
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1705                                         IN RE:                               GRAND JURY PROCEEDINGS.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Selya and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            Bernard Grossberg and Erin Kelly on brief for appellant.            _________________     __________            Donald K. Stern, United States Attorney, Paul  V. Kelly, Assistant            _______________                          ______________        United States Attorney,  Frank A. Libby, Jr.,  Assistant United States                                 ___________________        Attorney,  and  Robert  L. Peabody,  Special  Assistant  United States                        __________________        Attorney, on brief for appellee.                                 ____________________                                    July 22, 1994                                 ____________________                      Per Curiam.   Appellant has appealed from  an order                      __________            of  the district  court  holding him  in  civil contempt  for            refusing,  despite a  grant  of  immunity,  to testify  as  a            witness before  a grand jury.  See 28  U.S.C.   1826(a).  The                                           ___            district court, finding that the appeal was neither frivolous            nor taken  for delay,  granted appellant's  request for  bail            pending appeal pursuant to 28 U.S.C.   1826(b).                      Appellant's  position  is  that he  should  not  be            compelled  to  testify  because   the  government's  intended            questioning of  him would  constitute an abuse  of the  grand            jury  process.  The government seeks his testimony, according            to  appellant, for  the primary purpose  of assisting  in the            prosecution of a pending indictment.  "It is well established            that a  grand jury may  not conduct an investigation  for the            primary   purpose   of   helping   the  prosecution   prepare            indictments for trial.  The  prosecutor at a trial,  however,            may  use evidence  incidentally  gained  from  a  grand  jury            primarily  investigating other  crimes."   In  re Grand  Jury                                                       __________________            Proceedings,  814 F.2d  61,  70  (1st  Cir.  1987)  (citation            ___________            omitted).   See In re Maury Santiago,  533 F.2d 727, 730 (1st                        ________________________            Cir. 1976);  United States v.  Doe, 455 F.2d 1270,  1273 (1st                         _____________     ___            Cir. 1972).                                         -2-                                     Standing                                      ________                      The threshold  question,  argued at  length by  the            parties in their briefs, is whether appellant has standing to            challenge   the  legitimacy  of  the  grand  jury's  inquiry.            Appellant is  a mere witness,  neither a target of  the grand            jury's investigation  nor a  defendant named  in the  pending            indictment.                       The Supreme Court in United States v. Calandra, 414                                           _____________    ________            U.S. 338 (1974),  has stated that a witness  is not "entitled            'to  challenge the  authority of  the court  or of  the grand            jury' or 'to  set limits to the investigation  that the grand            jury  may conduct.'"   Id.  at 345  (quoting Blair  v. United                                   ___                   _____     ______            States,  250  U.S. 273,  282  (1919)).    On its  face,  this            ______            statement  could well  be  read  to signal  the  view of  the            Supreme  Court that appellant's  challenge is precluded.   At            least  one court  has  so  interpreted  the  Supreme  Court's            language.  In re Grand  Jury Subpoenas of Clay, 603  F. Supp.                       ___________________________________            197,  200 (S.D.N.Y. 1985).  This approach would guard against            unwarranted  interference  with  the  smooth  and   effective            functioning of the grand jury process.                      On  the  other hand,  this  court  in In  re  Maury                                                            _____________            Santiago, supra,  533 F.2d at  730, did  consider a  witness'            ________  _____            claim  that the prosecutor was  improperly using a grand jury            to prepare a  pending indictment for trial and  to harass the                                         -3-            witness   for  his  political  beliefs.    We  noted  that  a            recalcitrant  witness   lacks  standing   to  challenge   the            composition of  the grand jury  or to contend that  the grand            jury's  investigation  did  not  concern  matters  within the            subject  matter  jurisdiction  of the  federal  courts.   Id.                                                                      __            Nevertheless,  after holding that "[t]he  courts . . . retain            general  supervisory power  over the  grand  jury to  prevent            abuse of its  process . . .  ,"  we entertained  and rejected            the witness' claims.  Id.                                  __                      In  this  case,  for the  reasons  we  will discuss            below, we would reject appellant's  arguments even if we were            to rule that he had  standing to present them.  Consequently,            we need not rule on the question of standing.  See  Norton v.                                                           ___________            Mathews, 427  U.S. 524, 530-32  (1976) (when relief is  to be            _______            denied  whether  or  not  the  court  has  jurisdiction,  the            jurisdictional question need not necessarily be decided).                                   The Merits                                    __________                      We turn, therefore, to the  merits.  In response to            appellant's claim  of grand  jury abuse,  the district  court            ordered the government  to file a sealed,  ex parte affidavit                                                       ________            explaining why its questioning of appellant did not  have the            primary purpose of  assisting the prosecution of  the pending            indictment.     The  court   reasoned  that  "[i]n   view  of                                         -4-            [appellant's]  evident lack  of standing  and the  legitimate            need for grand jury investigations to proceed without lengthy            interruptions, no  more elaborate  procedure for  determining            the  grand jury's purpose is appropriate in the circumstances            of this case."                        After reviewing  the ex  parte affidavit,                                           _________                      signed  by one  of  the prosecutors,  the                      court ruled that  "for present purposes .                      .  .  the  grand  jury  is  not   seeking                      [appellant's]    testimony   solely    or                      primarily to  obtain evidence to  be used                      in prosecuting the  pending cases against                      other  individuals.   Rather, it  appears                      that   the   grand   jury   is   properly                      investigating individuals who are not now                      the subject of any indictment, as well as                      possible   additional,  serious   charges                      against some  current defendants.   There                      does,   however,   appear  to   be   some                      relationship between some  of the matters                      being   investigated   and   the  pending                      charges against some present defendants."                      We  have   carefully  reviewed   the  prosecution's            affidavit.   We agree  with the district  court that  it does            indeed  demonstrate   that   the  primary   purpose  of   the            government's  questioning  of  appellant  is  to  investigate            crimes  other  than  those charged  in  the  indictment, both            additional charges against defendants named in the indictment            and  charges that might be brought against other individuals.                      It  is  true, as  the district  court acknowledged,            that there  is an overlap  between some of these  matters and            the  charges  contained  in  the  pending  indictment.    The                                         -5-            prosecution could obtain information  from its questioning of            appellant that would  aid it in prosecuting  that indictment.            As long as this is not the primary purpose of the questioning            -- and we  have held for present  purposes that it is  not --            there is  nothing  objectionable  about  this,  since  "[t]he            prosecutor at  a trial  . . .  may use  evidence incidentally            gained  from  a  grand  jury  primarily  investigating  other            crimes."   In re Grand  Jury Proceedings, supra, 814  F.2d at                       _____________________________  _____            70.  Should  subsequent events demonstrate that,  despite our            current  ruling, the grand jury process has been abused here,            the defendants can move at trial to exclude any evidence that            was obtained  from appellant through abuse of  the grand jury            process.   See In  re Grand Jury  Subpoena Duces  Tecum Dated                       __________________________________________________            January 2,  1985 (Robert  M. Simels, Esq.),  767 F.2d  26, 30            __________________________________________            (2nd Cir. 1985); Doe, supra, 455 F.2d at 1276.                             ___  _____                      We  also  agree   with  the  district  court   that            requiring  a sealed, ex parte affidavit from the prosecution,                                 ________            and  no   more,  was   an  adequate   procedure,  under   the            circumstances of  this  case, to  probe  whether or  not  the            prosecution was attempting to abuse the grand jury process in            its interrogation of appellant.  Although this procedure does            deprive appellant of  an opportunity to contest  the contents            of the sealed  affidavit, the prosecution's need  for secrecy            here  is manifest.   A  requirement that  the  district court            conduct a  "minitrial" in  such circumstances  would tend  to                                         -6-            disrupt the  smooth and  effective functioning  of the  grand            jury process.  Especially given  the clear sufficiency of the            prosecution's  affidavit,  no  such  extended  procedure  was            necessary here.  See In re Grand Jury Proceedings, supra, 814                             ________________________________  _____            F.2d at 72-73.                      The order of the district court is affirmed.                                                         ________                                         -7-
