BRIAN T. ELLZEY, PETITIONER V. UNITED STATES OF AMERICA No. 90-6345 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. B1-B6) is not reported. JURISDICTION The judgment of the court of appeals was entered on August 22, 1990. Pet. App. A. A petition for rehearing was denied on September 13, 1990. Pet. App. C. The petition for a writ of certiorari was filed on November 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in the circumstances of this case, an immunized witness charged with civil contempt for not testifying before the grand jury was deprived of due process of law when he was not given a public contempt hearing. STATEMENT After a hearing in the United States District Court for the District of New Mexico, petitioner was found in civil contempt. On July 13, 1990, the court sentenced him to confinement until he testified, but in no event for more than eighteen months or the term of the grand jury, whichever was shorter. See 28 U.S.C. 1826(a). The court also fined petitioner $25 per day until he complied with its order to testify. 1. On January 26, 1990, after a jury trial in the District of New Mexico, petitioner was found guilty of interfering with commerce by means of extortion, in violation of 18 U.S.C. 1951. Evidence at petitioner's trial established that he had picked up $50,000 that was left at a drop site by a bank president in response to an anonymous extortionate threat. On April 12, 1990, the trial court sentenced petitioner to imprisonment for forty-one months, to be followed by a three-year period of supervised release. Pet. App. B1-B2; Gov't C.A. Br. 2. /1/ 2. On April 25, 1990, petitioner was subpoened to testify before the grand jury that was investigating the participation of his father and step-mother in the same extortion for which he was convicted. Pet. App. B1. The government's theory was that petitioner had picked up the extorted funds while acting as a courier at the direction of his father. Tr. of July 13, 1990 Hearing (Hearing Tr.), at 13-14. Petitioner's appearance was continued until June 1990, after his attorney represented that petitioner would assert his privilege against self-incrimination. Pet. App. B2. On June 4, 1990, on the government's motion, the district court entered an order pursuant to 18 U.S.C. 6001 et seq. compelling petitioner to give testimony before the grand jury. Petitioner moved to quash the subpoena on the ground that a family privilege excused petitioner from testifying against his father and step-mother; that the immunity request was invalid because signed by an Assistant United States Attorney; and that the immunity grant was not coextensive with the privilege against self-incrimination. Pet. App. B2. To obviate any possible technical deficiency in the request, the government filed another immunity motion signed by the United States Attorney himself. During a closed June 15, 1990, hearing, petitioner tendered FBI-302 reports previously ordered sealed by the district court that had been given to petitioner before his extortion trial pursuant to Brady v. Maryland, 373 U.S. 83 (1983). The reports included information indicating the complicity of petitioner's father and step-mother in the extortion. At the conclusion of the hearing, the district court denied petitioner's motion to quash the subpoena, and entered an order compelling him to testify. On the same day, petitioner appeared in front of the grand jury and refused to testify. Pet. App. B2. On June 20, 1990, the district court ordered petitioner to show cause why he should not be held in contempt. On July 3, 1990, the court found petitioner not in contempt because there was an ambiguity in the date of the immunity order. On July 10, 1990, after the government secured an amended order, the district court once again compelled petitioner to testify, rejecting petitioner's claims of self-incrimination and parent-child privileges. Pet. App. E. On the same day, petitioner returned to the grand jury and again refused to answer any substantive questions. Pet. App. B5. On July 13, a second district court judge held a closed hearing on a new show cause order. The transcript of the proceedings transmitted to the court of appeals showed a very brief hearing at which the government's sole witness, the grand jury reporter, read the questions and petitioner's responses at the July 10 grand jury session (Hearing Tr. 4-8), and petitioner again offered the sealed FBI reports that he had presented at the June 15 hearing. Hearing Tr. 10. In his argument, he renewed his self-incrimination and parent-child privilege claims (Hearing Tr. 12-14), and objected to the closed hearing. Hearing Tr. 2-3, 14-16. The court rejected petitioner's claims of privilege. Hearing Tr. 22. Noting that that petitioner sought to have the courtroom opened to the public, including family members who were targets of the grand jury investigation, the court overruled petitioner's objection to the closed hearing. Hearing Tr. 3. In an order entered on its public docket (Pet. App. D), the court then sentenced petitioner to confiement pursuant to 28 U.S.C. 1826(a) for the term of the grand jury but no more than 18 months, or until petitioner testified. /2/ 3. The court of appeals affirmed in an unpublished opinion. Pet. App. B1-B6. The court ruled that a contemnor is entitled to a public contempt proceeding that would exclude the public only to the extent necessary to protect grand jury secrecy. Pet. App. B4. On the facts of this case, the court of appeals agreed with the district court's "implicit determination" (Pet. App. B4) that "closing (petitioner's) contempt proceeding was 'necessary' to protect the secrecy of the grand jury process." Pet. App. B4. In particular, the court noted that petitioner had tendered the FBI-302 reports that had earlier been sealed by court order and that "tended to establish (petitioner's) father's and stepmother's complicity in the bank extortion scheme." Pet. App. B4. The court agreed with the district court "that these reports were 'substantive grand jury matters' and that public airing of the reports would have compromised the grand jury's investigation." Pet. App. B4. Thus, although the court noted that "it may have been better practice to reopen the hearing for the actual finding of contempt" (ibid.), the court found no error had been committed. The court of appeals also affirmed the district court's refusal to recognize a parent-child or family privilege in this case. Pet. App. B5. ARGUMENT Petitioner argues that, because no "matters occurring before the grand jury" (Fed. R. Crim. P. 6(e)) could have been disclosed at his contempt hearing, there was no basis for closing that hearing to the public. He asserts that the decision of the court of appeals to the contrary conflicts with decisions of this Court and of other courts of appeals. That assertion is incorrect. 1. The court of appeals properly determined that the particular materials that were likely to be discussed at petitioner's contempt hearing were "substantive grand jury matters" whose airing "would have compromised the grand jury's investigation." Pet. App. B4. Petitioner contends that this determination conflicts with the decision of the Seventh Circuit in Matter of Special March 1981 Grand Jury, 753 F.2d 575 (7th Cir. 1985). a. At the beginning of the hearing, the court reporter who had recorded the grand jury proceedings read the transcript of petitioner's appearance before the grand jury. See Hearing Tr. 4-9. The district court properly could have been concerned that testimony of that sort would have breached grand jury secrecy. Although there was little substance to the transcript because petitioner had refused to testify, there is no doubt that the transcript revealed matters occurring before the grand jury and that the district court acted quite correctly in precluding public airing of that transcript. b. Petitioner's own counsel at the hearing proffered FBI-302 reports that had previously been ordered sealed when released to petitioner as Brady material. The district court may well have been concerned that argument of counsel about petitioner's claimed privilege -- during which counsel repeatedly referred to the FBI-302 reports (see Hearing Tr. 10, 11, 13-14, 18) -- would have disclosed matters occurring before the grand jury, and that the hearing consequently should be closed. The court of appeals' affirmance of that determination was correct and does not warrant further review. Petitioner contends that the court of appeals' determination that FBI-302 reports would breach grand jury secrecy is mistaken and conflicts with the Seventh Circuit's decision in Matter of Special March 1981 Grand Jury, supra. Petitioner argues that, because he tendered the reports "for their own sake," rather than "for the purpose of exposing what may have occurred before the grand jury" (Pet. 11), their disclosure would not have violated grand jury secrecy. Petitioner's argument is mistaken. First, we are aware of no authority for petitioner's apparent theory that the question of whether a document would disclose "matters occurring before the grand jury" under Fed. R. Crim. P. 6(e) turns on petitioner's motivation in using the document. If the materials would in fact disclose such grand jury material, they are entitled to protection to ensure grand jury secrecy, regardless of the fact that petitioner may not subjectively intend to use them for the specific purpose of revealing facts about the grand jury's investigation. Second, in ruling that certain pharmacy records were not protected by the grand jury secrecy rule, the Seventh Circuit in Matter of Special March 1981 Grand Jury expressly relied on the fact that those records "were not narratives" and contained "no defamatory or embarrassing material." 753 F.2d at 579. In contrast, the records at issue here were narratives and contained potentially embarrassing information about a number of individuals. Had it been presented with the facts of this case, the Seventh Circuit thus would likely have agreed with the Tenth Circuit's decision here. Finally, before concluding that release of the pharmacy records at issue in Matter of Special March 1981 Grand Jury would not breach grand jury secrecy, the Seventh Circuit conducted a careful inquiry into the information that a reader of the records would be able to glean about the grand jury investigation. 753 F.2d at 578-579. The Tenth Circuit's conclusion that the records at issue in this case would disclose such information is in no sense in conflict with the Seventh Circuit's fact-bound conclusion that "the harm to the interests in keeping grand jury proceedings secret" would be "slight" (id. at 579) if the pharmacy records at issue in Matter of Special March 1981 Grand Jury had been disclosed. 2. Having decided that the district court properly feared that matters occurring before the grand jury would be disclosed in an open hearing, the court of appeals correctly determined that the district court's action in closing the contempt hearing to the public was not erroneous. That determination does not conflict with any decision of this Court or of any other court of appeals. a. In In re Oliver, 333 U.S. 257 (1948), a witness who had appeared before a Michigan judge, acting as a secret one-man grand jury, was summarily charged and convicted for criminal contempt for giving testimony that the judge-grand jury found to be false and evasive. The contempt proceedings were secret and the defendant had no opportunity to secure counsel, to prepare his defense, to cross-examine another witness whose testimony formed the basis for the judge-grand jury's finding that he was testifying falsely or evasively, or to call witnesses to refute the charge against him. This Court held that the secret trial for criminal contempt violated due process and that, in addition, the failure to afford the defendant a reasonable opportunity to defend himself was a denial of due process of law. Twelve years later, in Levine v. United States, 362 U.S. 610 (1960), this Court made clear that In re Oliver did not establish a broad rule requiring that all contempt proceedings relating to refusals to testify before a grand jury must be entirely public. In Levine, a witness who refused to answer questions before a grand jury was found guilty of criminal contempt and sentenced to a one-year term of imprisonment in a nonpublic proceeding at which his lawyer, but no other member of the public, was present. The Court affirmed the conviction, holding that, because the defendant's claim derived from the Due Process Clause, the "decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a 'public trial.'" 362 U.S. at 616-617. The Court in Levine distinguished Oliver on the ground that Levine "is not a case where it is or could be charged that the judge deliberately enforced secrecy in order to be free of the safeguards of public scrutiny; nor is it urged that publicity would in the slightest have affected the conduct of the proceedings or their result." 362 U.S. at 619. In addition, the Court recognized the traditional rule of grand jury secrecy, noting that the defendant "had no right to have the general public present while the grand jury's questions were being read." Id. at 618. To be sure, the court observed that the defendant "might well have insisted" that, after the proceeding was no longer concerned with materials that would have breached grand jury secrecy, "the courtroom be opened so that the act of contempt, that is, his definitive refusal to comply with the court's direction to answer * * * and the consequent adjudication and sentence might occur in public." Id. at 618. Nonetheless, "without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding, thereby giving notice of the claim now made," the Court found "(t)he continuing exclusion of the public * * * is not to be deemed contrary to the requirements of the Due Process Clause." Id. at 619. Nothing in the Court's opinion in Levine suggests that any right the defendant might have had to request that the court formally enter its judgment of contempt in a public proceeding extends to requiring the court to open the entire proceeding -- including the portion during which grand jury materials were to be discussed -- to the public. Thus, the court's decision in this case to close the contempt hearing to the public follows directly from Levine. As in Levine, the trial judge in this case did not close the contempt hearing "to be free of the safeguards of public scrutiny," and publicity would not "have affected the conduct of the proceedings or their result." Instead, the court closed the contempt hearing here, as in Levine, to protect the traditional secrecy of grand jury proceedings. The only remaining issue is whether the court should have opened to the public the concluding portion of the proceeding, during which the court formally held petitioner in contempt. Although petitioner's attorney did argue that the entire hearing should be open to the public, he made no specific request that the court open the hearing at the point in the proceedings immediately prior to the court's judgment. Nor is there reason to believe that any prejudice resulted from the court's continuing the final portion of the hearing in a nonpublic posture. There was no factual dispute for resolution by the district court. Petitioner's legal grounds for not testifying were initially raised in publicly filed motions and in any event did not raise any legal issue of substantial importance; his parent-child privilege claim has not been recognized by any court of appeals. See Grand Jury Proceedings of John Doe v. United States, 842 F.2d 244 (10th Cir. 1988). The court's order finding petitioner in contempt was publicly filed in the court's docket. Pet. App. D. Thus, even if, as the court of appeals held, it would have been "better practice" for the district court to decide on its own to "reopen the hearing for the actual finding of contempt" (Pet. App. B4), the district court's failure to do so did not violate petitioner's due process rights. b. Petitioner's contention that the court of appeals' decision conflicts with In re Rosahn, 671 F.2d 690 (2d Cir. 1982), is mistaken. Unlike this case, Rosahn involved a hearing at which there apparently was "no testimony read nor evidence presented." Id. at 693. Furthermore, the issue in Rosahn did not involve the contemnor's refusal to provide testimonial evidence, but rather whether she would comply with court orders to provide "photographs, fingerprints, handwriting exemplars, and hair samples to the grand jury." Id. at 692. Thus, there was much less likelihood in Rosahn than in this case that grand jury materials would be disclosed at the contempt hearing. Far from disagreeing with Rosahn, the Tenth Circuit in this case cited Rosahn (see Pet. App. B4) as a statement of the appropriate standard governing closure of civil contempt proceedings. Petitioner's contention that, on the particular facts of this case, the court of appeals applied that standard incorrectly does not warrant further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SIDNEY M. GLAZER Attorney JANUARY 1991 /1/ On December 11, 1990, the term of the grand jury expired and the court lifted the sentence of confinement for contempt and ordered that the fine cease to accrue. Petitioner is now serving his 41-month sentence for extortion. In light of the fine imposed on petitioner, as well as the fact that his imprisonment for contempt was not credited against the 41-month sentence for extortion, we do not believe that this case is moot. /2/ 28 U.S.C. 1826(a) provides in relevant part that: Whenever a witness in any proceeding before * * * any court or grand jury * * * refuses without just cause shown to comply with an order of the court to testify * * *, 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 * * *. No period of such confinement shall exceed * * * 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.