USCA1 Opinion

March 8, 1994

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 94-1137

IN RE:
GRAND JURY PROCEEDINGS.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin, Circuit Judges.
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____________________

Michael C. Andrews on brief for appellant.

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Donald K. Stern, United States Attorney, and Ernest S. DiNis
________________
________________
Assistant United States Attorney, on brief for appellee.
____________________
____________________

Per Curiam.
__________
district court

This is an appeal from an order of the

refusing to terminate

appellant's commitment

for civil contempt.

I.
_
A grand jury
been

investigating

gambling racket.
investigation.

in the district of

the

operation

Appellant
He was

was one of

indicted in

October 1992, he pleaded guilty.

sentenced, appellant
grand jury.

was

of

an

alleged

the targets

February

illegal
of the

1992 and,

in

Shortly before he was to be

subpoenaed to

Appellant refused

Massachusetts has

appear

before

the

to testify and, on January 8,

1993, the
6003.

court granted

use immunity.

Upon his continued

18 U.S.C.

refusal to answer

government filed a petition for contempt.

The district court

hearing on

lawyer

stated that the reasons appellant refused to testify,

ethically

At the

questions, the

held a

despite the grant

January 22.

6002,

of immunity, were that he

opposed to testifying

feared for his

hearing appellant's

was morally and

against anyone and

own safety and the safety of

that he

his ex-wife and

children.
Appellant did
attorney

added

information

cooperated during the two and a half years leading up to

his

indictment,

his

government

appellant

His
not

despite

that

behalf.
had

cooperation.

the

not testify on his own

efforts

He also emphasized that the

to

secure

government had not

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sought

indictments

decided to
pursuant
probation.

against

cooperate and, as
to plea bargains,
In light of

some

of

the

for others who

the government

individuals

who

pleaded guilty
was recommending

this and the long sentence appellant

was

facing due

plain

that

to

18

his non-cooperation,

months of

further

coerce appellant to testify.

the fact that

he argued,

incarceration

it was

would not

The court, relying, in part, on

appellant had not yet spent any

time in jail,

held him in contempt and ordered him incarcerated pursuant to

28

U.S.C.

1826(a).

sentenced to a term
of supervised

Four

later,

appellant

of imprisonment of 78 months and

release of

stayed during the

days

three

years.

term of his civil

was

a term

This sentence

was

contempt incarceration.

Appellant did not pursue an appeal from the

initial contempt

order.
He then
contempt

filed

contempt.

a hearing and

also did not

vacate the

The court denied

without findings of

pursue an appeal

motion to vacate the contempt

1994 --

to

order

of

on September 23, 1993 -- approximately eight months

after he was held in

without

a motion

fact.

from this denial.

the motion
Appellant
A

second

order was filed on January 20,

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

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promise of some leniency

in

the

government's

argued,

he had

sentencing
spent 12

changing his mind.

and

of the

maximum 18

Further,

he

months without

Given the long criminal sentence he faces

the now three and

that there was

recommendation.

a half years

of silence, he asserted

no chance he would ever testify.

Again, the

motion by endorsement, without

stating its

court denied the

reasons.

II.
__
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

incarceration

was

would

order to testify.

realistic
likely

Thus,

possibility

result in

that

continued

compliance

with the

his only request is that we

remand

the case.
Appellant relies on
F.2d 34 (2d Cir.
unreviewable

1983).

discretion"

deciding whether a

Simkin v.
______

United States,
_____________

Simkin acknowledged the

______
a

district

court

civil commitment has lost

possibility of having a coercive effect."

the

speculative nature of

"virtually

judge

has

in

"any realistic

Id. at 38.
___

the decision, however,

held that such deference is due "only

715

Given

the court

if it appears that the

judge
the

has assessed the likelihood of

particular

decision."

contemnor"

Id.
___

by

a coercive effect upon

making

"an

Appellant argues that

individualized

the record

here is

-4-

ambiguous and that

make

an

coercive

there is evidence that the

"individualized"
nature

of

his

determination
incarceration.

judge did not

concerning

the

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
time of

appellant's second motion,

the transcript from the initial

affidavit

stating that

unpersuasive.

the court had

By the

before it

hearing, appellant's current

he would

never

testify before

grand jury, and the memoranda filed by the parties.

the

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

central

to

the

contempt
court's

order.
initial

Because
decision

this factor
to

order

was
the

incarceration of appellant, we think that it is reasonable to

assume

that

appellant's

the

district

court,

in

deciding

to

deny

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

of

incarceration

factors other than the

__________
on

appellant.

The

continued impact
reference

to

the

"penalty" for not testifying was made in the initial hearing.

_______
The district court's
not before us.

decision arising out of that hearing is

To the extent that appellant is arguing for a

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mechanical

rule requiring a

every case, we think

court's view is

formal statement or

that this case -- in which the district

evident from context -- is

to consider imposing such a requirement.

of a

formal

district

finding,

finding in

appellant

has not

not the occasion

Apart from the lack

argued

that

the

court's action is subject to reversal (for example,

as

clearly

erroneous

or

demonstrably

based

on

improper

is intended to discourage

district

factors).
Nothing we say
courts

from

explaining

their

actions

in

defendant's imprisonment for civil contempt.

incarceration continues
are

the prospects

compliance.
continued
very

At

without effect,

that further
some

point

and

in

would

call

for

the more

some

some

The longer such

incarceration

incarceration might be hard

least,

continuing

uncertain

will produce
circumstances,

to justify or, at the

explanation.

district court has considerable latitude in

But

the

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.

Affirmed.
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