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No. 96-3345
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In Re: GRAND JURY SUBPOENA *
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*
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Susan H. McDougal, *
*
Appellant. *
*
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Submitted: October 3, 1996
Filed: October 9, 1996
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Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
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LOKEN, Circuit Judge.
Susan H. McDougal appeals a district court1 order holding her in
contempt for refusing to testify before a federal grand jury under an
appropriate grant of use immunity. See 28 U.S.C. §§ 1826(a), 6002. She
alleges violations of her rights under the Fifth and Sixth Amendments to
the United States Constitution. We affirm the district court's contempt
order.
On May 28, 1996, a jury found McDougal guilty of mail fraud,
misapplication of small business investment company funds,
1
The HONORABLE SUSAN WEBBER WRIGHT, United States District
Judge for the Eastern District of Arkansas.
falsifying small business investment company records, and making false
statements to a small business investment company, all in violation of 18
U.S.C. §§ 657, 1006, 1014, and 1341. Her appeal of that conviction and the
resulting twenty-four month prison sentence is currently pending before
this court.
On August 20, 1996, upon application of the Office of Independent
Counsel ("OIC"), the district court subpoenaed McDougal to testify before
a federal grand jury sitting in Little Rock, Arkansas. She responded with
a motion to quash the subpoena, or in the alternative for a protective
order. Following a September 3 hearing, the district court denied that
motion and ordered:
1. That SUSAN H. McDOUGAL shall provide testimony and
other information as to all matters about which she may be
interrogated before the Grand Jury;
2. That no testimony or other information compelled
under this order (or any information directly or indirectly
derived from such testimony or other information) may be used
against SUSAN H. McDOUGAL in any criminal case, except a
prosecution for perjury, giving a false statement, or otherwise
failing to comply with this order.
On September 4, McDougal appeared before the grand jury but refused
to testify. On September 6, following a hearing on OIC's contempt
application, the district court concluded that McDougal should be held in
contempt under 28 U.S.C. § 1826(a) and ordered her detained, for no more
than eighteen months, "until such time as she agrees to testify, her
testimony is no longer necessary, or the term of the Grand Jury, including
extensions, has expired."2
2
Section 1826(a) provides in relevant part:
(a) Whenever a witness in any proceeding before or
ancillary to any court or grand jury of the United
States refuses without just cause shown to comply with
an order of the court to testify or provide other
information . . . the court . . . may summarily order
[her]
confinement at a suitable place until such time as the witness is
willing to give such testimony or provide such information. No
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2
On September 9, McDougal filed a timely notice of appeal. Appeals
from civil contempt orders of this kind "shall be disposed of as soon as
practicable, but not later than thirty days from the filing of such
appeal." 28 U.S.C. § 1826(b). On September 12, we denied McDougal's
motion for a stay of incarceration pending appeal, directed the parties to
serve and file simultaneous briefs on or before Monday, September 30, and
scheduled oral argument for October 3 in Kansas City. We later granted
McDougal's motion to waive oral argument and submitted the case for final
disposition on the briefs.3
I. A SIXTH AMENDMENT ISSUE.
Consistent with longstanding federal practice, when McDougal appeared
before the grand jury on September 4, her attorneys accompanied her to the
door of the grand jury room, and remained available for consultations
outside the grand jury room, but were not allowed to be present during her
grand jury testimony. See Fed. R. Cr. P. 6(d) (only "attorneys for the
government, the witness under examination . . . and . . . a stenographer
. . . may be present while the grand jury is in session"); United States
v.
such period of confinement shall exceed . . . the term of the
grand jury, including extensions . . . [and] in no event shall
such confinement exceed eighteen months.
3
On September 11, after filing this appeal, McDougal moved
the district court (i) to vacate the contempt order because she
will not testify and therefore her incarceration is punitive, not
coercive; and (ii) to order that her incarceration for contempt
be concurrent with her twenty-four month prison sentence. After
a hearing, the district court denied that motion. OIC now moves
to supplement the record on appeal with a transcript of the
hearing on that motion. Because this is arguably relevant
background, we grant the motion to supplement. However, the
district court's ruling on the September 11 motion is not before
us.
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Levinson, 405 F.2d 971, 979-80 (6th Cir. 1968), cert. denied, 395 U.S. 958
(1969). On appeal, McDougal argues that this violated her Sixth Amendment
right to the assistance of counsel because a grand jury proceeding is a
"critical stage" in the criminal process for Sixth Amendment purposes.4
The Supreme Court expressly rejected this argument in United States
v. Mandujano, 425 U.S. 564, 581 (1976), concluding that a grand jury
witness has no Sixth Amendment right to "insist upon the presence of his
attorney in the grand jury room."5 We followed Mandujano in United States
v. Brown, 666 F.2d 1196, 1198-99 (8th Cir. 1981). Recognizing that well-
settled law is against her, McDougal cites landmark Supreme Court decisions
expanding the rights of criminal defendants and urges us to move the Sixth
Amendment's right to counsel inside the grand jury room. However, even if
we believed that the Supreme Court is prepared to overrule Mandujano -- and
we do not -- we must follow controlling Supreme Court precedent. See
Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484
(1989); Williams v. Rogers, 449 F.2d 513, 520 (8th Cir. 1971), cert.
denied, 405 U.S. 926 (1972). Mandujano held that the Sixth Amendment does
not apply to a witness's grand jury testimony, and we are bound by that
decision.
In United States v. Schwimmer, 882 F.2d 22, 27 (2nd Cir. 1989), cert.
denied, 493 U.S. 1071 (1990), a criminal defendant
4
In a prepared statement McDougal read at the contempt
hearing, she argued: "To make me answer clever lawyer's
questions put by an adversarial lawyer without the guiding hand
of my counsel is unfair, it's unethical, and it's
unconstitutional."
5
Chief Justice Burger's opinion in Mandujano was joined by a
plurality of four of the eight participating Justices. However,
only two Justices argued that the Sixth Amendment should apply to
the witness's grand jury testimony, and those two Justices did
not criticize the practice of requiring counsel to wait outside
the grand jury room during the witness's testimony. See 425 U.S.
at 606-08 (Brennan, J., concurring).
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sought to distinguish Mandujano because, like McDougal, he was subpoenaed
to testify before the grand jury while his appeal from a criminal
conviction was pending. However, the Second Circuit rejected the
contention that the Sixth Amendment right to counsel on his pending appeal
gave the witness a right to have counsel present during his grand jury
testimony:
Schwimmer's arguments overlook the fact that . . . he has
been granted use immunity . . . in exchange for his testimony.
Thus, the rationale of Kastigar [v.United States, 406 U.S. 441
(1972),] completely answers appellant's constitutional
objections: no valid constitutional objection lies so long as
the government cannot use the compelled testimony against
Schwimmer in any fashion. Accordingly, a defendant's right to
counsel when a grand jury appearance is at issue extends only
to the right to consult counsel outside the grand jury room.
Assuming without deciding that McDougal's Sixth Amendment right to counsel
on appeal provides some protection regarding her testimony before the grand
jury, we agree with Schwimmer that counsel's presence in the grand jury
room is not constitutionally required.
II. A FIFTH AMENDMENT ISSUE.
The district court ordered McDougal to testify under the broad grant
of use immunity prescribed in 18 U.S.C. § 6002. That immunity "is
coextensive with the scope of the [Fifth Amendment's] privilege against
self-incrimination, and therefore is sufficient to compel testimony over
a claim of privilege." Kastigar v. United States, 406 U.S. 441, 453
(1972). McDougal nonetheless argues that the district court violated her
Fifth Amendment privilege against self-incrimination because the court's
immunity order left open the possibility that she may be prosecuted for
committing perjury before the grand jury. Since she would face no such
adverse consequences if allowed to remain silent, McDougal argues, the
grant of immunity impermissibly leaves her worse off than if she exercises
her Fifth Amendment privilege and remains silent.
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Once again, McDougal's argument is foreclosed by controlling Supreme
Court precedent. When called before a grand jury, every citizen is bound
to divulge whatever information he or she possesses but retains the
protection of the Fifth Amendment's privilege against self-incrimination.
"Immunity is the Government's ultimate tool for securing testimony that
otherwise would be protected [by the Fifth Amendment] . . . . [W]hen
granted immunity, a witness once again owes the obligation imposed upon all
citizens -- the duty to give testimony -- since immunity substitutes for
the privilege." Mandujano, 425 U.S. at 576. In a subsequent case, the
Supreme Court squarely rejected McDougal's contention: "it is . . .
analytically incorrect to equate the benefits of remaining silent as a
result of invocation of the Fifth Amendment privilege with the protections
conferred by the privilege . . . . For a grant of immunity to provide
protection `coextensive' with that of the Fifth Amendment, it need not
treat the witness as if [she] had remained silent." United States v.
Apfelbaum, 445 U.S. 115, 127 (1980).
In her statement at the contempt hearing, McDougal complained that
she has a particularly well-founded fear that truthful testimony to the
grand jury will subject her to a perjury prosecution. "Because I believe
that my truthful answers to the grand jury's inquiries would be
inconsistent with the testimony and statements of others and/or
inconsistent with the independent counsel's view of those facts," McDougal
explained, "it is my belief that my answers would and could be used against
me in future criminal prosecution." However, the Eleventh Circuit rejected
this argument because it "would provide practically all potential grand
jury witnesses with a foolproof escape from testifying simply by claiming
that the grand jury or a prosecutor might disagree with their version of
the truth" and charge them with perjury. In re Grand Jury Proceedings, 819
F.2d 981, 983 (11th Cir. 1987). And the First Circuit rejected a similar
argument because "a witness cannot refuse to testify simply because he
believes, no matter how
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fervently, that his perception of the truth differs from that of the grand
jury and that his perception is the correct one. Such a proposition would
frustrate completely the investigative function of the grand jury . . . ."
In re Poutre, 602 F.2d 1004, 1005 (1st Cir. 1979). Thus, the district
court correctly concluded that McDougal's Fifth Amendment contention is
contrary to governing law.
III. PUBLIC PROCEEDINGS ISSUES.
A. McDougal urged the district court to grant her a fully public
hearing on OIC's application to hold her in civil contempt. Consistent
with Federal Rule of Criminal Procedure 6(e), the court ruled that any
testimony or argument that would disclose the substance of the secret grand
jury proceedings must be submitted in camera, but the remainder of the
hearing would be conducted in open court. In the hearing that followed,
McDougal read her statement criticizing the motives and prior conduct of
OIC attorneys in open court. Thus, the principal effect of this ruling was
to keep in camera the specific questions McDougal was asked and refused to
answer in the grand jury room.
On appeal, McDougal contends that the district court's ruling
violated her right under the Public Trial Clause of the Sixth Amendment as
construed in In re Oliver, 333 U.S. 257 (1948). Initially, we note that
both the Sixth Amendment and In re Oliver concern the rights of criminal
defendants, whereas McDougal has been held in civil contempt. This is a
key distinction -- McDougal has not been irretrievably deprived of her
liberty; she may end her incarceration at any time simply by agreeing to
testify. "Because civil contempt sanctions are viewed as nonpunitive and
avoidable, fewer procedural protections for such sanctions have been
required." International Union, United Mine Workers v. Bagwell, 114 S. Ct.
2552, 2559 (1994).
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McDougal correctly asserts that many interests implicated in criminal
contempt proceedings are also present here, including "the need to assure
accountability in the exercise of judicial and governmental power, the
preservation of the appearance of fairness, and the enhancement of the
public's confidence in the judicial system." In re Rosahn, 671 F.2d 690,
697 (2nd Cir. 1982). Balancing the considerations favoring public civil
contempt hearings against the well-recognized need for grand jury secrecy,6
both the Second Circuit in Rosahn and the Third Circuit in In re Grand Jury
Matter, 906 F.2d 78, 86-87 (3rd Cir. 1990), have concluded that civil
contempt proceedings of this kind should be closed to the public only when
substantive grand jury matters are being disclosed. In our view, these
decisions are consistent with the Supreme Court's discussion of the issue
in Levine v. United States, 362 U.S. 610, 618 (1960):
Petitioner had no right to have the general public present
while the grand jury's questions were being read. . . . Having
refused to answer each question in turn, and having resolved
not to answer at all, petitioner then might well have insisted
that, as summary punishment was to be imposed, the courtroom be
opened so that the act of contempt, that is, his definitive
refusal to comply with the court's direction to answer the
previously propounded questions, and the consequent
adjudication and sentence might occur in public.
We conclude the district court did not abuse its discretion in
adopting the above approach in this case. The district court expressly
advised McDougal that federal law does not prohibit a grand jury witness
from publicly disclosing grand jury proceedings to which the witness has
been privy, and the record reflects that McDougal has extensively exercised
that prerogative. The only restriction the district court placed on that
freedom was to
6
The Supreme Court has repeatedly cautioned that the
"indispensable secrecy of grand jury proceedings must not be
broken except where there is a compelling necessity." United
States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)
(quotation omitted).
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prevent the public portion of these contempt proceedings from violating the
grand jury secrecy precepts of Rule 6(e). In so ruling, the court
correctly balanced the interests of the grand jury, witness McDougal, and
the public.
B. When this appeal commenced, we directed that all materials be
filed under seal, consistent with Eighth Circuit policy regarding on-going
grand jury matters. On September 20, OIC moved that any oral argument be
open to the public and that our file be unsealed, except for those portions
which contain in camera proceedings in the district court. Consistent with
her argument on appeal, McDougal responded that our entire file should be
unsealed.
We grant OIC's motion for the reasons stated in upholding the
district court's ruling on this issue. We direct OIC, working with our
Clerk of Court, to substitute for our current sealed file a public file,
redacted to exclude portions of the record that disclose substantive grand
jury proceedings, supplemented by a filing under seal that contains all
redacted portions of the briefs and record on appeal. After an unsealed
public file has been created in this fashion, counsel for McDougal may
challenge by motion OIC's decision as to the portions of our file which
should remain under seal.
The order of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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In Re: Grand Jury v.
Combined Opinion