USCA1 Opinion
June 17, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1560
IN RE GRAND JURY PROCEEDINGS
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UNITED STATES,
Petitioner,
v.
JOHN DOE,
Appellant, Respondent.
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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, Cyr and Boudin,
Circuit Judges.
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Brian J. McMenimen and Burke & McMenimen on brief for
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appellant.
Donald K. Stern, United States Attorney, Paul V. Kelly,
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Assistant United State Attorney, and Frank A. Libby, Jr.,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Respondent John Doe appeals a district
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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
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Proceedings, 862 F.2d 430, 432 (2d Cir. 1988). "[A] civil
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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
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Jury Proceeding), 13 F.3d 459, 461 (1st Cir. 1994) (quoting
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In re Grand Jury, 851 F.2d 499, 502 (1st Cir. 1988)).
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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
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(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.
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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
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against himself or his family does not constitute just cause
for a respondent to refuse to testify, In re Grand Jury, 943
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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.
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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,
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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
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happen." Id. (quoting In re Parrish, 782 F.2d 325, 327 (2d
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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,
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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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