In Re: Grand Jury

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

3-19-1999

In Re: Grand Jury

Precedential or Non-Precedential:

Docket 98-6415

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Filed March 19, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-6415

IN RE: THE GRAND JURY EMPANELING

OF THE SPECIAL GRAND JURY

On Appeal from an Order Entered in the

United States District Court For the District of

New Jersey

(Misc. No. 97-389)

District Judge: Honorable William H. Walls

Argued January 26, 1999

Before: SLOVITER, McKEE and RENDELL, Circuit Judges

(Filed March 19, 1999)

James A. Plaisted (Argued)

Christopher M. Farella

Walder, Sondak & Brogan

Roseland, N.J. 07068

Attorneys for Appellants

Faith S. Hochberg

United States Attorney

George S. Leone

Holly K. Kulka (Argued)

Assistant United States Attorneys

Newark, N.J. 07102

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Three witnesses appeal from the final order of the District

Court holding them in civil contempt and ordering them

confined for refusing to testify before a grand jury

investigating their father. The witnesses justify their refusal

to testify on religious grounds and contend that the District

Court failed to follow the procedures mandated by the

Religious Freedom Restoration Act ("RFRA"), 42 U.S.C.

SS 2000bb to 2000bb-4. This appears to be thefirst Court

of Appeals decision to consider the application of that Act

to a grand jury subpoena.

I.

A federal grand jury is currently sitting in Newark, New

Jersey, to investigate various crimes allegedly committed by

an Orthodox Jewish Rabbi. Between August and September

1998, the government subpoenaed three of the Rabbi's

daughters to testify before the grand jury concerning, inter

alia, the roles of the witnesses as employees of their father.

By mutual agreement, the return date of the subpoenas

was eventually adjourned until October 29, 1998. On

October 27, 1998, the District Court issued an order

immunizing the witnesses in order to overcome any Fifth

Amendment obstacle to their giving testimony. The next

day, the witnesses responded by filing a Motion to Quash,

which the government opposed by memorandum submitted

on the following day. In support of its opposition, the

government filed with the court, ex parte and in camera, a

Schofield affidavit, see generally In re Grand Jury

Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973), setting

forth the nature of the grand jury proceedings and the

government's interest in and need for the witnesses'

testimony.

The District Court denied the motion to quash. It also

denied the request made on behalf of the witnesses for an

evidentiary hearing and for an opportunity to review the

2

government's Schofield affidavit. On October 29, 1998, the

court ordered the witnesses to comply with the subpoenas.

All three witnesses appeared before the grand jury but

refused to testify on the ground that to do so would violate

their deeply held religious beliefs. The same day, the

District Court held each in contempt and ordered them

remanded to the custody of the United States Marshal for

the duration of the term of the grand jury. The court stayed

its imprisonment order pending an expedited appeal, and

the witnesses filed a Notice of Appeal on November 4, 1998.

On November 18, 1998, the District Court issued a written

opinion describing the earlier proceedings and explaining

its oral decisions of October 29, 1998.

The District Court had subject matter jurisdiction under

18 U.S.C. S 3231. This court has jurisdiction to consider

the witnesses' appeal under 28 U.S.C. S 1291. We expedited

our hearing and consideration.

II.

In 1963, the Supreme Court stated, "[A]ny incidental

burden [a statute imposes] on the free exercise of . . .

religion may be justified by a `compelling state interest in

the regulation of a subject within the State's constitutional

power to regulate.' " Sherbert v. Verner, 374 U.S. 398, 403

(1963) (quoting NAACP v. Button, 371 U.S. 415, 438

(1963)). As the Court further explained in Wisconsin v.

Yoder, 406 U.S. 205, 220 (1972), "activities of individuals,

even when religiously based, are often subject to regulation

by the States in the exercise of their undoubted power to

promote the health, safety, and general welfare, or the

Federal Government in the exercise of its delegated

powers." However, the Court noted, "only those interests of

the highest order and those not otherwise served can

overbalance legitimate claims to the free exercise of

religion." Id. at 215. We, along with the other courts,

interpreted these passages to mean that a statute that

imposed an incidental burden on religion would survive

First Amendment scrutiny only if it were the least

restrictive means of furthering a compelling state interest.

See, e.g., United States v. Dickens, 695 F.2d 765, 772 (3d

Cir. 1983).

3

The Supreme Court called the validity of this prevalent

interpretation of the Free Exercise Clause into significant

doubt in Employment Division, Department of Human

Resources v. Smith, 494 U.S. 872 (1990). There it held,

"[the] right of free exercise does not relieve an individual of

the obligation to comply with a valid and neutral law of

general applicability on the ground that the law proscribes

(or prescribes) conduct that his religion prescribes (or

proscribes)." Id. at 879 (quotation marks and citation

omitted).

It is against this background that Congress enacted the

Religious Freedom and Restoration Act. In so doing,

Congress stated, "laws `neutral' toward religion may burden

religious exercise as surely as laws intended to interfere

with religious exercise." 42 U.S.C. S 2000bb(a)(2). It thus

attempted "to restore the compelling interest test as set

forth in Sherbert v. Verner and Wisconsin v. Yoder." Id.

S 2000bb(b)(1) (citations omitted).

Thereafter, in City of Boerne v. Flores, 521 U.S. 507

(1997), the Supreme Court held RFRA unconstitutional as

applied to the actions of a local zoning authority, based in

part on the Tenth Amendment. Courts have since disagreed

over whether RFRA is constitutional as applied to the

federal government. See Christians v. Crystal Evangelical

Free Church, 141 F.3d 854, 860-61 (8th Cir.), cert. denied,

119 S. Ct. 43 (1998); United States v. Grant, 117 F.3d 788,

792 n.6 (5th Cir. 1997); cf. United States v. Muhammad,

165 F.3d 327, 336-37 (5th Cir. 1999) (declining to consider

in the first instance on appeal argument that RFRA

protected federal prisoner from involuntary civil

commitment for psychiatric treatment). In our recent

decision in Adams v. CIR, No. 98-7200, 1999 WL 111126

(3d Cir. March 4, 1999), we noted the issue, but assumed

without deciding that RFRA is constitutional as applied to

the federal government. Here also, we need not decide

whether any part of RFRA survives Flores, because we

conclude that the federal government's actions in this case

would survive constitutional scrutiny even under the

rigorous RFRA standard.

4

III.

RFRA states, in relevant part:

(a) In general

Government shall not substantially burden a

person's exercise of religion even if the burden results

from a rule of general applicability, except as provided

in subsection (b) of this section.

(b) Exception

Government may substantially burden a person's

exercise of religion only if it demonstrates that

application of the burden to the person --

(1) is in furtherance of a compelling governmental

interest; and

(2) is the least restrictive means of furthering that

compelling governmental interest.

42 U.S.C. S 2000bb-1. Thus, once a party has shown that

the application of a neutral law substantially burdens his

or her religion, the government bears the burden of proving

that enforcement of the law is the least restrictive means of

advancing a compelling state interest.

The witnesses argue (1) that the District Court failed to

properly apply RFRA by underestimating the burden that

forcing them to testify will place on their free exercise of

religion, (2) that the government failed to prove that its

interest in securing their testimony is compelling, and (3)

that enforcing the subpoenas is not the least restrictive

means of furthering whatever interest the government may

have. We consider each issue in turn.

A.

The witnesses contend that their religion, Orthodox

Judaism, prohibits them from providing testimony to be

used against their father. The prohibition, they explain,

stems from the commandment of the Old Testament,

"Honor thy father and thy mother." In support, they cite the

affirmation of Rabbi Feivel Cohen, the family's Decisor,1

_________________________________________________________________

1. As the witnesses explain, "A Decisor makes religious rulings on

matters of religious significance and these rulings are binding on the

observant Orthodox Jew." Appellants' Br. at 5.

5

which was submitted together with the Motion to Quash, to

the effect that it would be "a fundamental sin which cannot

be expunged on Yom Kippur (the Day of Atonement)" for the

children to "testify[ ] before members of the public in order

to provide the prosecutors evidence to be used against their

father." App. at 12.

The District Court expressed some skepticism about

whether Jewish tenets in general, or the witnesses' religious

beliefs in particular, actually prohibit them from testifying

before the grand jury. See App. at 60 n.1. For purposes of

decision, however, it "accept[ed] the religious beliefs of the

witnesses as such." App. at 60.

The witnesses argue on appeal that, in expressing such

skepticism, the District Court underestimated the burden

that enforcement of the subpoenas will place on the

witnesses' practice of their religion.2 The witnesses contend,

"To the extent the district court determined that the weight

to be accorded the religious burden was lightened by these

factors, it was inappropriate and the judgment below

should be vacated." Appellants' Br. at 38. They further note

that the District Court improperly described the burden on

their religion as "incidental." Appellants' Br. at 36.

The witnesses misapprehend the District Court's use of

the term "incidental" in this context. It was used in

precisely this manner by the Supreme Court in Smith,

where the Court said:

[I]f prohibiting the exercise of religion (or burdening the

activity of printing) is not the object of the tax but

merely the incidental effect of a generally applicable

and otherwise valid provision, the First Amendment

has not been offended.

Smith, 494 U.S. at 878.

As to the witnesses' objection to what appears to be the

_________________________________________________________________

2. The witnesses argue that the District Court erroneously blamed them

for the delays which occurred in scheduling a time for them to appear

before the grand jury. We find no evidence in the record that attribution

of blame on the issue of delay in any way affected the District Court's

decision.

6

District Court's questioning of the sincerity of their beliefs

and its attempt to interpret for itself the strictures of

Orthodox Judaism, we note, first, that the government

assumed that the witnesses had shown a substantial free

exercise burden and, second, that the District Court

assumed for purposes of decision both that the witnesses'

religious beliefs were sincere and that testifying against

their father would violate these beliefs. In light of the

court's assumption, the witnesses were not injured by any

skepticism the District Court may have expressed.

B.

The witnesses next complain that the government failed

to establish a compelling interest in securing their

testimony. The District Court found that the government

has an interest in "investigating and successfully

prosecuting crimes, which invariably includes taking the

grand jury testimony of witnesses." App. at 61. Citing

Branzburg v. Hayes, 408 U.S. 665, 687-88 (1972), a case in

which the Supreme Court refused to recognize under the

First Amendment a blanket reporters' privilege to refuse to

testify in grand jury proceedings, and the general principle

that the "public has a right to every man's evidence . . .

particularly . . . [in] grand jury proceedings," id. at 688, the

District Court concluded that the government's interest was

compelling. It stated, "That the government should

investigate suspected criminal wrongdoing is essential and

implements its paramount responsibility for the general

safety and welfare of all its citizens." App. at 61.

The witnesses contend that, rather than relying on

Branzburg in basing its finding of a compelling state

interest on the generalized need for criminal investigation,

the court should have conducted a more particularized

inquiry into the facts and circumstances of this case. They

contend that the District Court was required to consider

the nature of the investigation and the relationship between

that investigation and the testimony sought before deciding

whether the government's interest in questioning the

witnesses was compelling. They assume that the crime

under investigation is a revenue crime, rather than a

capital one, and therefore assert that this fact reduces the

7

weight of the government's interest in investigation. The

witnesses further contend that the criminal process is more

of a burden on religious beliefs than civil or administrative

processes because of the "dramatic" nature of the effect.

Appellants' Br. at 35. In support they quote the portion of

Justice O'Connor's concurrence in Smith, where she wrote,

"A neutral criminal law prohibiting conduct that a State

may legitimately regulate is, if anything, more burdensome

than a neutral civil statute placing legitimate conditions on

the award of a state benefit." 494 U.S. at 898-99.

Although the Supreme Court has not considered whether

the government's interest in securing testimony pursuant to

a grand jury subpoena is compelling, three courts of

appeals have considered a similar issue under the law as it

existed prior to Smith, and all three concluded that the

government's interest in securing the particular evidence

sought for the particular purposes alleged in those cases

was compelling. See In re Grand Jury Proceedings of John

Doe, 842 F.2d 244, 247-48 (10th Cir. 1988); Port v. Heard,

764 F.2d 423, 432-33 (5th Cir. 1985); Smilow v. United

States, 465 F.2d 802, 804-05 (2d Cir.), vacated on other

grounds, 409 U.S. 944 (1972). These cases remain a useful

aid in interpreting RFRA in light of the expressed

congressional intent to restore the status of the law before

Smith. See Adams, 1999 WL 111126, at *4.

In Smilow, a grand jury was investigating afire-bombing,

which killed a young woman. Appellant, a 17-year-old high

school student and a suspect in the bombing, refused to

answer the grand jury's questions on the grounds that

doing so would violate his faith as an observant Jew. The

district court held the student in contempt, sentenced him

to jail, and committed him to a federal detention center. On

appeal, the Court of Appeals for the Second Circuit

affirmed, reasoning that the state has a compelling interest

"in uncovering evidence of serious crimes of violence."

Smilow, 465 F.2d at 804.

In Port, Bernard and Odette Port were summoned before

a state grand jury to give testimony about Bernard's

natural son, David, the primary suspect in a murder the

grand jury was investigating. When the Ports refused to

testify, the state court held them in contempt and

8

sentenced them to jail. The Ports filed a petition for writ of

habeas corpus in federal court, arguing, inter alia, that, as

observant Jews, they had the right under the Free Exercise

Clause to refuse to testify against their son. On appeal, the

Court of Appeals for the Fifth Circuit rejected the Ports'

argument, holding, "in the context of this case, the state's

interest in procuring every person's testimony for the

thorough investigation of the crime of homicide outweighs

the Ports' First Amendment claims." Port, 764 F.2d at 432.

The decision of the Tenth Circuit in Doe presents a

situation parallel to the one before us: a 15-year-old

Mormon child was given immunity and called to testify

against a parent. He declined because "his deeply held

religious beliefs" prohibited him from testifying against his

mother or other members of his family. The court of

appeals decided that the government's "compelling interest

in investigating offenses against the criminal laws of the

United States" outweighed the witness's free exercise rights.

Doe, 842 F.2d at 248. These cases provide ample support

for the District Court's decision.

There are cases in which this court has recognized

traditional common law testimonial privileges over the

government's interest in securing grand jury testimony.

See, e.g., In re Grand Jury Investigation, 918 F.2d 374, 384

(3d Cir. 1990) ("Although there are countervailing

considerations, we have no doubt that the need for

protecting the [priest-penitent] relationship outweighs

them."). However, in a recent decision, we refused to

recognize a general parent-child testimonial privilege, see In

re Grand Jury, 103 F.3d 1140, 1146-56 (3d Cir.), cert.

denied sub nom, Roe v. United States, 520 U.S. 1253

(1997), thereby following the overwhelming majority of state

and federal courts on that issue.

We need not decide in this case whether the

government's interest in investigating and prosecuting

crime is always compelling under RFRA because we are

convinced that the government's interest in securing the

evidence needed to punish the criminal activity alleged here

is compelling. The District Court correctly recognized that

the duty to prosecute persons who commit serious crimes

is part and parcel of the government's "paramount

9

responsibility for the general safety and welfare of all its

citizens." App. at 61. Grand jury proceedings play an

essential role in the government's ability to fulfill this duty.

A review of the Schofield affidavit confirms both that the

crimes that this grand jury is investigating are weighty and

that these witnesses are likely to possess substantial

relevant information. The dissent makes much of the fact

that "[t]his is not a situation involving violence or

disruption of public safety." Although it is true that this

case does not concern crimes of extreme violence, such as

those at issue in Port and Smilow, the crimes alleged here,

like many white collar crimes, may seriously impact the

public welfare. We therefore conclude that enforcing these

subpoenas would serve a compelling state interest.

C.

RFRA imposes yet another requirement, i.e., that the

government actions, here enforcing the grand jury

subpoenas, must be the least restrictive means of serving

the government's compelling interest. According to the

witnesses, the subpoenas are not a narrowly drawn means

to this end. They contend that the government can secure

similar evidence from other sources and that, under RFRA,

it has an obligation to do so. They insist that other

witnesses can provide, and may already have provided, the

same or similar evidence. And, they assert that"there are

records that establish some of the operative facts."

Appellants' Br. at 33.

The government denies that "there were other means of

obtaining the information." Appellee's Br. at 26. It further

memorialized this denial in a sworn Schofield affidavit

explaining the circumstances under investigation and the

witnesses' relationship thereto, which affidavit was

submitted under seal to the District Court in thefirst

instance and to us on appeal. The District Court reviewed

the affidavit in camera and found that the government

needs the witnesses' testimony "with regard to their

employment status . . . [and] the various business interests

of the target." App. at 48.

After reviewing the government's submission ourselves,

we reach the same conclusion. There is substantial reason

10

to believe that the witnesses possess relevant information

necessary for the prosecution of serious crimes. Their role

as employees of the target of the investigation suggests that

they are uniquely situated to have first-hand knowledge of

the target's past business conduct. Moreover, the witnesses

have submitted no evidence beyond their own self-serving

allegations to contradict that suggestion or to establish that

the government can conveniently obtain comparable

information from other sources.

The dissent's contentions to the contrary

notwithstanding, see Dissenting Op. at 26-27, we do not

suggest that the witnesses bore the burden of proving that

less restrictive means were available. We merely point out

that the evidence of record, which is contained in the

government's sworn affidavit and which supports its

position, remains uncontradicted. Although the witnesses

were denied an evidentiary hearing, they were not denied

an opportunity to submit evidence, as the dissent implies.

See Dissenting Op. at 26-27. The witnesses were aware that

they could submit evidence in the form of affidavits because

they did submit an affirmation of Rabbi Feivel Cohen.

Nothing prevented them from submitting affidavits

concerning the availability of relevant business records or

the potential testimony of other witnesses, which their

counsel argue exist.

The dissent contends that although we owe at least some

deference to the District Court's conclusion, that conclusion

was faulty because it relied on the untested affidavit of the

prosecution. See Dissenting Opinion at 26. The dissent fails

to note, however, that the affidavit was sworn by an

Assistant United States Attorney, an officer of the court.

Under these circumstances, there is nothing inappropriate

about relying on the affidavit. We therefore conclude that,

in this case, enforcing the subpoenas is the least restrictive

means of advancing the government's compelling interest.3

_________________________________________________________________

3. The witnesses rely on In re Grand Jury Proceedings (Greenberg), 11

Fed. R. Evid. Serv. (Callaghan) 579, 1982 U.S. Dist. LEXIS 18355

(D.Conn. 1982), which held that "the grand jury's particular interest in

obtaining testimony from [the witness] against her daughter does not

outweigh [the witness's] First Amendment interests" in freely exercising

11

IV.

In addition to the substantive arguments discussed

above, the witnesses raise several procedural objections to

the District Court's determination. They argue that RFRA

and pre-Smith precedent required the District Court to hold

a hearing regarding the constitutionality and

reasonableness of enforcing the subpoenas, and they claim

that it was error under RFRA for the District Court to

refuse to disclose the government's affidavit.

A.

The witnesses interpret RFRA, and the pre-Smith

precedent that it draws on, to mandate an evidentiary

hearing whenever a free exercise defense to the enforcement

of a grand jury subpoena is raised. They cite language from

Justice O'Connor's concurrence in Smith suggesting that

"the First Amendment at least requires a case-by-case

determination . . . , sensitive to the facts of each particular

claim," 494 U.S. at 899, as well as a passage from Justice

Blackmun's dissent in which he states: "[T]his court's prior

decisions have not allowed a government to rely on mere

speculation about potential harms, but have demanded

evidentiary support for a refusal to allow a religious

exception." 494 U.S. at 911.

There is a difference between requiring evidentiary

support and requiring a hearing. Neither Supreme Court

precedent nor our prior decisions require that a hearing be

held whenever a subpoena is challenged on reasonableness

grounds. Indeed, this court has specifically rejected any

such suggestion, leaving the decision to hold a hearing to

_________________________________________________________________

her religion. Id. at 584, 1982 U.S. Dist. LEXIS at *11. As a district

court

decision, this does not have the broader precedential value of an opinion

by a court of appeals. Moreover, in addition to the differences in the

factual situations (such as that the grand jury in Connecticut had little

need for the mother's testimony as the daughter was not the target in

that proceeding), the court acknowledged that "[i]n general . . . the

interest of the grand jury in obtaining testimony must prevail over a

witness's First Amendment religious rights." Id. at 583, 1982 U.S. Dist.

LEXIS 18355, at *10.

12

the district court's discretion. See In re Grand Jury Matter

(District Council 33 Health & Welfare Fund), 770 F.2d 36, 39

(3d Cir. 1985); In re Grand Jury Proceedings (Schofield II),

507 F.2d 963, 966 (3d Cir. 1975). Nor does precedent or

policy require a different rule when the challenge is a

constitutional one.

In Schofield II, we explained the procedure that a district

court must follow when asked to enforce a grand jury

subpoena:

[T]he party seeking enforcement of a grand jury

subpoena [must] make some minimal showing by

affidavit of the existence of a proper purpose. . . . "[T]he

Government [is] required to . . . [show] that each item

is at least relevant to an investigation being conducted

by the grand jury and properly within its jurisdiction,

and is not sought primarily for another purpose."

[Although] the burden is generally on the witness to

show abuse of the grand jury process, Schofield I

requires the government to present affidavits in every

case irrespective of whether the witness has challenged

the propriety of the subpoena. . . .

[W]here the district court is not satisfied with the

affidavits presented by the government, whether

because the matters set forth challenge the court's

credibility or because the witness has made some

colorable challenge to the affidavits, the court can

require something more.

507 F.2d at 964-65 (footnote and citation omitted) (quoting

Schofield I, 486 F.2d at 93).

We went on to discuss the broad discretion a district

court enjoys in exercising this supervisory role:

The district judge is vested with considerable

discretion in determining whether additional

proceedings are warranted. Various avenues of inquiry

are open to a court which questions the sufficiency of

the affidavits, among them discovery, in camera

inspection, additional affidavits and a hearing . . . .

[W]e emphasize . . . that the decision to require

13

additional investigation is committed to the sound

discretion of the court.

Id. at 965. We set forth the factors that should inform a

district court's decision whether to order further inquiry

into whether the government is abusing the subpoena

process:

[T]he court must in deciding that request (for

additional proceedings,) weigh the quite limited scope

of an inquiry into abuse of the subpoena process, and

the potential for delay, against any need for additional

information which might cast doubt upon the accuracy

of the Government's representations.

Id. (quoting Schofield I, 486 F.2d at 93). We treated "the

realization that the grand jury must be given broad

investigative powers" as a primary consideration in crafting

appropriate procedures and rejected "any holding that

would `saddle' a grand jury with minitrials . . . [thereby]

imped[ing] its investigative duty." Id. at 966. Finally, we

emphasized that our review of a district court's

determination would be deferential: "We will not disturb a

decision to deny additional review unless we find that the

district court's `weighing' was an abuse of discretion." Id. at

965.

The same considerations are applicable here; therefore,

similar procedures are appropriate. The District Court had

a duty to satisfy itself that the witnesses' testimony was

necessary to serve the government's compelling interest

without unduly delaying or interfering with the functioning

of the grand jury. The government bore responsibility for

establishing the propriety of enforcing the subpoenas. We

therefore conclude that the submission of a Schofield

affidavit was a suitable means for the government to fulfill

its obligation. And, we hold that, in deciding whether to

order further proceedings, it was appropriate for the

District Court to weigh the same factors outlined in

Schofield I and Schofield II: the scope of inquiry (here under

RFRA), the potential for delay, and "any need for additional

information which might cast doubt upon the accuracy of

the Government's representations." Schofield II, 507 F.2d at

965; Schofield I, 486 F.2d at 93. Because, weighing these

14

factors in this case, we cannot say it was an abuse of

discretion for the District Court not to order further

inquiry, we will not disturb its determination.

The dissent misinterprets our statement that "similar

procedures are appropriate" to mean that the same

substantive standard applies whenever a grand jury

subpoena is challenged, whether on abuse of process or

First Amendment grounds. Lest there be any confusion, we

reiterate: in deciding whether to enforce a grand jury

subpoena over a RFRA objection, the district court must

satisfy itself that the witness's testimony is necessary to

serve a compelling state interest. In its discretion, the

district court may permit the government, which bears the

burden of proving the existence of a compelling purpose

and the unavailability of less restrictive means, to meet that

burden through the ex parte in camera submission of a

sworn affidavit.

The witnesses argue that, although the procedures set

forth above may be appropriate in the context of an abuse

of process inquiry, RFRA heightens the need for a hearing.

They point to RFRA's requirement of individualized

judgments and a balancing of facts and circumstances in

every case, and they note that RFRA shifts the burden of

proof to the government.

It is true that our past decisions have relied in part on a

division of the burdens of proof that does not apply under

RFRA. For example, in District Council 33, we upheld the

district court's decision to enforce a subpoena without

requiring an evidentiary hearing on the grounds that

"[g]rand jury proceedings are entitled to`a presumption of

regularity' " and that "the party objecting to the

enforcement of a grand jury subpoena has the burden of

demonstrating some irregularity in those proceedings." 770

F.2d at 40 (quoting Schofield I, 486 F.2d at 92). In doing so,

we reaffirmed our previous holding that " `the decision to

require additional investigation' beyond the Schofield

affidavit, `is committed to the sound discretion of the

district court.' " Id. at 39 (quoting Schofield II, 507 F.2d at

965).

Under RFRA, the government, rather than the party

challenging the subpoena, bears the burden of proof as to

15

compelling interest and least restrictive means. Nothing in

this different distribution of the burdens of proof, however,

undercuts our determination that similar procedures are

appropriate. The fact that the witnesses did not bear the

burden of proof on the issues they sought to explore by a

hearing makes it less, not more, likely that they were

injured by the District Court's denial of that request. We

thus reject the witnesses' claim that an evidentiary hearing

is always required under RFRA. Of course, we do not

suggest that an evidentiary hearing would never be

required when the party subpoenaed claims both a

substantial burden on his or her religious beliefs and either

the absence of a compelling government interest or the

availability of a less restrictive alternative. We merely hold

that in this case the District Court, which had the

discretion to decide, did not abuse that discretion in

rejecting the request.

B.

In addition to seeking an evidentiary hearing, the

witnesses' counsel requested a copy of the government's

Schofield affidavit, which request the District Court denied.

The witnesses challenge that denial on appeal, noting that

"[i]n Schofield, the affidavit was not only turned over to the

defense, it was replicated in the body of the opinion."

Appellants' Br. at 43. They ask this court (without making

a formal motion) to "order that [the affidavit] be turned over

and permit a supplementary brief by the petitioners to

address its application to the merits." Id. at 44. We find no

merit to the witnesses' challenge and will deny their

request.

We have consistently endorsed the use of in camera

proceedings to preserve grand jury secrecy. In re Grand

Jury, 103 F.3d at 1145 ("Ex parte in camera hearings have

been held proper in order to preserve the ongoing interest

in grand jury secrecy."); In the Matter of Grand Jury

Empaneled Oct. 18, 1979 (Hughes), 633 F.2d 282, 288 (3d

Cir. 1980). This procedure is consistent with Supreme

Court precedent. See United States v. R. Enters., Inc., 498

U.S. 292, 302 (1991).

16

Our decision in In re Grand Jury, 103 F.3d 1140 (3d Cir.

1997), resolved a similar issue under similar

circumstances. A 16-year-old, asserting a parent-child

privilege, moved to quash a grand jury subpoena seeking to

elicit her testimony about her father's involvement in an

alleged kidnaping. The district court held a hearing and

ordered additional briefing "on the issue of whether the

daughter's testimony would be material and non-

duplicative," and it required the government to"make a

substantial showing that this threshold was met." Id. at

1143 & n.6 (citation omitted). The government filed a

Schofield affidavit and voluntarily furnished further

particulars at an in camera ex parte hearing. Based on

these in camera and ex parte submissions, the district

court concluded, " `the government's interests in compelling

the testimony outweigh the privacy interests asserted by

the moving parties' and denied the motion to quash on

those grounds." Id. at 1144. We affirmed on appeal, stating:

[W]e find little merit in the arguments . . . pertaining

to the Schofield affidavit and the in camera proceedings

before the district court. . . . Ex parte in camera

hearings have been held proper in order to preserve the

ongoing interest in grand jury secrecy. The secrecy of

the grand jury proceedings in the present matter might

have been compromised by divulging the specific

questions that the government intended to ask during

the daughter's testimony. Judicial supervision and

interference with grand jury proceedings should always

be kept to a minimum. . . . We hold that the district

court did not abuse its discretion in hearing the

government's proffer in camera and ex parte.

Id. at 1145-46 (citations omitted).

The only relevant difference we can see between In re

Grand Jury and this case is that the witnesses there based

their claims on the need to protect the parent-child

relationship, whereas here the witnesses assert religious

beliefs in support of their privilege claims. The question

remaining then is whether more protective procedures are

mandated when a claim to privilege is based on religious

beliefs than when it is based on secular beliefs about the

same parent-child relationship.

17

The witnesses argue that more protective procedures are

required because they view RFRA as "amending" Federal

Rule of Criminal Procedure 6(e) to ease the stringency of

grand jury secrecy in order to assure the witnesses a

meaningful opportunity to contest the burden on their free

exercise of religion. RFRA, however, does not purport to

amend the rule of grand jury secrecy. To the extent there is

a substantial burden on the witnesses' free exercise of

religion, it is created by the grand jury subpoena and not

by the maintenance of grand jury secrecy. And, although

we have accepted the substantiality of the burden alleged,

we have concluded that in light of the government's

compelling need and the unavailability of less restrictive

alternatives, the subpoenas can be enforced.

V.

For the reasons set forth, we will affirm the order of the

District Court holding the witnesses in contempt. In light of

the impending expiration of the grand jury, the mandate

shall issue forthwith.

18

McKEE, Circuit Judge, dissenting:

I respectfully dissent from the opinion of my colleagues.

I do not believe the government satisfied its burden of

proving that requiring these witnesses to testify against

their father in violation of what we assume to be a devoutly

held religious belief is the least restrictive means of

furthering the government's purported compelling interest

in this investigation. For the reasons that follow, I believe

that we should remand to the district court for an ex parte

hearing. Following that hearing the district court can

determine if disclosure of the affidavit and further

proceedings are warranted. It is only after such a probing,

fact-specific inquiry that the district court can properly

conduct the weighing that is required under RFRA. Absent

at least an ex parte hearing, there is no way to insure the

compelling nature of the government's inquiry or that there

is no less intrusive way to gather the evidence the

government is seeking. Forcing these witnesses to testify

without requiring such a showing is inconsistent with

Congress's attempt "to restore the compelling interest test"

to enforce generally applied rules over conflicting religious

beliefs. See Maj. Op. at 4.

I.

The majority cites Smilow v. United States, 465 F.2d 802,

804-05 (2d Cir.), vacated on other grounds, 409 U.S. 944

(1972); Port v. Heard, 764 F.2d 423, 432-33 (5th Cir. 1985);

and In re Grand Jury Proceedings of John Doe, 842 F.2d

244, 247-48 (10th Cir. 1988), to conclude that "[t]hese

cases remain a useful aid in interpreting RFRA in light of

the expressed congressional intent to restore the status of

the law before Smith." See Maj. Op. at 8. However, I do not

think those cases support the majority's analysis.

Although a religious objection was the basis of a

challenge to a grand jury subpoena in Smilow, I believe that

case argues for, not against, granting a hearing here. The

same is true of Port v. Heard. In both cases, grand juries

were investigating serious crimes of violence resulting in

death. In Port, the grand jury subpoenaed the parents of a

suspect in an effort to get them to supply information that

19

could be used to indict their son for murder; in Smilow, the

grand jury subpoenaed a 17-year old potential witness in a

fatal fire bombing. Both witnesses asserted a privilege

against testifying based on their First Amendment freedom

of religion.1 Although the Courts of Appeals for the Second

and Fifth Circuits ruled against the witnesses, both courts

were careful to limit the scope of their holdings to the facts

of the particular case. In Port, the court stated:

We hold that in the context of this case, the states's

interest in procuring every person's testimony for the

thorough investigation of the crime of homicide

outweighs the Ports' First Amendment claims, but only

if the state's procurement of the testimony was `the

least restrictive means of achieving' that interest.

764 F.2d at 432 (emphasis added). Similarly, the court in

Smilow noted "the compelling state interest in this case in

uncovering serious crimes of violence." 465 F.2d at 804.

Thus, although the language in Smilow, Port, and their

progeny provides some basis for the majority's holding, I

am concerned that the majority has expanded those cases

beyond the point supported by those courts' opinions.

Branzburg v. Hayes, 408 U.S. 665 (1972), is the

foundation for many of the cases relied upon by the

majority, including Smilow and Port. However, those cases

rely upon the language of Branzburg without giving

adequate consideration to the facts of that case, or the

actual holding of the Supreme Court. In Branzburg, the

Court considered the consolidated appeals of several

different reporters who had independently been subpoenaed

in connection with unrelated grand jury investigations. The

various investigations included allegations of drug

trafficking, civil unrest, and even Presidential

assassination. The reporters argued that the First

Amendment guarantee of Free Speech and Free Press

implicitly established a qualified privilege against disclosing

news sources. The Court summarized the reporters'

argument as follows:

_________________________________________________________________

1. The parents in Port also asserted a parent-child privilege based on

their fundamental right of privacy and the Equal Protection Clause.

20

Petitioners . . . press First Amendment claims that may

be simply put: that to gather news it is often necessary

to agree either not to identify the source of information

published or to publish only part of the facts revealed,

or both; that if the reporter is nevertheless forced to

reveal these confidences to a grand jury, the source so

identified and other confidential sources of other

reporters will be measurably deterred from furnishing

publishable information, all to the detriment of the free

flow of information protected by the First Amendment.

Although the newsmen in these cases do not claim an

absolute privilege against official interrogation in all

circumstances, they assert that the reporter should not

be forced either to appear or to testify before a grand

jury or at trial until and unless sufficient grounds are

shown for believing that the reporter possesses

information relevant to a crime the grand jury is

investigating, that the information the reporter has is

unavailable from other sources, and that the need for

the information is sufficiently compelling to override

the claimed invasion of First Amendment interests

occasioned by the disclosure.

408 U.S. at 679-80. The Court held that no such privilege

exists. In so holding, the Court noted that had it recognized

such a conditional privilege, the privilege would require

courts to conduct a fact-specific analysis each time a

reporter was subpoenaed:

In each instance where a reporter is subpoenaed to

testify, the courts would also be embroiled in

preliminary factual and legal determinations with

respect to whether the proper predicate had been laid

for the reporter's appearance: Is there probable cause

to believe a crime has been committed? Is it likely that

the reporter has useful information gained in

confidence? Could the grand jury obtain the

information elsewhere? Is the official interest sufficient

to outweigh the claimed privilege?

Branzburg, 408 U.S. at 795. The Court reasoned that

Congress was free to determine whether a statutory

newsman's privilege is necessary and desirable, id. at 706,

but until Congress did so, reporters were not entitled to

21

resist grand jury subpoenas on First Amendment grounds.

The Court stated:

[a]lthough the powers of the grand jury are not

unlimited and are subject to the supervision of a judge,

the longstanding principle that `the public . . . has a

right to every man's evidence,' except for those persons

protected by a constitutional, common-law, or

statutory privilege, is particularly applicable to grand

jury proceedings.

Id. at 688 (emphasis added).

RFRA creates the privilege absent in Branzburg, and the

cases relying upon it. Thus, Branzburg is of dubious

assistance to our inquiry. In Branzburg, as well as the other

cases where claims of privilege have been struck down

because the law did not recognize the particular privilege,

there was no weighing of interests because there was

nothing to weigh on the witnesses' side of the balance.

Under RFRA's statutory framework, however, Congress

expressly requires the government to prove that it has a

compelling governmental interest and that enforcing a

grand jury subpoena is the least restrictive means for

furthering that interest.2 Therefore, I do not believe we can

determine whether coercing the testimony in this case

satisfies RFRA's dictates without requiring a hearing to

determine whether the government can meet its burdens.3

_________________________________________________________________

2. Indeed, in Branzburg, the Supreme Court never applied the fact-

intensive "least restrictive means" test required by RFRA; rather, the

Court merely noted that compelling the testimony in that case "bears a

reasonable relationship to the achievement of the governmental

purpose." Branzburg, 408 U.S. at 700. Thus, Branzburg provides no

guidance for determining whether the fact-specific, statutory "least

restrictive means" test is satisfied.

3. On remand, I would leave it to the district court's discretion to

decide

whether a full evidentiary hearing after disclosure of the Schofield

affidavit is required, or whether the ex parte hearing will suffice. The

ex

parte hearing would involve probing into the nature of the alleged crime

and the precise conduct alleged to be criminal, the specific testimony

sought from the witnesses, whether other witnesses exist, and if so, who

they are and what they will likely testify to, whether the government has

already interviewed other witnesses, and if so, the nature of their

22

The Court in Branzburg did state, in dicta, that "[t]he

requirement of those cases which hold that a State's

interest must be compelling or paramount to justify even

an indirect burden on First Amendment rights, are also met

here." 408 U.S. at 700 (internal quotation marks and

citations omitted). The Court then explained:

If the test is that the government `convincingly show a

substantial relation between the information sought

and a subject of overriding and compelling state

interest,' it is quite apparent . . . that the State has the

necessary interest in extirpating the traffic in illegal

drugs, in forestalling assassination attempts on the

President, and in preventing the community from being

disrupted by violent disorders endangering both

persons and property. . .

Id. at 701. That is not our case. The violent nature of the

crimes being investigated in Branzburg was an important

factor in the Court's conclusion; thus, to the extent that the

Court's mention of the "compelling interest test" provides

precedent for our analysis at all, neither the district court

nor the majority opinion gives adequate consideration to

the nature of the charges here.

_________________________________________________________________

testimony, whether documentary evidence might exist and whether it will

corroborate witness testimony, whether the government can obtain

personal financial statements of the three children, and any other facts

that may shed light on the government's need for the testimony.

With respect to disclosure of the Schofield affidavit, I believe the

district court should also weigh the government's interest in secrecy in

this particular case against the witnesses' substantial interests in

arguing their position. At oral argument, the government asserted that it

opposed disclosure of the Schofield affidavit in this case because such

disclosure could result in the fabrication of testimony or evidence. That

is, of course, a risk in any prosecution involving the testimony of

witnesses, and there are sanctions for such conduct including

prosecution for perjury. Thus, I fail to see how the government's concern

for perjury outweighs the witnesses' substantial interest in reviewing the

affidavit to determine whether some alternative, less restrictive means

for

furthering the governmental interest exists. Nevertheless, here, I would

leave the disclosure decision up to the district court following an ex

parte

hearing.

23

Smilow and Port only highlight the distinctions between

Branzburg and this case. See Maj. Op. at 8-9. In Smilow,

the witness resisting a grand jury subpoena in a fatal fire

bombing investigation claimed that he was an " `observant

and committed Jew' [and therefore] must refuse to answer

the grand jury questions or else suffer `Divine punishment

and ostracism from the Jewish Community' as an

`informer.' " 465 F.2d at 804. However, the privilege that he

asserted was not recognized under law at the time. 4 The

court noted: "The legal claim is apparently a novel one and

its precise religious basis is not clear from the record before

us." Id. The court then relied in part upon Branzburg to

find a compelling state interest that overcame the religious

objection. The court stated: "[W]e do not believe that

appellant's right to refuse to answer highly relevant

questions is any greater than those claimed by petitioners

in Branzburg, in the face of the compelling state interest in

this case in uncovering evidence of serious crimes of

violence." Id.

The courts in Smilow and Port also relied largely on the

fact that the crimes being investigated by the grand jury

involved extreme violence. The court in Smilow explained:

"we believe that appellant's first amendment claim is

outweighed by the compelling state interest in having the

grand jury hear `every man's evidence' bearing on alleged

criminal activity that resulted in the death of an innocent

person." 465 F.2d at 805 (citing Branzburg) (emphasis

added). Similarly, in Port, the court repeatedly recognized

the need for a complete investigation because the

underlying crime involved a murder. See, e.g., 764 F.2d at

432 ("in the context of this case, the state's interest in

procuring every person's testimony for the thorough

investigation of the crime of homicide outweighs the Ports'

First Amendment claims"); id. at 433 ("First Amendment

interests may be subjugated to [the state's interest in

_________________________________________________________________

4. Similarly, when Port was decided no parent-child privilege was

recognized under the First Amendment, the Equal Protection Clause, or

the fundamental right to privacy. Texas had recognized a marital

privilege, but not a parental privilege. The court held that "[t]he right

to

refuse to testify against one's child is not a fundamental right. Nor does

the distinction between the marital and parental privileges involve a

suspect class." 764 F.2d at 431.

24

discovering the truth about a crime] in the proper

circumstances" and holding that pursuing investigation of a

murder presents proper circumstances) (emphasis added).

Given the nonviolent nature of the crimes being

investigated here, I am far more reluctant than my

colleagues to rely on precedent where the courts were

obviously influenced by the violent nature of the crimes

being investigated.

II.

Absent an ex parte hearing at the very least, I remain

unconvinced that the underlying crimes here justify a rule

elevating the government's claimed compelling interest over

the religious rights of these witnesses. This is not to say

that the crimes being investigated are not serious, or that

they are not worthy of prosecution. Rather, I submit that

the nature of the investigation here has not been properly

placed on the RFRA scale. Indeed, it does not appear to

have been considered at all. This is not a situation involving

violence or disruption or a threat to public safety. Indeed,

it does not even appear that the alleged crimes are

continuing. Rather, it is an investigation into past conduct.

The majority asserts that "[t]he District Court correctly

recognized that the duty to prosecute persons who commit

serious crimes is part and parcel of the government's

`paramount responsibility for the general safety and welfare

of all its citizens.' " See Maj. Op. at 9-10. But the record

simply does not establish that the "general safety and

welfare" of the citizenry is implicated here.

Moreover, I do not believe that the deference we owe to

the district court's conclusion justifies upholding the

deference it showed to the untested affidavit of the

prosecution, as opposed to taking adequate steps to protect

the religious rights asserted by the witnesses and protected

under RFRA. The majority states, "the witnesses have

submitted no evidence beyond their own self-serving

allegations to contradict [the suggestion that, as employees,

they are uniquely situated to have first hand knowledge] or

to establish that the government can conveniently obtain

comparable information from other sources." Maj. Op. at

25

11. However, the witnesses do not dispute that they may

possess relevant information; nor do they deny (or confirm)

that they were employees of the target (although it is

unclear why that makes them "uniquely situated" compared

to other employees). Instead, the witnesses argue that the

government has failed to establish that similarly probative

information cannot be obtained elsewhere, either from other

witnesses or through documentary evidence, without

burdening their religious beliefs.

In addition, the majority's approach shifts the

government's burden under RFRA to the witnesses. This is

exacerbated by the "Catch 22" in which the witnesses are

ensnared. They have made only bare and unsupported

assertions because they have been denied a hearing, and

are therefore forced to shoot blindly at an affidavit they

have not seen. Yet, the majority partially relies on their

inability to assert more than bald allegations to affirm the

district court's refusal to grant them a hearing.

The majority's analysis suggests that the procedures

routinely used to review grand jury subpoenas under

Schofield are necessarily adequate to review RFRA

challenges. I can not agree. In Schofield II , we held, "[T]he

Government [is] required to . . . [show] that each item is at

least relevant to an investigation being conducted by the

grand jury and properly within its jurisdiction, and is not

sought primarily for another purpose." In re Grand Jury

Proceedings, 507 F.2d 963, 966 (3rd Cir. 1975). Such an

inquiry is totally inadequate to afford the protections

Congress intended under RFRA. The usual Schofield

affidavit does not establish the compelling nature of the

government's interest nor address whether there are

alternative means of obtaining the evidence.5 That is not

the purpose of the Schofield affidavit; rather, it merely

seeks to insure that the subpoena process is not being

abused. To the extent we hold that a Schofield inquiry is

_________________________________________________________________

5. In fairness to the government, and to its credit, the affidavit that

was

submitted here is far more specific than the usual boilerplate that is

pasted into a Schofield affidavit. However, the procedure utilized here is

inadequate to insuring that the government can satisfy both prongs of

RFRA.

26

sufficient under RFRA, we lower the statutory bar Congress

has erected. Indeed, we may well eliminate that bar as the

Schofield inquiry does not address the compelling need of

the prosecutor nor the existence of alternative avenues of

investigation at all. Therefore, I disagree with the

conclusion that "similar procedures are appropriate." See

Maj. Op. at 14. An inquiry along the lines set out in

Schofield may be necessary for the government to meet its

burden under RFRA, but it is by no means sufficient to do

so.

Thus, I fear that our holding today will have the

unintended consequence of creating a per se rule that will

preclude a court from ever concluding that there is a less

restrictive means for obtaining information than actually

compelling grand jury testimony. At oral argument before

the district court, the district court essentially held that to

satisfy its burden in any criminal investigation the

government merely has to assert that it has a compelling

interest in "pursu[ing] all avenues in the search for the

truth in a criminal investigation," app. at 48 (emphasis

added), and that there is no practical alternative. We now

endorse that low threshold by holding that so long as

"[t]here is substantial reason to believe that the witnesses

possess relevant information necessary for the prosecution

of serious crimes," enforcing the subpoena is the least

restrictive means of advancing the government's compelling

interest in protecting "the general safety and welfare of all

its citizens." See Maj. Op. at 10-11 & 10.

We are told that these witnesses will be forced to commit

a grave sin under the tenets of their religion, and we

assume that is so. It is a sin for which there is no

atonement. Yet, we do not even grant an ex parte hearing

to make the government prove that the need for their

testimony is sufficiently compelling and the alternatives so

nonexistent as to justify this affront to their religion under

RFRA. The language of RFRA, and the First Amendment

doctrine from which RFRA evolved, require more. See, e.g.,

Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) ("courts must

move with great circumspection in performing the sensitive

and delicate task of weighing a State's legitimate social

concern when faced with religious claims for exemption

27

from generally applicable [laws]" and noting particularized

showing as to the adequacy of the alternatives);

Employment Div. Dept. of Human Resources v. Smith, 494

U.S. 872, 899 (1990) (O'Connor, J., concurring) ("Even if, as

an empirical matter, a government's criminal laws might

usually serve a compelling interest in health, safety, or

public order, the First Amendment requires a case-by-case

determination of the question, sensitive to the facts of each

particular claim. . . .").

Because I believe the government's Schofield affidavit

alone does not satisfy those burdens, and the district

court's scrutiny was wholly inadequate, I would remand for

a more searching examination of the government's need for

the testimony in this particular case and a determination of

whether alternatives might exist. Accordingly, I respectfully

dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

28