USCA1 Opinion
March 8, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1137
IN RE:
GRAND JURY PROCEEDINGS.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Selya, Cyr and Boudin, Circuit Judges.
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Michael C. Andrews on brief for appellant.
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Donald K. Stern, United States Attorney, and Ernest S. DiNisco,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. This is an appeal from an order of the
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district court refusing to terminate appellant's commitment
for civil contempt.
I.
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A grand jury in the district of Massachusetts has
been investigating the operation of an alleged illegal
gambling racket. Appellant was one of the targets of the
investigation. He was indicted in February 1992 and, in
October 1992, he pleaded guilty. Shortly before he was to be
sentenced, appellant was subpoenaed to appear before the
grand jury. Appellant refused to testify and, on January 8,
1993, the court granted use immunity. 18 U.S.C. 6002,
6003. Upon his continued refusal to answer questions, the
government filed a petition for contempt. The district court
held a hearing on January 22. At the hearing appellant's
lawyer stated that the reasons appellant refused to testify,
despite the grant of immunity, were that he was morally and
ethically opposed to testifying against anyone and that he
feared for his own safety and the safety of his ex-wife and
children.
Appellant did not testify on his own behalf. His
attorney added the information that appellant had not
cooperated during the two and a half years leading up to his
indictment, despite government efforts to secure his
cooperation. He also emphasized that the government had not
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sought indictments against some of the individuals who
decided to cooperate and, as for others who pleaded guilty
pursuant to plea bargains, the government was recommending
probation. In light of this and the long sentence appellant
was facing due to his non-cooperation, he argued, it was
plain that 18 months of further incarceration would not
coerce appellant to testify. The court, relying, in part, on
the fact that appellant had not yet spent any time in jail,
held him in contempt and ordered him incarcerated pursuant to
28 U.S.C. 1826(a). Four days later, appellant was
sentenced to a term of imprisonment of 78 months and a term
of supervised release of three years. This sentence was
stayed during the term of his civil contempt incarceration.
Appellant did not pursue an appeal from the initial contempt
order.
He then filed a motion to vacate the order of
contempt on September 23, 1993 -- approximately eight months
after he was held in contempt. The court denied the motion
without a hearing and without findings of fact. Appellant
also did not pursue an appeal from this denial. A second
motion to vacate the contempt order was filed on January 20,
1994 -- a year from the order of contempt. In this motion,
appellant repeated the arguments made in the initial hearing.
He added that even after being indicted, he had continued to
refuse to cooperate despite the promise of some leniency in
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the government's sentencing recommendation. Further, he
argued, he had spent 12 of the maximum 18 months without
changing his mind. Given the long criminal sentence he faces
and the now three and a half years of silence, he asserted
that there was no chance he would ever testify. Again, the
court denied the motion by endorsement, without stating its
reasons.
II.
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Appellant only argues, on appeal, that the district
court, in denying his motion to vacate the contempt order,
failed to make the required individualized determination that
there still was a realistic possibility that continued
incarceration would likely result in compliance with the
order to testify. Thus, his only request is that we remand
the case.
Appellant relies on Simkin v. United States, 715
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F.2d 34 (2d Cir. 1983). Simkin acknowledged the "virtually
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unreviewable discretion" a district court judge has in
deciding whether a civil commitment has lost "any realistic
possibility of having a coercive effect." Id. at 38. Given
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the speculative nature of the decision, however, the court
held that such deference is due "only if it appears that the
judge has assessed the likelihood of a coercive effect upon
the particular contemnor" by making "an individualized
decision." Id. Appellant argues that the record here is
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ambiguous and that there is evidence that the judge did not
make an "individualized" determination concerning the
coercive nature of his incarceration. Specifically, he
points to a question by the judge, at the initial hearing, as
to whether appellant understood "the penalty" for refusing to
testify.
We find appellant's argument unpersuasive. By the
time of appellant's second motion, the court had before it
the transcript from the initial hearing, appellant's current
affidavit stating that he would never testify before the
grand jury, and the memoranda filed by the parties. The only
new "evidence" presented for the court's consideration is the
length of time -- one year -- that appellant now has spent in
jail under the contempt order. Because this factor was
central to the court's initial decision to order the
incarceration of appellant, we think that it is reasonable to
assume that the district court, in deciding to deny
appellant's motion for release, in fact, considered the time
appellant has served without testifying.
Unlike Simkin, there is no evidence that the court
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here considered any factors other than the continued impact
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of incarceration on appellant. The reference to the
"penalty" for not testifying was made in the initial hearing.
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The district court's decision arising out of that hearing is
not before us. To the extent that appellant is arguing for a
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mechanical rule requiring a formal statement or finding in
every case, we think that this case -- in which the district
court's view is evident from context -- is not the occasion
to consider imposing such a requirement. Apart from the lack
of a formal finding, appellant has not argued that the
district court's action is subject to reversal (for example,
as clearly erroneous or demonstrably based on improper
factors).
Nothing we say is intended to discourage district
courts from explaining their actions in continuing a
defendant's imprisonment for civil contempt. The longer such
incarceration continues without effect, the more uncertain
are the prospects that further incarceration will produce
compliance. At some point and in some circumstances,
continued incarceration might be hard to justify or, at the
very least, would call for some explanation. But the
district court has considerable latitude in evaluating these
prospective effects, In re Grand Jury Proceeding (Doe), No.
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93-2316, slip op. at 10-11 (1st Cir., Jan. 10, 1994), and we
cannot say here that it has exceeded permissible bounds.
Affirmed.
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