Grand Jury Matter, In re
| Decision Date | 11 June 1990 |
| Docket Number | No. 90-1215,90-1215 |
| Citation | 906 F.2d 78 |
| Parties | In re GRAND JURY MATTER. In re Linda BACKIEL, Witness, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Ronald Levine (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.
Patricia McInerney, Patricia V. Pierce (argued), Philadelphia, Pa., for appellant.
Morton Stavis, New York City, David M. McGlaughlin, Newman & McGlaughlin, P.C., Peter Goldberger, Law Offices of Alan Ellis, P.C., Philadelphia, Pa., amici curiae in support of appellant.
Before MANSMANN and SCIRICA, Circuit Judges, and SMITH, District Judge. *
Attorney Linda Backiel appeals from an order of the United States District Court for the Eastern District of Pennsylvania holding her in civil contempt for failure to answer certain questions before a grand jury despite having been ordered to do so. We will vacate the adjudication of contempt. While Backiel raises a variety of claims which we reject as meritless, we agree that the district court erred in denying Backiel's request to open that part of her civil contempt hearing which did not impinge upon the secrecy of proceedings before the grand jury.
On September 11, 1989, Backiel was served in Puerto Rico with a subpoena duces tecum ordering her to testify and produce documents before a grand jury sitting in Philadelphia, Pennsylvania. The government sought limited information regarding the authenticity and disposition of certain documents relevant to an on-going bail-jumping investigation. Backiel informed the government that if she were called before the grand jury, she would raise fifth amendment and electronic surveillance objections. She declined to make an off-the-record proffer of her knowledge of material facts.
On December 14, 1989, the government requested issuance of an immunity order compelling Backiel's testimony. On December 22, the government filed an affidavit pursuant to our decisions in In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (1973) ("Schofield I ") and In re Grand Jury Proceedings (Schofield), 507 F.2d 963 (3d Cir.1974), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975) ("Schofield II "). The affidavit stated that the Assistant United States Attorney, his predecessor and the FBI case agent had no knowledge of electronic surveillance of Backiel in connection with the matter under investigation by the grand jury. On January 3, 1990, Backiel was informed that she was not a target of the grand jury investigation.
On January 16, 1990, Backiel filed a motion to quash the grand jury subpoena on the following grounds:
(1) the documents sought were not in her possession or control;
(d) the fifth amendment, and
(e) the ethical obligations of attorneys to maintain the confidences of their clients;
(g) related to a crime allegedly committed four years before which should have formed the basis of an indictment long ago, and
(h) was the product of illegal surveillance.
The motion also challenged the adequacy of the Schofield affidavit, claimed an impermissible change in the scope of the subpoena, and denied the validity of the service effected in Puerto Rico. More than forty affidavits from clients and members of the legal community were appended to the motion. These affidavits attested to Backiel's reputation and character and stated that she should not be required to violate the attorney-client privilege by testifying before the grand jury. Some affiants made reference to the concern that giving testimony would chill Backiel's relationship with her clients and virtually all expressed the opinion that no purpose would be served by incarcerating Backiel. With the motion to quash, Backiel filed a motion for disclosure of electronic surveillance. The government answered these motions, amicus briefs were filed and a hearing was held on January 31, 1990. Backiel proffered no witnesses. On March 6, 1990, the district court denied all of Backiel's motions, granted her immunity, and directed that she appear and give testimony before the grand jury.
It was agreed that Backiel would appear at the session of the grand jury scheduled for March 20, 1990. Prior to March 20, Backiel filed a renewed motion for disclosure of electronic surveillance which the government met with a supplemental affidavit of denial pursuant to 18 U.S.C. Sec. 3504. The renewed motion was denied.
On March 20, prior to appearing before the grand jury, Backiel filed a second motion to quash, alleging grand jury abuse growing out of a scheduling conflict. Without awaiting a ruling on this motion, however, Backiel appeared before the grand jury. She read and distributed to the jurors a prepared statement reiterating her objections to giving testimony and ultimately refused to answer the questions asked. At the conclusion of Backiel's appearance, at approximately 3:50 p.m., the parties came before the district court where the government moved for a rule to show cause why Backiel should not be held in contempt. The district court denied Backiel's request for additional time to prepare, and a hearing on the motion began at 4:15 p.m. At that time, the district court ordered Backiel to show cause why she should not be held in civil contempt for refusing to testify.
Over Backiel's objection, the hearing was closed to the public. During the course of the hearing, Backiel sought time to secure two types of witness testimony. First, she sought to bring before the court purported experts on the grand jury system to "give testimony as to why people shouldn't give testimony before the Grand Jury." Second, Backiel asked that she be allowed to call a second category of witnesses who were members of the bar and would testify concerning her reputation and work record. The court declined to hear live testimony from the witnesses on the ground that even if the testimony were accepted as true, it was irrelevant to the issues before the grand jury and before the district court in the contempt proceeding.
Claims of grand jury abuse were also raised in the contempt hearing. Backiel argued that, during the course of her appearance before the grand jury, the prosecution had manipulated and misinformed the grand jurors in answering their questions on a number of points relating to the necessity for Backiel's testimony. Counsel for Backiel asked that the district court require the grand jury stenographer to read portions of the grand jury transcript containing the colloquy between the prosecutors and the grand jurors. The court questioned the Assistant U.S. Attorney and, while it heard a limited portion of the transcribed colloquy, it declined to hear or consider other portions.
Finally, the court put to Backiel the same questions asked in the grand jury proceedings. After Backiel twice maintained that she would adhere to her refusal to answer these questions before the grand jury, she was held in contempt. Incarceration was stayed pending this expedited appeal.
Before we move to the merits of Backiel's appeal, we must resolve a jurisdictional issue of first impression in this circuit: where a recalcitrant witness is not confined pursuant to an order of contempt, does the passing of the 30-day period for decision set forth in 28 U.S.C. Sec. 1826(b) deprive this court of jurisdiction? Having reviewed the decisions and reasoning of other federal appellate courts considering this question, we are satisfied that we retain jurisdiction to consider this matter despite the fact that more than thirty days have elapsed since the filing of the notice of appeal. We hold with other circuits that the thirty day rule has no application where the contemnor is not confined pursuant to the contempt order. See In re Sealed Case, 829 F.2d 189, 190 (D.C.Cir.1987) rev'd on other grounds, 838 F.2d 476 (D.C.Cir.), prob. juris. noted, 484 U.S. 1058, 108 S.Ct. 1010, 98 L.Ed.2d 976 (1988); In re Grand Jury Proceedings re: Larson, 785 F.2d 629, 631 n. 4 (8th Cir.1986), cert. denied sub nom. Roe v. U.S., 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987); U.S. v Johnson, 736 F.2d 358 (6th Cir.1984); In re Witness Before Special October Grand Jury, 722 F.2d 349, 353 (7th Cir.1983), cert. denied sub nom. Roe v. U.S., 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987); In re Rosahn, 671 F.2d 690, 694 (2d Cir.1982); In re Grand Jury Proceedings (Gravel), 605 F.2d 750 (5th Cir.1979); and Brown v. U.S., 465 F.2d 371, 372 (9th Cir.1972). 1
The 30-day time frame specified in Sec. 1826(b) was designed to protect the incarcerated recalcitrant witness from protracted confinement without appellate review of the order holding him in contempt. Where the contemnor is not incarcerated, the concerns underlying the fixing of an inflexible time schedule are not implicated. We adopt, therefore, as our position, the language of the court in In re Sealed Case:
While cases of this genre merit and must receive expedited treatment, see [28 U.S.C.] Sec. 1657(a), fair and complete consideration is sometimes impossible 'not later than thirty days from the filing of [the notice of] appeal.' Id. Sec. 1826(b). Instead of rushing headlong to meet a...
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