USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-1705

IN RE:
GRAND JURY PROCEEDINGS.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Torruella, Selya and Cyr,
Circuit Judges.
______________
____________________

Bernard Grossberg and Erin Kelly on brief for appellant.

_________________
__________
Donald K. Stern, United States Attorney, Paul V. Kelly, Assist
_______________
______________
United States Attorney, Frank A. Libby, Jr., Assistant United Sta
___________________
Attorney, and Robert L. Peabody, Special Assistant United Sta

__________________
Attorney, on brief for appellee.
____________________
July 22, 1994
____________________

Per Curiam.
__________
of

the district

refusing,

court

despite a

witness before

Appellant has appealed from

holding him

grant

of

a grand jury.

in

civil contempt

immunity,
See 28
___

an order

to testify

U.S.C.

for
as

1826(a).

a
The

district court, finding that the appeal was neither frivolous

nor taken

for delay,

granted appellant's

pending appeal pursuant to 28 U.S.C.

Appellant's
compelled

to

questioning of

testify

position
because

him would

is
the

request for

bail

1826(b).
that he

should

government's

constitute an abuse

not

be

intended

of the

grand

jury
to

process.

The government seeks his testimony, according

appellant, for

the primary purpose

prosecution of a pending indictment.

that a

grand jury may

primary

purpose

of

indictments for trial.

may

use evidence

primarily

omitted).
Cir. 1976);

helping
The

the

61,

prepare

prosecutor at a trial,

however,

gained

from

crimes."

70

(1st

See In re Maury Santiago,

________________________
United States v.
_____________

for the

prosecution

incidentally

814 F.2d

in the

"It is well established

not conduct an investigation

investigating other

Proceedings,
___________

of assisting

Cir.

-2-

Standing
________

jury

In re Grand Jury
__________________
1987)

(citation

533 F.2d 727, 730 (1st

Doe, 455 F.2d 1270,

___

Cir. 1972).

grand

1273 (1st

The threshold

question,

argued at

length by

the

parties in their briefs, is whether appellant has standing to

challenge

the

Appellant is

legitimacy

of

a mere witness,

jury's investigation

nor a

the

grand

jury's

neither a target of
defendant named

inquiry.
the grand

in the

pending

indictment.
The Supreme Court in United States v. Calandra, 414
_____________
________
U.S. 338 (1974),
'to

challenge the

jury' or 'to
jury

250

statement
Supreme

is not "entitled

the court

or of

set limits to the investigation

Id.
___

U.S. 273,

could well

at 345

282
be

read

one court

has

so

the grand

that the grand

(quoting Blair
_____

(1919)).

Court that appellant's

language.
197,

authority of

may conduct.'"

States,
______

least

has stated that a witness

v. United
______

On its

face,

this

the

view of

the

challenge is precluded.

At

to signal

interpreted

the

Supreme

In re Grand Jury Subpoenas of Clay, 603

___________________________________

200 (S.D.N.Y. 1985).

unwarranted

interference

Court's
F. Supp.

This approach would guard against

with

the

smooth

and

effective

functioning of the grand jury process.

On

the

Santiago, supra,
________ _____
claim

other hand,
533 F.2d at

that the prosecutor was

to prepare a

this

court

730, did

in In re Maury
_____________

consider a

witness'

improperly using a grand jury

pending indictment for trial and

to harass the

-3-

witness

for

recalcitrant

his

witness

composition of
jury's
subject

investigation
matter

lacks

did

jurisdiction

concern
of the

this

,"

matters

federal

grand

denied

or

within the

courts.

Id.
__

prevent

and rejected

Id.
__
case,

for the

reasons

we

not

the

will discuss

arguments even if we were

standing to present them.

U.S. 524, 530-32

whether

the

the grand

jury to

we need not rule on the question of standing.

Mathews, 427
_______

courts . . . retain

we entertained

below, we would reject appellant's

to rule that he had

that

challenge

or to contend that

over the

process . . .

noted

to

after holding that "[t]he

the witness' claims.

In

We

standing

not

supervisory power

abuse of its

beliefs.

the grand jury

Nevertheless,
general

political

Consequently,
See Norton v.
___________

(1976) (when relief is

court

has

to be

jurisdiction,

jurisdictional question need not necessarily be decided).

the

The Merits
__________

We turn, therefore, to the

appellant's claim

of grand

ordered the government

merits.

jury abuse,

In response to

the district

to file a sealed,

ex parte affidavit
________

explaining why its questioning of appellant did not

primary purpose of
indictment.

The

assisting the prosecution of

court

reasoned

court

that

have the

the pending

"[i]n

view

of

-4-

[appellant's]

evident lack

of standing

and the

legitimate

need for grand jury investigations to proceed without lengthy

interruptions, no
the

more elaborate

procedure for

determining

grand jury's purpose is appropriate in the circumstances

of this case."
After reviewing

the ex parte affidavit,

_________
signed by one of the prosecutors, the
court ruled that "for present purposes .
. . the grand jury is not
seeking

[appellant's]
testimony
solely
or
primarily to obtain evidence to be used
in prosecuting the pending cases against
other individuals.
Rather, it appears
that
the
grand
jury
is
properly
investigating individuals who are not now
the subject of any indictment, as well as
possible
additional, serious
charges
against some current defendants.
There
does,
however,
appear to
be
some
relationship between some of the matters
being
investigated
and
the pending
charges against some present defendants."
We

have

affidavit.
indeed

We agree

demonstrate

government's
crimes

carefully

than

the

with the district

that

questioning

other

reviewed

the
of

court that

primary

appellant

those charged

in

prosecution's

purpose
is

the

to

it does
of

the

investigate

indictment, both

additional charges against defendants named in the indictment

and

charges that might be brought against other individuals.

It
that there
the

charges

is

true, as

is an overlap
contained

the district

court acknowledged,

between some of these

in

the

-5-

pending

matters and

indictment.

The

prosecution could obtain information

appellant that would

from its questioning of

aid it in prosecuting

that indictment.

As long as this is not the primary purpose of the questioning

-- and we
there is

have held for present

nothing

prosecutor at
gained

from

crimes."
70.

a trial
a

grand

not --

about

"[t]he

. . .

may use

jury

primarily

this,

since

evidence incidentally
investigating

In re Grand Jury Proceedings, supra, 814

_____________________________ _____

Should

current

objectionable

purposes that it is

subsequent events demonstrate that,

other
F.2d at

despite our

ruling, the grand jury process has been abused here,

the defendants can move at trial to exclude any evidence that

was obtained
process.

from appellant through abuse of

the grand jury

See In re Grand Jury Subpoena Duces Tecum Dated

__________________________________________________

January 2, 1985 (Robert M. Simels, Esq.),

__________________________________________

767 F.2d

26, 30

(2nd Cir. 1985); Doe, supra, 455 F.2d at 1276.

___ _____
We
requiring
and

no

also

agree

with

the

district

court

that

a sealed, ex parte affidavit from the prosecution,

________
more,

was

circumstances of

an

this

adequate

case, to

procedure,

probe

under

whether or

not

the
the

prosecution was attempting to abuse the grand jury process in

its interrogation of appellant.
deprive appellant of
of the sealed
here

an opportunity to contest

the contents

affidavit, the prosecution's need

is manifest.

conduct a

Although this procedure does

requirement that

"minitrial" in

the

such circumstances

for secrecy

district court
would tend

to

-6-

disrupt the

smooth and

effective functioning

jury process.

Especially given

prosecution's

affidavit,

necessary here.

no

of the

grand

the clear sufficiency of the

such

extended

procedure

was

See In re Grand Jury Proceedings, supra, 814

________________________________ _____

F.2d at 72-73.
The order of the district court is affirmed.
________

-7-