USCA1 Opinion
July 22, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1704
IN RE: GRAND JURY PROCEEDINGS
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UNITED STATES OF AMERICA,
Appellee,
v.
JOHN DOE,
Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Cyr and Stahl,
Circuit Judges.
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Peter B. Krupp on brief for appellant.
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Donald K. Stern, United States Attorney, and Fred M. Wyshak, Jr.,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Respondent John Doe appeals from the denial
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of a second motion to vacate an order of civil contempt. For
the reasons that follow, we affirm.
I.
In the fall of 1993, respondent was called to appear
before a grand jury investigating alleged organized crime
figures. Citing a fear of reprisals against himself and his
family, respondent refused to testify. He thereafter
persisted in his recalcitrance despite receiving an order of
immunity and a government offer of placement in the federal
witness protection program. On December 8, 1993, after three
separate hearings, the district court held him in civil
contempt. Finding a reasonable likelihood that incarceration
would eventually succeed in coercing his testimony, the court
ordered that respondent be imprisoned for a period of
eighteen months, until the expiration of the grand jury's
term, or until he purged himself of contempt--whichever
occurred first. See 28 U.S.C. 1826(a). We thereafter
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affirmed the order of contempt, rejecting various procedural
challenges advanced by respondent to the proceedings below.
In re Grand Jury Proceeding (Doe), 13 F.3d 459 (1st Cir.
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1994).
In March 1994, respondent filed a motion to vacate the
contempt order. In a memorandum and accompanying affidavit,
he contended that three months in prison had done nothing to
weaken his resolve not to testify. He reiterated that his
concerns for the safety of himself and his family were such
that he would never relent. He also stated that he had
recently learned from the government that the grand jury's
term was due to expire in September 1994, with the result
that his incarceration would necessarily end, at the latest,
by that date. The serendipitous prospect of being released
nine months earlier than originally anticipated, he
explained, only strengthened his resolve to remain
recalcitrant. In response, the government argued that
respondent had failed to establish that his continued
incarceration would have no realistic possibility of inducing
a change of heart. See, e.g., In re Grand Jury, 851 F.2d
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499, 502 (1st Cir. 1988). It also contended that, because
the grand jury investigation was ongoing and because other
witnesses were involved in contempt proceedings, releasing
respondent after such a short period would encourage similar
defiance by others and undermine the efficacy of the contempt
sanction. The district court, in a margin order, denied the
motion to vacate "after a thorough review of the entire
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record, upon the grounds urged by the government."1
Respondent filed no appeal from this ruling.
In June 1994, respondent filed a second motion to vacate
the contempt order. His accompanying memorandum and
affidavit largely echoed those submitted earlier. He again
insisted that his resolve remained unshaken despite his
ongoing imprisonment. And he again argued that the prospect
of being released no later than September 12, 1994, when the
grand jury's term was due to expire, only reinforced his
determination. In his view, because six months in prison had
failed to induce his testimony, another three months would
likewise fail to do so. The district court, prior to
receiving a response from the government, summarily denied
the motion in a margin order. Respondent now appeals. He
contends that the court ignored pertinent factual matters,
applied incorrect legal standards, and abused its discretion
in finding that incarceration continued to pose a realistic
possibility of inducing him to testify.
II.
Due to the absence of district court findings, much of
respondent's argument on appeal proceeds by indirection. He
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1. On the same day of this ruling, respondent sought leave
to file a reply brief in response to the government's
opposition. The court later acted on this motion as follows:
"While the court allows the motion and has carefully reviewed
the attached reply brief, it adheres to its earlier denial of
the petition to vacate the finding of contempt."
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suggests that, in order to infer the basis for the court's
ruling on the second motion, one must turn to the articulated
basis for its ruling on the first motion. There, as
mentioned, the court relied on the "grounds urged by the
government." Respondent therefore undertakes an examination
of those "grounds" and proffers several alleged deficiencies
therein. He contends that the government there made no
mention of his supporting affidavits or of the scheduled
termination of the grand jury, improperly characterized the
maximum eighteen-month term as presumptively coercive, and
impermissibly relied on the effect that his release might
have on other would-be contemnors. In turn, respondent deems
it appropriate to attribute these alleged analytical
shortcomings to the district court, thereby concluding that
the denial of the second motion to vacate was in error.
This line of reasoning falters on various grounds.2
First, it is of course speculative to assume that the
district court, in denying the first motion to vacate,
adopted every proposition advanced in the government's
opposition, and that it thereafter relied on the identical
reasoning in denying the second motion. Second, the
suggestion that the district court overlooked certain factual
matters--such as the scheduled termination of the grand jury
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2. We need not decide whether, as the government argues,
respondent has waived these contentions by failing to appeal
from the denial of his first motion to vacate.
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and other subjects mentioned in respondent's affidavits--
appears entirely misplaced. These matters were prominently
addressed by respondent in the papers supporting both of his
motions to vacate. As mentioned above, the court twice
stated that it had carefully reviewed respondent's
submissions concerning his first motion. There is no reason
to suspect that the court was any less diligent with regard
to the second motion.
Moreover, even if we were to assume that the court did
adopt the government's opposition in its entirety as the
basis for denying the second motion, we find nothing therein
so amiss as to necessitate a remand. The government's
allusion to the eighteen-month statutory maximum as being
presumptively coercive consisted simply of a quotation from
In re Grand Jury Investigation (Braun), 600 F.2d 420, 427 (3d
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Cir. 1979) (endorsed in Simkin v. United States, 715 F.2d 34,
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37 (2d Cir. 1983)). This reference fell well short of
proposing the type of rigid, virtually irrebuttable
presumption condemned in In re Parrish, 782 F.2d 325, 326,
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328 (2d Cir. 1986). At no point did the government question
the notion that district courts retain "a broad discretion
... to determine that a civil contempt sanction has lost its
coercive effect upon a particular contemnor at some point
short of eighteen months." Sanchez v. United States, 725
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F.2d 29, 31 (2d Cir. 1984) (per curiam) (quoting Simkin, 715
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F.2d at 37)). Nor did the government dispute that such a
determination must be an individualized one "based on all the
circumstances pertinent to th[e] contemnor." In re Parrish,
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782 F.2d at 328.
In turn, the government's reference to the effect of
respondent's release on other potential contemnors--a
consideration specifically endorsed in In re Crededio, 759
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F.2d 589, 592 (7th Cir. 1985)--was benign. Whether reliance
on such external factors might under some circumstances be
improper is a question we need not decide, for it is apparent
that no impropriety occurred here. Respondent complains that
this argument created the risk that his incarceration was
imposed without due regard to his individualized
circumstances. Yet the government's contention fell well
short of a plea, of the type condemned in Simkin, 715 F.2d at
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38, that respondent be imprisoned "as a warning to others who
might be tempted to violate their testimonial obligations."
And it is apparent that the district court's inquiry here was
properly focused. We noted in the earlier appeal that the
court had "conducted a careful evaluation of the individual
circumstances pertaining to respondent." In re Grand Jury
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Proceeding (Doe), 13 F.3d at 463. The government's
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opposition to the first motion highlighted such factors. We
have no reason to believe that the district court, in denying
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the second motion, suddenly switched gears and placed
principal reliance on other, possiblyimpermissible criteria.3
III.
Respondent also contends that the court abused its
discretion in determining that further incarceration posed a
realistic possibility of inducing him to testify. Given that
the inquiry to be made in this regard "is far removed from
traditional factfinding," In re Parrish, 782 F.2d at 327, a
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district court enjoys "wide latitude in gauging whether
incarceration will ... remain ... coercive." In re Grand
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Jury (Doe), 13 F.3d at 463; accord, e.g., Simkin, 715 F.2d at
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38. Although respondent contends that his persistence over
the past seven months has established his unshakable resolve,
it must be observed that "the desire for freedom, and
concomitantly the willingness to testify, increases with the
time spent in prison." In re Grand Jury Investigation
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(Braun), 600 F.2d at 428. And, we note, other courts have
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upheld similar orders after even lengthier periods of
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3. Respondent has requested, as an alternative form of
relief, that the case be remanded for particularized findings
of fact. Yet we do not understand him to be arguing that
such findings are required in all such cases. Given that the
court's view here is readily inferable from the context, see
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Ticketmaster-New York, Inc. v. Alioto, ___ F.3d ___, 1994 WL
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114817, at *2 (1st Cir. Apr. 13, 1994) (court of appeals may
affirm district court on any independently sufficient ground
reflected in the record), we see no need to remand for this
reason, much less any need to consider imposing such a
requirement across-the-board.
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imprisonment. See, e.g., In re Crededio, 759 F.2d at 589
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(ten months); In re Grand Jury Investigation (Braun), 600
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F.2d at 420 (eight months). We find no abuse of discretion.
Affirmed.
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