In Re: Grand v.

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March 8, 1994 [NOT FOR PUBLICATION]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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