
USCA1 Opinion

	




          March 23, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1203                           IN RE:  GRAND JURY PROCEEDINGS,                              _______________________                                UNITED STATES OF AMERICA,                                Petitioner, Appellee,                                          v.                                      JOHN DOE,                                Respondent, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________                    Joseph  James  Balliro,  Jr.  and  Balliro,  Mondano  &                    ____________________________       ____________________          Balliro, P.C. on brief for appellant.          _____________               A.  John Pappalardo,  United  States Attorney,  and Fred  M.               ___________________                                 ________          Wyshak, Jr., Assistant U.S. Attorney, on brief for appellee.          ___________                                  __________________                                  __________________                      Per  Curiam.   This  is an  appeal of  the district                      ___________            court's judgment of contempt.  We affirm.                                I.  Background                                      __________                      On November  6, 1992, a subpoena to  testify and to            produce certain documents  before a grand jury  was issued to            "John  Doe, Jr." ("Doe").1    The subpoena apparently related            to the restaurant and  lounge where Doe worked and  which was            owned  by Doe's  parents.   Doe's  attorney, Richard  Egbert,            informed  Assistant United States  Attorney Fred  Wyshak that            Doe  was  not an  authorized  officer of  the  restaurant and            lounge.  Nevertheless, Egbert agreed to provide the documents            sought, but he told Wyshak in a letter that  Doe would refuse            to answer any questions before the grand jury, relying on his            Fifth Amendment right not to incriminate himself.                          Pursuant to 18 U.S.C.   6001 et seq., Wyshak then            sought  Justice  Department  authorization  to  apply to  the            district  court  for  an  immunity order  compelling  Doe  to            testify.   Wyshak's application  named "John Doe"  (not "John            Doe,  Jr.") as the witness  for whom immunity  was sought and            provided  Doe's  birthdate  and  social  security  number  as            identifying  information.    The  Deputy  Assistant  Attorney            General of  the Criminal  Division of the  Justice Department            approved Wyshak's request.  On January 15, 1993, the district                                            ____________________            1.  The  subpoena was  issued  in the  appellant's name.   We            follow  the  government's lead,  however,  and  refer to  the            appellant in this opinion by the pseudonym Doe.                                           -2-            court issued its order  directing "John Doe" (not  "John Doe,            Jr.")  to  testify before  the grand  jury  under a  grant of            immunity.  Thereafter, a  second subpoena ordering "John Doe"            to appear on January  28 and the court's immunity  order were            delivered in hand to Doe.     The  day  before  Doe   was  to            testify, his attorney moved the court to continue Doe's grand            jury appearance.   As grounds for  the motion, Egbert  stated            that  a conflict in  his continued representation  of Doe had            arisen, requiring Doe to find new counsel, and that Doe would            be out of the state on vacation on the date he was ordered to            appear.    Egbert  did  not  object  to  the  fact  that  the            designation  "Jr." was not used after Doe's name in the court            order or in  the January  subpoena.  (Indeed,  his motion  to            continue Doe's  grand jury  appearance began "Now  comes John                                                                     ____            Doe, and  respectfully requests [a continuance  of] the Grand            ___            Jury appearance of Mr.  Doe . . . ." (our emphasis))  After a            hearing, the district court continued Doe's appearance  until            late February.  Doe  subsequently informed the agent who  had            served him with the subpoena and court order that he would be            consulting with  Egbert and would appear  as scheduled before            the grand jury.                        On  February  25,  1993,  Doe appeared  before  the            district  court, accompanied by  new counsel, Joseph Balliro,            Jr.   He claimed that his  name was "John Doe,  Jr." and that            the "John Doe" named in the court order was his  father.  The                                         -3-            court held a hearing, during which  Balliro conceded that the            social security number  and date of birth in  the application            were those of  Doe and not his father.   The court found that            the John Doe, who was then present before the court,  and who            had been  identified by  social security  number and  date of            birth in  Wyshak's application  for immunity, was  the person            whom  the court  had  ordered to  testify  under a  grant  of            immunity.  The court  also pointed out that the same John Doe            had  been the one who had invoked Fifth Amendment rights, and            who had sought to continue his appearance without challenging            either the  January subpoena  or the court's  immunity order.            Consequently, the court found that the immunity order applied            to Doe.  At the  end of the hearing, it  specifically assured            Doe  that "you  have  been granted  immunity"  and also  told            Balliro that "anything he says cannot be used against him nor            can it lead  to any evidence that could be used against him."                      Doe then appeared before the grand jury and refused            to  testify.   The  government petitioned  for a  judgment of            contempt,  which  the court  granted.    During the  contempt            hearing, Balliro  agreed that "there [was  no] question" that            Doe was the man who was  supposed to testify, but stated that            "I'm here to  suggest to you that  the technical requirements            of the [immunity statute] have not been complied with, that's            all."  After the court assured Doe once more that he had been                                         -4-            immunized and could  not be prosecuted  because of his  grand            jury testimony,  Doe again  declined to testify.   The  court            then found  Doe to be in  contempt of the court's  order, and            denied his request  for bail  and/or a stay  of the  contempt            order pending appeal.   The next day  Doe moved the  court to            stay its contempt order  pending decision on his accompanying            motion for disclosure of  information regarding the selection            of  the grand jury, asserting  that the order  to testify and            the  contempt judgment would be invalid if the grand jury had            not  been  "duly"  empanelled.   The  court  denied the  stay            motion.                         Doe  appealed  the  district  court's  judgment  of            contempt and moved in this court for bail pending appeal.  We            denied the motion for bail pending appeal.  We now affirm the            judgment of contempt.                                     II.  Discussion                                       __________                      A.  Alleged Misnaming of Doe in the Immunity Order                          ______________________________________________                      Doe  argues that  the requirements  of 18  U.S.C.              6001 et seq. were violated technically when the court ordered            "John  Doe" and  not "John  Doe, Jr."  to testify  before the            grand  jury, and  that  strict compliance  with the  immunity            statute is required since Doe's refusal to testify led to his            incarceration.  He further suggests  that the court could not            "amend"  its immunity order to  clarify that Doe  and not his            father  had been  ordered to  testify since  the  decision to                                         -5-            grant or  withhold immunity  is the exclusive  prerogative of            the  executive branch.   Finally,  he states  that he  had no            obligation to inform the government that it had immunized the            wrong  person and that he therefore could not have waived any            argument  by not  doing  so.2   Doe's  arguments are  without            merit.                        As counsel  for Doe conceded, there  is no question            that John  Doe, Jr. and not his father is the witness who was            subpoenaed to testify before  the grand jury and who  refused            to  do so  on  the  basis  of  his  privilege  against  self-            incrimination.   The first  subpoena issued in  November 1992            was  addressed  to  "John Doe,  Jr."    In  response to  that            subpoena, Doe's attorney notified  AUSA Wyshak by letter that            "John Doe,  Jr. . .  . would  refuse to answer  any questions            [before  the  grand  jury]  relying on  his  Fifth  Amendment            privilege."    Doe's  refusal  to  testify prompted  Wyshak's            application  for   authorization  to  seek   a  court   order            compelling Doe's testimony.                        Obviously,  the government  has some  obligation to            correctly identify the witness  subject to an immunity order.            The underlying justification for  requiring a witness to give            up  his  constitutional privilege  against self-incrimination            and  compelling him to testify  under a grant  of immunity is                                            ____________________            2.  In view of our disposition of Doe's misnomer argument, we            do not address his waiver argument.                                           -6-            that the grant  of immunity  will protect  that witness  from            prosecution  based  on  his  compelled  testimony except,  of            course, for  perjury.   Kastigar v.  United States,  406 U.S.                                    ________     _____________            441, 449, 453 (1972).   Therefore, we assume that  a witness,            based  on  his  constitutional   privilege  not  to  have  to            incriminate himself, may require the government to show that,            if he is compelled to testify under a court order,  he is the            one who will receive the  protection of the immunity  granted            by the order.                        If we had any concern that  Doe could be prosecuted            on  the basis of his compelled testimony (except for perjury)            because the grant of  immunity at issue here did  not clearly            apply to  him, we would likely vacate  the contempt judgment.            But, on this record, we have no such doubt.  Clearly, Doe was            the person  who had been  immunized, and  all parties  agreed            that he was  the person immunized.  The application submitted            to  the Department of  Justice sought immunity  for the "John            Doe"  who had  Doe's  (and not  his  father's) birthdate  and            social security number.  At the  hearing, the court confirmed            that it had intended to issue its order to that John Doe, who            had been the only  Doe active in this matter  since the first            subpoena had  issued in November, and  the court specifically            told Doe  and his counsel  that Doe was the  one immunized by            the order.   Furthermore, the  government willingly  concedes                                         -7-            that Doe is covered by the grant of immunity at issue in this            case.                       Since the  record plainly shows  that the  immunity            order pertained to Doe and not to his father, the  failure of            the immunity application and the court's order to include the            designation  "Jr." after  Doe's name  is of  no significance.            That this is  so is also shown readily  by reference to cases            amending  indictments which misstated  the defendants' names.                      ___________            See, e.g., Faust v.  United States, 163 U.S. 452,  452 (1896)            ________________     _____________            (indictment naming  "W.J. Foust" instead of  "W.J. Faust" was            not material variance); United States v. Mason, 869 F.2d 414,                                    _____________    _____            417 (8th Cir.) (district court properly amended indictment of            "John H. Borton" to read "John R. Borton" where the defendant            acknowledged that the grand jury  had intended to indict him,            the amendment did not change the substance of the indictment,            and  defendant had  not  been prejudiced  by the  amendment),            cert.  denied, 492 U.S.  907 (1989);  United States  v. Young            _____________                         _____________     _____            Brothers,  Inc., 728  F.2d  682, 693  (5th  Cir.) (the  court            _______________            properly  amended  a  misnomer  in an  indictment  where  the            defendant's rights  were not  affected and the  defendant had            been adequately apprised of  the charges, preventing surprise            at  trial or  subsequent prosecution  for the  same offense),            cert.  denied, 469  U.S.  881 (1984);  cf.  United States  v.            _____________                          __________________            Alessi,  638 F.2d 466, 477-79 (2d  Cir. 1980) (the government            ______            had shown  that defendant  "Gaetano Carcone" was  the "Thomas                                         -8-            Carcone" indicted by showing that the grand jury had intended            to indict the person who had the defendant's phone number and            address).                        We do not agree  that the court's confirmation that            John Doe,  Jr. was  the John  Doe in  its  order usurped  the            United States  Attorney's right to determine  that Doe should            be immunized.    The  record makes  clear  that  the  process            whereby  Doe received  immunity was  initiated by  the United            States Attorney  pursuant  to his  determination  that  Doe's            testimony  was necessary  and that  Doe should  be immunized.            Moreover, we have no  doubt that the court could  clarify any            ambiguity in its own order.  A court need not issue a written            immunity  order  under the  statute,  but may  issue  an oral            order.  See United States v.  Lach, 874 F.2d 1543, 1547 (11th                    _________________     ____            Cir.  1989); United States v.  Leyva, 513 F.2d  774, 776 (5th                         _____________     _____            Cir. 1975).  If the court  may grant an oral immunity  order,            then  certainly it has  full authority to  clarify orally any            alleged  ambiguity in a written order it has issued under the            statute.3     Finally, we  think it  apparent from  the birth            date  and  social  security  number that  the  Department  of            Justice intended to approve immunity for Doe, rather than his            father, and we reject the suggestion that the district  court                                            ____________________            3.  In view of our disposition of  this point, we see no need            to determine  whether the  court "amended" its  written order            during  the hearing  as Doe  claims, or  whether it  issued a            separate oral order which rendered "any alleged defect in the            written order . . . a nullity" as the government suggests.                                            -9-            in  any way infringed on  the authority of  the Department to            decide who should be immunized.                              B.  Selection of the Grand Jury                               ___________________________                      Doe's argument that he is entitled to challenge the            composition of the grand jury and thus entitled to disclosure            of  such information is also meritless.  Doe asserts that the            court's failure  to permit him to  discover information about            the  composition of  the  grand jury  violated his  statutory            rights  under  the  Jury  Selection and  Service  Act  ("Jury            Selection  Act"), 28  U.S.C.    1861 et  seq., and  under the            Constitution.                       Doe  appears to  find  support  for  his  statutory            argument  in Test v. United  States, 420 U.S.  28 (1975) (per                         ____    ______________            curiam), in  which the  Supreme Court  held that  a convicted            defendant  had the right to inspect  jury lists pertaining to            the grand jury which indicted him and to a pending petit jury            in his case.   The Court  found that  section 1867(f) of  the            Jury Selection Act gives a "litigant" an unqualified right to            inspect  jury lists.  In  a footnote, which  Doe seizes upon,            the Supreme Court essentially  defined the term "litigant" to            mean "the United States and the defendant in a criminal case,            and . . . any party in a civil case."                        The  Court's language, taken  out of context, might            suggest that  a civil  contemnor like  Doe is a  "party in  a            civil  case" who would have  a right to  challenge grand jury                                         -10-            selection procedures.  (We assume that it is obvious that Doe            is  not a  "defendant in a  criminal case.")   Even a cursory            reading  of   the  statute,  however,  shows   that  such  an            interpretation  would be  wrong.   The provision  in question            permits  parties  in civil  cases in  which  a petit  jury is                                              ___________________________            empanelled  to challenge  jury selection  procedures, see  28            __________                                            ___            U.S.C.   1867(c), and  so does not  apply to persons held  in            civil  contempt by a  court or witnesses  testifying before a            grand jury.                            Indeed, Doe's  argument that he  may challenge  the            composition  or selection of the grand jury has no support at            all in case law.  As  far as we have been able to  determine,            all  courts which  have considered  this question,  including            this  court, have  held that  a recalcitrant  witness has  no            standing  to challenge  the composition  or selection  of the            grand jury, whether under the Jury Selection Act or under the            Constitution.   See In re  Maury Santiago, 533  F.2d 727, 730                            ___ _____________________            (1st Cir.  1976) (a recalcitrant  witness has no  standing to            challenge the composition of a grand  jury); United States v.                                                         _____________            Duncan,  456  F.2d  1401,  1403 (9th  Cir.)  (a  recalcitrant            ______            witness did not have standing under the Jury Selection Act to            challenge grand jury selection procedures because she was not            a "defendant" and had  not been indicted by the  grand jury),            vacated on other grounds, 409 U.S. 814 (1972);  United States            ________________________                        _____________            v. Caron, 551 F. Supp. 662,  665 (E.D. Va. 1982) (neither the               _____                                         -11-            language nor the purpose of the Jury Selection Act supports a            witness's  right to challenge  the grand  jury's composition,            nor  did  a  recalcitrant  witness have  standing  under  the            Constitution  to raise  irregularities in the  empanelling of            the grand jury), aff'd,  722 F.2d 739 (4th Cir.  1983), cert.                             _____                                  _____            denied, 465 U.S. 1103 (1984); cf. Matter of  Special February            ______                        _______________________________            1975  Grand Jury, 565 F.2d 407, 412 (7th Cir. 1977) (although            ________________            an  indicted  defendant   would  clearly  have  standing   to            challenge  the  composition  of  the grand  jury,  the  court            doubted that  witnesses subpoenaed to testify  before a grand            jury had standing to challenge the composition of the jury on            equal  protection  grounds)  (dictum).    We  have  found  no            contrary  authority on point.4   Because Doe had  no right to            challenge the grand  jury's empanellment, he had  no right to            obtain discovery about grand jury  selection procedures under            the  Jury Selection  Act.   See Matter  of Archuleta,  432 F.                                        ________________________                                            ____________________            4.  In United States  ex rel. Chestnut  v. Criminal Court  of                   _______________________________     __________________            New York, 442 F.2d 611, 615 n.7 (2d  Cir.), cert. denied, 404            ________                                    ____________            U.S. 856 (1971), the court  concluded that defendants who had            been convicted  of criminal  contempt for refusing  to answer            questions before a state grand jury under a grant of immunity            could  challenge the selection of the grand jury where it was            the grand jury who  had ordered the filing of  an information            charging criminal  contempt.   The Second Circuit  itself has            indicated that that case would be a "weak reed" to rely  upon            for any witness held in civil contempt who tries to challenge            a grand jury array  under the Jury Selection Act.  See Matter                                                               __________            of Archuleta, 561  F.2d 1059,  1063 n.7 (2d  Cir. 1977);  see            ____________                                              ___            also Matter of Archuleta, 432 F.  Supp. 583, 590-93 (S.D.N.Y.            ________________________            1977)  (stating, after  extensive discussion  of more  recent            case law, that "we have substantial doubt whether Chestnut, .                                                              ________            . . is still controlling").                                           -12-            Supp.  583,  587, 600  (S.D.N.Y.  1977)  (denying grand  jury            witness's  motion for discovery  of materials regarding grand            jury selection procedures after concluding that a  subpoenaed            witness  had no  standing to challenge  the selection  of the            grand jury on a motion to quash the subpoena).                        Doe further alleges that  imprisoning him for civil            contempt "without affording him the opportunity to review the            Grand Jury is  a violation  of his rights  to Due Process  of            Law,  as well  as,  the  Fourth,  Fifth,  Sixth,  and  Eighth            Amendments to the  Constitution of the  United States."   But            Doe makes no attempt to support his allegation with case law,            nor does  he explain precisely how  his constitutional rights            under the  specific amendments  he names have  been violated.            The  tone of his brief  is purely hortatory  -- without legal            support or  any argument, he urges the  court to give Doe the            same  right as  criminal defendants  to question  whether the            grand  jury  was  duly  empanelled  simply  because,  like  a            convicted  criminal  defendant,  he  has  been  incarcerated.            Arguments not seriously developed  on appeal are, as  is well            settled in this circuit, deemed waived.  See United States v.                                                     ___ _____________            Zannino,  895 F.2d 1, 17  (1st Cir.), cert.  denied, 494 U.S.            _______                               _____________            1082 (1990).                                       III.  Conclusion                                           __________                      The reasons Doe has advanced to support his refusal            to  testify are without merit.   Accordingly, he  has not met                                         -13-            his  burden  respecting  the  existence  of  just  cause  for            refusing  to testify and the district court did not abuse its            discretion  in ordering him held  in civil contempt.   See 28                                                                   ___            U.S.C.      1826(a)  (the  court  may   summarily  order  the            confinement of a witness who  refuses "without just cause" to            testify  pursuant   to  court   order);  In  re   Grand  Jury                                                     ____________________            Proceedings, 943 F.2d 132,  136 (1st Cir. 1991) (we  review a            ___________            contempt finding for abuse of discretion).                        The judgment of contempt is affirmed.                                                     _________                                         -14-
