In Re: Grand V., 19 F.3d 7, 1st Cir. (1994)

19 F.
3d 7
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
IN RE: GRAND JURY PROCEEDINGS.
No. 94-1137.
United States Court of Appeals,

First Circuit.
March 8, 1994
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
Michael C. Andrews on brief for appellant.
Donald K. Stern, United States Attorney, and Ernest S. DiNisco, Assistant
United States Attorney, on brief for appellee.
D.Mass.
AFFIRMED.
Before Selya, Cyr and Boudin, Circuit Judges.
Per Curiam.
This is an appeal from an order of the district court refusing to terminate

appellant's commitment for civil contempt.
I.
2
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. Secs. 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 exwife and children.
3
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 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 noncooperation, 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. Sec. 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, 1993approximately 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 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.
5
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.
6
Appellant relies on Simkin v. United States, 715 F.2d 34 (2d Cir. 1983). Simkin
acknowledged the "virtually 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 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 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 here considered any factors
other than the continued impact of incarceration on appellant. The reference to
the "penalty" for not testifying was made in the initial hearing. The district
court's decision arising out of that hearing is not before us. To the extent that
appellant is arguing for a 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. 93-2316, slip op. at 10-11 (1st Cir., Jan. 10, 1994), and
we cannot say here that it has exceeded permissible bounds.
10
Affirmed.

In Re: Grand V., 19 F.3d 7, 1st Cir. (1994)

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19 F.

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

United States Court of Appeals,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

This is an appeal from an order of the district court refusing to terminate

A grand jury in the district of Massachusetts has been investigating the

We find appellant's argument unpersuasive. By the time of appellant's second

Nothing we say is intended to discourage district courts from explaining their

in some circumstances, continued incarceration might be hard to justify or, at

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