In re Grand Jury Proceedings

• Decision Date: 11 September 1973
• Docket Number: No. 73-1520.,73-1520.
• Citation: 486 F.2d 85
• Parties: In re GRAND JURY PROCEEDINGS. In re Jacqueline SCHOFIELD, Witness, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

486 F.2d 85 (1973)

In re GRAND JURY PROCEEDINGS. In re Jacqueline SCHOFIELD, Witness, Appellant.

No. 73-1520.

United States Court of Appeals, Third Circuit.

Argued July 2, 1973.

Decided September 11, 1973.

COPYRIGHT MATERIAL OMITTED

Joseph A. Torregrossa, Philadelphia, Pa., for appellant.

Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order adjudging the appellant Schofield in civil contempt and committing her to the custody of the United States Marshal until such time as she purges herself by furnishing handwriting exemplars and by allowing her fingerprints and photograph to be taken by the Government. See 28 U.S.C. § 1826.

On April 5, 1973 Mrs. Schofield was served with a subpoena commanding her to appear at 4042 United States Court-house, 9th and Market Streets, Philadelphia, Pa. for the purpose of testifying in a grand jury investigation. As appears on its face, the subpoena, on a standard printed Cr. Form No. 20, was issued by the Office of the Clerk, Eastern District of Pennsylvania, signed by a deputy clerk. As provided in Fed.R. Crim.P. 17(a), it was delivered in blank to the office of the United States Attorney, who filled in the blanks before it was served. The return of service shows that it was served by an F.B.I. agent. See 18 U.S.C. § 3052. The subpoena is captioned

"United States of America

v.

Grand Jury Investigation."

It discloses that it was issued on the application of the United States. It commands Mrs. Schofield to appear at the time and place designated "to testify in the above-entitled case." It contains no other information about the nature or purpose of the proceeding.

Mrs. Schofield appeared at the designated time and place. She was not asked to testify, but was directed by the United States Attorney (1) to submit handwriting exemplars, and (2) to allow her fingerprints and photograph to be taken. She requested an opportunity to confer with counsel and after so conferring on April 13, 1973 she refused to comply with the same requests made before the grand jury.

On April 19, 1973 the United States Attorney made a motion in the district court requesting that it order Mrs. Schofield "to submit and furnish, pursuant to any reasonable requests, examples of her handwriting and/or handprinting; fingerprints; and allow her photograph to be taken." In support of this application the Government represented:

"1. That JACQUELINE SCHOFIELD was called by the United States on April 13, 1973 to provide handwriting examples, fingerprints and her photograph to the Federal Grand Jury.

2. That the said JACQUELINE SCHOFIELD did appear before the said Grand Jury and did refuse to comply with the said request.

3. That the said JACQUELINE SCHOFIELD had no right or privilege, under either the 4th or 5th amendment of the United States Constitution to refuse to comply with said requests."

No other information, aside from legal argument, was furnished to the court in support; of the motion. On April 19, 1973, without making any findings of any kind, the district court entered an order

"that the defendant, Jacqueline Schofield, shall within ten days of the date of this Order present herself at the office of the Federal Bureau of Investigation, . . . and shall submit and furnish, pursuant to any reasonable requests, samples of her handwriting and/or handprinting; fingerprints; and shall allow her photograph to be taken . . . ."

The order permitted counsel to be present during her processing by the F. B.I. Mrs. Schofield did not comply with the order, and the United States Attorney obtained from the district court an order directing her to show cause why she should not be adjudged in civil contempt. In support of the order to show cause the United States Attorney showed only the facts set forth above. On the return day the district court determined that Mrs. Schofield had violated the order of April 19, 1973. Without making any other findings the court adjudged her in civil contempt and directed her confinement until she purged herself by submitting to the order. This appeal followed.

At all times during the proceedings in the district court Mrs. Schofield urged that before she be required to comply with the Government's requests (1) the Government state the purpose and necessity for requesting of Mrs. Schofield handwriting exemplars, fingerprints and photographs, and (2) that if the Government has in its possession documents allegedly signed by her, she be permitted to examine them. At all times during the proceedings below, and on this appeal, the Government has taken the position that it need disclose, either to the court or to the witness, no more than appears on the face of the grand jury subpoena.

Fed.R.Crim.P. 17(g) provides:

"CONTEMPT. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued . . . ."

The rule makes no distinction between civil and criminal contempts. Thus a recalcitrant witness presumably could be charged with a criminal contempt pursuant to Fed.R.Crim.P. 42(b). Moreover, Rule 17(g) on its face appears to make a subpoena self executing. Title III of the Organized Crime Control Act of 1970, P.L. 91-452, 28 U.S.C. § 1826(a), however, provides:

"Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement . . . until such time as the witness is willing to give such testimony or provide such information."

House Report (Judiciary Committee) No. 91-1549, Sept. 30, 1970 says:

"Title III is intended to codify present civil contempt practice with respect to recalcitrant witnesses in Federal grand jury and court proceedings." 2 U.S.Code Cong. & Ad.News, 91st Cong., 2d Sess. 4008 (1970).

Thus, for a civil contempt the two-step procedure of a subpoena followed by a court order is required. A subpoena is not, for civil contempt purposes, self executing. Moreover, the witness may be held in contempt only when his refusal is "without just cause." This appeal, then, requires a determination of the procedural steps which must be followed and the factual showing which must be made before a district court may adjudge a witness in civil contempt pursuant to 28 U.S.C. § 1826(a) and Fed.R. Crim.P. 17(g).

The Government, citing United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L. Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed. 2d 99 (1973), contends that the district court should not make, or permit the witness to make, any inquiry, or require the Government to make any showing, beyond the facts set forth above. The district court apparently agreed.¹ That holding gives much too broad a compass to the holdings in Dionisio and Mara. Those cases did not involve the district court's supervisory power over the proper use of its process in a grand jury proceeding, the supervisory power of this court over the manner in which the district court supervises the proper use of its process, or the substantive and procedural law of civil contempt.

In Dionisio each grand jury witness was advised that he was a potential defendant in a criminal prosecution. Each was asked to examine a transcript of a lawfully intercepted wire conversation and to read the transcript into a recording device. Dionisio refused to do so, asserting that such a procedure violated his rights under the fourth and fifth amendments. The Government's petition for enforcement established that the voice exemplars were essential and necessary to the grand jury investigation and that they would be used solely as a standard of comparison in order to determine whether or not the witness was the person whose voice was intercepted. The Seventh Circuit, relying on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), held that before a grand jury subpoena could issue for such a purpose there must be preliminary showing in open court of probable cause for its issuance. In re Dionisio, 442 F.2d 276 (7th Cir. 1971). Compare the above with United States v. Doe, 457 F.2d 895 (2d Cir. 1972). In Mara the Government sought handwriting exemplars. Its enforcement petition, presented to the court ex parte, and supported by an affidavit of an F.B.I. agent setting forth the basis for seeking the exemplars, established that the handwriting exemplars were essential and necessary to the grand jury investigation and would be used solely to determine whether Mara was the author of certain writings. The Seventh Circuit reversed. Relying on its Dionisio holding it held that an ex parte proceeding was inadequate² and that in addition to the need for comparison the Government must establish that exemplars were unavailable from another source. In re September 1971 Grand Jury (Richard J. Mara), 454 F.2d 580 (7th Cir. 1971). In both cases the Supreme Court reversed. The holding in Dionisio is clear:

"Since the Court of Appeals found an unreasonable search and seizure where none existed, and imposed a preliminary showing of reasonableness where none was required, its judgment is reversed and this case is remanded to that Court for further proceedings consistent with this opinion." 410 U. S. at 18, 93 S.Ct. at 773.

Its holding in Mara reiterates that in Dionisio. Both hold that the fourth amendment does not require any preliminary showing for the issuance of a grand jury subpoena, either to compel testimony, or to compel production of voice or handwriting exemplars. Neither,...