Opposition Brief — Roe v. United States

es

_ Suprame Court, US,

coe la FILED

No. 89-677 Me, PEC 16 3989

ANIOL, JR.

CLERK

In the Supreme Court of the Guit ates

OCTOBER TERM, 1989

RICHARD ROE, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

JOHN G. RO ERTS, JR.

Acting Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether an appeal from a judgment of civil

contempt for failure to comply with a grand jury’s

subpoena became moot upon the expiration of the

grand jury’s term.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

A Witness Before Special October 1981 Grand Jury,

In re, 722 F.2d 349 (7th Cir. 1983) .......... 5

Berry, In re, 521 F.2d 179 (10th Cir.), cern. denied,

EE ee eee 5

Bursey v. United States, 466 F.2d 1059 (9th Cir.

Se 79

California Coastal Comm'n v. Granite Rock Co., 480

ee 6,7

Grand Jury Proceedings (Doe), In re, 863 F.2d 667

ek ee cw a ce So 6,8

Grand Jury Proceedings [Larson], In re, 785 F.2d

Er Bae oN 5,7,11

Graziadei v. United States, 319 F.2d 913 (7th Cir.

EE ES 12

Honig v. Doe, 484 U.S. 305 (1988) ........... 9,10

Leppig v. Martin, 386 F.2d 190 (Sth Cir. 1967)... . 12

Sealed Case, In re, 829 F.2d 189 (D.C. Cir. 1987) . . 5

Sealed Case, In re, 877 F.2d 976 (D.C. Cir. 1989) . . 3,7

SEC v. Sloan, 436 U.S. 103 (1978) ........... 10

Shillitani v. United States, 384 U.S. 364 (1966)... . 10

(ili) :

iv

Cases—Continued Page

United States v. Munsingwear, Inc., 340 U.S. 36

Sas ag oe eae e en So kk a a eR oe § 12

United States v. Thompson, 251 U.S. 407 (1920) ... 10

United States v. Universal Mfg. Co., 525 F.2d 808

Te Tere ee ee ee 11

Weinstein v. Bradford, 423 U.S. 147 (1975) ...... 5

Weiss, In re, 703 F.2d 653 (2d Cir. 1983) ....... 5

Constitution, statutes, and rules:

U.S. Const.:

re eS i dd wk a ers hom a a 4

Le RENO ee ee ee 2

28 USL. 0657 Gump. TV 1906) .. 2. cee ec cen 8

No sk aw bh we @ acl 5

ee sg 2k h- 4 6 6 966 6 HO 5,7,9,14

, & ee | lf | ere 10

fee eee eee ee ee 7

Miscellaneous:

Annual Report of the Director of the Administrative

Office of United States Courts (1988) ......... 7

United States Attorneys’ Manual (1988) ......... 10

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-677

RICHARD ROE, PETITIONER

¥.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-

18a) is reported at 877 F.2d 83. An order of the court

of appeals denying a motion to vacate its opinion (Pet.

App. la-2a) is unreported. Orders issued and filed

under seal by the district court (Pet. Apps. C, D, E),

and lodged under seal with the Clerk of this Court, are

unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

22a) was entered on June 6, 1989. A petition for

rehearing, with a suggestion for rehearing en banc, was

denied on August 29, 1989. Pet. App. 23a-24a. The

petition for a writ of certiorari was filed on October

(1)

2

26, 1989. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Petitioner was held in civil contempt for refusing

to comply with two grand jury subpoenas. The court

of appeals affirmed the contempt order as to one

subpoena and reversed as to the other. The court

subsequently denied petiticner’s motion to vacate its

judgment on the ground of mootness. Petitioner seeks

further review of the court’s disposition of his motion.

1. On October 6, 1988, petitioner was served with

three grand jury subpoenas duces tecum, addressed to

him as the custodian of the records of three entities.

Petitioner refused to comply with two of the subpoenas,

claiming that compelling him to produce the sub-

poenaed records would violate his Fifth Amendment

privilege against compulsory self-incrimination. On

February 10, 1989, the district court ordered petitioner

to comply with the subpoenas. Pet. App. 3a, C, D.

Petitioner persisted in his refusal to comply, and

on March 2, 1989, the district court held him in civil

contempt. The court’s contempt order committed

petitioner to the custody of the Attorney General until

the end of the grand jury’s term, June 2, 1989, or until

he purged himself of contempt. The court released

petitioner on his own recognizance pending appeal.

Pet. App. E.

2. Petitioner appealed, and on June 6, 1989, the

court of appeals affirmed the contempt order in part

3

and reversed in part.' On June 8, 1989, petitioner filed

a motion requesting the court to vacate its opinion as

moot. He contended that the expiration of the term of

the grand jury on June 2, 1989, eliminated any live

“case” or “controversy” before the court of appeals.

In its response, the government stated that it “agree[d]

that the opinion of the Court must be vacated and this

case remanded to the district court with directions to

vacate the contempt citation.” Pet. App. 25a. On June

27, 1989, the court of appeals denied petitioner’s

motion. The court held that the case fell “within the

‘capable of repetition but evading review’ exception to

the mootness doctrine.” Pet. App. la.’

' The court of appeals affirmed the district court's contempt

citation with respect to a subpoena for records of an entity the

court referred to as Corporation A; the court rejected petitioner's

contentions (1) that, although he is president, chief executive

officer and majority shareholder of the corporation, he could not

be considered a custodian of its records because the corporation

had designated another employee as its official custodian, and (2)

that the subpoenaed records were personal rather than corporate.

Pet. App. Sa-13a. The court reversed the contempt citation as to

the records of an entity the court referred to as Entity B; the

court found that there was insufficient evidence to establish that

Entity B was a collective entity. /d. at Sa, 13a-18a.

* The same day that the court of appeals issued its order in

this case, another panel issued a decision in a case involving a

coniempt citation arising from a corporation's refusal to comply

with a subpoena issued by the same grand jury at issue here. /n

re Sealed Case, 877 F.2d 976, 981 n.6 (D.C. Cir. 1989). Judge

Silberman was the author of the decisions in both cases. Four

other members of the court joined those opinions with respect to

the issue of mootness: Judges Edwards and Buckley in /n re

Sealed Case and Judges Mikva and Williams in this case.

4

ARGUMENT

In its response to petitioner’s motion to vacate, the

government advised the court of appeals that the court

was obligated to vacate its judgment and to remand to

the district court with instructions to vacate the con-

tempt citation. Upon further consideration, however,

we believe that the case was not moot. When the

court of appeals issued its judgment, neither party had

abandoned its pursuit of a decision in its favor, and,

although the term of the grand jury that had issued the

subpoenas had ended, the government had not (and still

has not) closed the investigation.’ Accordingly, the

case was one that was capable of repetition but had

evaded review during the grand jury’s term, and the

court of appeals’ judgment resolved a live controversy

over which the court had Article III jurisdiction. The

court of appeals’ decision not to vacate its judgment

was thus well founded. Contrary to petitioner's

contention (Pet. 7-11), the decision does not conflict

with the decisions of other courts of appeals or of this

Court. Further review is therefore not warranted.

1. The exception to the mootness doctrine for

cases that are “capable of repetition, yet evading review”

is applicable “where two elements combine[]}: (1) the

challenged action [is] in its duration too short to be

> We have been advised by the United States Attomey’'s

Office that shorily before the expiration of the grand jury's term,

a determination was made that the investigation would not be

closed, but also would not be actively pursued unless certain

developments occurred in a related case in which the grand jury

returned an indictment. We are advised that those developments

have not as yet materialized, and that the status of the investiga-

tion remains unchanged since the court of appeals’ judgment.

5

fully litigated prior to its cessation or expiration, and

(2) there [is] a reasonable expectation that the same

complaining party would be subjected to the same

action again.” Weinstein v. Bradford, 423 U.S. 147,

149 (1975). When the court of appeals issued its

decision, this case satisfied both of these conditions.

a. The action challenged in this case-the district

court’s order holding petitioner in civil contempt—was

in effect too briefly to permit plenary appellate review.

That order was issued on March 2, 1989, only three

months before the grand jury’s term was due to expire.

Because petitioner was not incarcerated pursuant to the

district court’s order, the 30-day period for disposition

prescribed by 28 U.S.C. 1826(b) did not apply.“ As

the court of appeals noted, petitioner’s appeal “was

subject to inevitable delays inherent in the typical

appellate process.” Pet. App. 2a.

Nevertheless, the court of appeals acted very

expeditiously. The case was briefed and argued by

April 3, 1989, about one month after the contempt

citation was issued, and the court issued its decision

* Section 1826(b) provides, in pertinent pan, that “{a}ny appeal

from an order of confinement” under Section 1826(a) “shall be

disposed of as soon as practicable, but not later than thiny days

from the filing of such appeal.” With one exception, the courts

of appeals have held that this limitation does not apply to cases

in which the contemnor has been released pending appeal. /n re

Sealed Case, 829 F.2d 189, 190 (D.C. Cir. 1987); In re Grand

Jury Proceedings [Larson], 785 F.2d 629, 631 n4 (8th Cir.

1986); In re A Witness Before Special October 1981 Grand Jury,

722 F.2d 349, 353 (7th Cir. 1983); in re Weiss, 703 F.2d 653,

660 n.6 (2d Cir. 1983). Contra in re Berry, 521 F.2d 179, 181

(10th Cir.), cent. denied, 423 U.S. 810 (1975). This case does

not present that question.

6

approximately two months after argument. Even so,

the court was unable to decide the case before the

grand jury’s term ended. Under these circumstances,

the court of appeals was fully justified in finding that

this case satisfied the “evading review” element of the

test outlined in Weinstein v. Bradford, supra.

Relying on In re Grand Jury Proceedings (Doe),

863 F.2d 667 (9th Cir. 1988), petitioner argues that

Statutes giving priority to appeals from civil contempt

Citations are sufficient to assure that issues raised by

refusals to comply with subpoenas will not evade

review within the meaning of the exception to the

mootness doctrine. The implication of this argument is

that a contempt citation should be vacated if there is a

likelihood that it can be litigated to conclusion during

a new grand jury’s term. See Pet. 7-8. However, the

fact that there might be time in a subsequent grand

jury’s term to issue identical subpoenas to petitioner,

relitigate their enforceability and the sufficiency of

petitioner’s defenses, notice a new appeal, and complete

appellate review does not require the conclusion that

this case was moot. See California Coastal Comm'n

v. Granite Rock Co., 480 U.S. 572, 578 (1987)... Par-

* In California Coastal Comm'n, a mining company that had

obtained federal approval of a five-year plan of operations and

had commenced mining filed an action alleging that a state

permit requirement was preempied. While the case was on

review, the five-year plan expired. Noting that it was likely that

the company would submit new plans in the future, the Coun

concluded that the controversy was one that was capable of

repetition, yet evading review. 480 U.S. at 578. The Coun

rejected the contention that it was necessary for the company to

demonstrate that the case would probably again evade review if

a new suit were filed after a new five-year plan had been

7

ticularly in the context of a grand jury investigation,

the Court’s cases and the interests underlying the

requirement of a case or controversy should not be read

to require this kind of duplicative litigation.

Even if the relevant question were whether a

dispute arising from a refusal to comply with a sub-

poena would evade review not only when it is first

presented on appeal but also in a successive round of

litigation, appeals from contempt orders that are not

subject to the 30-day requirement of Section 1826(b)

would often evade review under current conditions in

the federal courts. As the Eighth Circuit observed in

In re Grand Jury Proceedings [Larson], 785 F.2d 629,

631 (1986) (footnote omitted):

[b]ecause a grand jury’s term and its investigations

are by their very nature of limited and relatively

short duration, it is probable that contempt issues,

in the absence of confinement or commitment,

* * * “could not, or probably would not, be able

to be adjudicated while fully ‘live.’”

Accord In re Sealed Case, 877 F.2d 976, 981 n.6 (D.C.

Cir. 1989). See also Bursey v. United States, 466 F.2d

1059, 1088-1089 (9th Cir. 1972).°

approved. See 480 US. at 607 n.1 (Scalia, J., dissenting).

* Grand juries typically sit for 18-month terms. See Fed. R

Crim. P. 6(g). According to the Annual Report of the Director

of the Administrative Office of United States Courts 156 (1988),

for the 12 months ending June 30, 1988, the median periods

during which civil cases (other than prisoner petitions) that were

resolved after hearing or submission remained in the courts of

appeals ranged from 7.1 months in the Third Circuit to 22.1

8

There is no conflict between the court of appeals’

decision and Jn re Grand Jury Proceedings (Doe),

supra, on the question presented by the petition. In

Doe, the Ninth Circuit, relying on the 30-day limitation

in Section 1826(b), found that it was “able to review

most recalcitrant witness cases in a timely manner, and

in the few instances, such as this one, which arise at

the end of a grand jury’s term, if the government

recalls the witness before the next grand jury [the court

could] do so before the end of that term.” 863 F.2d

at 670. Thus, the court held that an appeal from a

contempt order became moot upon the expiration of the

term of the grand jury.

As the court of appeals noted in this case (Pet.

App. la-2a), Doe was based on the premise that

contempt appeals are generally covered by the 30-day

requirement in Section 1826(b). That statute was the

stated basis for the Doe panel’s finding that contempt

appeals would be expeditiously processed and for its

determination that it was not bound by Bursey v.

United States, supra. In Bursey, the Ninth Circuit had

held that contempt appeals were among the cases that

months in the Tenth. Thus, half of the appeals in those courts

took longer than that.

The priority prescribed by 28 U.S.C. 1657 (Supp. IV 1986)

is insufficient to assure that contempt appeals will not evade

review. Under that Section, courts are directed only to “expedite”

recalcitrant witness appeals. In addition to those appeals, a

varicly of matters, including criminal appeals, habeas corpus

appeals, and appeals in actions for temporary or permanent

injunctive relief, are entitled to priority in the couns of appeals.

Thus, when the 30-day limit of Section 1826(b) is inapplicable,

recalcitrant witness appeals compete for judicial attention with a

substantial number of other priority appeals.

9

are capable of repetition, yet evading review. The

panel in Doe acknowledged that Bursey would have

been controlling but for the enactment of Section

1826(b). Thus, contrary to petitioner’s suggestion (Pet.

7-8), Doe cannot fairly be viewed to apply to cases,

like this one, to which Section 1826(b)’s 30-day

requirement has been held inapplicable. In effect, Doe

held that when Section 1826(b) applies, the exception

to the mootness doctrine for disputes that are capable

of repetition, yet evading review, is unavailable. In

this case, the court of appeals held that when Section

1826(b) does not apply, contempt appeals do fall within

that exception. While the two decisions manifest

potentially divergent understandings as to the scope of

Section 1826(b),’ that question was not raised in the

court of appeals and is not presented by the petition.

Thus, there is no conflict between Doe and the decision

in this case that warrants this Court’s review.

b. This case was also “capable of repetition”

within the meaning of the mootness doctrine. To

satisfy that requirement, there need only be a “reasona-

ble likelihood” that a dispute will recur. See Honig v.

Doe, 484 U.S. 305, 318-320 & n.6 (1988). The issue

is not whether it is more likely than not that a dispute

will recur, but ‘“‘whether the controversy was capable of

repetition.” /d. at 319 n.6.

The expiration of the term of a grand jury does not

automatically terminate a dispute over the enforceability

”? Going outside the court of appeals’ opinion in Doe, petition-

er points Out that the contemnor in that case was not incarcerated.

Pet. 7 & n.S. Thus, it appears that the D.C. Circuit would have

found the 30-day limitation in Section 1826(b) inapplicable to the

facts of Doe. See note 3, supra.

10

of a grand jury subpoena. In many cases, successor

grand juries take up investigations commenced by other

panels and thus require the same testimony or docu-

ments that have already been the subject of dispute.’

Until the government decides to close an investigation

that has not been completed before the expiration of a

grand jury’s term, therefore, there is a reasonable

likelihood that a dispute over the enforceability of a

subpoena will be repeated. See SEC v. Sloan, 436

U.S. 103, 108-110 (1978).2 In our view, it would have

been error for the court of appeals to conclude, solely

on the basis of the expiration of the term of the grand

jury in this case, that the case was incapable of repeti-

tion. There was thus nothing “remarkable” (Pet. 11) in

* Rule 6(e)(3)(C)(iii), Fed. R. Crim. P., expressly authorizes

an attomey for the government to disclose matters occurring

before one federal grand jury to another federal grand jury. See

also Shillitani v. United States, 384 U.S. 364, 371 n.8 (1966)

(noting that orders confining recalcitrant witnesses “may be

continued or reimposed if the witnesses adhere to their refusal to

testify before a successor grand jury”); United States v. Thomp-

son, 251 U.S. 407 (1920).

* It is the “general policy” of the Justice Department “not to

subpoena and seek contempt citations in a grand jury against a

witness who refused to testify before [a] prior grand jury and

was consequently incarcerated for such refusal.” United States

Attorneys’ Manual § 9-11.160, at 14 (1988). Authority to pursue

such a course must be obtained from the Assistant Attomey

General of the Criminal Division. /bid. This policy is inap-

plicable to this case, since petitioner has not been incarcerated.

The United States Attorneys’ Manual also recommends that

a subpoena should not ordinarily be issued near the end of a

grand jury’s term to a witness who is expected not to testify,

although it recognizes that that decision “is a matter of judgment

for the U.S. Attomey.” /d. at 14.

11

the fact that the court of appeals issued its opinion

notwithstanding its awareness that the grand jury’s term

had expired. At that point, the court had nothing

before it that suggested that there was no “reasonable

likelihood” that the dispute would be renewed before

a new grand jury. In fact, when the court of appeals

issued its judgment, the United States Attorney’s Office

had not abandoned the possibility of pursuing the

investigation that led to the issuance of the subpoenas

before a new grand jury, and it has still not done so.

The facts of this case are therefore distinguishable

from those in Jn re Grand Jury Proceedings [Larson],

supra. See Pet. 9-10. In Larson, the grand jury that

had issued the subpoenas at issue had returned an

indictment against the target of the investigation, and

the target had entered a guilty plea. The court of

appeals sought information from the government

concerning the status of the grand jury investigation

and was advised that the grand jury had been released.

Thereafter, the court issued an order directing the

parties to show cause why the case should not be

dismissed as moot, and the government filed no

response. On the facts in that case, which included an

indictment against the target of the investigation, the

release of the grand jury, and the absence of a response

by the government to the order to show cause, the

Eighth Circuit found that there was no “reasonable

expectation” that the contemnors would again be

subpoenaed to testify about the target’s alleged of-

fenses.'° Thus, Larson and this case both recognize the

‘© In United States v. Universal Mfg. Co., 525 F.2d 808, 811

n.2 (1975), by contrast, the Eighth Circuit held that a dispute

over the disposition of records produced pursuant to a grand jury

12

basic principle that the expiration of a grand jury’s

term does not automatically moot an appeal from a

civil contempt order. The different results in the two

cases are attributable to particular facts bearing on the

likelihood that the investigations at issue would be

continued. Even if there were a conflict between the

decisions on that level, it would not call for this

Court’s review.'!

Finally, the court of appeals’ decision does not

conflict with United States v. Munsingwear, Inc., 340

U.S. 36 (1950). In Munsingwear, a dispute became

moot before the court of appeals could render a

decision on the merits, and the appellant was thus

deprived of its right to appellate review. In that

situation, the Court held that the proper disposition was

to vacate the judgment on appeal and to remand with

instructions to dismiss the action. Here, the court of

appeals correctly found that the action had not been

moot when it issued its judgment in petitioner's appeal

as of right.

subpoena was not rendered moot by the expiration of the grand

jury’s term. The court noted that a new grand jury had been

convened and was continuing the investigation of its predecessor.

It is thus clear that the decision in Larson was dependent on

facts demonstrating that the govemment had abandoned the

investigation in that case.

'' The Fifth Circuit’s brief per curiam decision in Leppig v.

Martin, 386 F.2d 190 (1967), did not address the “capable of

repetition, yet evading review” exception to the mootness doctrine

and thus does not support further review. See also Graziadei v.

United States, 319 F.2d 913 (7th Cir. 1963) (holding appeal from

denial of motion to quash grand jury subpoena was moot; no

discussion of “capable of repetition, yet evading review” excep-

tion).

13

2. In short, notwithstanding the position that the

government expressed in the court of appeals, that

court’s refusal to vacate its judgment was well founded.

Moreover, the adoption of petitioner’s position would

undercut the effectiveness of grand jury investigations

and sound judicial administration. If the expiration of

a grand jury’s term were held automatically to moot ?

case involving a contumacious witness, persons who

were inclined to resist compliance with grand jury

subpoenas would have an incentive to challenge the

subpoenas and to draw out enforcement proceedings in

an effort to moot any adverse rulings. That incentive

would increase as the end of the grand jury’s term

approached. If appellate review could not be com-

pleted before the end of the grand jury’s term, the

same dispute would have to be relitigated from the

beginning, and the second grand jury’s investigation

might be seriously delayed. Because the success of a

grand jury investigation is often dependent on an

appellate ruling that a subpoena is enforceable, petition-

er’s approach would frequently require a second grand

jury to undertake time-consuming subpoena enforcement

measures simply to obtain the very appellate ruling that

the court of appeals was positioned to render when the

earlier grand jury’s term expired.

To avoid these problems, grand juries would have

an interest in issuing subpoenas as early as possible in

their investigations, making it more difficult for them

to conduct investigations that are both effective and

discriminating. A district judge who wished to assure

the effectiveness of a contempt citation might be

inclined to deny a contemnor release pending appeal,

in order to ensure the applicability of the 30-day

requirement of Section 1826(b) in cases like this one.

14

If the court released the defendant and review could

not be completed by the end of the grand jury’s term,

the district court’s work, along with any effort the

parties and the court of appeals had committed 10 the

case, would become an exercise in futility-even it it

were certain that another grand jury would continue the

investigation. Nothing in the principles underlying the

mootness doctrine or this Court’s decisions justifies

such a wasteful and counterproductive regime.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

JOHN G. ROBERTS, JR.

Acting Solicitor General

SHIRLEY D. PETERSON

Assistant Attorney General

ROBERT E. LINDSAY

ALAN HECHTKOPF

Attorneys

DECEMBER 1989

* The Solicitor General is disqualified in this case.

-: US GOVERNMENT PRINTING OFFICE 1989--262 203/00663