Grand Jury v.

June 17, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1560

IN RE GRAND JURY PROCEEDINGS

UNITED STATES,
Petitioner,

v.

JOHN DOE,
Appellant, Respondent.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Torruella, Cyr and Boudin,
Circuit Judges.

Brian J. McMenimen and Burke & McMenimen on brief for

appellant.
Donald K. Stern, United States Attorney, Paul V. Kelly,

Assistant United State Attorney, and Frank A. Libby, Jr.,

Assistant United States Attorney, on brief for appellee.

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Per Curiam. Respondent John Doe appeals a district

court order holding him in civil contempt for refusing to

comply, without just cause, with a court order directing him

to testify before a grand jury. 28 U.S.C. 1826. We

affirm.

Respondent was subpoenaed to appear before a grand

jury on April 26, 1994. Relying on his fifth amendment

right, respondent refused to answer questions on that day.

After the government obtained a court order granting him

immunity and ordering him to testify, respondent again

appeared before the grand jury on May 10 and again refused to

answer any questions put to him. The government filed a

petition for contempt the next day.

On May 13 and May 19, 1994, the district court held

a hearing on the government's petition. Respondent testified

that his refusal to answer the grand jury's questions was

based on his fear for his own safety and that of his family.

He further testified that he would never answer questions

from a grand jury on this matter. Doe's wife testified that

she too feared for her life and that of her children if Doe

were to testify, and that, in her opinion, he would never

change his mind in this matter. Both Doe and his wife

testified, that although they are separated, Doe remains very

close to his children.

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At the conclusion of the hearing, the district

court found that Doe had refused to obey the court order

directing him to testify. The court also found that his

refusal was based on a "genuine and reasonable fear of harm

to himself and/or to his family" and that it was Doe's

present intention not to testify. Nevertheless, the court

found that there was a realistic possibility that Doe would

change his mind either because of his desire to see his

children or because evolution of events might diminish his

fear of retribution. The court, therefore, entered the order

for civil contempt.

"Confinement under Section 1826 is coercive, not

punitive, and its sole purpose is to compel the contemnor to

provide the requested testimony." In re Grand Jury

Proceedings, 862 F.2d 430, 432 (2d Cir. 1988). "[A] civil

contemnor's incarceration can be transformed from the

permissibly coercive into the improperly punitive where

'there is no realistic possibility that he will comply with

the order to testify.'" United States v. Doe (In re Grand

Jury Proceeding), 13 F.3d 459, 461 (1st Cir. 1994) (quoting

In re Grand Jury, 851 F.2d 499, 502 (1st Cir. 1988)).

However, given the "speculative nature" of this inquiry, "the

district court enjoys wide latitude in gauging whether

incarceration will be (or will remain) coercive." Id. at 463

(citations omitted). We review only for abuse of discretion.

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In re Grand Jury Proceedings, 943 F.2d 132, 136 (1st Cir.

1991).

Respondent claims that the district court abused

its discretion because its findings that he has a reasonable

fear of reprisal and that he has affection for his children

make it unreasonable to conclude that he will ever change his

present intention not to testify. He also contends that

there is no support for the court's finding that the

situation may change in such a way as to diminish his fear.

While a reasonable fear of reprisal may be relevant

to the determination of whether there is a realistic

possibility that coercion will lead to compliance with the

order to testify, Doe, 13 F.3d at 461, fear of reprisal

against himself or his family does not constitute just cause

for a respondent to refuse to testify, In re Grand Jury, 943

F.2d at 135 (citing cases). Were the rule otherwise, the

grand jury would be deprived of information against the most

vicious and sophisticated criminal enterprises. Id.

Moreover, a finding that a contemnor has no present intent to

testify does not preclude the possibility that continued

confinement will cause the witness to change his mind. Doe,

13 F.3d at 463. Finally, the finding that the situation may

change so as to diminish respondent's fear of retaliation,

while speculative, does have support in the record.

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The determination of whether the possibility exists

that incarceration will coerce a contemnor to testify

requires the court to "look into the future and gauge, not

what will happen, but the prospect that something will

happen." Id. (quoting In re Parrish, 782 F.2d 325, 327 (2d

Cir. 1986)) (emphasis in original). In the instant case, the

court undertook a careful evaluation of the individual

circumstances relating to respondent. It then made an

informed speculation as to the future. While the case may be

a close one and we agree that the appeal is not frivolous,

the district court was well within its discretion in

determining that there was a realistic possibility that

incarceration would lead the contemnor to change his mind.

See id. at 463 (assuming that respondent had reasonable fear,

court nonetheless properly determined that "family ties might

eventually induce a change of heart").

In the present case, the district court's judgment

that family ties might persuade respondent to cooperate is a

judgment call, but it is not illogical; and the district

judge, having heard the evidence, is due considerable

deference in his evaluation of the circumstances. We are not

sure that the district court's second ground, comprising a

brief reference to "the evolution of events", is sufficiently

explained; and if this were the only basis for the order, we

might ask for further explanation. Here, however, the family

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ties ground was given first, was concretely explained, and

has as much basis in the record as such a prophecy is ever

likely to have. At this stage, we do not think that any

purpose would be served by asking the district court to

elaborate its second ground.

In the alternative, respondent asks that we remand

this case to the district court for a hearing on what steps

the government can take to protect him and his family. It

does not appear that any such request was made to the

district court; indeed, Doe's counsel said at the hearing

that he "very much doubted" that an offer of protection would

affect his client's refusal to testify. If during

incarceration respondent decides that the provision of

protection by the government would affect his refusal to

testify, there is nothing to prevent the issue from being

raised in the district court at that time.

Affirmed.

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