USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1705
IN RE:
GRAND JURY PROCEEDINGS.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Selya and Cyr,
Circuit Judges.
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Bernard Grossberg and Erin Kelly on brief for appellant.
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Donald K. Stern, United States Attorney, Paul V. Kelly, Assistant
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United States Attorney, Frank A. Libby, Jr., Assistant United States
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Attorney, and Robert L. Peabody, Special Assistant United States
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Attorney, on brief for appellee.
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July 22, 1994
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Per Curiam. Appellant has appealed from an order
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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
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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
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Proceedings, 814 F.2d 61, 70 (1st Cir. 1987) (citation
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omitted). See In re Maury Santiago, 533 F.2d 727, 730 (1st
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Cir. 1976); United States v. Doe, 455 F.2d 1270, 1273 (1st
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Cir. 1972).
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Standing
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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
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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
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States, 250 U.S. 273, 282 (1919)). On its face, this
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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.
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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
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Santiago, supra, 533 F.2d at 730, did consider a witness'
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claim that the prosecutor was improperly using a grand jury
to prepare a pending indictment for trial and to harass the
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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.
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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.
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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.
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Mathews, 427 U.S. 524, 530-32 (1976) (when relief is to be
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denied whether or not the court has jurisdiction, the
jurisdictional question need not necessarily be decided).
The Merits
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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
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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
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[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,
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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
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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
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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
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January 2, 1985 (Robert M. Simels, Esq.), 767 F.2d 26, 30
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(2nd Cir. 1985); Doe, supra, 455 F.2d at 1276.
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We also agree with the district court that
requiring a sealed, ex parte affidavit from the prosecution,
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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
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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
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F.2d at 72-73.
The order of the district court is affirmed.
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