571 F.2d 675 (1st Cir. 1978), 77-1496, Appeal of Maguire

• Docket Nº: 77-1496.
• Citation: 571 F.2d 675
• Party Name: Appeal of Lawrence F. MAGUIRE (Grand Jury Proceedings).
• Case Date: February 22, 1978
• Court: United States Courts of Appeals, Court of Appeals for the First Circuit

Page 675

571 F.2d 675 (1st Cir. 1978)

Appeal of Lawrence F. MAGUIRE (Grand Jury Proceedings).

No. 77-1496.

United States Court of Appeals, First Circuit

February 22, 1978

Heard Dec. 8, 1977.

William J. Carr, Boston, Mass. by appointment of the court, for appellant.

Paul Healy, Jr., Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., and Robert B. Collings, Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

Page 676

BOWNES, Circuit Judge.

The issue here is whether a district court can order such physical force as is reasonably necessary to compel a defiant grand jury witness to appear in a lineup and submit to fingerprinting.

The appellant, Lawrence F. Maguire, was asked by a grand jury investigating an armed robbery if he would voluntarily appear in a lineup and submit to fingerprinting. He responded that he would not. The grand jury then voted to order him to appear in a lineup and be fingerprinted. Maguire was recalled as a witness and, after being formally ordered by the deputy foreman to appear in a lineup and submit to fingerprinting, refused on grounds of the Fifth Amendment.

The United States Attorney then filed a petition with the district court for an order requiring Maguire to comply. After a hearing at which Maguire and his counsel were present, the district court ordered him

to comply with the directive of the United States Grand Jury to appear in a lineup and to submit to complete fingerprinting at a time and place convenient to the United States Attorney, the witness, and his counsel.

At the hearing, the district court was informed that Maguire is currently serving an eight to ten year sentence at the Massachusetts Correctional Institution in Walpole.

Subsequent to the hearing, Maguire, through his counsel, informed the United States Attorney that he would not appear in any lineup or allow himself to be fingerprinted. The United States Attorney then filed a motion for an amended order authorizing the use of force to compel the ends sought. After another hearing at which Maguire and his counsel were present, the district court issued the following order:

It Is Further Ordered that should Lawrence F. Maguire refuse to attend or to stand in a lineup or refuse to submit to complete fingerprinting, as...