887 F2d 1089 Grand Jury Proceedings Lahey v. United States

887 F.2d 1089

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

In re GRAND JURY PROCEEDINGS.
Mychal S. LAHEY, Witness-Appellant,
v.
UNITED STATES of America, Appellee.

No. 89-16047.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 8, 1989.*
Decided Oct. 4, 1989.

Before FLETCHER, CANBY and O'SCANNLAIN, Circuit Judges.

1

MEMORANDUM**

2

Mychal S. Lahey appeals the district court's judgment holding him in civil contempt and ordering him incarcerated for refusing to testify before the grand jury. He argues that he should not be compelled to testify before the grand jury because the government's purpose in issuing the subpoena was to obtain perjured testimony from him. He further contends that his refusal to testify is justified by his fear that he or his family will be harmed if he testifies. His first contention lacks merit, but we remand on the second to enable the district court to determine whether the conduct of the government has violated the secrecy of the grand jury proceedings.

3

On January 26, 1989 Lahey pleaded guilty to one count of possession of cocaine with intent to distribute pursuant to a plea agreement. The parties agree that the plea agreement provided that the remaining charges would be dismissed and Lahey would not be prosecuted for any controlled substances offenses with regard to the activities that formed the basis of the indictment. The United States Attorney further agreed not to refer any criminal tax matter arising from the activities leading to the indictment to the Internal Revenue Service. The district court accepted the plea agreement and sentenced Lahey to 87 months incarceration on May 17, 1989.

4

Immediately after sentencing, the government served Lahey with a subpoena requiring him to appear before the grand jury. Lahey appeared before the grand jury on May 26, 1989. In response to all but one question, Lahey invoked his Fifth Amendment privilege against self incrimination. On June 23, 1989, the government obtained an order compelling Lahey to testify before the grand jury; this order effectively provided Lahey with use immunity against further prosecution. See 18 U.S.C. Sec. 6002.

5

Lahey moved to quash the subpoena and the government applied for an order of contempt. After reviewing the grand jury transcript in camera, the district court denied Lahey's motion to quash and found that Lahey lacked a basis on which to continue to refuse to testify. The parties stipulated that Lahey had been informed of the consequences of his refusal and that he would continue to invoke his privilege against self-incrimination, despite the grant of use immunity. The district court then found Lahey to be in contempt and ordered the service of his sentence interrupted for a maximum of 18 months, rendering him confined within the terms of 18 U.S.C. Sec. 1826. See In re Garmon, 572 F.2d 1373, 1377 (9th Cir.1978).

6

Lahey first argues that the district court erred in denying his motion to quash because the government had set a "perjury trap" for him. Specifically, he asserts that the government questioned him regarding a cocaine transaction that never occurred. He contends that if he were to answer truthfully the government's questions regarding this transaction he will be indicted for perjury. Conversely, if he admits to the transaction, he would be committing perjury.

7

A perjury trap refers to the subpoena of a witness solely for the purpose of eliciting testimony that is intended to be used in a later perjury prosecution of the witness. See In re Poutre, 602 F.2d 1004, 1005 (1st Cir.1979); Bursey v. United States, 466 F.2d 1059, 1079 n. 10 (9th Cir.1972); Brown v. United States, 245 F.2d 549, 554-55 (8th Cir.1957). Such a subpoena constitutes an abuse of the grand jury process. Bursey, 466 F.2d at 1079 n. 10. Mere exposure to a perjury indictment, however, does not create an abuse of the grand jury process. See Poutre, 602 F.2d at 1005. A witness may not refuse to testify simply because he believed that his perception of the truth differs from that of the grand jury. Id.

8

Here, Lahey utterly failed to show that the government's sole purpose in subpoenaing him was to extract false testimony. His allegations only indicate that he believes the grand jury and the government have a different view of the truth than he himself has. See id., at 1005. The grand jury transcript of his questioning offers no support for Lahey's claim. Lahey has failed to show that the subpoena was issued solely to obtain false testimony and thus has failed to show the existence of a perjury trap. Id.; see Bursey v. United States, 466 F.2d at 1979 n. 10.

9

Lahey next contends that his refusal to testify before the grand jury is justified because he has received written threats against himself and his family. He believes that if he testifies their lives will be endangered. He argues that his case is different from the usual allegation of danger because prior to entering into the grand jury room, he was seen by a co-defendant and another government agent. He argues that the government, by failing to keep him out of sight of his co-defendant before entering the grand jury room, violated Fed.R.Crim.P. 6(e)'s secrecy requirement, and therefore, the district court's contempt order should be reversed.1 In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir.1986), addresses a violation of Fed.R.Crim.P. 6(e) in the context of danger to the witness. The court affirmed the denial of the government's motion to have the witness held in contempt. The witness was a convicted drug trafficker, who like Lahey, had been immunized from prosecution. During the immunity hearing, the district judge had observed a newspaper reporter at the courtroom door who the judge knew had been monitoring the grand jury proceedings. The judge commented that the reporter probably knew the reason for the hearing and that if Mallory's grand jury appearance were reported in the news, he would be in danger. After being immunized, Mallory continued to refuse to answer questions. The court of appeals affirmed the district court's denial of the government's motion to hold the witness in contempt, holding that the district court had not abused its discretion in finding that Mallory had shown just cause for his refusal to answer:

10

The proper functioning of our grand jury system depends upon the secrecy of the proceedings. Since one of the reasons underlying the policy of secrecy is to encourage full disclosure by witnesses without fear of retaliation, it follows that a witness may object to the presence of unauthorized persons during his grand jury testimony. While a speculative fear of danger or reprisals is not a defense to contempt, an actual showing that the secrecy of the grand jury proceedings has been impaired may constitute "just cause" for a refusal to testify and a defense to a contempt action. [Citations omitted.]

11

In light of Lahey's contentions, we conclude that the district court should determine whether Lahey has a reasonable basis for his fears and whether the government has violated the secrecy of the grand jury proceedings.2 If so, the contempt should be expunged. This does not mean that the government is deprived permanently of his testimony. Under appropriate safeguards, the government could subpoena him for testimony in the future before a new grand jury.

12

REMANDED.

*

The panel unanimously agrees that this case is appropriate for submission without oral argument pursuant to Fed.R.App.P. 34(a) and Ninth Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

1

This court reviews the district court's finding of contempt for abuse of discretion. In re Grand Jury Proceedings, 801 F.2d 1164, 1167 (9th Cir.1986)

2

Threats alone would not justify Lahey's refusal to testify. See United States v. Dupuy, 518 F.2d 1295, 1295 (9th Cir.1975) (per curiam); In re Grand Jury Proceedings (Lowry), 713 F.2d 616, 617 n. 1 (11th Cir.1983); In re Grand Jury Proceedings (Gravel), 605 F.2d 750, 752 (5th Cir.1979); Latona v. United States, 449 F.2d 121, 122 (9th Cir.1971)