In Re: Grand Jury v. Doe ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1485
IN RE: GRAND JURY
JOHN DOE,
Appellant.
ERRATA SHEET
The opinion of this Court issued on May 27, 1993 is amended as
follows:
Page 7, III, Line 2: Sentence should read "If the government in
exchange for cooperation bound itself not to ask appellant any further
questions about rent, then under the case law he was not obliged to
answer."
May 27, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1485
IN RE: GRAND JURY
JOHN DOE,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Morris M. Goldings, Alice E. Moore, and Mahoney, Hawkes &
Goldings on brief for appellant.
A. John Pappalardo, United States Attorney, Fred M. Wyshak, Jr.
and Brian T. Kelly, Assistant United States Attorneys, on brief for
appellee.
Per Curiam. Appellant has appealed from an order
of the district court holding him in civil contempt for
refusing to testify as a witness before a grand jury. See 28
U.S.C. 1826(a). The district court granted appellant's
request for bail pending appeal, finding that the appeal was
not frivolous or taken for delay. Id. 1826(b).
I.
Appellant's relationship with the government began
in July 1987 when he was served a subpoena to testify before
a grand jury investigating money laundering, particularly in
relation to Heller's Cafe and Michael London. Appellant,
through his attorney, informed the government that he
intended to assert his Fifth Amendment right against self-
incrimination. The government then obtained an order of
immunity under 18 U.S.C. 6002 and 6003.
Prior to appearing before the grand jury, appellant
and his attorney met informally with Mitchell Dembin, the
assistant United States Attorney in charge of the
investigation, and other law enforcement officers. At this
pre-grand jury meeting, appellant's attorney advised Dembin
that appellant would refuse to answer any questions -- either
informally or before the grand jury -- regarding the payment
of "rent."1 Appellant did provide, on an informal basis,
1. According to the district court, "rent" is a term used to
refer to extortionate payments that bookmakers have, at
times, been required to make to certain organized crime
figures.
other information about general gambling practices directly
to Dembin.
According to Dembin's affidavit submitted to the
district court, he had stated to appellant that he would not
ask appellant any questions concerning rent before the grand
jury or inquire into the identities of those running the
bookmaking organization for which appellant then worked.
Dembin asserts, in the affidavit, that he had made this
decision on the ground that the "circumstances of
[appellant's] ``rent' and his current employment situation
appeared to be beyond the scope of the Heller's Cafe
investigation." Consequently, Dembin did not ask about rent
when appellant appeared before the grand jury in early
January 1988. It is undisputed, however, that Dembin was
aware that the Organized Crime Strike Force was then
investigating allegations that certain organized crime
figures were requiring bookmakers to pay rent to them.
In December 1990, appellant received a second
subpoena to appear before a grand jury. At this time, Mark
Pearlstein was the assistant United States Attorney involved
with the grand jury proceedings. He was investigating a
check-cashing business suspected of money laundering on
behalf of bookmakers. A second immunity order was obtained.
Appellant again met with prosecutors on an informal basis and
provided them with information concerning betting practices
-4-
and procedures. In his affidavit, Pearlstein acknowledges
that he was aware that Dembin had refrained from asking
appellant about rent. He followed the same path because the
subject of rent payments "was of little direct relevance to
the investigation" he was conducting. Accordingly, when
appellant appeared before the grand jury in January 1991, he
was not asked about rent.
In February 1992, appellant made a third appearance
before a grand jury. According to appellant, he was informed
that this was the same grand jury before which he had
appeared in 1991. This time, the two United States Attorneys
who questioned appellant were connected to the Strike Force
and were investigating the payment of rent. As a result,
appellant was questioned on this subject; he testified that
he did not pay rent. Appellant did not mention, during this
grand jury appearance, any agreement or promise by the
government that he would not be asked such questions.
Also, in January 1993, appellant testified at the
trial of Michael London. Before giving his testimony, he met
with the prosecutors for five to eight hours and answered
many inquiries concerning betting practices and procedures;
nonetheless, he was not questioned about rent. At trial,
however, appellant was asked by the prosecution whether he
paid rent to certain individuals. He stated, as he had
before the grand jury, that he did not pay rent. After it
-5-
was learned that appellant had given false answers concerning
rent payments (both at the 1992 grand jury and the London
trial), appellant was recalled to the stand in the London
trial. He then admitted that he had given incorrect
information, but declined to identify anyone to whom he had
paid rent.2 He again did not mention any agreement to the
effect that he did not have to answer such questions.
II.
This brings us to the present. Appellant, on April
8, 1993, appeared for the fourth time before the grand jury.
Again, this grand jury proceeding was represented as a
continuation of the prior grand jury investigations.3
Appellant now refused to answer any questions concerning
rent. Upon the government's petition for contempt, the
district court held a hearing at which appellant testified.
He asserted that his refusal to testify was based on an
agreement between himself and the government that he would
never have to answer questions relating to the payment of
rent as long as he continued to answer questions concerning
gambling practices in general.
2. According to the government, appellant was not held in
contempt because the question was withdrawn by London's
counsel.
3. To avoid any problems with the validity of the prior
immunity orders, a new order was entered on April 28, 1993.
-6-
The district court judge made several findings.
First, he determined that appellant had met informally with
Dembin prior to testifying before the grand jury, even though
the immunity order did not require such a meeting, because it
was in his best interests to do so. The judge acknowledged
Dembin's statement that he would not question appellant about
rent. He concluded that "Dembin did not promise [appellant],
however, that those questions would never be asked of
[appellant] before any future Grand Jury."
Second, the judge accepted the explanation that
Dembin was merely being "prudent," seeking to get answers
relevant to his investigation without the time-consuming
delays of litigation. The judge further held that
in January, 1988, [appellant] may well
have had a hope that he would never be
asked about rent. I also find, however,
that he did not then believe, and in any
event could not have reasonably believed
that he had an agreement or assurance
that he would never be asked about that
subject.
As for Pearlstein, the judge determined that he had
acted with the same motives as Dembin because, like Dembin,
he was interested in money laundering, not rent. As such, he
also had sought the most efficient way to secure the
information he needed. Thus, the judge found, Pearlstein had
not, through his conduct, "recognize[d] or create[d] any
agreement that the Government would not ever ask [appellant]
. . . questions [about rent]."
-7-
Based on the foregoing, the judge concluded that
there was no agreement between the government and appellant
that he would never be asked about rent. He pointed out that
appellant had never raised the existence of any such
agreement when he was asked about rent at the 1992 grand
jury, nor did he attempt to consult with his attorney even
though his attorney was present outside the jury room.
Appellant's failure to mention the agreement at the London
trial also belied his claim that an agreement concerning rent
then existed. Finally, the judge determined that appellant
"did not rely to his detriment or give any consideration for
the purported agreement he now seeks to rely on."
As for appellant's claim that his informal
cooperation with the government -- supplying information
outside of the grand jury -- constituted adequate
consideration, the judge declared:
It is often the case that a witness
compelled to testify will meet with his
counsel and the Government before
testifying because it has the potential
to make his Grand Jury testimony or trial
direct and cross-examination testimony
proceed more smoothly. I find that that
is essentially what occurred in this
case.
Because appellant failed to establish a sufficient reason for
his refusal to answer the questions concerning rent, the
judge granted the government's petition for contempt.
III.
-8-
Whether the conduct in this case constituted
contempt turns on a simple issue. If the government in
exchange for cooperation bound itself not to ask appellant
any further questions about rent, then under the case law he
was not obliged to answer. Such commitments, where they are
made, are treated as akin to contracts and construed under
contract law principles. United States v. Pelletier, 898
F.2d 297, 301 (2d Cir. 1990); United States v. Hogan, 862
F.2d 386, 388 (1st Cir. 1988). Indeed, "due process requires
that the government adhere to the terms of any . . . immunity
agreement it makes." Pelletier, 898 F.2d at 302. Where the
terms of an agreement are not clear because, for example,
there is no written contract, the court's "task [is] to
construe the words used to try, if possible, to carry out the
intention of the parties in light of all the facts and
surrounding circumstances . . . ." In re Wellins, 627 F.2d
969, 971 (9th Cir. 1980).
In this case, the district court found as facts
that the government in the initial grand jury sessions chose
not to question appellant about rent but never promised
appellant permanent immunity from such questions. Further,
the district court found that appellant himself did not
believe that he had been given any such promise of permanent
immunity. Findings of fact by the district court, in
contempt proceedings as elsewhere, are reviewed under a
-9-
deferential standard and will not be set aside unless clearly
erroneous. See Fed. R. Civ. P. 52(a).
The district court's findings are amply supported
by the evidence. There was no written agreement; appellant
himself failed to recollect, even by his own account, the
precise wording that he now claims to have amounted to a
binding commitment; and appellant's failure to invoke any
such supposed agreement when questioned at the 1992 grand
jury session thoroughly undercuts his present claim. These
facts support the finding that there was no commitment, hence
no justification for appellant's failure to testify.
Given the inherently factual nature of issues like
this one, there is no reason to address at length the
authorities cited by appellant, which are in any case
distinguishable. In In re Wellins, for example, the
government was found to have obtained cooperation by an
agreement that Wellins' cooperation would not be revealed;
and the court enforced that agreement. 627 F.2d at 971.
Similarly in In Re Doe, 410 F. Supp. 1163 (E.D. Mich. 1976),
a witness turned over drugs following a promise that he would
not be further questioned about them and the court held the
government to its commitment.
If appellant in this case had a comparable
agreement, it too would be enforced, but appellant has not
proved such an agreement. Absent an agreement, the contempt
-10-
is patent and the order under review is affirmed.
Appellant's motion for oral argument is denied.
-11-