[1]     

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

, [5]     

Decided: December 14, 1995

, [6]      IN RE: GRAND JURY SUBPOENA " />

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In Re Grand Jury Subpoena John Doe, 72 F.3D 271 (2d Cir. 12/14/1995)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 1250 -- August Term 1995

Docket No. 95-6401

72 F.3d 271, 1995.C02.0000539 <http://www.versuslaw.com>

Decided: December 14, 1995

IN RE: GRAND JURY SUBPOENA

Before: FEINBERG, OAKES and CALABRESI, Circuit Judges.

[8]    

Argued: December 8, 1995

[9]    

JOHN DOE,

Petitioner-Appellant, v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

John Doe appeals from an order of civil contempt dated November 28, 1995, entered in the United States District Court for the Eastern District of New York, Allyne R. Ross, J., after Doe refused to testify before a grand jury unless: (1) he was permitted to write down every question asked of him; (2) he was given a transcript of his prior testimony before a different grand jury; and (3) he was given notes that may have been taken by federal agents when they interviewed him. The Court of Appeals, Feinberg, J., holds that the district court did not abuse its discretion in holding that Doe did not have a right to the materials he requested. The order of civil contempt is affirmed.

CHRISTINE E. YARIS, New York, NY (Nancy A. Perry, on the brief), for Appellant.

ANDREW WEISSMANN, Brooklyn, NY, Assistant United States Attorney for the Eastern District of New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Peter A. Norling, Assistant United States Attorney, of Counsel), for Appellee.

FEINBERG, Circuit Judge:

John Doe appeals from an order of civil contempt dated November 28, 1995, entered in the United States District Court for the Eastern District of New York, Allyne R. Ross, J. Doe refused to testify in front of a grand jury unless: (1) he was permitted to write down every question asked of him; (2) he was given a transcript of his prior testimony before a different grand jury; and (3) he was given notes that may have been taken by federal agents when they interviewed him. The district court held that on the record before it, including material submitted to it in camera, Doe did not have a right to the materials he had requested. Upon determining that Doe had refused to answer questions and would continue to do so, the judge held Doe in civil contempt and ordered him confined for the life of the grand jury, or until he purged himself of the contempt, whichever was sooner. We affirm the order of the district court.

I. Background

In March 1992, Doe was granted immunity and testified before a grand jury. In November 1995, Doe was required to appear before another grand jury investigating the same activity. In the interim between these appearances, Doe was interviewed a number of times by federal agents.

On November 14, 1995, Judge Sterling Johnson Jr. of the Eastern District ruled that Doe could not bring notes into the grand jury room, nor could he take notes during the grand jury proceeding and leave the grand jury room with the notes. Thereafter, Doe refused to answer questions, relying on his fifth amendment privilege. Doe was then again granted immunity, but on November 21, 1995, he again refused to answer questions based on: (1) his purported fifth amendment privilege; (2) his need to take notes in order to be able to consult with his attorney; (3) his right to obtain the grand jury transcript of his 1992 appearance; and (4) his need for notes taken by federal agents. Doe did not make a formal motion under Rule 6 of the Federal Rules of Criminal Procedure for discovery of grand jury materials.

A compromise was then reached in which the government agreed to limit questioning initially to the time period after May 1995, the last time Doe spoke with any government agents, so as to alleviate his concern that his testimony now might be inconsistent with his earlier statements. But we have found nothing in the record to indicate that the government agreed not to ask, at a later date, questions relating to the period before May 1995. The government also agreed to let Doe take notes in the grand jury to the extent necessary to consult with counsel, who was right outside the grand jury room.

Doe next appeared in front of the grand jury on November 22. Despite being told that he could only write down questions about which he sought legal advice, Doe wrote down each question, even when he did not consult with his attorney. On November 28, Doe returned to the grand jury and, when the government asked questions regarding events prior to May 1995, Doe again refused to answer questions.

The parties and the jury foreperson then appeared before Judge Ross. Judge Ross determined that Doe had refused to answer questions and would continue to refuse. On the record before her, including material submitted in camera by the government, the judge then held Doe in civil contempt, finding that he had not shown a particularized need either for the grand jury transcript or the notes made by federal agents. Judge Ross held in the alternative that even if the court applied a presumption that Doe was entitled to disclosure of his prior testimony, such disclosure was not warranted in this case. The court ordered Doe confined for the life of the grand jury, or until he purged himself of the contempt, whichever was sooner, but stayed the contempt order for one day.

Doe promptly appealed and sought a further stay. On November 29, this court granted an emergency stay until Doe's motion for a stay could be heard by a motions panel of the court. That panel heard the motion on December 5, and continued the stay. In light of the government's representations regarding urgency, the panel also expedited Doe's appeal from the contempt order to December 8. This panel heard argument on that day. Later that day, we affirmed in a brief order stating that an opinion would follow. This opinion carries out that commitment.

II. Discussion

In this court Doe argues that: (1) he has a right to the transcript of his testimony before the 1992 grand jury and the notes, if any, taken by federal agents; and (2) he was denied due process at his contempt hearing in the district court. We review for abuse of discretion the district court's decision not to release the material sought. Pittsburgh Plate Glass Co. v. United States


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