Appeal from an order of the Southern District of New York entered by Judge Irving Ben Cooper, adjudging a witness in civil contempt for failure to provide photographs, fingerprints, handwriting exemplars, and hair samples to a federal grand jury after being ordered to do so by the grand jury and the court. Order vacated.
Before Feinberg, Chief Judge, and Mansfield and Kearse, Circuit Judges.
Eve Rosahn appeals from an order of the Southern District of New York entered by Judge Irving Ben Cooper adjudicating her to be in civil contempt for refusal to provide photographs, fingerprints, handwriting exemplars, and hair samples to a federal grand jury after being ordered to do so by the grand jury and the court. We vacate the adjudication of contempt. Although we find no merit in any of Rosahn's other claims, we believe that by holding her civil contempt trial in secret, over her objection, the district court deprived her of her right under the due process clause of the Fifth Amendment to a public trial of the contempt charge.
On October 20, 1981, a Brinks armored truck containing funds of the Nanuet National Bank was robbed by a group of gunmen. In the course of the robbery and the attempts to escape therefrom one Brinks guard and two police officers were killed. Shortly thereafter a federal grand jury in the Southern District of New York began investigating the robbery and a series of similar robberies that have occurred over the past several years. Investigation of the Brinks robbery uncovered the facts that one of the "getaway" cars was registered to Eve Rosahn and that a van used in the robbery had been rented from a car rental agency located near Rosahn's residence by an individual fitting Rosahn's description. Searches at the robbery scene and of the van have produced strands of hair that the government apparently believes to be those of the participants.
Eve Rosahn was arrested by New York State authorities on September 26, 1981 (almost a month before the Brinks robbery) on charge of first degree riot. The charge arose out of events that allegedly occurred during a protest demonstration in Queens, New York. Rosahn has been represented on matters relating to this charge by Sharon Flood, Esq.
New York State authorities arrested Rosahn a second time on October 27, 1981, arraigning her on the charge of criminal facilitation of the Brinks robbery and murders. She was indicted and arraigned on the indictment on October 30, 1981. At both arraignments she was represented by Ms. Flood. After taking her into custody, New York State authorities took Rosahn to the Metropolitan Correction Center (the "MCC"), a federal detention facility, where for security reasons federal authorities held her on behalf of the state. Rosahn claims that because of the tight restrictions that were imposed upon her at the MCC, she had been unable to interview and select trial counsel for the state trial at the time she was called before the federal grand jury.
On November 6, 1981, Rosahn was served with a subpoena duces tecum returnable on November 9, requiring her to provide photographs, fingerprints, handwriting exemplars, and hair samples to the grand jury. When, on November 9, Rosahn appeared before the grand jury she refused to be sworn in, stating that she had not been able to retain trial counsel and that she was under indictment. The grand jury allowed her to petition the district court for an adjournment of her appearance.
At this point, at the request of the U.S. Attorney, Judge Cooper, sitting as the Part I judge, decided for security reasons to hear the application in a courtroom closed to the public. When Rosahn then appeared before Judge Cooper, Ms. Flood, who was representing her, explained on her behalf that Rosahn had been unable to retain "lead trial counsel" to represent her on the New York State Brinks charge. In the belief that the federal grand jury was investigating the same set of events as those giving rise to the state indictment, Ms. Flood argued that Rosahn should, before deciding whether to comply with the subpoena, be granted a one week adjournment so that she could choose and consult with the lawyer who would represent her on the New York charges. She also objected to the exclusion of the public from the argument on the application, pointing out that requests for adjournments of appearances before grand juries are often heard in open court and thus that there was no valid reason for closing the proceeding since, contrary to the government's contention, it was not "ancillary to" a grand jury investigation.
Judge Cooper denied the application for an adjournment, primarily on the ground that the law is clear that Rosahn had "no alternative with regard to the production of those items." He then granted a motion by Assistant U.S. Attorney Stacey Moritz, representing the government, that the minutes of the proceeding be placed under seal, to which Ms. Flood objected
"on the ground that there is nothing taking place in this proceeding which is by statute processed (sic) to be secret. There has been no testimony read nor evidence presented and I see no reason why it should be under seal." (App. 24).
Rosahn was then brought before the grand jury a second time. Again she refused to be sworn in or to provide the items. She was returned to the courtroom in which Judge Cooper was sitting. Again he excluded the public from the entire court proceeding, to which Ms. Flood objected.
Ms. Flood then advised Judge Cooper that Rosahn would not provide the items. She further stated that Rosahn realized that she could be held in contempt for failure to comply with an order of the court to provide the items, that she was aware of the consequences of a contempt adjudication, and that she realized that she would be able to purge herself of the contempt at any time in the future. On questioning by the court, Rosahn stated that she understood the penalty to which she could be subjected. Judge Cooper then offered to order her to return to the grand jury and provide the items, but she indicated that she would not comply "(s)o long as I am being denied my legal right to the counsel of my choice." Judge Cooper then found her in contempt.
Pursuant to 28 U.S.C. § 1826(a), Judge Cooper ordered that Rosahn be confined until she was willing to provide the items requested, until the expiration of the grand jury's terms, or until May 9, 1983, whichever should occur first. Rosahn ...