Weiss, In re
| Decision Date | 18 March 1983 |
| Docket Number | D,No. 1219,1219 |
| Citation | 703 F.2d 653 |
| Parties | In re Grand Jury Witness Chanie WEISS, Appellant. ocket 83-6026. |
| Court | U.S. Court of Appeals — Second Circuit |
Nathan Lewin, Washington, D.C. (Stephen L. Braga, Miller, Cassidy, Larroca & Lewin, Washington, D.C., Guy L. Heinemann, New York City, on brief), for appellant.
Ruth A. Nordenbrook, Asst. U.S. Atty., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Mary McGowan Davis, Asst. U.S. Atty., Brooklyn, N.Y., on brief), for United States of America.
Before FEINBERG, Chief Judge, and LUMBARD and KEARSE, Circuit Judges.
Chanie Weiss appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, adjudging her to be in contempt of court pursuant to 28 U.S.C. Sec. 1826(a) (1976) for her refusal to give truthful and nonevasive answers to questions posed by a federal grand jury after being ordered to do so by the court, and ordering her imprisoned for so long as her refusal shall continue. Appellant challenges the contempt order principally on the grounds that (1) Sec. 1826(a) authorizes a contempt adjudication only with respect to witnesses who completely refuse to answer and not witnesses whose answers are "arguably evasive," and (2) the government failed to prove by clear and convincing evidence that Weiss's answers constituted deliberate refusals to answer. For the reasons below, we conclude that the adjudication of civil contempt should be reversed on the latter ground.
The present appeal arises in the context of an ongoing grand jury investigation into suspected fraud by various individuals in the conduct of an operation called "Project Joint," a project that obtained funds under the Comprehensive Employment Training Act ("CETA"), 29 U.S.C. Secs. 801-999 (Supp. V 1981). The grand jury is inquiring into the possibility that Project Joint falsely claimed to have trained approximately 120 students between January 1977 and June 1978 when in fact it had trained none, and had obtained, by means of false documentation approximately one million dollars in federal moneys for the training of such nonexistent students. Weiss, the only person listed in Project Joint's books as a counselor from January 1977 through June 1978, was summoned to testify before the grand jury. On November 2, 1982, the district court signed an order granting her immunity from prosecution on the basis of her testimony. Weiss was not, however, immunized against prosecution for perjury, obstruction of justice, or any other crime stemming from untruthful testimony before the grand jury.
A ....
...[C]ounseling encompassed everything. It encompassed talking to students, it encompassed talking to parents, it encompassed finding placements. That is what I did.
Q And for students of what kind of institution?
A I really worked in--I would like to see my counsel.
(Witness exits Grand Jury room.)
(Witness enters Grand Jury room.)
THE FOREMAN: We have a quorum.
Q What is the answer to the last question?
A I understand it was a school.
Q For what age students?
A I would like to confer with my counsel, please.
(Witness exits Grand Jury room.)
....
(Witness enters Grand Jury room.)
Q Do you know the answer to the last question, Ms. Weiss?
A The best of my recollection, all ages.
Q Seven and eight year olds were students at Project Joint?
A You asked me how many people there were--what ages.
Q Correct.
A That were in a whole.
Q I asked at Project Joint that you were counseling.
A I am sorry. I misunderstood your question.
To my best recollection, I would remember adolescents.
Q You mean children between the ages of 14 and 18 years old?
A It would really be hard for me to remember. I really don't remember.
Q You do not recollect that Project Joint was for adults and, in fact, only received money to train adults?
A I worked with adults and I worked with children. I worked with adolescents, these that had--
Q At Project Joint you worked with adolescents?
A I counseled people.
Q You counseled adolescents who were enrolled as Project Joint, is that your testimony?
A I would like to meet with my counsel.
(Witness exits Grand Jury room.)
(Witness returns to Grand Jury room.)
Q What were the ages of your counselees at Project Joint?
A I have seen a lot of people in all the years that I have counseled, and truthfully, it is very hard for me to decipher exactly which years I saw whom and what.
Q So it is your testimony you do not recall the ages of your cou[n]selees at Project Joint; is that correct?
A Yeah....
(Id. at 14-17.) Nor could Weiss remember what she did to help the students find jobs:
Q How long was the school term or training term for enrollees at Project Joint?
A I don't remember.
Q What were your duties as a counselor?
A It's hard to remember specifically. Basically I saw people for many different reasons. They ranged from personal to placement--it's very hard for me to remember specifically what I did at that specific time.
Basically, I did counseling.
Q What did you counsel? You say placement, what did you do with the students with regard to placement?
A ....
There were all sorts of things. There were people looking for positions which I helped them find.
Q What kind of positions were they looking for?
A I don't remember specifically.
Q ....
Did that entail calling prospective employers on behalf of the students?
A I don't remember. This is the job in a nutshell, but I don't remember exactly what I did.
Q Did that entail taking information from students about what their curriculum had been?
A I don't remember.
Q Did that entail testing of any sort with regard to their proficiency in some vocation or craft?
A It might have, but I don't specifically remember.
Q Did you have a list of employers who might potentially employ the students of the Project Joint Program?
A I might have, I don't remember.
(11/10/82 Tr. at 16-17.) 2
Weiss also testified that she could not remember, inter alia, whether she had anyone working under her at Project Joint, whether there were other counselors, what size her office was, whether she shared that office with anyone else, or whether she kept any records of information obtained from her counselees. She did "not now" recognize the completed Project Joint forms shown her, and stated that she could not say whether any of the handwriting or printing in which information had been filled in was done by her.
Although Weiss testified, after conferring with counsel, that her job at Project Joint was a full time job "[t]o the best of [her] recollection," (11/3/82 Tr. at 33-34; see also 11/10/82 Tr. at 24), she could not recall what her hours were, what she was paid, whether she was paid by the hour, what the address of Project Joint was, what her own home address was at the time, or the period during which she held the job. 3
She would not say unequivocally even whether at the time she worked for Project Joint she was also finishing her college education.
Weiss, who was 34 years old at the time she first testified, was asked whether she had ever been hospitalized for mental illness, whether surgery she had undergone had impaired her mental functioning, whether she had suffered any physical trauma that would have affected her memory, and whether she was currently taking any mood-altering medication. She responded in the negative to each question. Weiss attributed her lack of memory with respect to Project Joint to the facts that she had had two other jobs since working for Project Joint, had counseled a large number of people, and her memories had fused; that she had been ill in the interim and had had personal problems that occupied her mind; and that her job had not been memorable.
As some of the above transcript excerpts indicate, Weiss's testimony was profusely punctuated by her departures from the grand jury room to confer with her counsel. During her first appearance before the grand jury, for example, there was one forty-seven-minute period during which Weiss exited to confer with counsel seventeen times. The lengths of these conferences ranged from one to seven minutes. During this forty-seven minute stretch only thirty-one questions were put to Weiss.
Weiss appeared before the grand jury four times. On November 24, 1982, after the third appearance, the government moved pursuant to 28 U.S.C. Sec. 1826(a) to have Weiss, along with one Rivka Feder, another witness called to testify with respect to Project Joint, held in civil contempt for giving evasive answers. A hearing was held on December 2, 1982, and the government indicated by checkmarks on the grand jury transcripts what answers it considered contumacious. After argument by counsel for Feder, the court instructed counsel for both witnesses to confer with the witnesses to determine whether their recollections could be refreshed and whether they would commence to cooperate with, rather than obstruct, the grand jury. Following that conference, the court directed Weiss
to return to the Grand Jury and answer these questions that were posed to her, that have been checked off by the Government, with something other than...
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