Grand Jury Matter, Gronowicz, In re

• Citation: 764 F.2d 983
• Decision Date: 24 June 1985
• Docket Number: No. 84-1721,84-1721
• Parties: , 18 Fed. R. Evid. Serv. 239, 11 Media L. Rep. 2249 In re GRAND JURY MATTER, Antoni GRONOWICZ, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 983

764 F.2d 983

54 USLW 2029, 18 Fed. R. Evid. Serv. 239,

11 Media L. Rep. 2249

In re GRAND JURY MATTER, Antoni GRONOWICZ, Appellant.

No. 84-1721.

United States Court of Appeals, Third Circuit.

Argued Jan. 14, 1985.

Argued In Banc May 6, 1985.

Decided June 24, 1985.

Ramsey Clark (argued), Lawrence W. Schilling, New York City, Burton Caine, Weldon Brewer, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr. (argued), U.S. Atty., Walter S. Batty, Jr., Stephen V. Wehner, Asst. U.S. Attys., Section Chief, Frauds, Paul J. Larkin, Jr., Atty., Dept. of Justice, Philadelphia, Pa., for the U.S.

Gregory M. Harvey, Frank L. Corrado, Philadelphia, Pa., for amici curiae The American Civil Liberties Foundation and the Authors League of America, Inc.; Morgan, Lewis & Bockius and Irwin Karp, Port Chester, N.Y., of counsel.

Before ALDISERT, Chief Judge, SEITZ, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER, BECKER and MANSMANN, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

Antoni Gronowicz, the author of a book called God's Broker, appeals from an order of the district court holding him in civil contempt for refusing to comply with an order enforcing a grand jury subpoena duces tecum. The district court denied Gronowicz's motion to quash the subpoena insofar as he sought relief with respect to the production of documents, and Gronowicz was ordered to produce the subpoenaed documents within two weeks. Thereafter the order was modified to identify the documents more specifically. Gronowicz refused to obey the modified order, and was directed to show cause why he should not be held in civil contempt. In response Gronowicz asserted essentially the same objections to the subpoena as had been considered and rejected when the court denied the motion to quash. The district court held that Gronowicz was in civil contempt and ordered that he pay a five hundred dollar per day coercive civil fine for each day of further non-compliance. This appeal followed. Payment of the coercive fine was stayed pending appeal. We now affirm.

I.

Gronowicz's motion, filed pursuant to Fed.R.Crim.P. 17(c), made four objections to enforcement of the subpoena: (1) that it sought information that was within the protection of the Pennsylvania Shield Law, 42 Pa.Cons.Stat.Ann. Sec. 5942 (Purdon 1982); (2) that it was burdensome, oppressive, and unreasonable; (3) that the information was sought for an improper purpose because the grand jury's investigation was prohibited by the first amendment; and (4) that the state of Gronowicz's health precluded his personal appearance. ¹ The district court ruled that Gronowicz did not have to appear at that time. Thus only the production of documents is in issue. The court ruled, further, that the Pennsylvania Shield Law did not provide a basis for withholding the documents, and that in light of the scope of the grand jury investigation the subpoena duces tecum was not unduly burdensome or oppressive. On appeal Gronowicz does not challenge these rulings. The district court also ruled, however, that the subpoena was for a proper purpose in that it sought information relevant to an investigation into possible violations of the mail and wire fraud statutes. 18 U.S.C. Secs. 1341, 1343 (1982). Gronowicz challenges that ruling. He contends that this mail fraud investigation of him is outside the authority of the grand jury because it must of necessity inquire into the truth of assertions made by him in God's Broker. Such an inquiry, he contends, may not be made by a grand jury because it would violate the press and religion clauses of the first amendment. Gronowicz also contends that, as the author of a book, he is protected by a federal common law privilege from grand jury subpoena of materials relating to the writing of a book.

God's Broker was published in New York by Richardson & Snyder. That firm has since withdrawn the book from the market for reasons which will appear hereafter. The dust jacket states that the book portrays "[t]he life of Pope John Paul II as told in his own words and in the reminiscences of cardinals, bishops, and friends." Much of the text purports to be direct quotations from the Pope and other Vatican officials. Gronowicz writes in the prologue that the text is derived "from private conversations in Europe and America with Pope John Paul II, Cardinals and other high officials of the Roman Catholic Church, as well as with the cultural and political personages of Poland." Gronowicz further asserts that Cardinal Wyszynski, Primate of Poland, "introduced me to the Pope, acquainted me with Vatican circles, and convinced the Holy Father that he should bypass the Vatican Department of State and grant the private interviews."

Before Richardson & Snyder decided to publish God's Broker, Gronowicz obtained a note to the publisher from John Cardinal Krol of Philadelphia commenting favorably on the manuscript. After the book was published and distributed, however, Cardinal Krol withdrew his endorsement, and information came to the publisher suggesting that Gronowicz never interviewed the Pope, and had met him only once or twice as a member of a general audience. Julian Snyder, a partner of Richardson & Snyder, concluded that the book is a fraud insofar as it purports to recount interviews which never took place, and has brought a civil fraud suit against Gronowicz. The publisher has withdrawn the book from distribution. Gronowicz also contracted with Thomas Leonard of Philadelphia for the motion picture rights to the book. The government asserted in its opposition to the motion to quash, and continues to assert on appeal, that the grand jury is investigating whether Richardson & Snyder or Leonard was defrauded by Gronowicz in violation of 18 U.S.C. Secs. 1341 and 1343.

II.

If, as Gronowicz contends, there is a federal common law privilege analogous to the journalists' privilege, that protects an author from compelled disclosure to a grand jury of information concerning the truth of representations of fact made about the contents of a book, that privilege would afford a basis for reversing the contempt order without addressing his first amendment claims. Gronowicz would not be protected by a privilege, such as is afforded by typical press shield laws, merely to conceal the confidential sources of published information when called to testify in proceedings directed against third parties. Compare Riley v. City of Chester, 612 F.2d 708 (3d Cir.1979); United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139 (3d Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981); United States v. Criden, 633 F.2d 346, 358-59 (3d Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); United States v. Cuthbertson (Cuthbertson II), 651 F.2d 189, 195-96 (3d Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 604, 70 L.Ed.2d 594 (1981). Moreover even in investigations into third party conduct, the press privilege recognized in the cited cases is a qualified one, which yields, if the circumstances so require, to the compelling governmental interest in investigation of crime.

No case has been called to our attention in which this court or the Supreme Court has recognized a press privilege to be absolutely free from inquiry into the legality of the reporter's own activities, even those reflected in a publication. Indeed the Supreme Court has expressly rejected that position. It has held that authors may be held accountable for culpable falsehoods, both criminally, Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), and civilly, Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). If the author of a culpable falsehood had a common law privilege such as Gronowicz contends for, simply because the alleged falsehood had been published, it would be extremely difficult to hold that author accountable. The Supreme Court has recognized as much, holding in Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645, 60 L.Ed.2d 115 (1979), that a reporter's thoughts, opinions, and conclusions with respect to materials gathered by him were discoverable in a civil action for libel. The limits on civil discovery, according to the court, are to be found in Fed.R.Civ.P. 26(b)(1), not in any doctrine of absolute privilege. Id. at 177, 99 S.Ct. at 1649.

When a grand jury conducts an investigation into culpable falsehood, or any other subject, the limits of its inquiry in this Circuit are established by the Schofield rule. In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir.1973); In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966 (3d Cir.), cert. denied, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975). The Schofield rule requires the government to make a showing by affidavit that the subpoenaed items are: "(1) relevant to an investigation, (2) properly within the grand jury's jurisdiction, and (3) not sought primarily for another purpose." Schofield II, 507 F.2d at 966. Gronowicz does not challenge the grand jury's jurisdiction or the relevance of the subpoenaed items to the investigation. Gronowicz may prevail under the third prong of the Schofield test only if the subpoenaed items are not sought to further a proper grand jury investigation. In light of Herbert v. Lando, no reason occurs to us for establishing a privilege in the grand jury context for authors which is broader than the Schofield rule. If the grand jury can constitutionally inquire into culpable falsehood by an author, the Schofield requirements are met, and no federal common law privilege permits...