desire  for freedom,  and            concomitantly the willingness to testify, increases  with the            time  spent  in  prison."   In  re  Grand  Jury Investigation                                        _________________________________            (Braun), 600 F.2d at  428.  And,  we note, other courts  have            _______            upheld  similar   orders  after  even  lengthier  periods  of                                            ____________________            3.  Respondent  has  requested,  as  an  alternative form  of            relief, that the case be remanded for particularized findings            of fact.   Yet we  do not understand  him to be  arguing that            such findings are required in all such cases.  Given that the            court's view here is readily inferable from the context,  see                                                                      ___            Ticketmaster-New York,  Inc. v. Alioto, ___ F.3d ___, 1994 WL            ____________________________    ______            114817, at *2 (1st Cir. Apr.  13, 1994) (court of appeals may            affirm district court on any independently  sufficient ground            reflected in  the record), we see no  need to remand for this            reason,  much  less any  need  to  consider  imposing such  a            requirement across-the-board.                                         -8-            imprisonment.  See,  e.g., In  re Crededio, 759  F.2d at  589                           ___   ____  _______________            (ten  months); In  re Grand  Jury Investigation  (Braun), 600                           _________________________________________            F.2d at 420 (eight months).  We find no abuse of discretion.                 Affirmed.                 ________                                         -9-
