# Opposition Brief — Roe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1044

## Text

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
es l
EE 1
ek kh gw ka 6 eae 4% 2
ke ak Sky 6 0.0 64 64-6 6 4 oot 4
a GS ee 15

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0523%3A2. Public record. Not legal advice.