Filed: Mar. 23, 1993
Latest Update: Feb. 21, 2020
Summary: the John Doe named in the court order was his father. 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.
March 23, 1993 [NOT FOR PUBLICATION]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-
