Opposition Brief — Scarce v. United States

Jn the Supreme Court of the Giuited States

OcTOBER TERM, 1993

JAMES RICHARD SCARCE. PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORAR:

TO THE UNITED STATES COURT OF APPEAI

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor Genera

JOANN HARRIS

A: sistant Attorney (rene ral

JOSEPH DOUGLAS WILSON

Attorney

Departme nt of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether petitioner’s challenge to an order holding him

in contempt and incarcerating him for refusing to testify

before a federal grand jury has been rendered moot by

petitioner's release from custody.

TABLE OF CONTENTS

IIIT III asin ccieedauiidadunthhenasistenmennsebveneveodhiemsoemnecnnes

SII 1a ai associ canitidgsinclitnbeevennedensenrvedueeveuneneruceshéneds

SIIIIIED. Si iegidadddnsnsanibvbvdetninusonssonsteseeeddenonneooueronnvecroseonnnee

III iiss sdica ils ctnidanadioeanigdbootenesesepenesaninerntadiintedonieusedions

| nn

EINE. shdeesitopdsctinceenednieusddanaatorreacssoerceressqnevonsesvencceonoresvece

TABLE OF AUTHORITIES

Cases:

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

City of Los Angeles v. Lyons, 461 U.S. 95 (1988) ............

Deakins v. Monaghan, 448 U.S. 193 (1988) ......ccccecceeee

De Funis v. Odegaard, 416 U.S. 312 (1974) ....... ccc cceeeeee

Grand Jury Proceedings, In re, 5 F.3d 397 (9th Cir.

a sasdnonliuenieinioondnnsie

Izumi Seimitsu. Kogyo Kabushiki Kaisha vy. U.S.

Philips Corp., No. 92-1123 (Nov. 30, 1993) ......:ccceceeee

La Rouche vy. National Broadcasting Co., 780 F.2d 1134

(4th Cir.), cert. denied, 479 U.S. 818 (1986) ..................

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ...

Mills v. Green, 159 U.S. 651 (1895) ...........c.ccccsscececescseees

Roe v. Wade, 410 U.S. 113 (1973) ..............cccccseccccceecreeees

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

ee oc ledgapounnnecbenvecsivesevions

United States v. Burke, 700 F.2d 70 (2d Cir.), cert.

I GED Ay GN CREED cnccsccescerevesveccecevervecscceesseoseses

United States v. Cuthbertson, 630 F.2d 139 (3d Cir.

1980), cert. denied, 454 U.S. 1056 (1981) .............. ce eeeeee

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

Teac eeenpseseneenbevanabernereszecsenneens

Velsicol Chemical Corp. v. United States, cert. denied,

Sy TL ST CUTIE «. o- seseauunngustincnnenenseosuseesseneuesonneesons

Weinstein v. Bradford, 423 U.S. 147 (1975) ...........2.:000

(III)

2, 3, 4, 8

9

6

IV

Cases—Continued: Page

Williams, In re, 963 F.2d 567 (8d Cir. 1992) .....ccccececeeeeeee 8

Constitution and statutes:

US, Comat. Ammeidd. bo cececcccceccsccsessencsccsseossrseres 2, 3, 4, 5, 6, 7, 9

OO EITC, COD ivi cecccctececvecccncsecesvesnesocseaxsesennesmersvenennns 2

Oe EE TE, BI eovcescceccocovcconreecersnceversssentvensensnsencetnesntatense 2,5

Miscellaneous:

U.S. Attorneys’ Manual (1988) ..........::ccceceseeceeeereeseeeeees 6

In the Supreme Court of the Cinited States

OCTOBER TERM, 1993

No. 93-587

JAMES RICHARD SCARCE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals is reported at 5

F.3d 397. The opinion of the district court denying

petitioner’s motion to quash the grand jury’s sub-

poena (Pet. App. A2, at 1-2), the order of the district

court finding petitioner in contempt and ordering him

incarcerated (Pet. App. A3), and the order of the

district court releasing petitioner from custody (App.,

infra, la-2a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 6, 1993. On August 3, 1993, Justice O’Connor

extended the time for filing a petition for a writ of

certiorari to and including August 24, 1993, and the

(1)

2

petition for a writ of certiorari was filed on that date.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. After receiving immunity pursuant to 18 U.S.C.

6002, petitioner was subpoenaed to appear before a

grand jury in the Eastern District of Washington.

The grand jury was investigating a break-in and

vandalism, apparently by animal rights activists, at

Washington State University. Petitioner, a Ph.D.

candidate in sociology at the university who studies

animal rights activists, moved to quash the subpoena,

asserting that he could not be compelled to disclose

the information songht by the grand jury based on a

“scholar’s privilege” protected by the First Amend-

ment. Pet. App. A2, at 1-2; see In re Grand Jury Pro-

ceedings, 5 F.3d 397, 398-899 (9th Cir. 1993).

The district court denied the motion to quash. Pet.

App. A2, at 1-2. The court held that petitioner had no

privilege under the First Amendment to refuse to

provide relevant testimony to the grand jury. bid.

Petitioner then appeared before the grand jury and

answered questions of a general nature, but he

refused to answer questions relating to a con-

versation that he had one day after the break-in with

Rodney Coronado, a suspect in the vandalism. 5 F.3d

at 399.

On April 6, 1993, after hearing additional argument

on petitioner’s claim of privilege, the district court

ordered petitioner to answer the grand jury’s

questions. Petitioner refused. The district court

then found petitioner in contempt of court and ordered

him inearcerated pursuant to 28 U.S.C. 1826. Pet.

3

App. A3; 5 F.3d at 399. The district court stayed its

order pending appeal. Pet. App. A3.

2. The court of appeals affirmed the district

court’s finding of contempt in a summary order

entered on May 6, 1993. Pet. App. Al. The order

stated that “[a] written disposition will follow.” Jbid.

Petitioner was incarcerated on May 14, 1993. Pet. 8.

On September 17, 1993, the court of appeals issued a

written opinion explaining its reasons for affirming

the district court’s incarceration order. The court

assumed without deciding “that scholarly inquiry

enjoys the same freedom of press protection that tra-

ditional news gathering does, and that [petitioner’s]

contact with his informants was incident to such

work,” but it nevertheless concluded that “the privi-

lege to which [petitioner] lays claim by analogy

simply does not exist.” 5 F.3d at 399. The court noted

that Branzburg v. Hayes, 408 U.S. 665 (1972), held

that “news gatherers are not exempt from the duty

imposed on any other citizen to ‘respond to relevant

questions put to them in the course of a valid grand

jury investigation or criminal trial.’” 5 F.3d at 400

(quoting Branzburg, 408 U.S. at 690-691).

The court of appeals concluded that “|t}he circum-

stances of the present case fall squarely within those

of Branzburg.” 5 F.3d at 400. The court found that

petitioner had never argued that “the [grand jury]

questions were posed in bad faith, that they had a ten-

uous relationship to the subject of the investigation,

that law enforcement did not have a legitimate need

for the information, or that they were posed as a

means of harassment.” /bid. Accordingly, under

Branzburg, petitioner had no First Amendment privi-

lege to refuse to answer the grand jury’s questions.

-

4

The court rejected petitioner’s argument that, in

view of Justice Powell’s concurring opinion, Branz-

burg must be read to require a case-by-case balancing

of the government’s need for the information sought

against the reporter’s First Amendment interests. 5

I.3d at 400-402. The court explained that Justice

White’s opinion for the Court in Branzburg was

joined by five Justices, including Justice Powell, and

that it was therefore the opinion of the Court.

Moreover, Justice Powell’s concurring opinion “does

not suggest that in each case there must be balancing

of the particular information sought versus the

newsman’s request for confidentiality.” /d. at 401.

Accordingly, the court declined to accept petitioner's

proposed balancing test, which “is at odds with the

majority opinion [in Branzburg] itself.” Jd. at 400.

Finally, the court of appeals held that federal com-

mon law does not create a “scholar’s privilege.” 5

F.8d at 402-408. The court explained that recognition

of such a privilege in the grand jury context would

run afoul of Branzburg. The court distinguished the

‘ases relied upon by petitioner, noting that “those

‘ases did not involve grand jury inquiries,” id. at 403,

and that no court “that we have discovered * * * has

actually recognized a scholar’s privilege to withhold

from a federal grand jury confidentially obtained

information which is relevant to a legitimate grand

jury inquiry and sought in good faith.” /bid.

3. On October 19, 1993, while the petition for a writ

of certiorari was pending, the district court ordered

petitioner released from confinement. The court

found that “further incarceration is not likely to

result in [petitioner’s] giving testimony to the grand

jury in response to the subpoena issued by the grand

5

jury and, for that reason, further incarceration would

have no coercive effect and would therefore be

punitive in nature.” App., infra, la. The United

States did not appeal from that order. Petitioner has

now been released from custody.

ARGUMENT

Petitioner renews his claim (Pet. 9-16) that he had

a First Amendment and federal common law privilege

to refuse to answer the grand jury’s questions re-

garding the break-in at Washington State University.

Because petitioner has been released from custody,

however, this case is moot.

1. “Article III of the Constitution limits federal

courts to the adjudication of actual, ongoing contro-

versies between litigants.” Deakins v. Monaghan,

484 U.S. 193, 199 (1988); see De Funis v. Odegaard,

416 U.S. 312, 316 (1974) (per curiam). A case becomes

moot if the court before which the matter is pending

‘annot grant any effective relief to the party seeking

relief, see Mills v. Green, 159 U.S. 651, 653 (1895), or

when the matter presents a “question[] that cannot

affect the rights of litigants in the case” before the

court. De Funis, 416 U.S. at 316. “It is not enough

that a controversy existed at the time the complaint

was filed.” Deakins v. Monaghan, 484 U.S. at 199.

“The parties must continue to have a ‘“ personal

stake in the outcome”’ ” at all stages of a case.

Lewis vy. Continental Bank Corp., 494 U.S. 472, 477-

478 (1990).

Petitioner’s appeal seeks relief from the district

court’s order under 28 U.S.C. 1826 incarcerating him

for refusing to testify after being given immunity.

Now that the district court has released petitioner,

6

he is no longer suffering incarceration for refusing to

testify. The court’s order therefore effectively lifts

the finding of contempt and disposes of any need for

relief from the contempt order. Accordingly, there is

no longer an ongoing controversy between the par-

ties, and the case is moot.

This is not a case that presents an issue “capable of

repetition, yet evading review.” See Roe v. Wade, 410

U.S. 113, 125 (1973); Southern Pacific Terminal Co.

v. ICC, 219 U.S. 498, 515 (1911). That exception to the

mootness doctrine applies only where “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) (per

curiam); see also City of Los Angeles v. Lyons, 461

U.S. 95, 109 (1983). Petitioner has no reasonable

expectation that he will again be incarcerated for

failure to answer the grand jury’s questions.

In ordering petitioner’s release, the district court

found that “further incarceration is not likely to

result in [petitioner’s] giving testimony to the grand

jury.” App., ixfra, la. There is no reason to believe

that if petitioner were again subpoenaed before the

grand jury, the district court would take a different

view. Moreover, the Department of Justice has a

policy of not resubpoenaing a grand jury witness who

has been previously incarcerated for refusing to

testify before the same or a prior grand jury on the

same subject. See U.S. Attorneys’ Manual § 9-11.160,

at 14 (1988). Thus, petitioner is unlikely to face

renewed incarceration for his refusal to testify.

2. Even if petitioner’s claims were not moot, they

would not warrant review. Petitioner contends (Pet.

9-16) that the First Amendment and federal common

7

law give researchers a qualified privilege to refuse to

disclose information obtained from confidential

sources. This Court held in Branzburg v. Hayes, 408

U.S. 665 (1972), however, that journalists have the

same obligation as other citizens to “respond to rele-

vant questions put to them in the course of a valid

grand jury investigation or criminal trial.” 408 U.S.

at 690-691. Although the Court acknowledged that

“news gathering is not without its First Amendment

protections,” it made clear that journalists could

refuse to respond to a grand jury subpoena only when

a grand jury investigation is “instituted or conducted

other than in good faith.” Id. at 707; see also id. at

709-710 (Powell, J., concurring) (journalists may have

a privilege to refuse to respond to a subpoena issued

in bad faith). Petitioner makes no claim that the

government is conducting the grand jury investiga-

tion in bad faith or that it seeks to harass petitioner

by subpoenaing him to testify before the grand jury.

Accordingly, petitioner had no right to refuse to

answer the grand jury’s questions, and the district

court properly held him in contempt.

Petitioner errs in contending (Pet. 9-11 & n.5) that

the decision below conflicts with cases holding that

journalists have a qualified privilege under the First

Amendment and federal common law to refuse to

divulge information in criminal cases unless the

party seeking the information shows that (1) the

information sought is material and relevant; (2) the

information cannot be obtained by other means; and

(5) the party has a compelling interest in obtaining

the information. See, e.g., La Rouche v. National

Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir.), cert.

denied, 479 U.S. 818 (1986); United States v. Burke,

8

700 F.2d 70, 77 (2d Cir.), cert. denied, 464 U.S. 816

(1983); United States v. Cuthbertson, 630 F.2d 139,

146-147 (3d Cir. 1980), cert. denied, 454 U.S. 1056

(1981). None of the court of appeals decisions on

which petitioner relies involved a journalist who was

seeking to assert a qualified privilege in response to a

grand jury subpoena.’ As the court below recognized

(5 F.3d at 400, 402-403), extension of those cases to the

grand jury context would be squarely inconsistent

with the holding in Branzburg. On the facts of this

‘ase, therefore, there is no conflict, and further

review is not warranted.

Moreover, the government would prevail in this

case even under the standard urged by petitioner.

The grand jury sought to question petitioner re-

garding a conversation that he had with a principal

suspect of a crime within a day of the commission of

that crime. The questions posed to petitioner were

highly relevant to the government’s inquiry and bore

a direct relationship to the subject of the investiga-

tion. Moreover, as the court of appeals stated, peti-

tioner never argued “that the [grand jury’s] ques-

tions were posed in bad faith, that they had a tenuous

relationship to the subject of the investigation, that

law enforcement did not have a legitimate need for the

information, or that they were posed as a means of

harassment.” 5 F.3d at 400. Accordingly, even if

' Petitioner erroneously identifies Jn re Williams, 963 F.2d

567 (3d Cir. 1992) (en banc), as a case in which a court of

appeals recognized a reporter’s privilege in the grand jury

context. Pet. 10 n.5. That case has no precedential value,

because the court of appeals did not issue an opinion but instead

simply affirmed the judgment of the district court by an

equally divided vote.

9

petitioner is correct that “scholars” enjoy a qualified

privilege under federal common law or the First

Amendment, petitioner has not presented a colorable

claim that he is entitled to invoke that privilege.’

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAysS, III

Solicitor General

JOANN HARRIS

Assistant Attorney General

JOSEPH DOUGLAS WILSON

Attorney

DECEMBER 1993

“ Because petitioner’s claims on the merits are not worthy of

review, the procedure applicable to cases that become moot

while pending on appeal or in this Court (see United States v.

Munsingwear, Inc., 340 U.S. 36, 39-41 (1950)), is inapplicable,

and certiorari should simply be denied. See 77-900 U.S. Br. in

Opp. at 5-8, Velsicol Chemical Corp. v. United States, cert.

denied, 435 U.S. 942 (1978); see also U.S. Br. as Amicus Curiae

at 18 n.19, Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., No. 92-1123 (Nov. 30, 1993).

APPENDIX

UNITED STATES DISTRICT COURT

KASTERN DISTRICT OF WASHINGTON

Magistrate No. 93-0041A-01

IN RE: JAMES RICHARD SCARCE, RESPONDENT

[Filed Oct. 19, 1993]

ORDER

This matter is before the court on respondent’s

Motion to Vacate Contempt Order which has been

taken under consideration by the court without hear-

ing and without oral argument. The court having

reviewed the documents on file and being thoroughly

familiar with this matter finds as follows:

1. The respondent, James Richard Scarce, has

been incarcerated in the Spokane County Jail since

May 14, 1993 upon a finding of civil contempt for

refusing to testify before a grand jury in this district.

Z. It has become obvious to the court, and the court

so finds, that further incarceration is not likely to

result in the respondent giving testimony to the

grand jury in response to the subpoena issued by the

grand jury and, for that reason, further incarceration

would have no coercive effect and would therefore be

punitive in nature. See 28 U.S.C. § 1826 and Simkin

v. United States, 715 F.2d 34 (2nd Cir. 1983). Now,

therefore,

(la)

2a

IT IS ORDERED that respondent’s Motion for Re-

lease from Non-Coercive Confinement, Ct. Rec. 35, be

and the same is hereby GRANTED. Respondent shall

be released from incarceration immediately.

The Clerk is directed to file this Order, forward

copies to counsel and forward a copy to the United

States Marshal’s Office for immediate action.

DATED this 19[th] day of October, 1993.

/s/ WM. FREMMING NIELSEN

UNITED STATES DISTRICT JUDGE