Grand Jury Proceedings Empanelled May 1988, Matter of

• Decision Date: 30 January 1990
• Docket Number: No. 89-3337,89-3337
• Parties: In the Matter of GRAND JURY PROCEEDINGS EMPANELLED MAY 1988. Appeal of Dennis FRELIGH.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 881

894 F.2d 881

In the Matter of GRAND JURY PROCEEDINGS EMPANELLED MAY 1988 Appeal of Dennis FRELIGH.

No. 89-3337.

United States Court of Appeals Seventh Circuit.

Argued Nov. 21, 1989.

Decided Nov. 22, 1989.

Opinion Jan. 30, 1990.

Ronald J. Stone, argued, Stratton, Dobbs, Nardulli & Lestikow, Springfield, Ill., for appellant.

Byron G. Cudmore, Asst. U.S. Atty., argued, Office of the U.S. Atty., Springfield, Ill., for appellee.

Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

Dennis Freligh pleaded guilty to federal narcotics offenses and on June 20, 1989, was sentenced to ten years in prison. The following month he was called before a federal grand jury to answer questions about the activities of his fellow narcotics conspirators. He refused, pleading the Fifth Amendment, and on August 15 the judge in charge of the grand jury (Chief Judge Baker) ordered him to testify under a grant of immunity the adequacy of which is not questioned. 18 U.S.C. Secs. 6002, 6003; In re Grand Jury Proceeding, Special April 1987, 890 F.2d 1 (7th Cir.1989). Freligh appeared before the grand jury on September 6 but refused to testify, telling the jury that he was refusing to answer its questions "for fear for my life and my kids Lindsay and Adam and my brothers and sisters.... I understand that you can give me protection, move me out of the area, but you can't move my whole family. I can't give up my whole family." Within hours Freligh was brought before the judge who had sentenced him for the narcotics violations, Judge Mills, who asked him whether it was true that he had refused to testify before the grand jury. Freligh admitted he had, adding that "for the safety of me and my family I just don't feel that I can." The judge told Freligh that he had to answer the grand jury's questions, and he was brought back before the grand jury the same day, but again refused to answer its questions.

The United States Attorney filed a petition for contempt on September 11. Freligh's lawyer requested a hearing, but on September 25, without responding to this request or conducting any further hearing, Chief Judge Baker held Freligh in civil contempt for disobeying his original order to testify and ordered him incarcerated until he testifies or until the statutory limitation on civil contempt for disobeying an order to testify before a grand jury expires, which will be either upon the discharge of the grand jury or the end of eighteen months, whichever comes first. 28 U.S.C. Sec. 1826(a). The judge found that "the fear of retaliation expressed by Dennis Freligh as grounds for non-compliance with the prior order of this court is speculative and unsupported except for the self-serving statements of Dennis Freligh." The judge directed that the running of Freligh's ten-year prison term be suspended while he is incarcerated for contempt.

The appeal challenges the denial of the request for a hearing before Chief Judge Baker. The only hearing that Freligh received was the one before Judge Mills on September 6, and it was perfunctory. Freligh was given no opportunity to amplify or substantiate his fear of retaliation if he testified, or to address the question of the proper sanction for his contempt, if contempt it was.

A federal civil contempt proceeding is a civil proceeding governed by the rules of civil procedure. Shakman v. Democratic Organization of Cook County, 533 F.2d 344, 352 (7th Cir.1976); Rogers v. Webster, 776 F.2d 607, 610 (6th Cir.1985) (per curiam); 3 Wright, Federal Practice and Procedure, Crim.2d, Sec. 705 (1982). Those rules entitle a party to an evidentiary hearing only if there are genuine issues of material fact. Fed.R.Civ.P. 56; cf. Rule 50. (For the application of this principle to civil contempt, see CFTC v. Premex, Inc., 655 F.2d 779, 782 n. 2 (7th Cir.1981); In re Grand Jury Proceedings, 795 F.2d 226, 234 (1st Cir.1986); In re Bianchi, 542 F.2d 98 (1st Cir.1976).) There is no comparable principle in criminal cases because the prosecutor cannot move for a directed verdict or for summary judgment. The right to a hearing in a civil contempt proceeding if (but only if) there are material contested facts is implicit in the witness contempt statute itself. For by entitling the witness to show that there was "just cause" for his disobedience, 28 U.S.C. Sec. 1826(a), the statute must presuppose that he have a reasonable opportunity to prove this. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980); In re Grand Jury Investigation, 545 F.2d 385, 388 (3d Cir.1976).

The government says there are no genuine issues of material fact in this case. We disagree.

1. If a witness can establish that he has not only a genuine but also a reasonable fear of retaliation against himself or his family, he places on the government the burden either of taking reasonable steps to protect him against such retaliation or, at the very least, of explaining why it should not be required to take such steps. No cases so hold, but In re Grand Jury Proceedings, 605 F.2d 750, 752-53 (5th Cir.1979) (per curiam), treats the proposition as arguable, and to us it seems implicit in the equitable character of civil contempt (of which more shortly); it is therefore unnecessary to decide whether it is strictly a defense. There was no offer of protection here, because Freligh was given no opportunity to demonstrate that he or his family was in danger--a material fact, even if material only to the adequacy of the protective measures to which he would be entitled if he showed that the danger was real.

2. Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961), states in dictum that if, after all reasonable protective steps are taken, the witness still has a genuine and reasonable fear for his or his family's safety if he testifies, the government can nevertheless insist on his testifying. "Neither before the Court of Appeals nor here was fear for himself or his family urged by Piemonte as a valid excuse from testifying. Nor would this be a legal excuse. Every citizen of course owes to his society the duty of giving testimony to aid in the enforcement of the law.... The Government of course has an obligation to protect its citizens from harm. But fear of reprisal offers an immunized prisoner no more dispensation from testifying than it does any innocent bystander without a record." Id. at 559 n. 2, 81 S.Ct. at 1722 n. 2. People inclined to intimidate witnesses must be shown that intimidation does not pay--does not succeed in preventing the witness from testifying. The demonstration is not complete, because the witness may decide to go to jail for eighteen months rather than endanger himself or his family. But faced with protracted incarceration he is quite likely to reduce his estimate of the gravity of the threat.

In a case as barren of relevant facts as this one is, we need not decide whether reasonable fear can ever be a defense if the government makes a reasonable offer of protection; Freligh was denied an opportunity to substantiate his fears and the government an opportunity to show what steps it would be willing to take to allay them. We regard the question as an open one, rather than settled by Piemonte, although the dictum we quoted is repeated in many cases. E.g., United States v. Damiano, 579 F.2d 1001, 1004 (6th Cir.1978). In United States v. Patrick, 542 F.2d 381, 388 (7th Cir.1976), we read it to mean only that "fear, by itself, will not legally justify or excuse a witness' refusal to testify in violation of a court order," and went on to indicate that duress would be a defense; the distinction between fear and duress, we suggested, was the difference between vague unsubstantiated fears and a palpable imminent danger. To similar effect see Harris v. United States, 382 U.S. 162, 166-67, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965); United States v. Housand, 550 F.2d 818, 825 (2d Cir.1977). All three of these cases, however--Patrick, Harris, and Housand- --involved criminal rather than civil contempt. The considerations may be different in the civil setting. Maggio v. Zeitz, 333 U.S. 56, 76 n. 8, 68 S.Ct. 401, 411 n. 8, 92 L.Ed. 476 (1948). The policy against rewarding intimidation, noted earlier, may have greater application to civil contempt, and argue for a stricter standard. Yet there surely are some defenses to civil contempt, a good example being the excessive burdensomeness of a subpoena. In re Sealed Case, 827 F.2d 776, 778 (D.C.Cir.1987) (per curiam). (For a veritable catalog of defenses to civil contempt see In re Grand Jury Proceedings, 486 F.2d 85, 91 (3d Cir.1973).) The witness contempt statute itself, as we have noted, excuses the witness who has "just cause" for disobeying the order to testify, 28 U.S.C. Sec. 1826(a), although the term "just cause" is not defined in the statute and there is no pertinent legislative history.

Duress could well be regarded as a form of excessive burden on a witness ordered to testify, and therefore an apt parallel to the excessive burdensomeness of a subpoena; if so, duress might be a form of just cause. This suggestion derives color from the frequently repeated statement that "punishment may not be imposed in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order." Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 1433 n. 9, 99 L.Ed.2d 721 (1988). Not too much should be made of this, however; the quoted passage has reference to the case "where the grand jury [having] been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt." Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 (1966). See also United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552, 75 L.Ed.2d 521 (1983). Duress is analogous; a person who is acting under duress is...