                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1485

                      IN RE:  GRAND JURY

                                    

                          JOHN DOE,

                          Appellant.

                                         

                         ERRATA SHEET

The opinion  of this Court issued  on May 27,  1993 is amended  as
follows:

Page 7, III, Line  2:  Sentence should read "If the government  in
exchange for cooperation bound itself not to ask appellant any further
questions about  rent, then under the  case law he was  not obliged to
answer."

May 27, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1485 

                      IN RE:  GRAND JURY

                                    

                          JOHN DOE,

                          Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Mark L. Wolf, U.S. District Judge]
                                                  

                                         

                            Before

                   Selya, Boudin and Stahl,
                       Circuit Judges.
                                     

                                         

Morris  M.  Goldings,  Alice  E.  Moore,  and  Mahoney,  Hawkes  &amp;
                                                                  
Goldings on brief for appellant.
    
A. John Pappalardo, United  States Attorney, Fred  M. Wyshak,  Jr.
                                                                  
and  Brian T. Kelly, Assistant  United States Attorneys,  on brief for
               
appellee.

                                         

                                         

          Per Curiam.   Appellant has appealed  from an order
                    

of  the district  court  holding him  in  civil contempt  for

refusing to testify as a witness before a grand jury.  See 28
                                                          

U.S.C.    1826(a).   The  district court  granted appellant's

request for bail pending appeal, finding that the  appeal was

not frivolous or taken for delay.  Id.   1826(b).
                                      

                              I.
                               

          Appellant's relationship with the  government began

in July 1987 when he was served a subpoena to testify  before

a grand jury investigating money laundering, particularly  in

relation  to Heller's  Cafe and  Michael London.   Appellant,

through  his   attorney,  informed  the  government  that  he

intended to assert  his Fifth Amendment  right against  self-

incrimination.   The government  then  obtained an  order  of

immunity under 18 U.S.C.    6002 and 6003.

          Prior to appearing before the grand jury, appellant

and  his attorney  met informally  with Mitchell  Dembin, the

assistant   United   States  Attorney   in   charge  of   the

investigation, and  other law enforcement officers.   At this

pre-grand jury  meeting, appellant's attorney  advised Dembin

that appellant would refuse to answer any questions -- either

informally or before the grand  jury -- regarding the payment

of "rent."1   Appellant did  provide, on  an informal  basis,

                    

1.  According to the district court, "rent" is a term used to
refer  to  extortionate  payments that  bookmakers  have,  at
times,  been  required to  make  to  certain organized  crime
figures.

other information about  general gambling practices  directly

to Dembin.

          According  to Dembin's  affidavit submitted  to the

district  court, he had stated to appellant that he would not

ask appellant any questions  concerning rent before the grand

jury  or inquire  into  the identities  of those  running the

bookmaking  organization for  which  appellant  then  worked.

Dembin asserts,  in  the affidavit,  that  he had  made  this

decision  on   the   ground  that   the   "circumstances   of

[appellant's]  `rent'  and his  current  employment situation

appeared  to  be  beyond  the  scope  of  the  Heller's  Cafe

investigation."  Consequently, Dembin  did not ask about rent

when  appellant  appeared  before  the grand  jury  in  early

January 1988.   It  is undisputed,  however, that  Dembin was

aware  that  the  Organized   Crime  Strike  Force  was  then

investigating  allegations  that   certain  organized   crime

figures were requiring bookmakers to pay rent to them.

          In  December  1990,  appellant  received  a  second

subpoena  to appear before a grand jury.   At this time, Mark

Pearlstein was the assistant  United States Attorney involved

with  the grand  jury proceedings.   He  was investigating  a

check-cashing  business  suspected  of  money  laundering  on

behalf of bookmakers.  A  second immunity order was obtained.

Appellant again met with prosecutors on an informal basis and

provided them with  information concerning betting  practices

                             -4-

and procedures.   In his  affidavit, Pearlstein  acknowledges

that he  was  aware that  Dembin  had refrained  from  asking

appellant  about rent.  He followed the same path because the

subject of  rent payments "was of little  direct relevance to

the  investigation"  he  was conducting.    Accordingly, when

appellant appeared before the grand jury in January  1991, he

was not asked about rent.

          In February 1992, appellant made a third appearance

before a grand jury.  According to appellant, he was informed

that  this  was  the same  grand  jury  before  which he  had

appeared in 1991.  This time, the two United States Attorneys

who questioned  appellant were connected to  the Strike Force

and were investigating  the payment  of rent.   As a  result,

appellant was  questioned on this subject;  he testified that

he did not pay rent.  Appellant did not mention,  during this

grand  jury  appearance,  any  agreement or  promise  by  the

government that he would not be asked such questions.

          Also, in January  1993, appellant testified  at the

trial of Michael London.  Before giving his testimony, he met

with the  prosecutors for  five to eight  hours and  answered

many inquiries  concerning betting practices  and procedures;

nonetheless,  he was  not questioned about  rent.   At trial,

however, appellant  was asked  by the prosecution  whether he

paid  rent  to certain  individuals.   He  stated, as  he had

before the  grand jury, that he  did not pay rent.   After it

                             -5-

was learned that appellant had given false answers concerning

rent payments (both  at the  1992 grand jury  and the  London
                                                             

trial), appellant  was recalled  to the  stand in  the London
                                                             

trial.    He  then  admitted  that  he  had  given  incorrect

information, but declined  to identify anyone to  whom he had

paid rent.2    He again did not mention  any agreement to the

effect that he did not have to answer such questions.

                             II.
                               

          This brings us to the present.  Appellant, on April

8,  1993, appeared for the fourth time before the grand jury.

Again,  this  grand  jury  proceeding was  represented  as  a

continuation  of   the  prior  grand   jury  investigations.3

Appellant  now refused  to  answer  any questions  concerning

rent.    Upon the  government's  petition  for contempt,  the

district court  held a hearing at  which appellant testified.

He  asserted  that his  refusal to  testify  was based  on an

agreement between  himself and  the government that  he would

never  have to  answer questions  relating to the  payment of

rent as long as  he continued to answer  questions concerning

gambling practices in general.

                    

2.  According to  the government,  appellant was not  held in
contempt  because the  question  was  withdrawn  by  London's
counsel.

3.  To  avoid any  problems with  the  validity of  the prior
immunity orders, a new order was entered on April 28, 1993.

                             -6-

          The  district  court judge  made  several findings.

First, he  determined that appellant had  met informally with

Dembin prior to testifying before the grand jury, even though

the immunity order did not require such a meeting, because it

was in his best interests to  do so.  The judge  acknowledged

Dembin's statement that he would not question appellant about

rent.  He concluded that "Dembin did not promise [appellant],

however,  that  those  questions  would  never  be  asked  of

[appellant] before any future Grand Jury."

          Second,  the  judge accepted  the  explanation that

Dembin  was merely  being "prudent,"  seeking to  get answers

relevant  to  his  investigation without  the  time-consuming

delays of litigation.  The judge further held that

          in  January,  1988, [appellant]  may well
          have had  a hope  that he would  never be
          asked about rent.  I  also find, however,
          that he did not  then believe, and in any
          event could not have  reasonably believed
          that  he had  an  agreement or  assurance
          that he  would never be  asked about that
          subject.

          As for Pearlstein, the judge determined that he had

acted  with the same motives as  Dembin because, like Dembin,

he was interested in money laundering, not rent.  As such, he

also  had  sought  the  most  efficient  way  to  secure  the

information he needed.  Thus, the judge found, Pearlstein had

not,  through his  conduct,  "recognize[d]  or create[d]  any

agreement that the Government  would not ever ask [appellant]

. . . questions [about rent]."

                             -7-

          Based on the  foregoing, the  judge concluded  that

there was  no agreement between the  government and appellant

that he would never be asked about rent.  He pointed out that

appellant  had  never  raised   the  existence  of  any  such

agreement  when he  was asked  about rent  at the  1992 grand

jury,  nor did he attempt  to consult with  his attorney even

though  his  attorney  was  present outside  the  jury  room.

Appellant's failure  to mention  the agreement at  the London
                                                             

trial also belied his claim that an agreement concerning rent

then existed.   Finally, the judge  determined that appellant

"did  not rely to his detriment or give any consideration for

the purported agreement he now seeks to rely on."

          As   for  appellant's   claim  that   his  informal

cooperation  with  the  government  --  supplying information

outside   of   the  grand   jury   --   constituted  adequate

consideration, the judge declared:

               It is often the case that a  witness
          compelled to testify  will meet with  his
          counsel   and   the   Government   before
          testifying because it  has the  potential
          to make his Grand Jury testimony or trial
          direct  and  cross-examination  testimony
          proceed more smoothly.   I find that that
          is  essentially  what  occurred  in  this
          case.

Because appellant failed to establish a sufficient reason for

his  refusal to  answer  the questions  concerning rent,  the

judge granted the government's petition for contempt.

                             III.
                                

                             -8-

          Whether   the  conduct  in  this  case  constituted

contempt  turns  on a  simple issue.    If the  government in

exchange for  cooperation bound  itself not to  ask appellant

any  further questions about rent, then under the case law he

was  not obliged to answer.  Such commitments, where they are

made, are  treated as akin  to contracts and  construed under

contract  law principles.   United  States v.  Pelletier, 898
                                                        

F.2d 297, 301  (2d Cir.  1990); United States  v. Hogan,  862
                                                       

F.2d 386, 388 (1st Cir. 1988).  Indeed, "due process requires

that the government adhere to the terms of any . . . immunity

agreement it makes."  Pelletier, 898  F.2d at 302.  Where the
                               

terms of  an agreement  are not  clear because,  for example,

there  is  no written  contract,  the court's  "task  [is] to

construe the words used to try, if possible, to carry out the

intention  of the  parties  in light  of  all the  facts  and

surrounding circumstances . . . ."   In re Wellins, 627  F.2d
                                                  

969, 971 (9th Cir. 1980).

          In  this case,  the district  court found  as facts

that the government in the initial  grand jury sessions chose

not  to  question appellant  about  rent  but never  promised

appellant permanent  immunity from such questions.   Further,

the  district  court found  that  appellant  himself did  not

believe  that he had been given any such promise of permanent

immunity.    Findings  of  fact  by  the  district court,  in

contempt proceedings  as  elsewhere,  are  reviewed  under  a

                             -9-

deferential standard and will not be set aside unless clearly

erroneous.  See Fed. R. Civ. P. 52(a).

          The district  court's findings are  amply supported

by the  evidence.  There was no  written agreement; appellant

himself failed  to recollect,  even by  his own  account, the

precise  wording that  he now  claims to  have amounted  to a

binding  commitment; and  appellant's failure  to invoke  any

such  supposed agreement  when questioned  at the  1992 grand

jury session  thoroughly undercuts his present  claim.  These

facts support the finding that there was no commitment, hence

no justification for appellant's failure to testify.

          Given the  inherently factual nature of issues like

this  one,  there  is no  reason  to  address  at length  the

authorities  cited  by  appellant,  which  are  in  any  case

distinguishable.    In  In   re  Wellins,  for  example,  the
                                        

government  was  found to  have  obtained  cooperation by  an

agreement that  Wellins' cooperation would  not be  revealed;

and  the court  enforced that  agreement.   627 F.2d  at 971.

Similarly in In Re  Doe, 410 F. Supp. 1163 (E.D. Mich. 1976),
                       

a witness turned over drugs following a promise that he would

not be further questioned  about them and the court  held the

government to its commitment.

          If   appellant  in  this   case  had  a  comparable

agreement, it  too would be  enforced, but appellant  has not

proved such an  agreement.  Absent an agreement, the contempt

                             -10-

is   patent  and   the  order   under  review   is  affirmed.
                                                            

Appellant's motion for oral argument is denied.

                             -11-
