USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1485
IN RE:

GRAND JURY

__________
JOHN DOE,
Appellant.
____________________
ERRATA SHEET
The opinion
follows:

of this Court issued

on May 27,

1993 is amended

Page 7, III, Line 2: Sentence should read "If the government

exchange for cooperation bound itself not to ask appellant any furt
questions about rent, then under the case law he was not obliged
answer."

May 27, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1485
IN RE:

GRAND JURY

__________
JOHN DOE,
Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________
____________________
Before
Selya, Boudin and Stahl,
Circuit Judges.
______________
____________________

Morris M. Goldings, Alice E. Moore, and Mahoney, Hawkes

____________________
________________
________________
Goldings on brief for appellant.
________
A. John Pappalardo, United States Attorney, Fred M. Wyshak,
__________________
__________________
and Brian T. Kelly, Assistant United States Attorneys, on brief
______________
appellee.
____________________
____________________

Per Curiam.
__________
of

the district

court

Appellant has appealed

holding him

in

from an order

civil contempt

refusing to testify as a witness before a grand jury.

for

See 28
___

U.S.C.

1826(a).

The

district court

granted appellant's

request for bail pending appeal, finding that the

not frivolous or taken for delay.

Id.
___

appeal was

1826(b).

I.
_
Appellant's relationship with the

government began

in July 1987 when he was served a subpoena to testify

before

a grand jury investigating money laundering, particularly

relation
through

to Heller's
his

Cafe and

attorney,

intended to assert
incrimination.

Michael London.

informed

the

The government

immunity under 18 U.S.C.

then

Appellant,

government

his Fifth Amendment

in

that

right against
obtained an

he

self-

order

of

6002 and 6003.

Prior to appearing before the grand jury, appellant

and

his attorney

assistant

met informally

United

investigation, and
pre-grand jury

States

with Mitchell

Attorney

in

Dembin, the

charge

other law enforcement officers.

meeting, appellant's attorney

of

the

At this

advised Dembin

that appellant would refuse to answer any questions -- either

informally or before the grand
of "rent."1

Appellant did

jury -- regarding the payment

provide, on

an informal

basis,

____________________
1. According to the district court, "rent" is a term used to
refer to extortionate payments that bookmakers have, at
times, been required to make to certain organized crime
figures.

other information about

general gambling practices

directly

to Dembin.
According
district

to Dembin's

or inquire

bookmaking

on

to

in

the identities

ground

`rent'
be

which

beyond

that

that

and his
the

when

appeared

January 1988.
aware

that

It
the

investigating

before

is undisputed,
Organized

allegations

Crime
that

worked.

made

this
of

employment situation

of

Consequently, Dembin

then

"circumstances

current
scope

running the

he had

the

investigation."
appellant

of those

appellant

the affidavit,

the

[appellant's]
appeared

into

concerning rent before the grand

organization for

Dembin asserts,
decision

to the

court, he had stated to appellant that he would not

ask appellant any questions

jury

affidavit submitted

the

Heller's

Cafe

did not ask about rent

the grand

jury

however, that
Strike
certain

Force

in

early

Dembin was
was

organized

then
crime

figures were requiring bookmakers to pay rent to them.

In
subpoena

December

1990,

to appear before a grand jury.

Pearlstein was the assistant

with

appellant

the grand

received

second

At this time, Mark

United States Attorney involved

jury proceedings.

He

was investigating

check-cashing

business

behalf of bookmakers.

suspected
A

of

money

laundering

on

second immunity order was obtained.

Appellant again met with prosecutors on an informal basis and

provided them with

information concerning betting

practices

-4-

and procedures.
that he

was

appellant
subject of
the

In his

aware that

about rent.

affidavit, Pearlstein

acknowledges

Dembin

from

had refrained

He followed the same path because the

rent payments "was of little

investigation"

asking

he

direct relevance to

was conducting.

Accordingly, when

appellant appeared before the grand jury in January

1991, he

was not asked about rent.

In February 1992, appellant made a third appearance
before a grand jury.
that

this

was

the same

appeared in 1991.
who questioned

grand

jury

before

which he

had

This time, the two United States Attorneys

appellant were connected to

and were investigating

appellant was

According to appellant, he was informed

the payment

the Strike Force

of rent.

questioned on this subject;

As a

result,

he testified that

he did not pay rent.

grand

jury

Appellant did not mention,

appearance,

any

agreement or

during this

promise

by

the

government that he would not be asked such questions.

Also, in January
trial of Michael London.
with the

nonetheless,

however, appellant
rent

hours and

not questioned about

was asked

to certain

before the

five to eight

concerning betting practices

he was

at the

Before giving his testimony, he met

prosecutors for

many inquiries

paid

1993, appellant testified

answered

and procedures;
rent.

At trial,

by the prosecution

whether he

individuals.

grand jury, that he

He

stated, as

did not pay rent.

he had
After it

-5-

was learned that appellant had given false answers concerning

rent payments (both
trial), appellant
trial.

He

then

at the

was recalled
admitted

information, but declined

paid rent.2

1992 grand jury

to the

that

he

and the

stand in
had

given

to identify anyone to

He again did not mention

London
______

the London
______
incorrect
whom he had

any agreement to the

effect that he did not have to answer such questions.

II.
__
This brings us to the present.
8,

1993, appeared for the fourth time before the grand jury.

Again,

this

continuation
Appellant
rent.

grand
of

the

Upon the

asserted

proceeding was

prior
to

grand

answer

government's

that his

have to

rent as long as

represented

jury

refusal to

as

investigations.3

any questions

petition

held a hearing at

agreement between
never

jury

now refused

district court
He

Appellant, on April

concerning

for contempt,

the

which appellant testified.

testify

was based

himself and

the government that

answer questions

relating to the

he continued to answer

on an

he would
payment of

questions concerning

gambling practices in general.

____________________
2. According to the government, appellant was not held in
contempt because the question was withdrawn by London's
counsel.
3. To avoid any problems with the validity of the prior
immunity orders, a new order was entered on April 28, 1993.
-6-

The
First, he

district

court judge

made

determined that appellant had

several findings.
met informally with

Dembin prior to testifying before the grand jury, even though

the immunity order did not require such a meeting, because it
was in his best interests to

do so.

The judge

acknowledged

Dembin's statement that he would not question appellant about

rent.

He concluded that "Dembin did not promise [appellant],

however,

that

those

questions

would

never

be

asked

of

[appellant] before any future Grand Jury."

Second,
Dembin

was merely

relevant

to

his

the

judge accepted

being "prudent,"

the

seeking to

investigation without

delays of litigation.

explanation that

the

get answers

time-consuming

The judge further held that

in January, 1988, [appellant] may well

have had a hope that he would never be
asked about rent. I also find, however,
that he did not then believe, and in any
event could not have reasonably believed
that he had an agreement or assurance
that he would never be asked about that
subject.
As for Pearlstein, the judge determined that he had
acted

with the same motives as

Dembin because, like Dembin,

he was interested in money laundering, not rent.

As such, he

also

secure

had

sought

the

information he needed.
not,

through his

most

efficient

way

to

the

Thus, the judge found, Pearlstein had

conduct,

agreement that the Government

"recognize[d]

or create[d]

any

would not ever ask [appellant]

. . . questions [about rent]."

-7-

Based on the
there was

foregoing, the

no agreement between the

judge concluded

government and appellant

that he would never be asked about rent.

appellant

had

agreement

when he

jury,

never

raised

was asked

nor did he attempt

though

his

attorney

Appellant's failure

was

the

He pointed out that

existence

about rent

of

any

at the

to consult with

such

1992 grand

his attorney even

present outside

to mention

that

the

jury

the agreement at

room.

the London
______

trial also belied his claim that an agreement concerning rent

then existed.
"did

Finally, the judge

determined that appellant

not rely to his detriment or give any consideration for

the purported agreement he now seeks to rely on."

As
cooperation
outside

of

for
with
the

appellant's
the

government

grand

jury

claim
---

that

his

informal

supplying information
constituted

consideration, the judge declared:

It is often the case that a witness
compelled to testify will meet with his

adequate

counsel
and
the
Government
before
testifying because it has the potential
to make his Grand Jury testimony or trial
direct and cross-examination testimony
proceed more smoothly.
I find that that
is essentially what occurred in this
case.
Because appellant failed to establish a sufficient reason for
his

refusal to

answer

the questions

concerning rent,

the

judge granted the government's petition for contempt.

III.
___

-8-

Whether
contempt

turns

exchange for

the
on a

conduct

in

simple issue.

cooperation bound

this

case

constituted

If the

government in

itself not to

ask appellant

any

further questions about rent, then under the case law he

was

not obliged to answer.

made, are
contract

treated as akin
law principles.

F.2d 297, 301

(2d Cir.

Such commitments, where they are

to contracts and

construed under

United States v.
______________

Pelletier, 898
_________

1990); United States

_____________

F.2d 386, 388 (1st Cir. 1988).

v. Hogan,
_____

862

Indeed, "due process requires

that the government adhere to the terms of any . . . immunity

agreement it makes."
terms of
there

is

Pelletier, 898
_________

F.2d at 302.

an agreement

are not

clear because,

no written

contract,

the court's

Where the

for example,
"task

[is] to

construe the words used to try, if possible, to carry out the

intention

of the

parties

in light

surrounding circumstances . . . ."

of

all the

facts

In re Wellins, 627
_____________

and
F.2d

969, 971 (9th Cir. 1980).

In

this case,

the district

court found

as facts

that the government in the initial

grand jury sessions chose

not

rent

to

question appellant

appellant permanent
the

district

believe
immunity.

about

but never

immunity from such questions.

court found

that

appellant

promised
Further,

himself did

not

that he had been given any such promise of permanent

Findings

contempt proceedings

of
as

fact

by

elsewhere,

the
are

district court,
reviewed

under

in
a

-9-

deferential standard and will not be set aside unless clearly

erroneous.

See Fed. R. Civ. P. 52(a).

The district

by the

evidence.

himself failed

court's findings are

There was no

to recollect,

precise

wording that

binding

commitment; and

such

his own

claims to

when questioned

account, the

have amounted

appellant's failure

supposed agreement

jury session

written agreement; appellant

even by

he now

amply supported

to invoke

at the

thoroughly undercuts his present

to a
any

1992 grand

claim.

These

facts support the finding that there was no commitment, hence

no justification for appellant's failure to testify.
Given the
this

one,

there

authorities

cited

distinguishable.
government

was

inherently factual nature of issues like

is no

reason

by

appellant,

which

are

in

In

In
re Wellins,
________________

for

example,

found to

have

to

address

obtained

at length
any

cooperation by

agreement that

Wellins' cooperation would

not be

and

enforced that

627 F.2d

the court

agreement.

the
case
the
an

revealed;
at 971.

Similarly in In Re Doe, 410 F. Supp. 1163 (E.D. Mich. 1976),

__________
a witness turned over drugs following a promise that he would
not be further questioned

about them and the court

held the

government to its commitment.

If

appellant

in

agreement, it

too would be

proved such an

agreement.

this

case

had

comparable

enforced, but appellant

has not

Absent an agreement, the contempt

-10-

is

patent

and

the

order

under

review

Appellant's motion for oral argument is denied.

is

affirmed.
________

-11-