v. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3328
IN RE: GRAND JURY PROCEEDINGS OF THE
SPECIAL APRIL 2002 GRAND JURY
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 GJ 369—Charles P. Kocoras, Chief Judge.
____________
ARGUED SEPTEMBER 22, 2003—DECIDED SEPTEMBER 25, 2003
OPINION SEPTEMBER 26, 20031
OPINION PUBLISHED OCTOBER 3, 2003
____________
Before BAUER, ROVNER and EVANS, Circuit Judges.
ROVNER, Circuit Judge. The Appellant2 has been sub-
poenaed as a witness before the April 2002 Special Grand
Jury (hereafter the “Special Grand Jury”) and has refused
to answer any questions beyond his name, address and oc-
cupation. The government petitioned the district court to
1
This appeal was decided by a brief order issued under seal on
September 25, 2003, with a notation that an opinion would follow.
This is that opinion. This opinion was issued initially in type-
script, under seal, on September 26, 2003. Both the September 25,
2003 Order and the opinion were published in typescript seven
days later on October 3, 2003.
2
In order to maintain the secrecy of the ongoing Special Grand
Jury proceedings, we will refer to this witness as the “Appellant”
or the “Witness.”
2 No. 03-3328
hold the Appellant in contempt and the Appellant moved to
quash the subpoena. The district court granted the petition
for contempt and effectively denied the motion to quash
after the Appellant persisted in his refusal to comply with
the subpoena following a grant of use immunity pursuant
to 18 U.S.C. §§ 6002-03. The Appellant is currently incar-
cerated pursuant to the district court’s civil contempt order.
Under that order, he will remain incarcerated until he com-
plies with the subpoena, or the Special Grand Jury expires,
or the district court determines that continued confinement
would not coerce him to testify and would instead become
punitive.3 The Appellant timely filed a notice of appeal, and
we have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 1826(b), the recalcitrant witness statute.4
I.
This is not the first time the Appellant finds himself in
civil contempt for refusing to comply with a subpoena. Five
years ago in a different jurisdiction, the Appellant was sub-
poenaed to testify before a different grand jury. At that
time, the Appellant refused to answer any question beyond
his name, address and occupation on the grounds that to do
so would violate his “long held and unshakeable religious,
3
The statute contemplates that the term of a grand jury may be
extended and allows for incarceration to continue through any ex-
tensions. The maximum term of confinement for civil contempt is
eighteen months. 28 U.S.C. § 1826(a).
4
The statute provides that “[a]ny appeal from an order of confine-
ment under this section 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). The Appellant filed a notice of appeal on
August 28, 2003. Therefore, we are obliged to dispose of the appeal
by September 27, 2003.
No. 03-3328 3
political and personal beliefs” and because he feared his
answers would be used against his friends, relatives and
colleagues. The district court held him in civil contempt and
incarcerated him for 180 days. The Appellant began a hun-
ger strike on the first day of his imprisonment that contin-
ued until his release. He was force-fed while in prison and
claims to have suffered a number of medical problems due
to his hunger strike. The district court ultimately released
him after finding that continued confinement would not
coerce the Appellant to testify and would instead become
punitive, although the court was careful to note that the
Appellant’s self-inflicted suffering played no part in the
decision to release him.
Now the Witness-Appellant has been served with another
subpoena in the Northern District of Illinois to appear
before a different grand jury conducting a different investi-
gation than was at issue five years ago. At his first appear-
ance before the Special Grand Jury, the Witness again
refused to answer any question beyond his name, address
and occupation. The district court granted the Witness use
immunity pursuant to 18 U.S.C. §§ 6002-03, and other ade-
quate safeguards were in place. At his second appearance
before the Special Grand Jury, the Witness continued to
refuse to answer any question beyond his name, address
and occupation. As the grounds for his refusal, the Witness
again cited his “long-held and unshakeable religious, polit-
ical and personal beliefs.” He also objected on the ground
that he believed his answers would be used against him
in unfair, illegal and politically motivated prosecutions.
Moreover, he believed he would be persecuted as a result
of his testimony. The Witness further refused to answer any
questions claiming that the United States government had
subjected him to illegal and extensive electronic surveil-
lance that was being used to question him before the
Special Grand Jury.
4 No. 03-3328
The government petitioned the district court under
28 U.S.C. § 1826 to hold the Witness in contempt for his
refusal to answer the questions posed to him before the
Special Grand Jury. The Witness moved to quash the sub-
poena. Before the district court, he argued that collateral
estoppel should prevent the government from petitioning
the court for contempt. In essence, he maintained that
a different district court’s finding five years ago that con-
tinued incarceration would not coerce him to testify but
rather would be punitive was binding on the district court
here. He also argued that the government was abusing the
grand jury process, that the subpoena and questions posed
stemmed from illegal Foreign Intelligence Surveillance Act
(“FISA”) surveillance, and that his religious and political
beliefs as well as his fear of retaliation constituted just
cause for his refusal to testify.
The district court found collateral estoppel inapplicable to
the government’s petition for contempt because of factual
differences between the two cases. First, the subject matter
of the prior grand jury investigation differed from that of
the current investigation. Second, the court found that the
Witness’s personal convictions, desires and future plans
might have shifted over a five-year period in a manner that
would lead to his eventual cooperation with the current in-
vestigation. Third, the court declined the Witness’s invita-
tion to create a presumption that a witness who has pre-
viously staunchly refused to testify will refuse again at a
later time in a different proceeding.
The court then proceeded to reject each of the reasons
the Witness had cited as bases for his refusal to testify.
The court rejected for lack of evidence the Witness’s claim
that, because the government was well aware when it sub-
poenaed him that he would refuse to testify and would be
held in contempt, the government was abusing the grand
jury process as a means to incarcerate him. A witness’s per-
sonal beliefs provided no relief from contempt, the district
No. 03-3328 5
court found. The court discounted the Witness’s fear of re-
taliation because the court had granted him immunity and
adequate safeguards were in place. As for retaliation by
others, the court found that fear of prosecution was not a
defense to contempt unless the United States collaborated
in any prosecution. The court accepted the government’s
assertion that it had no intention of sharing information
garnered in the Special Grand Jury proceedings.
The court then turned to the ultimate question, whether
incarceration under civil contempt would be coercive or
punitive given all of the circumstances surrounding the
Witness’s refusal to testify. The court found that confine-
ment might have the effect of causing the Witness to testify
in light of his familiarity with the hardships of prison life,
the new subject matter of the investigation, and the in-
creased difficulty of bearing the burdens of prison after the
passing of years, among other things.
After a joint motion for clarification on the FISA issue,
the district court found that none of the Witness’s FISA ar-
guments had any bearing on the contempt proceedings be-
cause the Witness refused to answer any question at all,
including those that clearly did not arise from any FISA-
related surveillance. Even if the FISA surveillance was
illegal or unconstitutional, the court ruled, the Witness was
not relieved from his obligation to respond to non-FISA re-
lated questions and was thus in contempt.
The court therefore ordered the Witness’s confinement.
On September 5, 2003, the Witness turned himself in to
the United States Marshal for incarceration pursuant to the
court’s order. Under the order, the Witness will be confined
until he testifies, or until the expiration of the Special
Grand Jury (including extensions), or until the district
court determines that confinement is punitive rather than
coercive. He appeals.
6 No. 03-3328
II.
On appeal, the Appellant maintains that the district court
abused its discretion in finding him in contempt because (1)
the government should be collaterally estopped from
bringing contempt proceedings against him when the issue
of his willingness to testify under threat of incarceration
was already litigated five years ago in another jurisdiction;
(2) the subpoena and the questions posed in the Special
Grand Jury proceedings were the result of illegal and
unconstitutional surveillance, according him a complete
defense to contempt under Gelbard v. United States, 408
U.S. 41 (1972); (3) there is no realistic possibility that the
Appellant will ever testify; and (4) the Appellant has a well-
founded fear of retaliation against himself and his family
which fear entitled him to a hearing on both his apprehen-
sions and the adequacy of the safeguards offered.
A.
We turn first to the issue of collateral estoppel. The Ap-
pellant contends that the government should have been
collaterally estopped from seeking contempt for his failure
to testify before the Special Grand Jury given another
court’s decision five years ago that incarceration would not
coerce the Appellant into testifying at that time before a
different grand jury. In order for collateral estoppel to ap-
ply: (1) the issue sought to be precluded must be the same
as that involved in the prior action; (2) the issue must have
been actually litigated; (3) the determination of the issue
must have been essential to the final judgment; and (4) the
party against whom estoppel is invoked must be fully re-
presented in the prior action. People Who Care v. Rockford
Bd. of Educ., 68 F.3d 172, 178 (7th Cir. 1995). See also Loeb
Indus., Inc. v. Sumitomo Corp., 306 F.3d 469, 496 (7th Cir.
2002), cert. denied, 123 S. Ct. 2249 (2003). The government
No. 03-3328 7
maintains that the Appellant failed to meet the first and,
therefore necessarily, the second elements of collateral
estoppel.
The Appellant notes that the district court in the earlier
action found after 180 days of imprisonment that there
was no realistic possibility that further confinement would
cause the Appellant to testify. The Appellant maintains
that nothing has changed during the intervening five years.
He opines that the Special Grand Jury is investigating the
same matters that were under investigation five years ago
and that his beliefs, experiences and character have re-
mained static. As before, he has been granted immunity. He
argues in the strongest terms that confinement will not
result in his cooperation any more today than it did five
years ago. Having fully litigated the effect of confinement
on his willingness to comply with a grand jury subpoena
five years ago, he contends the government may not reliti-
gate that issue now.
The salient question then is whether another court’s find-
ing five years ago that continued imprisonment would not
result in the Appellant’s compliance with a subpoena re-
quires the same finding now, after the passage of five years,
a change of jurisdiction, a change of grand juries and a
change of the subject of investigation.5 The question almost
answers itself. Collateral estoppel does not apply because
an adjudication that he would not testify under the coercion
of imprisonment five years ago is by no means dispositive
5
Our review of the record, which is under seal, reveals that the
current investigation differs from the one undertaken five years
ago. The Appellant argues that the investigations are essentially
the same because both investigations focus on the Appellant’s ties
to certain organizations. Having reviewed the record, we find that
the Appellant sweeps with too broad of a brush in characterizing
the investigations.
8 No. 03-3328
of his present state of mind. Indeed, one need only review
the statements the Appellant made to the grand juries on
each occasion to see that his state of mind was influenced
by significantly different factors five years ago. At that
time, the Appellant refused to testify because of his reli-
gious, political and personal beliefs and because he feared
his answers would be used against his friends, relatives and
colleagues. This time, he again cited his religious, personal
and political beliefs but also listed a fear of prosecution and
persecution by certain third parties, and the use of purport-
edly illegal surveillance in procuring his testimony. In
addition to a grant of immunity from the court, safeguards
were in place that addressed the new concerns he identified
as motivating his refusal to testify. As the district court
noted, the Appellant is now older, more familiar with the
burdens of confinement, and is being offered adequate safe-
guards. The court was entitled to find that circumstances
have changed in the last five years and the Appellant’s
present state of mind differs from his state of mind five
years ago. The prior adjudication thus cannot act as a bar
to the government’s current petition for contempt.
B.
The Appellant next contends that his presence before
the Special Grand Jury was procured through information
gained in illegal FISA surveillance and that the questions
posed to him were the fruit of that poisonous tree. He main-
tains that the government failed to comply with the condi-
tions that FISA imposes on surveillance of a foreign person,
and that the illegality of the surveillance provides a com-
plete defense to contempt. He requests discovery and a
hearing on the legality of the surveillance so that he can
litigate the adequacy of the FISA applications. The record
does not reveal whether the district court reviewed the
FISA applications, but this Court may rectify any omission
No. 03-3328 9
in that regard through independent in camera, ex parte re-
view. Indeed, both the government and the Appellant en-
couraged us at oral argument to review the FISA materials
as a means of resolving this dispute. We have done so and
conclude that there is no need to disclose any of the FISA
materials to the Appellant and that the FISA orders were
properly issued.
“When the Attorney General files, as in this case, a sworn
affidavit stating that disclosure or an adversarial hearing
would compromise the national security of the United
States, a review of FISA wiretaps must be conducted in
camera and ex parte.” In re Grand Jury Proceedings, Grand
Jury No. 87-4, Empaneled September 9, 1987, 856 F.2d 685,
687 (4th Cir. 1988) (hereafter “September 9, 1987 Grand
Jury”). See also 50 U.S.C. § 1806(f). Indeed, the Appellant
was unable to cite any case in which classified or otherwise
sealed FISA applications or orders were released to the
subject of the investigation for review, even after indict-
ment. At the time that the Fourth Circuit ruled in Septem-
ber 9, 1987 Grand Jury, every FISA wiretap review had
been conducted in camera and ex parte. 856 F.2d at 687 n.3.
We have found no cases since that time where the review
was conducted in any other fashion. See United States v.
Sattar, No. 02 CR 395-JGK, 2003 WL 22137012, at *6
(S.D.N.Y. Sept. 15, 2003) (collecting cases finding that no
court has ever ordered disclosure of FISA materials rather
than conducting in camera, ex parte review and cases hold-
ing in camera, ex parte review constitutionally sufficient).
The Appellant suggested at oral argument that this is that
one-in-a-million case where disclosure is necessary. Nothing
we have found in our review of the record supports his
suggestion. We therefore have reviewed the materials ex
parte and in camera.
A federal officer, with the approval of the Attorney
General, may apply for an order approving electronic sur-
10 No. 03-3328
veillance to acquire foreign intelligence information.
50 U.S.C § 1804. The application is made to a court spe-
cially designated for this purpose (hereafter the “FISA
court”). See 50 U.S.C. § 1803. The Attorney General’s ap-
proval of the application is conditioned on his finding that
it satisfies the criteria set forth in 50 U.S.C. § 1804(a).
There are numerous requirements for the applications, all
of which we have reviewed for facial validity, but we will
focus here on the factors contested by the Appellant.6 He
6
The full text of 50 U.S.C. § 1804(a) reads as follows:
Each application for an order approving electronic surveil-
lance under this subchapter shall be made by a Federal of-
ficer in writing upon oath or affirmation to a judge having
jurisdiction under section 1803 of this title. Each application
shall require the approval of the Attorney General based up-
on his finding that it satisfies the criteria and requirements
of such application as set forth in this subchapter. It shall
include—
(1) the identity of the Federal officer making the appli-
cation;
(2) the authority conferred on the Attorney General by
the President of the United States and the approval of
the Attorney General to make the application;
(3) the identity, if known, or a description of the target
of the electronic surveillance;
(4) a statement of the facts and circumstances relied
upon by the applicant to justify his belief that—
(A) the target of the electronic surveillance is a for-
eign power or an agent of a foreign power; and
(B) each of the facilities or places at which the elec-
tronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a
foreign power;
(continued...)
No. 03-3328 11
6
(...continued)
(5) a statement of the proposed minimization proce-
dures;
(6) a detailed description of the nature of the informa-
tion sought and the type of communications or activities
to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to
the President for National Security Affairs or an ex-
ecutive branch official or officials designated by the
President from among those executive officers employed
in the area of national security or defense and appointed
by the President with the advice and consent of the
Senate—
(A) that the certifying official deems the information
sought to be foreign intelligence information;
(B) that a significant purpose of the surveillance is
to obtain foreign intelligence information;
(C) that such information cannot reasonably be ob-
tained by normal investigative techniques;
(D) that designates the type of foreign intelligence
information being sought according to the categories
described in section 1801(e) of this title; and
(E) including a statement of the basis for the certifi-
cation that—
(i) the information sought is the type of foreign
intelligence information designated; and
(ii) such information cannot reasonably be ob-
tained by normal investigative techniques;
(8) a statement of the means by which the surveillance
will be effected and a statement whether physical entry
is required to effect the surveillance;
(9) a statement of the facts concerning all previous ap-
plications that have been made to any judge under this
(continued...)
12 No. 03-3328
challenges the legality of the FISA surveillance on the
grounds that he is not an agent of a foreign power, that the
facilities at which the surveillance was directed were not
being used by an agent of a foreign power, that the informa-
tion obtained in the surveillance was not properly mini-
mized, and that the information sought by the government
could have been reasonably obtained by normal investiga-
tive techniques. He also contends that the motivation and
intent of the Attorney General in obtaining the surveillance
was not to gather foreign intelligence information but
rather was to circumvent the more stringent probable cause
requirements of Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and to
criminalize those participating in a particular political
movement. Moreover, he asserts that the Attorney General
and his agents improperly used their FISA authority to
gather information for criminal indictments and to incarcer-
ate the Appellant without any evidence that he violated any
criminal law.
6
(...continued)
subchapter involving any of the persons, facilities, or
places specified in the application, and the action taken
on each previous application;
(10) a statement of the period of time for which the elec-
tronic surveillance is required to be maintained,if the na-
ture of the intelligence gathering is such that the ap-
proval of the use of electronic surveillance under this
subchapter should not automatically terminate when the
described type of information has first been obtained, a
description of facts supporting the belief that additional
information of the same type will be obtained thereafter;
and
(11) whenever more than one electronic, mechanical or
other surveillance device is to be used with respect to a
particular proposed electronic surveillance, the coverage
of the devices involved and what minimization proce-
dures apply to information acquired by each device.
No. 03-3328 13
In examining the adequacy of the FISA applications,
we conduct the same review that the FISA court conducted
(and that the district court may have conducted, which,
as we noted earlier, is not indicated either way in the rec-
ord). The FISA court, in reviewing the application, is not to
second-guess the executive branch official’s certifications.
United States v. Duggan, 743 F.2d 59, 77 (2d Cir. 1984).
“Further, Congress intended that, when a person affected
by a FISA surveillance challenges the FISA Court’s order,
a reviewing court is to have no greater authority to second-
guess the executive branch’s certifications than has the
FISA Judge.” Duggan, 743 F.2d at 77. We turn then to the
FISA court’s role in reviewing an application for surveil-
lance. The FISA court is authorized to enter an ex parte
order approving a request for electronic surveillance if it
finds that:
(1) the President has authorized the Attorney General
to approve applications for electronic surveillance for
foreign intelligence information;
(2) the application has been made by a Federal officer
and approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant
there is probable cause to believe that—
(A) the target of the electronic surveillance is a for-
eign power or an agent of a foreign power: Provided,
That no United States person may be considered a
foreign power or an agent of a foreign power solely
upon the basis of activities protected by the first
amendment to the Constitution of the United
States; and
(B) each of the facilities or places at which the elec-
tronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of
a foreign power;
14 No. 03-3328
(4) the proposed minimization procedures meet the
definition of minimization procedures under section
1801(h) of this title; and
(5) the application which has been filed contains all
statements and certifications required by section 1804
of this title and, if the target is a United States person,
the certification or certifications are not clearly errone-
ous on the basis of the statement made under section
1804(a)(7)(E) of this title and any other information
furnished under section 1804(d) of this title.
50 U.S.C. § 1805(a).
We have conducted a careful in camera and ex parte
review of the entire record in this matter, and we conclude
that the FISA court properly granted the applications. All
of the requisite certifications are in order. The Appellant’s
remaining objections to the legality of the FISA surveillance
(specifically, his claims of wrongdoing or illegal intent by
the Attorney General) are wholly without basis in the
record.
Because the FISA surveillance was not illegal, this Court
need not consider the parties’ arguments as to whether the
illegality of FISA surveillance may serve as a defense to
contempt in a grand jury proceeding. The government urges
this Court to hold that illegal FISA surveillance is never a
defense to contempt in a grand jury proceeding. The Appel-
lant counters that Gelbard v. United States, 408 U.S. 41(1972), provides him a complete defense to contempt when
his presence before the Special Grand Jury is procured
through information gained in illegal FISA surveillance. See
also September 9, 1987 Grand Jury, 856 F.2d at 689(looking to Gelbard for guidance in determining the right of
a grand jury witness to refuse to testify when the legality of
related FISA wiretaps was in question). Because the
surveillance was conducted lawfully here, there is no need
No. 03-3328 15
to rule on the viability of a Gelbard defense in the FISA
context. We reserve that issue for another day.
The Appellant also contended that FISA violates the
Fourth and Fifth Amendments, and that the unconstitu-
tionality of the surveillance provides him with a defense to
contempt. We reserve for another day that question as well.
All courts to consider the issue before FISA was amended
by the U.S.A. Patriot Act of 20017 have found FISA consti-
tutional. See United States v. Nicholson, 955 F. Supp. 588,
590 n.3 (E.D. Virginia 1997) (collecting cases upholding
FISA against various constitutional challenges). The only
court to consider the constitutionality of the post-Patriot
Act version of FISA is the Foreign Intelligence Surveillance
Court of Review in its only published decision. In re: Sealed
Case, 310 F.3d 717 (FISA Ct. App. 2002).8 That court found
that the Patriot Act’s amendment to FISA permitting the
government to conduct surveillance of an agent of a foreign
power if foreign intelligence is a “significant purpose” of the
surveillance does not offend the Fourth Amendment. The
Appellant’s argument that the Patriot Act rendered FISA
unconstitutional and that FISA violates the Fourth Amend-
ment is conclusory, undeveloped and without citation to au-
thority. Indeed, it is confined to one page of a ninety-page
brief in a section titled, “The FISA Statute is Unconstitu-
tional on its Face and as Applied.”
Assessing the constitutionality of a statute is the most
delicate task of a federal court. A litigant cannot re-
7
Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub.L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).
8
See 50 U.S.C. § 1803(b). Under this section, the Chief Justice of
the United States Supreme Court is authorized to publicly desig-
nate three judges to a court of review which has jurisdiction to
review the denial of any application made under FISA.
16 No. 03-3328
quire constitutional adjudication by incanting magic
spells or pointing a finger at a particular clause. We de-
cline to consider constitutional arguments that are of-
fered undigested.
Max M. v. New Trier High Sch. Dist. No. 203, 859 F.2d
1297, 1300 (7th Cir. 1988). Where the brief does not raise a
serious challenge to the constitutionality of a statute and
does not supply the background necessary for thoughtful
consideration, there is no need to reach the issue. Max M.,
859 F.2d at 1300; Hospital Corp. of Am. v. F.T.C., 807 F.2d
1382, 1393 (7th Cir. 1986), cert. denied, 481 U.S. 1038(1987) (issues cannot be preserved in this court merely by
being raised or by being developed inadequately).
C.
The Appellant also maintains that the district court
abused its discretion in confining him as a means of coer-
cion because his prior history and current resolve prove
there is no reasonable hope that confinement will lead to
his testimony. Civil contempt is authorized by 28 U.S.C.
§ 1826, the recalcitrant witness statute. Section 1826 pro-
vides, in relevant part, that when a witness refuses with-
out just cause to testify before a grand jury, a court may
summarily order the witness’s confinement “until such time
as the witness is willing to give such testimony.” The period
of confinement may not exceed the term of the grand
jury, including extensions, and in no event may it exceed
eighteen months. 28 U.S.C. § 1826(a). The district court’s
finding that the Appellant might cooperate in the face of
protracted imprisonment is reviewed with great deference.
United States v. Lippitt, 180 F.3d 873, 878 (7th Cir. 1999),
cert. denied, 528 U.S. 958 (1999). “Determining whether
there ceases to exist any reasonable possibility that a con-
temnor will eventually comply is obviously a very difficult
task, and is firmly committed to the district court’s discre-
No. 03-3328 17
tion.” Id.; See also United States v. Jones, 880 F.2d 987, 989
(7th Cir. 1989) (trying to differentiate among recalcitrant
witnesses who will never talk and those who will submit to
the coercive pressure of incarceration is “a line of inquiry
which is speculative at best and time-consuming and point-
less at worst”); In re Credidio, 759 F.2d 589, 591 (7th Cir.
1985) (the determination whether a civil contempt sanction
has lost its coercive effect rests within the sound discretion
of the district court). Some courts have stated that the
district court’s assessment of the usefulness of incarceration
as coercion is virtually unreviewable. Simkin v. United
States, 715 F.2d 34, 38 (2d Cir. 1983) (cited with approval
in Credidio, 759 F.2d at 591). The district court need not
accept at face value a contemnor’s claim that he will never
testify, but the court must make an individualized determi-
nation of whether continued confinement retains any real-
istic possibility of achieving its intended purpose. Lippitt,
180 F.3d at 878.
Here, the district court found that, despite the Appellant’s
past refusal to testify, he was now faced with a new set of
circumstances five years later that rendered incarceration
potentially coercive. In particular, the court found that (1)
the Appellant now had firsthand experience of prison life
and its attendant hardships; (2) the new Special Grand
Jury was bound to ask him new questions which he might
not find incompatible with his steadfastly held convictions;
(3) the Appellant, who had been involved in protracted
asylum proceedings, had recently drastically changed his
position on whether he wished to remain in the United
States by agreeing to depart; and finally (4) the world
political climate had changed significantly in a way that
might abate the Appellant’s fears. The court also noted that
the passage of years might render a person less able to
withstand the deterioration in living conditions that attends
incarceration. Considering all of those circumstances, the
district court was of the opinion that imprisonment could
very well have a coercive effect on the Appellant.
18 No. 03-3328
The Appellant focuses his argument on what he charac-
terizes as an unchanged situation. He opines that the inves-
tigation is essentially the same as the one conducted five
years ago because both involve the same interests. But at
oral argument his counsel conceded that the earlier grand
jury investigation differed from the current one in that the
“players” and the activities investigated have changed.
Moreover, he conceded the district court’s analysis of the
effects of the passage of time on the Appellant’s ability to
withstand the rigors of prison life. As he did five years ago,
the Appellant has begun a hunger strike in prison. His
counsel informed the Court that the Appellant was hospital-
ized much sooner than he was on his prior hunger strike
and has lost more weight earlier. Although counsel insisted
these changes simply rendered the Appellant more resolved
in his refusal to testify, the district court, which properly
considered the Appellant’s past unwillingness to testify,
was entitled to find otherwise and articulated a more than
adequate basis for its contempt order. We find no abuse of
discretion.
D.
Next, the Appellant argues that the district court erred in
failing to conduct an evidentiary hearing on his defense of
duress. He contends that he sufficiently demonstrated a
reasonable and genuine fear of retaliation against himself
and his family by third parties if he were to testify. He also
fears prosecution based on his testimony. The government
contests the legitimacy of the Appellant’s fears of prosecu-
tion and persecution, but we need not resolve that dispute.
As to any fears of prosecution in the United States, immu-
nity has been granted. Any fears of foreign prosecution
would not be a defense to contempt in a grand jury proceed-
ing. The Supreme Court has held that “concern with foreign
prosecution is beyond the scope of the Self-Incrimination
No. 03-3328 19
Clause” of the Fifth Amendment. United States v. Balsys,
524 U.S. 666, 673-700 (1998). Thus any Fifth Amendment
claim based on fear of prosecution by a foreign government
would provide no defense to contempt in a grand jury
proceeding. The Court noted an exception for instances in
which the United States is granting immunity from prose-
cution in order to obtain evidence to be delivered to other
nations as prosecutors of a crime common to both countries.
Balsys, 524 U.S. at 698-99. The Appellant claims that this
exception should apply to him. That claim is wholly without
support in the record.
Moreover, fear for one’s own safety and the safety of one’s
family is not itself “just cause” for refusing to testify, and
thus will not provide a defense to civil contempt in a grand
jury proceeding. See Piemonte v. United States, 367 U.S.
556, 559 n.2 (1961). However, duress may serve as an equi-
table defense to incarceration for civil contempt if the wit-
ness can demonstrate the presence of a palpable imminent
danger. Matter of Grand Jury Proceedings of Dec. 1989, 903
F.2d 1167, 1170 (7th Cir. 1990) (hereafter Freligh). In order
to claim duress, a recalcitrant witness must show that, due
to an overwhelming sense of immediate danger, he is un-
able to act freely, to testify, and thus to purge himself of his
contempt. Freligh, 903 F.2d at 1170. The Appellant has
presented no evidence demonstrating immediate danger to
himself or his family such that he is unable to act freely
in testifying. His evidence is of a generalized, unspecific na-
ture. Furthermore, because the court and the government
have offered adequate safeguards, the Appellant may not
continue to claim duress. See In re Grand Jury Proceedings,
943 F.2d 132, 135 (1st Cir. 1991) (a witness may not frus-
trate the grand jury’s access to information on the basis
that he will be put in danger by giving it and, at the same
time, reject an offer to remove or minimize the danger). No
evidentiary hearing on duress was necessary in light of the
20 No. 03-3328
offer of the government and the court to minimize or re-
move any danger that may have caused the Appellant to
fear for the safety of himself or his family.
III.
For the reasons stated above, we affirm the district
court’s judgment.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-14-03