
USCA1 Opinion

	




                            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        May 27, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  &            ____________________   ________________        ___________________        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-
