National Commodity and Barter Ass'n v. U.S.

• Decision Date: 29 November 1993
• Citation: 972 F.2d 356
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 356

972 F.2d 356

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

NATIONAL COMMODITY AND BARTER ASSOCIATION; its service wing, National Commodity Exchange; Executive Finance Company, Petitioners-Appellants and Paul R. Carter, Petitioner, v. UNITED STATES of America, and a Grand Jury thereof Respondent-Appellee.

No. 91-1153.

United States Court of Appeals, Tenth Circuit.

July 30, 1992.

Before LOGAN, EBEL and KELLY, Circuit Judges.

ORDER AND JUDGMENT ^*

EBEL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioners National Commodity and Barter Association, National Commodity Exchange, and Executive Finance Company appeal the district court's refusal to quash grand jury subpoenas duces tecum served on their respective custodians of records. They also appeal the district court's determination that they are in contempt of court for refusing to comply with the subpoenas.

The parties agree that the issues pertinent to the motion to quash the subpoenas are identical to those decided in National Commodity & Barter Ass'n v. United States, 951 F.2d 1172 (10th Cir.1991). Petitioners cite the recent case of United States v. P.H.E., Inc., No. 91-4149, 1992 WL 110278 (10th Cir. May 26, 1992), for the proposition that they are entitled to protection from a prosecution brought to interfere with their constitutional rights. We perceive no facts or arguments in this appeal not raised in the prior appeal showing that the government's involvement is a pretext for interfering with constitutionally protected rights. Consequently, P.H.E., Inc. does not mandate reversal.

We review the district court's finding of contempt under 28 U.S.C. § 1826 for abuse of discretion. In re Grand Jury Proceedings (Mallory), 797 F.2d 906, 907 (10th Cir.1986). According to Petitioners, they had "just cause" for failure to comply: the government "fail[ed] to show a nexus between the allegedly illegal activity of one undercover agent and the conduct of the affairs of the [Petitioners] as a whole." Appellants' Br. at 31.

Here, the district court adjudged Petitioners in contempt of court after they had been...