In re Proceedings, 13–2498.

• Decision Date: 20 February 2014
• Docket Number: No. 13–2498.,13–2498.
• Parties: In re GRAND JURY PROCEEDINGS.
• Court: U.S. Court of Appeals — First Circuit

744 F.3d 211

In re GRAND JURY PROCEEDINGS.

No. 13–2498.

United States Court of Appeals,First Circuit.

Feb. 20, 2014.

William P. Devereaux, with whom James W. Ryan, Matthew C. Reeber, Misty G. Delgado and Pannone Lopes Devereaux & West LLC were on brief, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before HOWARD, Circuit Judge, SOUTER ^*, Associate Justice, and STAHL, Circuit Judge.

HOWARD, Circuit Judge.

A venerable legal Latinism, lex non cogit ad impossibilia, teaches that the law does not compel the impossible. Guided by that august adage, we hold that a subpoena duces tecum compelling the production of documents to a now-defunct grand jury cannot be enforced by civil contempt sanctions before a successor grand jury, and we accordingly vacate the district court's order holding the appellant in civil contempt. We reject, however, the appellant's additional contentions that tribal sovereign immunity shielded it from subpoena and that the subpoena was unreasonably broad in scope.

I.

Because this case is under seal, we provide only a cursory rehearsal of the facts. On October 2, 2012, appellant Narragansett Indian Tribal Historic Preservation Office (“NITHPO”) was served with a subpoena duces tecum issued by a grand jury in the District of Rhode Island the previous month.¹ The subpoena directed the custodian of NITHPO's records to appear before the grand jury with a series of documents on the morning of October 24, 2012. During the course of ensuing negotiations with NITHPO as to the scope of the subpoena, the government repeatedly extended the return date for the subpoena. When these negotiations proved fruitless, the government ultimately set a return date of February 27, 2013. On the last day before that deadline, NITHPO informed the government that it would not produce the subpoenaed records before the grand jury, asserting inter alia that tribal sovereign immunity shielded it from the grand jury's subpoena power.

The sitting grand jury was subsequently discharged, and a new grand jury was empanelled in its place on April 16, 2013. On May 9, the government moved to compel NITHPO's compliance with the 2012 subpoena, representing in its motion that although the subpoena had been issued by a previous grand jury, the investigation had been transferred to the newly-empanelled grand jury. NITHPO objected to the government's motion and moved to quash the subpoena on grounds of tribal sovereign immunity and unreasonableness.

On August 2, the district court entered an order granting the government's motion to compel and, except for some narrowing of the scope of the subpoena, denying NITHPO's motion to quash. The court ordered NITHPO to “comply with the October 24, 2012 grand jury subpoenas ... at a mutually agreed upon date and time within 30 days.” ² After NITHPO's custodian of records failed to appear on the agreed-upon date, September 18, the government moved for a court order requiring NITHPO to show cause why it should not be held in civil contempt for its noncompliance. The district court issued a show cause order on October 22, and after a contempt hearing the following month, adjudged NITHPO in civil contempt and imposed a fine of $500 per day of noncompliance beginning on December 4. This appeal followed.

II.

NITHPO raises three primary arguments on appeal, contending that 1) the underlying subpoena was no longer enforceable following the discharge of the issuing grand jury in April 2013; 2) NITHPO enjoyed tribal sovereign immunity from the grand jury's subpoena power; and 3) the subpoena was unreasonably broad in scope under Fed.R.Crim.P. 17(c)(2). We address each argument in turn, reviewing de novo the district court's legal determinations as to enforceability and sovereign immunity, see Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 15 (1st Cir.1991), and reviewing for abuse of discretion the district court's decision as to reasonableness under Rule 17(c)(2), see United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir.1988).

A. Enforceability

In response to the district court's show cause order, NITHPO contended unsuccessfully that the district court could not enforce a subpoena issued by a defunct grand jury. NITHPO raises the same argument in this appeal, averring that civil contempt sanctions for noncompliance with a subpoena cannot be imposed beyond the life of the grand jury under whose aegis the subpoena was issued. The government in turn suggests that civil contempt sanctions are keyed to the life of the grand jury for which the contempt order was issued—here, the grand jury empanelled on April 16, 2013. The parties' arguments rest on divergent interpretations of the applicable statute and caselaw, to which we presently turn.

We have described the federal courts' contempt power as “one of the most potent weapons in the judicial armamentarium.” Project B.A.S.I.C., 947 F.2d at 16. Although that authority was not codified until 1970, civil contempt sanctions “have been employed against recalcitrant grand jury witnesses since the earliest days of the federal courts.” Douglas C. Berman, Note, Coercive Contempt and the Federal Grand Jury, 79 Colum. L.Rev. 735, 735, 740 (1979); see also, e.g., Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Unlike criminal contempt sanctions, “incarceration for civil contempt is not for the purpose of punishing recalcitrant respondents but rather is the modern ‘persuasive’ tool that is used in substitution of the barbaric placing of stones on the subject's chest, which was formerly used to literally press the recipient into submission.” United States v. Marquardo, 149 F.3d 36, 39 (1st Cir.1998). An imprisoned civil contemnor is therefore said to “carr[y] the keys of his prison in his own pocket.” Gompers, 221 U.S. at 442, 31 S.Ct. 492 (internal quotation marks omitted). In keeping with this coercive function, courts have long recognized that civil contempt sanctions are necessarily limited to the period in which the contemnor can unlock the figurative prison door by purging himself of contempt. See, e.g., Shillitani v. United States, 384 U.S. 364, 371–72, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Marquardo, 149 F.3d at 39–40;In re Grand Jury Proceedings (Caucus Distribs., Inc.), 871 F.2d 156, 161–62 (1st Cir.1989); United States v. Levine, 288 F.2d 272, 274 (2d Cir.1961); Loubriel v. United States, 9 F.2d 807, 809 (2d Cir.1926) (L. Hand, J.); United States v. Collins, 146 F. 553, 554 (D.Or.1906).

In Shillitani, involving two consolidated cases in which the district courts ordered recalcitrant grand jury witnesses imprisoned until they purged their contumacy or until two years had passed, the Supreme Court held that the two-year period of confinement was inappropriate to the extent that it exceeded the term of the sitting grand jury. As the Court explained,

the justification for coercive imprisonment as applied to civil contempt depends upon the ability of the contemnor to comply with the court's order. Where the grand jury has been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt. Accordingly, the contemptorders ... were improper insofar as they imposed sentences that extended beyond the cessation of the grand jury's inquiry into petitioners' activities. Having sought to deal only with civil contempt, the District Courts lacked authority to imprison petitioners for a period longer than the term of the grand jury.... Once the grand jury ceases to function, the rationale for civil contempt vanishes, and the contemnor has to be released.

384 U.S. at 371–72, 86 S.Ct. 1531 (citation and footnote omitted). Shillitani did, however, leave open the possibility of reiterative contempt sanctions before successive grand juries: the Court explained in a footnote that although any given period of confinement for civil contempt could not last beyond the term of the sitting grand jury, “sentences of imprisonment may be continued or reimposed if the witnesses adhere to their refusal to testify before a successor grand jury.” Id. at 371 n. 8, 86 S.Ct. 1531.

Four years after the Supreme Court's decision in Shillitani, Congress enacted Title III of the Organized Crime Control Act, Pub.L. No. 91–452, 84 Stat. 922, 932 (1970) (codified at 28 U.S.C. § 1826), in an endeavor to “codify present civil contempt practice with respect to recalcitrant witnesses in federal grand jury and court proceedings,” H.R.Rep. No. 91–1549, at 4008 (1970), 1970 U.S.C.C.A.N. 4007, 4008).³Section 1826(a) provides:

Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording or other material, the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—

(1) the court proceeding, or

(2) the term of the grand jury, including extensions,

before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.

The parties dispute the significance of both Shillitani and § 1826(a) in this case. Their sharpest dissensus, however, concerns the import of our holding in Caucus Distributors, in which we relied on both Shillitani and § 1826(a) to hold that civil contempt fines could not extend “beyond the life of the original grand jury” and into the term of a successor grand jury. 871 F.2d at 161. Our holding rested on Shillitani 's conclusion that the justification for coercive civil...