USCA1 Opinion
February 7, 1992
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No. 92-1028
IN RE: LAWRENCE J. COSTELLO, JR.,
Petitioner.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Lois M. Lewis on brief for appellant.
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Wayne A. Budd, United States Attorney and Elizabeth Keeley,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. The appellant, Lawrence J. Costello, Jr.,
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appeared before a grand jury on September 12, 1991, pursuant to a
subpoena. The grand jury was investigating a possible violation
of 18 U.S.C. 2114, relating to an armed robbery of a postal
employee and truck occurring on April 19, 1991. Costello
appeared without counsel. He was sworn and advised of his Fifth
Amendment privilege against self-incrimination and his Sixth
Amendment right to counsel. He was then asked to provide
fingerprint and palmprint exemplars and to be photographed. He
refused to do so. That same day, the grand jury voted to order
Costello to furnish the requested material and Costello was
informed of the grand jury order. He again refused to comply.
The government then moved in the district court for an order
to compel Costello to comply with the grand jury directive to
furnish fingerprint and palmprint exemplars and to be
photographed. The district court granted the motion to compel on
October 8, 1991.
On October 24, 1991, Costello was again subpoenaed before
the grand jury. He again appeared without counsel. He was
served with a copy of the court order of October 8th. He again
refused to comply and claimed a Fifth Amendment privilege against
self-incrimination.
On November 7, 1991, the government moved, in the district
court, for an order of contempt. 28 U.S.C. 1826. At
Costello's request, the government also moved for appointment of
counsel on Costello's behalf. Counsel was appointed for Costello
on December 2, 1991 and a hearing was held on January 6, 1992.
At that hearing, counsel expressly disavowed any reliance on
the Fifth Amendment.1 Rather, counsel made two other
contentions. First, counsel argued that Costello had just cause
for non-compliance because, counsel contended, the government
already had the sought-after items within its possession or could
easily obtain them from other law enforcement agencies. Counsel
based this contention on the following. Costello was arrested on
May 8, 1991, in Medfield, Massachusetts by a local police
officer, who allegedly witnessed Costello robbing an armored
car.2 Costello was transported to the Medfield police station
where, according to Costello, he was fingerprinted, palmprinted,
and extensively photographed. Also according to Costello, two
F.B.I. agents were present at the scene of arrest and at the
Medfield station and, in Costello's presence, these agents
requested copies of the prints and the photographs. Costello
claims that two postal inspectors were at the Medfield station as
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1Counsel obviously was cognizant of the settled caselaw.
"It has long been held that the compelled display of identifiable
physical characteristics infringes no interest protected by the
privilege against compulsory self-incrimination." United States
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v. Dionisio, 410 U.S. 1, 5-6 (1973) (noting with approval prior
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cases which held that the Fifth Amendment privilege offered no
protection against compulsion to submit to fingerprinting and
photographing). Nor would compelled submission to
fingerprinting, palmprinting, and photographing infringe any
Fourth Amendment right. See id. at 11, 14; see also United
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States v. Mara, 410 U.S. 19, 21 (1973).
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2A second individual was arrested along with Costello and a
manhunt was undertaken to locate a third suspect. This second
individual also was subsequently subpoenaed before the grand
jury, refused to comply with the court's order to furnish
fingerprint and palmprint exemplars and to be photographed, and
was held in contempt. He has not appealed that contempt finding.
We, therefore, do not discuss him further.
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well. After his arraignment the next day, Costello was
transported to the Norfolk County House of Correction, where,
according to Costello, he was again fingerprinted and
palmprinted.3
Second, counsel argued that the court should direct the
government to file affidavits detailing (1) the relevance of each
item sought to the grand jury's investigation, (2) the
jurisdiction of the grand jury to request the item and (3) that
the government requests the item for the purposes of the grand
jury and no other reasons. Counsel suggested that such a
requirement was appropriate to ensure against grand jury abuse
and so that Costello, "already subject to extensive state
prosecution, is not exposed unnecessarily to other crimes."
Government counsel responded that (1) it was not required to
provide information as to the basis for the request for the items
sought and (2) in any event, it would not be seeking a contempt
order if, in fact, it had access to the items sought. Counsel
conceded that fingerprints of Costello existed, but stated that
John Dunn, the postal inspector in charge of the April postal
truck robbery, had inquired as to palmprints and a right-side
profile photograph of Costello and was told that those materials
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3According to counsel, in connection with the May 8th
arrest, Costello has been charged in fifteen indictments for
attempted murder, armed robbery while masked, attempted armed
robbery, unlawful possession of a stolen motor vehicle and
possession of stolen motor vehicle license plates. Prior to his
being transferred to federal custody as a result of the finding
of contempt, Costello had been held in state custody since his
May 8th arrest, unable to post the required bail amount of one
million dollars.
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did not exist.
John Dunn thereafter was sworn in and testified that the
taking of palmprints is not standard procedure in routine cases.
He opined that identification was not an issue with respect to
the May armored car robbery and testified that the taking of a
profile photograph is not standard procedure with many local
police departments. He had spoken to State Trooper Nagle, the
officer in charge of the May armored car robbery investigation,
who informed Dunn that he had no palmprints or right-side profile
photographs of Costello. Dunn stated that he had seen a front
facial photograph of Costello that Nagle had in his file.
Dunn further testified that, after Costello filed his
affidavit in which he stated that extensive photographs were
taken, he phoned Trooper Nagle. He told Nagle of the affidavit
and asked him to check his file again. With Dunn still on the
line, Nagle pulled his file and said that he had photographs of
tattoos on Costello's body, but not any profile shot of his face.
Dunn testified:
I told him that there had been an affidavit
filed saying that this happened -- I mean,
from a practical standpoint, if they're
there, I'm wasting my time. I said, "Look in
your file again." He looked in his file
again and he said, "He may be talking about
the tattoo pictures I took of his body."
That was his response to me, "I have pictures
of different tattoos on the body and maybe
they4 thought at the time I was taking a
side shot of their [sic] face." That was his
response to me.
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4The plural refers to Costello and the second individual
arrested, who also had tattoos.
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Dunn also testified that he had obtained a photographed
record of Costello's fingerprints from California, where,
according to Dunn, Costello had previously served prison time,
but there were no palmprints or right-side profile photographs.
Dunn stated that he had learned, from the U.S. Attorney's office,
that the FBI did not have any palmprints or profile photographs.
He testified that, in his opinion, he had exhausted the avenues
from which to obtain those sought-after items.
Thereafter, the court heard argument from counsel. Counsel
pointed out that the government had conceded that it had
fingerprints, yet was asking for an additional set, and argued
that it was reasonable to assume that palmprints and side profile
photographs were taken. She reiterated the request that the
court require the government to disclose the nexus between the
items sought and the grand jury investigation.
The district court concluded, based on Costello's affidavit
and Dunn's testimony, that Costello had failed to show, as his
counsel urged, that the grand jury was seeking something to which
it already had access and, in light of that finding, the question
whether the government ought to be required to file affidavits
relating why it is seeking these items, despite being able to
obtain them from other sources, was moot.
The district court found Costello in contempt of his October
8th order. 28 U.S.C. 1826. Two days later, counsel moved for
reconsideration, stating that she had been informed by Costello
that he was willing to be fingerprinted and palmprinted, but that
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he was still unwilling tobe photographed. That motionwas denied.
Counsel filed a notice of appeal and sought a stay pending
appeal. The court denied a stay of the contempt order pending
appeal. It also denied a motion by Costello for an order
directing the government to inform him of the termination date of
the grand jury. Costello appealed the order of contempt and we
denied a stay pending appeal. We now resolve the appeal.
In view of counsel's representation in the motion for
reconsideration filed in the district court that Costello is now
willing to provide the fingerprint and palmprint exemplars, we
focus on the only remaining item which Costello apparently
currently contests, i.e., allowing himself to be photographed.5
We reiterate that this grand jury directive to be photographed
impinges on no constitutional privilege of Costello. See note 1,
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supra.
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Costello's arguments on appeal are meritless. First of all,
they seem misplaced. Counsel argues that the government is
seeking material which it already has in its possession or to
which it has access. Based on the evidence before the district
court, however, we cannot say that the district court was clearly
erroneous in finding that the government, in fact, had neither
possession of, nor access to, a right-side profile photograph of
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5In any event, the result would not change because we view
the compelled display of these identifiable physical
characteristics in the same light. See note 1, supra.
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Costello.6 In re Grand Jury Subpoenas (Anderson), 906 F.2d
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1485, 1488 (10th Cir. 1990) (a district court's findings of fact
in a contempt matter are reviewed under the clearly erroneous
standard). So, Costello's starting premise is factually and
fatally wrong. Consequently, insofar as he suggests he is being
harassed for duplicative material, his next contention, that the
government ought to be required to make a preliminary showing, by
affidavit, of the general purpose for the subpoena, is misplaced.
Costello may be making a broader contention, however. He
cites caselaw from the Third Circuit which, pursuant to the
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6. In affirming this finding of the district court, we do not
suggest that government was required to show that it neither had
possession of, nor access to, the items sought. Though Costello
denies that he is suggesting that the government should show a
"need" for the material sought, we think his claim of good cause
for refusing to comply because the government already has
possession of, or access to, what it seeks is, in essence, a
claim that the grand jury does not "need" him to submit to any
additional photographing. Whatever the viability of requiring
the government to show "need and relevance" prior to enforcement
of a grand jury subpoena, see In re Grand Jury Proceedings
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(Hill), 786 F.2d 3, 5 n.1 (1st Cir. 1986), a question we do not
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resolve, such a requirement in this case which involves a
physical characteristic "constantly exposed to the public,"
United States v. Dionisio, 410 U.S. at 14, strikes us as
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particularly unwarranted, when considering the resulting costs.
Requiring the government to show both that
the information it hopes to obtain from [the
summoned witness] is significant and that
that information is unavailable from other
sources would obviously impair the efficiency
of grand juries. Such a requirement would
bring investigations to intermittent
standstills as the government set out to
prove the necessity of each piece of
information it sought to obtain.
In re Grand Jury Proceedings (John Doe), 862 F.2d 430, 431-32 (2d
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Cir. 1988).
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federal courts' supervisory powers, requires the government, in
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every case, to make a preliminary showing by affidavit that each
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item is (1) at least relevant to an investigation being conducted
by the grand jury and properly within its jurisdiction and (2)
not sought primarily for another purpose. In re Grand Jury
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Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973); In re
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Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966 (3d
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Cir.), cert. denied, 421 U.S. 1015 (1975). But, we have
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previously considered, and rejected, adopting such a supervisory
role. In In re Pantojas, 628 F.2d 701, 704-05 (1st Cir. 1980),
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we declined to impose the Schofield procedure, finding "little to
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convince us that prosecutors are regularly overreaching or that
the district courts have been insensitive to irregularities that
may occur." There is nothing in the record before us suggesting
that, in the interim since Pantojas, grand jury abuses have
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either regularly occurred or escaped district court attention.
And, we certainly see no such evidence with respect to the
particular case before us.
We acknowledge that the Supreme Court recently suggested
that "a court may be justified in a case where unreasonableness
is alleged in requiring the Government to reveal the general
subject of the grand jury's investigation before requiring the
challenging party to carry its burden of persuasion." United
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States v. R. Enterprises, Inc., 111 S. Ct. 722, 728 (1991). The
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Court went on to say that "[w]e need not resolve this question in
the present case, however, as there is no doubt that respondents
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knew the subject of the grand jury investigation pursuant to
which the business records subpoenas were issued." Id. So too,
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in the case before us, we need not address this concern as,
without a doubt, Costello knew that the grand jury was
investigating the April 1991 postal truck robbery, as evidenced
by his response to the government's petition for contempt, filed
three days before the contempt hearing.7
Lastly, Costello contests the district court's denial of his
request for an order directing the government to disclose the
termination date of the grand jury. The government urges us not
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7. And, in fact, Costello may have received some indulgence. A
subpoena recipient, who claims that compliance is unreasonable,
may not necessarily be entitled to know even the general subject
of the grand jury's investigation.
In cases where the recipient of the subpoena
does not know the nature of the
investigation, we are confident that district
courts will be able to craft appropriate
procedures that balance the interests of the
subpoena recipient against the strong
governmental interests in maintaining
secrecy, preserving investigatory
flexibility, and avoiding procedural delays.
For example, to ensure that subpoenas are not
routinely challenged as a form of discovery,
a district court may require that the
Government reveal the subject of the
investigation to the trial court in camera,
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so that the court may determine whether the
motion to quash has a reasonable prospect for
success before it discloses the subject
matter to the challenging party.
Id. at 728-29. The government disclosed the subject matter of
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the grand jury investigation to the district court in camera when
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it initially sought the order to compel in October 1991. Even
considering this recent pronouncement by the Supreme Court,
therefore, there is simply no basis for Costello's challenge to
the issuance of this grand jury subpoena.
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to address it, claiming that it was not timely raised and, in any
event, would not excuse Costello's contempt of the order
compelling him to provide the exemplars and to be photographed.
We agree that the refusal to provide Costello with the grand
jury's termination date is not just cause for his failing to
comply with the prior court order. Nonetheless, this issue was
raised in the district court, even if during the hearing on the
stay request after the finding of contempt issued, and the
district court ruled on this motion. We believe, therefore, it
was timely raised.
We are unable to review its merits, however, for the lack of
a sufficient record. Although the record contains a copy of
Costello's motion seeking disclosure of the termination date of
the grand jury, with a margin order by the district court,
"1/8/92 Denied after hearing this date," Costello has not
provided us with a transcript of that January 8th hearing, nor
has he told us of the basis for the court's ruling. In re Grand
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Jury Investigation (DiLoreto), 903 F.2d 180, 185 (3d Cir. 1990),
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upon which Costello relied, assumed, without deciding, that the
standard of review of a district court order denying disclosure
of the termination date of a grand jury is abuse of discretion.
Costello does not argue for a less deferential standard of review
and we also shall assume, without deciding, that the district
court's ruling on this matter may not be disturbed without a
showing of an abuse of discretion. But without any indication of
the basis for the ruling, we cannot find any abuse of discretion
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or undertake any otherwise meaningful appellate review.
Costello, as appellant, is responsible for providing this court
with a sufficient record upon which to review the ruling he is
challenging. See, e.g., United States v. Lebron-Gonzalez, 816
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F.2d 823, 827 (1st Cir.) (the burden of seeing that a record is
adequate to present issues on appeal rests on appellants), cert.
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denied, 484 U.S. 843 (1987). He has not done so. We therefore
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decline to disturb the district court's denial of his motion for
disclosure.
Affirmed.
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