In re Solomon

• Citation: 465 F.3d 114
• Decision Date: 02 October 2006
• Docket Number: No. 06-2820.,No. 06-2819.,06-2819.,06-2820.
• Parties: In re Grand Jury and In the Matter of the Search of Jelanie SOLOMON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

465 F.3d 114

In re Grand Jury and In the Matter of the Search of Jelanie SOLOMON, Appellant.

No. 06-2819.

No. 06-2820.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1(a) September 15, 2006.

Opinion Filed October 2, 2006.

Martin A. Dietz, Esq., Robert E. Stewart Esq., Pittsburgh, PA, for Appellant Jelanie Solomon.

Mary Beth Buchanan, Tina O. Miller, Office of United States Attorney, Pittsburgh, PA, for Appellee United States of America.

Before SLOVITER, WEIS, and GARTH, Circuit Judges.

GARTH, Circuit Judge.

I.

In the present consolidated appeals, Appellant Jelanie Solomon seeks review of the district court's orders: (1) finding Solomon guilty of criminal contempt for failing to comply with a grand jury subpoena and a subsequent court order, and imposing a five-month prison sentence therefor (order of March 28, 2006); and (2) denying Solomon's motion to quash a post-indictment search warrant to obtain samples of his blood and saliva (order of May 1, 2006).

With respect to the criminal contempt conviction, we hold that the district court properly found Solomon guilty of criminal contempt. We also hold that the five-month sentence imposed is excluded from guidelines coverage and, pursuant to that holding, was not an abuse of discretion. We will therefore affirm.

As to the district court's order denying Solomon's motion to quash the search warrant issued for samples of his blood and saliva, we are without jurisdiction to consider Solomon's appeal because it is interlocutory, and does not fall within any of the limited exceptions to the general rule that our jurisdiction is limited to final orders or decisions.

II.

In January 2004, Solomon was convicted in Pennsylvania state court of various narcotics violations. Solomon subsequently became the subject of a federal grand jury investigation concerning his alleged narcotic trafficking activities, as well as his involvement in the murder of the father of a confidential informant who had assisted in the state's investigation of Solomon's narcotics activities. It is alleged that while in state prison, Solomon corresponded with associates concerning uncollected drug debts.

On March 1, 2006, Solomon was served with a federal grand jury subpoena for handwriting exemplars. Solomon did not object, move to quash, or otherwise challenge the validity of the subpoena. Counsel arranged for Solomon to provide the exemplars to United States Postal Inspector Joseph Bellisimo on March 9, 2006 at the Washington County Jail, where Solomon was then incarcerated. Bellisimo met with Solomon and his attorney at the appointed time and place, and presented them with a typewritten version of an allegedly incriminating letter Solomon had written to an associate concerning the collection of drug debts. Solomon began providing the exemplars but, after nearly completing one of the handwriting forms, indicated that he would not provide the exemplars and tore the form he had completed into shreds.

The government filed a motion to compel Solomon to provide the exemplars. Solomon did not respond to this motion and, on March 16, 2006, the district court entered an order compelling Solomon to provide handwriting exemplars. On March 22, 2006 Bellisimo again appeared at the Washington County Jail to take Solomon's handwriting exemplars. Again, Solomon refused. The government then filed a motion for rule to show cause why Solomon should not be held in contempt for failing to comply with the court's March 16, 2006 order.

A contempt hearing was held on March 24, 2006. At the hearing, Solomon's attorney conceded that Solomon had refused to comply with the court's March 16, 2006 order. Though requested by the court, Solomon also refused to provide any reason for not complying. Solomon's attorney advised the court that, just prior to the hearing, the government had provided him with a handwritten copy of the allegedly incriminating letter it sought to compare to exemplars of Solomon's handwriting. At no time did Solomon object to the relevance of the letter or handwriting exemplars to the grand jury investigation. After colloquy with the government's attorney, the court advised Solomon of the potential penalties he faced for his continued refusal to comply with the court's order. The court then asked Solomon if he wished to "change his mind." Solomon responded that he did not, and that he would not comply with the subpoena or the March 16, 2006 order. The court then stated the following:

Therefore, the court makes a finding on the record that Mr. Jelanie Solomon has, in open court, through his attorney, refused to comply with the subpoena and provide handwriting exemplars as he has been ordered by the order of this court on March 16, 2006. His failure to comply with that order results in a finding of criminal contempt for his disobedience or resistance to a lawful writ, process, order, rule, decree or command. For that criminal contempt, he is sentenced to five months incarceration and will be remanded to the Bureau of Prisons for that period of time.

III.

A nine-count indictment was subsequently returned against Solomon, charging him and two other defendants with conducting a drug trafficking conspiracy, and various firearms and narcotics violations, including a charge of murder during and in relation to a drug trafficking crime. After his indictment, on April 4, 2006, the government obtained a search warrant for Solomon's blood and saliva. In support of its application for the search warrant, the government submitted an affidavit by a member of the Pennsylvania State Police, which stated that the government had probable cause to believe that Solomon was involved in the murder of Frank Halisek.

In short, the affidavit asserted that Frank Halisek's son Shawn was an informant for the Pennsylvania State Attorney General's Office, and that Shawn Halisek was instrumental in the investigation leading to the successful state prosecution of Solomon. On January 19, 2004, the night before Solomon's state court trial, an individual named Claron Hanner shot and killed Frank Halisek at his home. According to the affidavit, a confidential informant who had at one point owned the gun used in the murder, stated that he had later sold the gun to Solomon for drugs. Laboratory tests performed on the gun indicated the presence of two unidentified DNA profiles in addition to Hanner's. The affidavit concluded by stating that samples of Solomon's blood and saliva were needed to determine whether Solomon's DNA matched one of the unidentified DNA profiles found on the gun.

Before the warrant was executed, Solomon filed a motion to quash. The motion asserted that there was not sufficient probable cause for the issuance of the search warrant and that its execution would violate his Fourth Amendment right against unreasonable searches and seizures. On April 14, 2006, a magistrate judge denied the motion. Solomon appealed to the district court and, on May 1, 2006, the district court affirmed.¹ These appeals followed.

IV.

We review the district court's order holding Solomon in contempt for an abuse of discretion. Harris v. City of Philadelphia, 47 F.3d 1311, 1321 (3d Cir.1995). Under this standard, factual findings will be upheld in the absence of clear error, but legal questions must be reviewed de novo. Id.; Wright v. Nichols, 80 F.3d 1248, 1250 (8th Cir.1996).

Solomon challenges his criminal contempt conviction on the solitary ground that the government failed to provide him with a Schofield affidavit. As Solomon correctly states, this court has held that, when a subpoena for purposes of a grand jury proceeding is challenged, the government is required 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, 486 F.2d 85, 93 (3d Cir.1973) (Schofield I); see also In re Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir.) (Schofield II) (identifying this burden of proof as a "three-pronged showing requirement"), cert. denied sub nom. Schofield v. United States, 421 U.S. 1015, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975)("What Schofield I did require, however, was a minimum showing by affidavit in every case . . .")(emphasis added).

Unlike the present case which involves a conviction for criminal contempt, the Schofield cases involved the imposition of sanctions for civil contempt pursuant to 28 U.S.C. § 1826. We have previously suggested that the Schofield requirements may not apply to criminal contempt proceedings because, unlike the imposition of civil contempt sanctions, which may be summarily imposed, a criminal contempt defendant is afforded the full panoply of due process protections. See In re Grand Jury Proceedings Harrisburg Grand Jury 79-1, 658 F.2d 211, 217 (3d Cir.1981)(hereinafter "Harrisburg Grand Jury 79-1").

In Harrisburg Grand Jury 79-1, the defendant had been convicted for criminal contempt after he evaded a bench warrant issued for his failure to comply with a grand jury subpoena. On appeal, the defendant challenged his criminal contempt conviction on the grounds that he was never provided a Schofield affidavit. We rejected this argument, distinguishing criminal contempt from the civil context at issue in Schofield:

It should be stressed that in this context the procedural safeguards embodied in the Schofield rule are unnecessary, and any possible defect in the bench warrant here is rendered harmless precisely because a defendant in criminal contempt proceedings has the full panoply of safeguards accorded a criminal defendant. While Fed.R.Crim.P. 42, governing criminal contempt, authorizes summary punishment for contumacious acts committed in the presence of the court, see subsection (a), it otherwise requires notice and a full hearing. Rule 42(b). In addition to the...