“[T]he act of producing documents in response to a subpoena may have a compelled testimonial aspect.”
How later courts described this case
- “[T]he act of producing documents in response to a subpoena may have a compelled testimonial aspect.”
- applying § 1826(a) to a refusal to stand in a line up
- applying § 1826(a) to a refusal to provide bank records
- involving indicted criminal defendants who refuse to provide voice exemplars
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_
No. 17-3205
________________
UNITED STATES OF AMERICA
v.
APPLE MACPRO COMPUTER, APPLE MAC MINI
COMPUTER, APPLE
IPHONE 6 PLUS CELLULAR TELEPHONE, WESTERN
DIGITAL MY BOOK
FOR MAC EXTERNAL HARD DRIVE, WESTERN
DIGITAL MY BOOK
VELOCIRAPTOR DUO EXTERNAL HARD DRIVE
*FRANCIS RAWLS,
Appellant
*(Pursuant to FRAP 12(a))
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-15-mj-00850-01)
District Judge: Honorable Cynthia M. Rufe
________________
Argued on March 15, 2019
Before: MCKEE, ROTH and FUENTES, Circuit Judges
(Opinion filed: February 6, 2020)
Keith M. Donoghue (ARGUED)
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Robert A. Zauzmer (ARGUED)
Emily McKillip
Michelle Rotella
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
________________
OPINION
________________
FUENTES, Circuit Judge
In this case, we are asked to determine whether
appellant, Francis Rawls, should be released from confinement
for civil contempt. On September 30, 2015, Rawls was
2
incarcerated for civil contempt after he failed to comply with a
court order that he produce several of his seized devices in a
fully unencrypted state. Since that day, more than four years
ago, Rawls has been held in federal custody. Rawls seeks
release arguing that 28 U.S.C. § 1826 limits his maximum
permissible confinement for civil contempt to 18 months.
Because we conclude § 1826 applies to Rawls, we will
reverse the order of the District Court and order Rawls’ release.
I
The circumstances surrounding Rawls’ present
confinement for civil contempt began with an investigation
into Rawls’ access to child pornography. As a part of that
investigation, the Delaware County Criminal Investigations
Unit executed a search warrant at Rawls’ residence, yielding
an Apple iPhone 5S, an Apple iPhone 6 Plus, and an Apple
Mac Pro Computer (the “Mac Pro”) with two attached Western
Digital External Hard Drives, all of which were protected with
encryption software. 1
Agents from the Department of Homeland Security then
obtained a federal search warrant to examine the seized
devices. Rawls voluntarily provided the password for the
Apple iPhone 5S but did not provide the passwords to decrypt
the Mac Pro or the external hard drives. Ultimately, forensic
1
Encryption technology transforms plain, understandable
information into unreadable letters, numbers, or symbols using
a fixed formula or process. Only those who possess a
corresponding “key” can return the information into its original
form, i.e. decrypt that information.
3
analysts discovered the password to decrypt the Mac Pro but
could not determine the passwords to decrypt the external hard
drives. Forensic examination of the Mac Pro revealed (1) an
image of a pubescent girl in a sexually provocative position,
(2) logs showing that the Mac Pro had been used to visit
websites with titles common in child exploitation, and (3) that
Rawls had downloaded thousands of files known to be child
pornography. Those files, however, were not on the Mac Pro,
but instead were stored on the encrypted external hard drives.
In the course of their investigation, officers interviewed Rawls’
sister who stated that Rawls had shown her hundreds of images
of child pornography on the encrypted external hard drives,
which included videos of children who were nude and engaged
in sex acts with other children. But, without a password to
decrypt the hard drives, agents could not access the files
themselves.
In August 2015, a Magistrate Judge ordered Rawls to
produce all encrypted devices, including his two attached
external hard drives, in a fully unencrypted state, pursuant to
the All Writs Act (the “Decryption Order”). Rawls did not
appeal the Decryption Order. Instead, he filed a motion to
quash the Government’s application to compel decryption,
arguing that his act of decrypting the devices would violate his
Fifth Amendment privilege against self-incrimination.
Eventually, Rawls’ motion to quash was denied and
Rawls was directed to fully comply with the Decryption Order.
The Magistrate Judge acknowledged Rawls’ Fifth Amendment
objection, but held that, because the Government possessed his
devices and knew that their contents included child
pornography, the act of decrypting the devices would not be
4
testimonial for purposes of the Fifth Amendment privilege
against self-incrimination.
Approximately one week after the denial of Rawls’
motion to quash, Rawls and his counsel appeared at the
Delaware County Police Department for the forensic
examination of his devices. Rawls produced the Apple iPhone
6 Plus in a fully unencrypted state by entering three separate
passwords on the device. The phone contained adult
pornography, a video of Rawls’ four-year-old niece in which
she was wearing only her underwear, and approximately
twenty photographs which focused on the genitals of Rawls’
six-year-old niece. Rawls, however, stated that he could not
remember the passwords necessary to decrypt the hard drives
and entered several incorrect passwords during the forensic
examination.
Following the forensic examination, the Government
moved to show cause why Rawls should not be held in
contempt for his failure to comply with the Decryption Order.
Two hearings were held on the issue in which, “Rawls offered
no on-the-record explanation for his present failure to
comply.” 2 Based on the evidence presented, the District Court
found that Rawls remembered the passwords needed to decrypt
the hard drives but chose not to reveal them because of the
devices’ contents. Thus, the District Court granted the
Government’s motion to hold Rawls in civil contempt, stating
“Rawls will be incarcerated indefinitely until he agrees to
comply with and actually does comply with the [Decryption
Order].” 3 We affirmed the District Court’s contempt order
2
App. 26.
3
App. 27.
5
holding, inter alia, that the Magistrate Judge did not err by
finding that the Decryption Order did not implicate the Fifth
Amendment privileged against self-incrimination. 4
Rawls then filed a motion for a stay of the contempt
order and for release, which is presently at issue. In that
motion, Rawls argues that 28 U.S.C. § 1826(a) limits the
maximum period of confinement for civil contempt to 18
months. The District Court denied his motion. We now
consider Rawls’ appeal of that denial.
II 5
We have previously recognized that Congress, through
28 U.S.C. § 1826(a), placed a limit on the inherent authority of
4
United States v. Apple MacPro Computer, 851 F.3d 238, 241–
42 (3d Cir. 2017), cert. denied sub nom. Doe v. United States,
138 S. Ct. 1988 (2018).
5
The Magistrate Judge had jurisdiction to issue the search
warrant and Decryption Order pursuant to Rule 41 of the
Federal Rules of Criminal Procedure and the All Writs Act.
See 28 U.S.C. § 1651(a) (“The Supreme Court and all courts
established by Act of Congress may issue all writs necessary
or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.”). We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291. The case
turns on matters of statutory construction. We exercise plenary
review of a District Court’s interpretation of statutes. Gibbs v.
Cross, 160 F.3d 962, 964 (3d Cir. 1998).
6
courts to hold individuals in civil contempt for their failure to
comply with court orders. 6 In full, §1826(a) states:
Whenever a witness in any proceeding before or
ancillary to any court or grand jury of the United
States refuses without just cause shown to
comply with an order of the court to testify or
provide other information, including any book,
paper, document, record, recording or other
material, 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 or provide such information.
No period of such confinement shall exceed the
life of—
(1) the court proceeding, or
(2) 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. 7
Critically, in the final sentence of §1826(a), the statute places
an 18-month cap on the period of time a court can keep a
witness confined for his or her refusal to “comply with an order
of the court to testify or provide other information.” 8
6
In re Grand Jury Investigation, 600 F.2d 420, 426-27 (3d Cir.
1979).
7
28 U.S.C. § 1826(a) (emphasis added).
8
Id.
7
The question in this case is simply whether § 1826(a)’s
18-month limitation applies to Rawls. The Government argues
that Rawls was not a “witness” participating in any
“proceeding before or ancillary to any court or grand jury of
the United States” within the meaning of § 1826(a). We
disagree. Accordingly, we reverse the order of the District
Court and order Rawls’ release.
Section 1826(a)’s 18-month limitation applies to
Rawls’ present confinement because (A) Rawls is a witness for
the purposes of § 1826(a), (B) the proceedings to enforce the
search warrant fall within the statute’s broad description of any
“proceeding before or ancillary to any court or grand jury of
the United States,” (C) the Decryption Order is “an order of the
court to testify or provide other information, including any
book, paper, document, record, recording or other material,”
and (D) we read § 1826(a) to apply to the detention of any
material witness, even if that person is also a suspect in
connection with other offenses.
A
First, Rawls is a witness within the meaning of
§ 1826(a) both because he is being asked to provide testimonial
information and because the statute reaches even non-
testimonial acts of production.
A witness is, at the very least, “[s]omeone who gives
testimony.” Witness, Black’s Law Dictionary (11th ed. 2019),
and the Supreme Court has recognized that compliance with
8
requests for evidence can constitute testimony.9 Notably, the
testimonial value of production is not necessarily tied to the
content of the evidence itself. “[B]y producing documents, one
acknowledges that the documents exist, admits that the
documents are in one’s custody, and concedes that the
documents are those that the subpoena requests.” 10 As is
pertinent to this case, in producing the passwords needed to
decrypt the external hard drives, Rawls would be
acknowledging that the hard drives were in his control and that
he was capable of accessing them—an act with testimonial
value. 11
Moreover, as several of our sister circuits have held, a
person may be a “witness” under § 1826(a) even when the
9
Doe v. United States, 487 U.S. 201, 208–10 (1988).
10
United States v. Chabot, 793 F.3d 338, 342 (3d Cir. 2015),
cert. denied, 136 S. Ct. 559 (2015).
11
In concluding that decryption is “testimonial,” we do not
question our prior holding that Rawls could not claim the Fifth
Amendment privilege in response to the decryption orders.
Apple MacPro Computer, 851 F.3d at 248. That holding
turned not on whether decryption would be testimonial—it
would, see United States v. Hubbell, 530 U.S. 27, 36 (2000)
(“[T]he act of producing documents in response to a subpoena
may have a compelled testimonial aspect.”)—but on whether
it would add “to the information already obtained by the
Government.” Because, in Rawls’ case, it would not have
provided any such additional information, the exception to the
Fifth Amendment privilege recognized in Fisher v. United
States, 425 U.S. 391 (1976), for testimonial acts of production
where the Government already knows of both the documents’
“existence and possession or control,” id. at 412, applied.
9
evidence he refuses to produce is not considered “testimonial”
for purposes of the Fifth Amendment. See In re Grand Jury
Proceedings, 541 F.2d 464, 465 (5th Cir. 1976) (applying
§ 1826(a)’s limitation on confinement to a witness who refused
to provide handwriting exemplars); United States v. Mitchell,
556 F.2d 371, 384 (6th Cir. 1977) (applying § 1826(a)’s
limitation on confinement to criminal defendants who refused
to provide voice exemplars); In re Grand Jury Proceedings,
873 F.2d 238, 239 (9th Cir. 1989) (applying § 1826(a) to a
refusal to provide bank records); In re Pantojas, 628 F.2d 701,
702 (1st Cir. 1980) (applying § 1826(a) to a refusal to stand in
a line up).
We have signaled our agreement by affirming the
confinement of a grand jury witness under § 1826(a) for
refusing to provide handwriting exemplars. 12 Although we
concluded, based on Supreme Court precedent, 13 that the
provision of exemplars was not “testimonial” for purposes of
the Fifth Amendment, we did not question the District Court’s
authority to confine the contemnor pursuant to § 1826(a) and
repeatedly deemed him a “witness.” 14 So too here, then,
Rawls’ decryption of his devices—even assuming it were not
testimonial—would make him a “witness” within the ambit of
§ 1826(a). See Mitchell, 556 F.2d at 384 (explaining that “the
failure of the defendants to obey the court order to give voice
exemplars” fell within § 1826’s ambit “even though the non-
12
In re Special Fed. Grand Jury, 809 F.2d 1023, 1025 (3d Cir.
1987).
13
Gilbert v. California, 388 U.S. 263, 266–67 (1967).
14
See e.g., In re Special Fed. Grand Jury, 809 F.2d at 1024–
25, 1027.
10
testimonial nature of the evidence makes Fifth Amendment
protections inapplicable”).
In arguing that Rawls was not a witness within the
meaning of § 1826(a), the Government relies heavily on the
reasoning of United States v. Harris. 15 This reliance is
misplaced. In Harris, the Court found that the contemnor,
Harris, was not a “recalcitrant witness.” 16 Although the Court
did not elaborate as to why Harris was not a witness, the facts
of the case made the conclusion clear. In that case, Harris was
not held for a failure to provide information of any sort.
Instead, he was held in civil contempt for his refusal to stop
“affirmatively . . . sending out” “bogus liens and judgments”
against the judges and prosecutors involved in the underlying
case. 17 As a result, the Harris Court did not substantively
engage with the question of how a witness is defined under
§ 1826(a).
There is a significant difference between a contempt
confinement for failure to provide information and
confinement for failure to stop actively harassing court
personnel. Unlike the contemnor in Harris, Rawls is being
asked to provide information in a proceeding and is therefore a
witness under § 1826(a).
B
Next, the proceedings to enforce the search warrant
qualify as “court proceeding[s]” within the meaning of
15
582 F.3d 512 (3d Cir. 2009).
16
Id. at 517.
17
Id. at 513–14.
11
§ 1826(a). A proceeding may be defined more narrowly as the
“regular and orderly progression of a lawsuit, including all acts
and events between the time of commencement and the entry
of judgment” or more broadly as the “business conducted by a
court or other official body.” 18 As Rawls argues, proceedings
to obtain and enforce a search warrant are marked by the
procedural formalities that define other court proceedings: a
basis for jurisdiction, limitations on venue, a standard of proof,
and a “neutral and detached magistrate.” 19 Nothing in the text
of § 1826(a) lends support to the argument that a “court
proceeding” is limited to trials.
Further, at least two circuit courts have held that
§ 1826(a) is applicable to proceedings outside of grand jury
proceedings or a criminal trial. First, in In re Martin-Trigona,
the Second Circuit applied § 1826(a) to a bankruptcy
proceeding. 20 In that opinion, the Second Circuit concluded
that the statute’s use of “any” where it states “[w]henever a
witness in any proceeding before or ancillary to any court . . .
,” indicates that Congress intended § 1826(a) to apply to
bankruptcy proceedings. 21 Second, in In re Application of
President’s Comm’n on Organized Crime, the Eleventh Circuit
concluded that § 1826(a) was applicable to a contemnor’s
refusal to testify before the President’s Commission on
Organized Crime (the “Commission”). 22 The Eleventh Circuit
concluded that because the Commission “was obliged to secure
18
Proceeding, Black’s Law Dictionary (10th ed. 2014).
19
Dempsey v. Bucknell Univ., 834 F.3d 457, 469 (3d Cir.
2016).
20
732 F.2d 170, 174 (2d Cir. 1984).
21
Id.
22
763 F.2d 1191, 1201 (11th Cir. 1985).
12
[the witness’s] testimony by writ of habeas corpus, and by
enforcement of an immunity order, and because [the witness]
took legal action to protect himself from the Commission’s
subpoena, the proceedings before the Commission became
‘ancillary’ to proceedings before a court.” 23 Further, the
Eleventh Circuit reasoned, “the documented intent of
Congress” was for § 1826 to apply to “a range of court-related
proceedings, including depositions.” 24
Here, the proceeding to obtain and enforce the search
warrant required an order to be issued by the District Court and
became adversarial when Rawls sought to quash the
Decryption Order. Because courts have interpreted “any
proceeding before or ancillary to any court or grand jury”
broadly, we conclude that the proceedings to obtain and
enforce the search warrant in this case fall within the language
of § 1826(a).
C
Additionally, the Decryption Order is an order to
“provide other information” under § 1826(a). Not only is the
language used by Congress in this provision broad, but the
legislative history of § 1826(a) shows that “other information”
was used “in contradistinction to oral testimony” and “would
include, for example, electronically stored information or
computer tapes.” 25 The legislative history reveals that, “[i]ts
23
Id.
24
Id.
25
Palmer v. United States, 530 F.2d 787, 789 n.3 (8th Cir.
1976) (quoting H.R. Rep. No. 91-1549, reprinted in 1970
U.S.C.C.A.N. 4008, 4017, 4022).
13
scope is intended to be comprehensive, including all
information given as testimony, but not orally.” 26 The
production of the hard drives falls within that scope.
D
Finally, we conclude that § 1826(a) applies to a person
in his or her capacity as a material witness even if that person
is also a suspect in connection with other offenses. Although
Rawls maintains a dual identity—Rawls is a witness for
purposes of contempt, while a suspect for child pornography
offenses—we find that § 1826(a) caps Rawls detention for
committing civil contempt in his capacity as a material witness
at 18 months. 27
If the Government seeks to impose any additional
deprivation of liberty for Rawls’ status as a suspect in the
alleged child pornography offenses the Government must
charge Rawls with those offenses, 28 provide Rawls with a trial
by a jury of his peers, prove those charges beyond a reasonable
doubt , and sentence Rawls in accordance with due process. To
hold that § 1826(a) applies only to witnesses who are not also
suspected of crimes would do an end run around these
26
Id.
27
At this point Rawls has already been in confinement for more
than four years without being convicted of, or indicted with, a
crime.
28
As detailed supra in Section II, even without decrypting the
hard drives, the Government has already collected a substantial
amount of evidence with which it could prosecute Rawls for
child pornography offenses under 18 U.S.C. §§ 2251 and 2252.
14
fundamental rights and relieve the Government of its burden to
prove a defendant guilty before imposing punishment. 29
III
For the above reasons, we hold that § 1826 applies to
Rawls because he is a “witness in [a] proceeding before or
ancillary to any court or grand jury of the United States”
presently confined for his refusal to “comply with an order of
the court to testify or provide other information”: accordingly,
§ 1826 limits the duration of his confinement to 18 months. 30
We will, therefore, reverse the order of the District Court and
order Rawls’ release.
29
In re Grand Jury Investigation (Braun), 600 F.2d 420, 425
(3d Cir. 1979) (“Although the due process test is easily
formulated, the point at which coercive imprisonment actually
ceases to be coercive and essentially becomes punitive is not
readily discernible.”).
30
28 U.S.C. § 1826(a).
15
McKee, Circuit Judge, Concurring.
I join Judge Fuentes’ opinion in its entirety. For reasons he
explains, I completely agree that a criminal defendant cannot be
deprived of statutory and constitutional protections afforded those
accused of crimes merely because s/he also happens to be a material
witness. Limitations placed upon the Government’s ability to
incarcerate a criminal suspect do not disappear into the ethers
merely because that same person is also subject to confinement as a
material witness.
However, I write separately because I do not think that the
Government’s conduct in prosecuting Rawls should escape
additional comment.
I realize, of course, that I do not know all of the
circumstances surrounding this case and there may be some hidden
justification for the Government’s tactics here. However, based on
the evidence in the record (as briefly summarized by Judge
Fuentes), 1 it appears that the Government is insisting that Rawls’
incarceration for contempt be continued even though it already
possesses sufficient evidence of Rawls’ possession and production
of child pornography to obtain a conviction under various
subsections of 18 U.S.C. §§ 2251 and 2252. In fact, Rawls’ own
sister’s testimony regarding Rawls’ possession of a video of his two
nieces, aged four and six, may very well be sufficient to convict him
of possession and/or production of child pornography involving a
minor in his custody or control.
Conviction for these offenses could expose him to a
mandatory minimum sentence of 15 years imprisonment and a
maximum term of imprisonment of thirty years–assuming this is his
first such offense. 2 If he has prior convictions for child
pornography, he could be exposed to a maximum sentence of life
imprisonment, depending on the number of convictions and the acts
involved in any prior convictions. 3 His exposure is exacerbated by
the well-known fact that the sentences suggested for such offenses
under the Sentencing Guidelines are quite severe.
I therefore cannot fathom why the Government is so insistent
upon further gilding the lily with the evidence that may well be in
the encrypted files on the disputed hard drives and demanding his
1
See Majority Op. at 3 and 4.
2
18 U.S.C. § 2251(e).
3
Id.
1
imprisonment until he “coughs up” that evidence. There may well
be some justification for insisting that Rawls be imprisoned on
contempt charges before his all but certain prosecution for child
pornography and the very severe sentences he would be exposed to
if convicted for the latter offenses, but such justification for the
Government’s conduct here certainly escapes me.
If Rawls is eventually convicted for charges arising from the
files involved in this case, absent some reasonable argument to the
contrary, I would hope that the sentencing judge would take his
rather substantial incarceration for contempt into account when
deciding upon an appropriate sentence, and I think it worth adding
this brief concurring opinion to underscore that concern.
2
United States of America v. Apple MacPro Computer, et al
No. 17-3205
_________________________________________________
ROTH, Circuit Judge, dissenting.
Because I do not agree with the reasoning of the
majority or of the concurrence, I respectfully dissent. My
dissent is based on my belief that 28 U.S.C. § 1826(a) should
be held to cover the situations expressly stated therein: “any
proceeding before or ancillary to any court or grand jury of
the United States.” In this case there is no such proceeding –
at least, not so far. For that reason, I believe that we should
not stretch a statute to cover a situation that is not included in
the language of the statute.
Because the investigation here is a preliminary one –
there has not yet been an indictment nor have criminal
proceedings begun before the District Court or before any
court, section 1826(a) does not apply and its eighteen-month
limitation on confinement does not apply. Moreover, the
cases cited by the majority do not apply to the present
situation. 1
1
See Doe v. United States, 487 U.S. 201 (1988) (involving a
proceeding before a grand jury); In re Grand Jury
Proceedings, 873 F.2d 238 (9th Cir. 1989) (same); In re
Pantojas, 628 F.2d 701 (1st Cir. 1980) (same); United States
v. Mitchell, 556 F.2d 371 (6th Cir. 1977) (involving indicted
criminal defendants who refuse to provide voice exemplars)
To briefly recap the pertinent facts, during an
investigation into Rawls’ access to child pornography over
the internet, the Delaware County, Pennsylvania, Criminal
Investigations Unit executed a valid search warrant at Rawls’
residence. The search yielded, among other things, an Apple
MacPro computer, an Apple iPhone 6 Plus, and two Western
Digital external hard drives. All of the devices were
protected with encryption software which rendered them
unreadable without the benefit of corresponding passwords.
Agents from the Department of Homeland Security
then applied for, and obtained, a federal search warrant to
examine the seized devices. During their investigation,
government analysts discovered the password to decrypt the
MacPro computer. Their examination of the computer’s
contents revealed (1) an image of a pubescent girl in a
sexually provocative position, (2) logs showing that the
computer had been used to visit sites with titles common in
child exploitation, and (3) evidence that the computer had
been used to download thousands of files known to be child
pornography. However, further forensic analysis revealed
that the child pornography files had been stored not on the
computer but on the two Western Digital external hard drives.
As part of the investigation, police officers also interviewed
Rawls’s sister, who told the officers that Rawls had shown
her hundreds of images of child pornography on the external
hard drives, including videos of children engaged in sex acts
with other children.
The government then applied for a Decryption Order,
pursuant to the All Writs Act, 2 requiring Rawls to produce all
2
28 U.S.C. § 1651.
2
encrypted devices, including the two Western Digital hard
drives, in a fully unencrypted state. After the Magistrate
Judge issued the Decryption Order, Rawls moved to quash it
on Fifth Amendment grounds. The Magistrate Judge denied
the motion, finding that the Decryption Order did not require
any testimonial communication of the kind protected by the
Fifth Amendment.
Rawls and his counsel thereafter appeared at the
Delaware County Police Department, where Rawls partially
complied with the Decryption Order by providing the
password for the iPhone 6 Plus. The iPhone contained a
video of Rawls’s four-year-old niece, wearing only
underwear, and approximately twenty photographs focusing
on the genitals of Rawls’s six-year-old niece. However,
while at the Police Department, Rawls claimed that he could
not remember the passwords necessary to decrypt the seized
external hard drives. He did enter several incorrect
passwords.
The government moved to show cause why Rawls
should not be held in contempt for his failure to fully comply
with the Decryption Order. The Magistrate Judge held a
hearing and found that Rawls remembered the passwords
necessary to decrypt the external hard drives but chose not to
reveal them. After a second hearing, the District Court
granted the government’s motion to hold Rawls in civil
contempt and ordered his incarceration “until such time that
he fully complies . . . by permitting access to the two external
hard drives . . . in a fully unencrypted state.” 3 The District
Court explained that while Rawls’ defense was based on
3
App. 21.
3
memory loss, “Rawls did not testify or call any witnesses
[and] he did not offer any documentary or physical evidence
into the record . . .. Crucially, Rawls offered no on-the-record
explanation for his present failure to comply.” 4
In a prior appeal of the contempt order, Rawls argued
that (1) the District Court lacked subject matter jurisdiction to
issue the Decryption Order under the All Writs Act because
the government should have sought Rawls’s compliance by
means of grand jury procedure, and (2) the Decryption Order
violated his Fifth Amendment privilege against self-
incrimination. We affirmed the rulings of the District Court
and held that (1) the All Writs Act enabled the Magistrate
Judge to issue an order that sought to effectuate and prevent
the frustration of the federal search warrant, and (2) the
Magistrate Judge did not err by finding that the Decryption
Order did not implicate the Fifth Amendment privilege
against self-incrimination because the information that would
be conveyed via Rawls’ compliance—that he knows the
requisite passwords—was a foregone conclusion. 5
4
App. 26.
5
United States v. Apple MacPro Computer, 851 F.3d 238,
246, 248 n.7 (3d Cir. 2017); see id. at 247 (Under the
“foregone conclusion” rule, “the Fifth Amendment does not
protect an act of production when any potentially testimonial
component of the act of production—such as the existence,
custody, and authenticity of evidence—is a ‘foregone
conclusion’ that ‘adds little or nothing to the sum total of the
Government’s information.’” (citing Fisher v. United States,
425 U.S. 391, 411 (1976))).
4
Rawls petitioned the Supreme Court for a writ of
certiorari, which was denied. 6 While the petition was
pending, Rawls filed a motion for stay of the contempt order
and for release. In the motion, he invoked 28 U.S.C. §
1826(a), contending that it limits the maximum period of his
confinement for civil contempt to eighteen months.
The District Court convened another hearing, during
which Rawls refused to state whether he was willing or able
to comply with the decryption order. The District Court then
denied his motion. Rawls appealed.
The focus of this appeal is 28 U.S.C. § 1826(a), which
states:
Whenever a witness in any
proceeding before or ancillary to
any court or grand jury of the
United States refuses without just
cause shown to comply with an
order of the court to testify or
provide other information,
including any book, paper,
document, record, recording or
other material, 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
6
See Doe v. United States, 138 S. Ct. 1988 (2018).
5
willing to give such testimony or
provide such information. No
period of such confinement shall
exceed the life of –
(1) the court proceeding, or
(2) 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. 7
The government contends that § 1826 imposes no limit
on the period for which Rawls may be confined for civil
contempt because, among other reasons, he is not a “witness
in any proceeding before or ancillary to any court or grand
jury of the United States.” In any event, the government
contends that we should not lightly assume that Congress
intended to limit the scope of courts’ inherent power to order
the confinement of civil contemnors. Rawls, on the other
hand, asserts that § 1826’s eighteen-month confinement
limitation applies to him and therefore that he must be
released. He urges us to consider the meaning of the statute
in light of its legislative history, structure, and purpose. For
the reasons discussed below, I disagree with the majority and
I agree with the government that § 1826 does not apply to
Rawls because he is not a “witness in any proceeding before
or ancillary to any court or grand jury of the United States.” 8
7
28 U.S.C. § 1826(a).
8
28 U.S.C. § 1826(a).
6
Courts derive their contempt powers from the
Constitution’s vesting “the judicial Power of the United
States” in the federal courts. 9 Indeed, “it is firmly established
that ‘[t]he power to punish for contempts is inherent in all
courts.” 10 While “the exercise of the inherent power of lower
federal courts can be limited by statute and rule,” courts
should not “‘lightly assume that Congress has intended to
depart from established principles’ such as the scope of a
court’s inherent power.” 11 In the absence of a clear indication
that Congress intended to restrict courts’ inherent power, we
must “resolve the ambiguities of [a statute] in favor of that
interpretation which affords a full opportunity for . . . courts
to [act] in accordance with their traditional practices.” 12
Here, there is even greater need for Congress to clearly
indicate its intent to restrict courts’ inherent power, as
Congress has explicitly endorsed the courts’ use of coercive
civil confinement for “[d]isobedience or resistance to its
lawful writ, process, order, rule, decree, or command.” 13
Moreover, Congress has bolstered courts’ inherent contempt
powers via the All Writs Act, which enables courts to “issue
all writs necessary or appropriate in aid of their respective
jurisdictions.” 14
9
U.S. Const. art. III.
10
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991).
11
Id. at 47 (quoting Weinberger v. Romero-Barcelo, 456 U.S.
305, 313 (1982)).
12
Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944).
13
18 U.S.C. § 401(3).
14
28 U.S.C. § 1651(a).
7
Turning to the specific provisions of § 1826, it is not
clear that Congress intended the provisions of that statute to
limit the power of courts to hold individuals such as Rawls,
the recipient of a valid search warrant, in civil contempt. In
fact, the opposite conclusion can be drawn. The statute refers
to “a witness in any proceeding before or ancillary to any
court or grand jury of the United States.” Rawls is not a
“witness,” as his contempt relates only to the Decryption
Order requiring that he comply with the government’s search
warrant by producing his devices in a fully unencrypted state.
This case is akin to our precedent in United States v.
Harris. 15 In that case, the district court ordered Harris, during
pre-trial criminal proceedings, to stop filing bogus liens and
judgments against judges and prosecutors. Harris refused to
comply. 16 As a result, the district court held him in contempt
and ordered him to be incarcerated until he agreed to cease
making bogus filings. 17 Despite failing to comply with the
court’s order, Harris argued after five years in prison that the
district court’s contempt order should be vacated because it
violated due process. 18 In making this argument, Harris
relied on the 18-month limitation in § 1826. 19 We disagreed
with Harris, finding that he “is not, and was not, a recalcitrant
witness” to whom § 1826 applied. 20 The context of that
holding makes clear that we did not consider Harris a
“witness” because the conduct that led to his incarceration for
15
582 F.3d 512 (3d Cir. 2009).
16
Id. at 514.
17
Id.
18
Id. at 516.
19
Id.
20
Id. at 517.
8
contempt was not part of the criminal proceeding for which
he was charged and sentenced. 21
Like Harris, Rawls’s contempt cannot be traced to his
status as a “witness;” he is merely the recipient of a lawful
search warrant with which he has failed to comply. Rawls’s
interpretation of the term “witness in any proceeding before
or ancillary to any court or grand jury of the United States,”
would render superfluous language appearing later in §
1826(a)(1) and (2), which limits the period of confinement for
civil contemnors to the life of “the court proceeding, or . . .
the term of the grand jury, in including extensions, before
which such refusal to comply with the court order occurred.”
When a court proceeding ends, a contemnor can no longer be
“said to carry . . . ‘the keys of the prison in his own pocket.’”
In this situation, there is no ongoing trial or grand jury, and
Rawls’s sole obligation is to produce his hard drives in an
unencrypted format; Rawls carries the metaphorical key to his
own release.
Rawls’ attempts to distinguish Harris rely on the fact
that Rawls has always maintained he cannot remember the
passwords necessary to decrypt the external hard drives. The
Magistrate Judge, however, found that the government has
adequately proved Rawls’s ability to remember his
21
Rawls seeks to distinguish Harris on the ground that the
contempt in Harris was not predicated upon a failure to
provide information. But nowhere in Harris did we suggest
that § 1826 was inapplicable by virtue of the fact that Harris
was not required to provide information; instead, we clearly
stated the basis for our conclusion when we wrote that Harris
was not a “recalcitrant witness.”
9
passwords. Rawls chose not to challenge that finding in this
appeal. Moreover, if Rawls should contend that he has
forgotten his passwords, he is free to file a motion with the
District Court seeking his release on the ground that his
confinement has ceased to be coercive and has therefore
become punitive. 22
Rawls raises several other arguments regarding the
purpose, structure, and legislative history of § 1826, but none
merit reversal. I will address each in turn.
Rawls urges us to construe the term “witness” broadly
in light of the statute’s purpose. But he cannot point to any
clear indication in the statute’s “statement of findings and
purpose” that Congress intended § 1826, or the Omnibus
Crime Control Act of 1970 (the “Act”)—of which it
constitutes a small part—to apply to those who fail to comply
with lawful search warrants. 23 Instead, Rawls cites to general
statements that the Act was intended to remedy defects in
“the evidence-gathering process.” 24 Although Rawls only
quotes this short phrase, it is actually part of a longer
congressional finding that “organized crime continues to
grow because of defects in the evidence-gathering process of
the law inhibiting the development of the legally admissible
22
See, e.g., In re Grand Jury Investigation, 600 F.2d 420, 425
(3d Cir. 1979) (“[A]t some point the confinement ceases to be
coercive and becomes punitive, thereby raising due process
concerns” justifying the release of the contemnor in the
absence of criminal contempt proceedings.)
23
See generally Pub. L. No. 91-452, tit. III, § 301, 84 Stat.
922, 923 (1970).
24
84 Stat. at 923.
10
evidence necessary to bring criminal and other sanctions or
remedies to bear . . ..” 25 If anything, the statement read as a
whole suggests that the Act was concerned with ensuring that
the government has adequate tools for gathering evidence,
rather than restricting the scope of such tools.
As for the statute’s structure, Rawls notes that the
phrase “testify or provide other information, including any
book, paper, document, record, recording or other material”
in § 1826(a) replicated the exact language used elsewhere in
the immunity section of the Act. 26 But the House Report
makes clear, in reference to that exact language in the
immunity section, that although it was meant “to be
comprehensive,” its scope simply included “all information
given as testimony, but not orally.” As I have already pointed
out, the District Court’s order requiring Rawls to provide his
hard drives in unencrypted format does not require his
testimony. 27 And the “testify or provide other information”
language used later in § 1826 does not convert the earlier
25
Id. (emphasis added).
26
Compare 28 U.S.C. § 1826(a), with 84 Stat. at 927.
27
Apple MacPro, 851 F.3d at 248.
11
term, “witness,” into something broader than its plain
meaning. 28
Finally, Rawls argues that if § 1826 does not apply to
him, there is a paradox -- indefinite confinement may
become permissible so long as no charges are brought. This
argument fails to account for the procedural posture of this
case. The government has chosen to pursue further
investigatory steps before deciding whether to bring charges
against Rawls. This is not a decision we believe Congress
intended to discourage via § 1826. 29 The government is free
to seek lawful search warrants and to obtain the fruits of such
searches before convening a grand jury or pursuing an
indictment.
III
28
Rawls also asks that we interpret § 1826 broadly in light of
language from the Act’s Senate Report, which states that the
measure was enacted to define “the power of the courts to
deal with witnesses who are unlawfully withholding
information necessary to move forward an investigation.”
Senate Report at 57 (emphasis added). However, the Senate’s
use of the term “witnesses” suggests that, as discussed supra,
the Senate did not foresee the application of § 1826 to
recipients of lawful search warrants.
29
See, e.g., 84 Stat. at 923 (“Statement of Findings and
Purpose”) (“It is the purpose of this Act to . . . strengthen[]
the legal tools in the evidence-gathering process, by
establishing new penal prohibitions, and by providing
enhanced sanctions and new remedies . . ..”).
12
For the above reasons, I would hold that § 1826 does
not apply to Rawls because he is not a “witness in any
proceeding before or ancillary to any court or grand jury of
the United States.” I would affirm the contempt order of the
District Court.
13