Grand Jury Proceedings Harrisburg Grand Jury 79-1, In re

• Decision Date: 18 May 1981
• Docket Number: No. 80-2548,80-2548
• Parties: In re GRAND JURY PROCEEDINGS HARRISBURG GRAND JURY 79-1. Appeal of Robert McNABB. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 211

658 F.2d 211

In re GRAND JURY PROCEEDINGS HARRISBURG GRAND JURY 79-1.

Appeal of Robert McNABB.

No. 80-2548.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) May 18, 1981.

Decided Sept. 8, 1981.

Spero T. Lappas, Kusic & Lappas, Harrisburg, Pa., for appellant.

Carlon M. O'Malley, Jr., U. S. Atty., David C. Shipman, Asst. U. S. Atty., Harrisburg, Pa., for appellee.

Before ADAMS, ROSENN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal from a jury conviction and sentence for criminal contempt based on Robert McNabb's failure to comply with a bench warrant that was issued after McNabb ignored a subpoena duces tecum requiring his appearance before a federal grand jury raises several issues concerning the procedural law of criminal contempt. Appellant challenges the failure of the government to file an affidavit of purpose in support of its motion for a bench warrant or enforcement proceeding under 18 U.S.C. § 401. Further, he attacks the failure of the district court to consider the alternative of civil contempt before entertaining criminal contempt proceedings.

I.

A federal grand jury in Harrisburg was investigating possible criminal conduct in connection with the bankruptcy of Global Realty Company, a corporation of which McNabb was a former president and principal shareholder. In the course of the proceedings, a subpoena for McNabb's appearance was issued in February 1980. Because McNabb could not be found, that subpoena was never served on him. On March 10, 1980, however, a subpoena duces tecum issued, commanding McNabb to appear before the grand jury on March 27. An FBI agent served this second subpoena on McNabb in Florida, on March 14.

The day before McNabb's required grand jury appearance, his counsel sought a continuance from the United States Attorney. Realizing that the grand jury term was ending and that there would be no grand jury meeting for another month, the United States Attorney refused any postponement. He further indicated that he would seek a bench warrant if McNabb failed to appear. McNabb did not appear. Consequently, on March 28, the district court, in response to the government's motion for a bench warrant for McNabb's arrest, issued the requested warrant pursuant to 18 U.S.C. § 401. The United States Attorney notified McNabb's counsel of the bench warrant, and this information was then conveyed to McNabb.

That same day, March 28th, McNabb fled to North Carolina with his family and some bodyguards. Although McNabb refused to reveal his whereabouts, he called his counsel each day to inquire about receipt of the warrant. During this period McNabb also used two false names in several bank transactions. McNabb was finally arrested on June 4. At that point, the United States Attorney applied for criminal contempt proceedings based on McNabb's wilful failure to appear before the grand jury and his subsequent intentional concealment of his whereabouts. Taking account of these circumstances, and reasoning that because the grand jury had been dismissed McNabb would be unable to purge himself civilly, the district court issued an order to show cause why McNabb should not be held in criminal contempt.

McNabb was tried and convicted by a jury on the charge of criminal contempt. At trial, McNabb as well as government witnesses testified that McNabb had received threats against himself and his family both before and after issuance of the subpoena. Although McNabb relied on these threats to justify his refusal to obey the subpoena, the district court, in ruling on a post-trial motion, found that McNabb

did not contact police for protection or school officials concerning the threats to his children. Indeed, McNabb told one of his bodyguards not to worry about it. Furthermore, none of the specific threats related directly to his appearance before the grand jury.

After denying the motion for a new trial or, in the alternative, in arrest of judgment, the district court sentenced McNabb to eight months in prison. He now appeals, and we affirm.

II.

McNabb's principal assault on his criminal contempt conviction is based on a rule of this Court, known as the Schofield Rule, requiring the government to make a minimal showing of proper purpose before invoking the district court's powers to enforce obedience to a grand jury subpoena. The Schofield rule was adopted pursuant to the federal court's supervisory power over grand juries and over civil proceedings brought in the district court under 28 U.S.C. § 1826(a). Devised in the context of a witness who refused to furnish handwriting exemplars, fingerprints and photographs, the rule imposes a duty on the government "to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose." In re Grand Jury Proceedings (Schofield I), 486 F.2d 85, 93 (3d Cir. 1973).

In demanding application of the Schofield affidavit requirement in the present case, McNabb seeks to make two unwarranted extensions. First, the Schofield case addressed the propriety of matters requested by the subpoena; it did not purport to encompass the appropriateness of an appearance before the grand jury. Second, the procedural safeguards fashioned in Schofield involved the factual showing which must be made before a district court adjudges a witness in civil contempt there was no intimation that steps in criminal contempt proceedings would be necessarily analogous.

Although a subpoena to appear before a grand jury may be inconvenient or burdensome, it is not viewed as a "seizure" within the meaning of the Fourth Amendment. See United States v. Dionisio, 410 U.S. 1, 9, 93 S.Ct. 764, 769, 35 L.Ed.2d 67 (1973). Based on the well-settled principle that the public has a right to every man's evidence, the Supreme Court has long recognized that "citizens generally are not constitutionally immune from grand jury subpoenas." Branzburg v. Hayes, 408 U.S. 665 682, 92 S.Ct. 2646, 2657, 33 L.Ed.2d 626 (1972). ¹ Indeed, the grand jury's authority to subpoena witnesses to testify is not only firmly established, but essential to its inquisitorial task. See Blair v. United States, 250 U.S. 273, 279-81, 39 S.Ct. 468, 470-471, 63 L.Ed. 979 (1919).

Several fundamental assumptions underlie the refusal by the Supreme Court to extend the protection of the Fourth Amendment to grand jury subpoenas to testify. The historic notion of a civic obligation to give evidence before a grand jury in itself removes any stigma from the undeniable burden caused by a grand jury subpoena. See Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 255, 76 L.Ed. 375 (1932); Blair v. United States, supra, 250 U.S. at 281, 39 S.Ct. at 471. Practical differences between the compulsion exerted by grand jury subpoenas and the intrusion occasioned by an arrest or investigative stop provide another premise for withholding Fourth Amendment safeguards.

The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.

United States v. Doe (Schwartz), 457 F.2d 895, 898 (2d Cir. 1972) (Friendly, J.). Ultimately, the assumption of grand jury neutrality that it is a "protective bulwark standing between the ordinary citizen and the overzealous prosecutor" justifies that body's broad investigative powers, its authority to act on tips or rumors and to examine as many witnesses as necessary to ferret out all clues. See Branzburg v. Hayes, supra, 408 U.S. at 701, 92 S.Ct. at 2666; Wood v. Georgia, 370 U.S. 375, 392, 82 S.Ct. 1364, 1374, 8 L.Ed.2d 569 (1962).

Because a compulsory appearance before a grand jury is not an unreasonable seizure within the meaning of the Fourth Amendment, there would not appear to be justification for requiring a Schofield affidavit to establish reasonableness, relevance and propriety in this context. The simple fact of nonappearance provided the government with probable cause to apply for a bench warrant for McNabb. The authority of a court to issue bench warrants to arrest witnesses who fail to appear is, in fact, unquestioned. See Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966); Blair v. United States, supra, 250 U.S. at 281-82, 39 S.Ct. at 471. Indeed, the necessity to show reasonableness might well invert the grand jury's function, requiring that body to furnish answers to its questions before it could ask them. Such a dysfunctional demand would be much like the situation described in Hale v. Henkel, in which the witness refused to answer the questions posed on the ground that no specific "charge" was pending before the grand jury. The Supreme Court declared: "(I)t is impossible to conceive that ... the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted." 201 U.S. 43, 65, 26 S.Ct. 370, 375, 50 L.Ed. 652 (1906). Inasmuch as grand juries are subject to judicial control and subpoenas can be challenged by motions to quash, ² any further requirement that would saddle a grand jury with preliminary showings to procure attendance would unnecessarily impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws. Cf. United States v. Dionisio, supra, 410 U.S. at 17, 93 S.Ct. at 773 (declining to burden a grand jury with a "minitrial" to establish a preliminary showing of reasonableness when...