ILANA DIAMOND ROVNER, Circuit Judge.
This is not the first time the Appellant finds himself in civil contempt for refusing to comply with a subpoena. Five years ago in a different jurisdiction, the Appellant was subpoenaed to testify before a different grand jury. At that time, the Appellant refused to answer any question beyond his name, address and occupation
Now the Witness-Appellant has been served with another subpoena in the Northern District of Illinois to appear before a different grand jury conducting a different investigation than was at issue five years ago. At his first appearance before the Special Grand Jury, the Witness again refused to answer any question beyond his name, address and occupation. The district court granted the Witness use immunity pursuant to 18 U.S.C. §§ 6002-03, and other adequate safeguards were in place. At his second appearance before the Special Grand Jury, the Witness continued to refuse to answer any question beyond his name, address and occupation. As the grounds for his refusal, the Witness again cited his "long-held and unshakeable religious, political and personal beliefs." He also objected on the ground that he believed his answers would be used against him in unfair, illegal and politically motivated prosecutions. Moreover, he believed he would be persecuted as a result of his testimony. The Witness further refused to answer any questions claiming that the United States government had subjected him to illegal and extensive electronic surveillance that was being used to question him before the Special Grand Jury.
The government petitioned the district court under 28 U.S.C. § 1826 to hold the Witness in contempt for his refusal to answer the questions posed to him before the Special Grand Jury. The Witness moved to quash the subpoena. Before the district court, he argued that collateral estoppel should prevent the government from petitioning the court for contempt. In essence, he maintained that a different district court's finding five years ago that continued incarceration would not coerce him to testify but rather would be punitive was binding on the district court here. He also argued that the government was abusing the grand jury process, that the subpoena and questions posed stemmed from illegal Foreign Intelligence Surveillance Act ("FISA") surveillance, and that his religious and political beliefs as well as his fear of retaliation constituted just cause for his refusal to testify.
The district court found collateral estoppel inapplicable to the government's petition for contempt because of factual differences between the two cases. First, the subject matter of the prior grand jury investigation differed from that of the current investigation. Second, the court found that the Witness's personal convictions, desires and future plans might have shifted over a five-year period in a manner that would lead to his eventual cooperation with the current investigation. Third, the court declined the Witness's invitation to create a presumption that a witness who has previously staunchly refused to testify will refuse again at a later time in a different proceeding.
The court then proceeded to reject each of the reasons the Witness had cited as bases for his refusal to testify. The court
The court then turned to the ultimate question, whether incarceration under civil contempt would be coercive or punitive given all of the circumstances surrounding the Witness's refusal to testify. The court found that confinement might have the effect of causing the Witness to testify in light of his familiarity with the hardships of prison life, the new subject matter of the investigation, and the increased difficulty of bearing the burdens of prison after the passing of years, among other things.
After a joint motion for clarification on the FISA issue, the district court found that none of the Witness's FISA arguments had any bearing on the contempt proceedings because the Witness refused to answer any question at all, including those that clearly did not arise from any FISA-related surveillance. Even if the FISA surveillance was illegal or unconstitutional, the court ruled, the Witness was not relieved from his obligation to respond to non-FISA related questions and was thus in contempt.
The court therefore ordered the Witness's confinement. On September 5, 2003, the Witness turned himself in to the United States Marshal for incarceration pursuant to the court's order. Under the order, the Witness will be confined until he testifies, or until the expiration of the Special Grand Jury (including extensions), or until the district court determines that confinement is punitive rather than coercive. He appeals.
On appeal, the Appellant maintains that the district court abused its discretion in finding him in contempt because (1) the government should be collaterally estopped from bringing contempt proceedings against him when the issue of his willingness to testify under threat of incarceration was already litigated five years ago in another jurisdiction; (2) the subpoena and the questions posed in the Special Grand Jury proceedings were the result of illegal and unconstitutional surveillance, according him a complete defense to contempt under Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972); (3) there is no realistic possibility that the Appellant will ever testify; and (4) the Appellant has a well-founded fear of retaliation against himself and his family which fear entitled him to a hearing on both his apprehensions and the adequacy of the safeguards offered.
We turn first to the issue of collateral estoppel. The Appellant contends that the government should have been collaterally estopped from seeking contempt for his failure to testify before the Special Grand Jury given another court's decision five years ago that incarceration would not coerce the Appellant into testifying at that time before a different grand jury. In
The Appellant notes that the district court in the earlier action found after 180 days of imprisonment that there was no realistic possibility that further confinement would cause the Appellant to testify. The Appellant maintains that nothing has changed during the intervening five years. He opines that the Special Grand Jury is investigating the same matters that were under investigation five years ago and that his beliefs, experiences and character have remained static. As before, he has been granted immunity. He argues in the strongest terms that confinement will not result in his cooperation any more today than it did five years ago. Having fully litigated the effect of confinement on his willingness to comply with a grand jury subpoena five years ago, he contends the government may not relitigate that issue now.
The salient question then is whether another court's finding five years ago that continued imprisonment would not result in the Appellant's compliance with a subpoena requires the same finding now, after the passage of five years, a change of jurisdiction, a change of grand juries and a change of the subject of investigation.
The Appellant next contends that his presence before the Special Grand Jury
"When the Attorney General files, as in this case, a sworn affidavit stating that disclosure or an adversarial hearing would compromise the national security of the United States, a review of FISA wiretaps must be conducted in camera and ex parte." In re Grand Jury Proceedings, Grand Jury No. 87-4, Empaneled September 9, 1987, 856 F.2d 685, 687 (4th Cir. 1988) (hereafter "September 9, 1987 Grand Jury"). See also 50 U.S.C. § 1806(f). Indeed, the Appellant was unable to cite any case in which classified or otherwise sealed FISA applications or orders were released to the subject of the investigation for review, even after indictment. At the time that the Fourth Circuit ruled in September 9, 1987 Grand Jury, every FISA wiretap review had been conducted in camera and ex parte. 856 F.2d at 687 n. 3. We have found no cases since that time where the review was conducted in any other fashion. See United States v. Sattar, No. 02 CR 395-JGK, 2003 WL 22137012, at *6 (S.D.N.Y. Sept. 15, 2003) (collecting cases finding that no court has ever ordered disclosure of FISA materials rather than conducting in camera, ex parte review and cases holding in camera, ex parte review constitutionally sufficient). The Appellant suggested at oral argument that this is that one-in-a-million case where disclosure is necessary. Nothing we have found in our review of the record supports his suggestion. We therefore have reviewed the materials ex parte and in camera.
A federal officer, with the approval of the Attorney General, may apply for an order approving electronic surveillance to acquire foreign intelligence information. 50 U.S.C § 1804. The application is made to a court specially designated for this purpose (hereafter the "FISA court"). See 50 U.S.C. § 1803. The Attorney General's approval of the application is conditioned on his finding that it satisfies the criteria set forth in 50 U.S.C. § 1804(a). There are numerous requirements for the applications, all of which we have reviewed for facial validity, but we will focus here on the factors contested by the Appellant.
In examining the adequacy of the FISA applications, we conduct the
50 U.S.C. § 1805(a).
We have conducted a careful in camera and ex parte review of the entire record in this matter, and we conclude that the FISA court properly granted the applications. All of the requisite certifications are in order. The Appellant's remaining objections to the legality of the FISA surveillance (specifically, his claims of wrongdoing or illegal intent by the Attorney General) are wholly without basis in the record.
Because the FISA surveillance was not illegal, this Court need not consider the parties' arguments as to whether the illegality of FISA surveillance may serve as a defense to contempt in a grand jury proceeding. The government urges this Court to hold that illegal FISA surveillance is never a defense to contempt in a grand jury proceeding. The Appellant counters that Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), provides him a complete defense to contempt when his presence before the Special Grand Jury is procured through information gained in illegal FISA surveillance. See also September 9, 1987 Grand Jury, 856 F.2d at 689 (looking to Gelbard for guidance in determining the right of a grand jury witness to refuse to testify when the legality of related FISA wiretaps was in question). Because the surveillance was conducted lawfully here, there is no
The Appellant also contended that FISA violates the Fourth and Fifth Amendments, and that the unconstitutionality of the surveillance provides him with a defense to contempt. We reserve for another day that question as well. All courts to consider the issue before FISA was amended by the USA Patriot Act of 2001
Max M. v. New Trier High Sch. Dist. No. 203, 859 F.2d 1297, 1300 (7th Cir.1988). Where the brief does not raise a serious challenge to the constitutionality of a statute and does not supply the background necessary for thoughtful consideration, there is no need to reach the issue. Max M., 859 F.2d at 1300; Hospital Corp. of Am. v. F.T.C., 807 F.2d 1381, 1393 (7th Cir.1986), cert. denied, 481 U.S. 1038, 107 S.Ct. 1975, 95 L.Ed.2d 815 (1987) (issues cannot be preserved in this court merely by being raised or by being developed inadequately).
The Appellant also maintains that the district court abused its discretion in confining him as a means of coercion because his prior history and current resolve prove there is no reasonable hope that confinement will lead to his testimony. Civil contempt is authorized by 28 U.S.C. § 1826, the recalcitrant witness statute. Section 1826 provides, in relevant part, that when a witness refuses without just cause to testify before a grand jury, a court may summarily order the witness's confinement "until such time as the witness is willing to give such testimony." The period of confinement may not exceed the term of the grand jury, including extensions, and in no event may it exceed eighteen months. 28 U.S.C. § 1826(a). The district court's finding that the Appellant might cooperate in the face of protracted
Here, the district court found that, despite the Appellant's past refusal to testify, he was now faced with a new set of circumstances five years later that rendered incarceration potentially coercive. In particular, the court found that (1) the Appellant now had first hand experience of prison life and its attendant hardships; (2) the new Special Grand Jury was bound to ask him new questions which he might not find incompatible with his steadfastly held convictions; (3) the Appellant, who had been involved in protracted asylum proceedings, had recently drastically changed his position on whether he wished to remain in the United States by agreeing to depart; and finally (4) the world political climate had changed significantly in a way that might abate the Appellant's fears. The court also noted that the passage of years might render a person less able to withstand the deterioration in living conditions that attends incarceration. Considering all of those circumstances, the district court was of the opinion that imprisonment could very well have a coercive effect on the Appellant.
The Appellant focuses his argument on what he characterizes as an unchanged situation. He opines that the investigation is essentially the same as the one conducted five years ago because both involve the same interests. But at oral argument his counsel conceded that the earlier grand jury investigation differed from the current one in that the "players" and the activities investigated have changed. Moreover, he conceded the district court's analysis of the effects of the passage of time on his ability to withstand the rigors of prison life. As he did five years ago, the Appellant has begun a hunger strike in prison. His counsel informed the Court that the Appellant was hospitalized much sooner than he was on his prior hunger strike and has lost more weight earlier. Although counsel insisted these changes simply rendered the Appellant more resolved in his refusal to testify, the district court, which properly considered the Appellant's past unwillingness to testify, was entitled to find otherwise and articulated a more than adequate basis for its contempt order. We find no abuse of discretion.
Next, the Appellant argues that the district court erred in failing to conduct
Moreover, fear for one's own safety and the safety of one's family is not itself "just cause" for refusing to testify, and thus will not provide a defense to civil contempt in a grand jury proceeding. See Piemonte v. United States, 367 U.S. 556, 559 n. 2, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961). However, duress may serve as an equitable defense to incarceration for civil contempt if the witness can demonstrate the presence of a palpable imminent danger. Matter of Grand Jury Proceedings of Dec. 1989, 903 F.2d 1167, 1170 (7th Cir.1990) (hereafter Freligh). In order to claim duress, a recalcitrant witness must show that, due to an overwhelming sense of immediate danger, he is unable to act freely, to testify, and thus to purge himself of his contempt. Freligh, 903 F.2d at 1170. The Appellant has presented no evidence demonstrating immediate danger to himself or his family such that he is unable to act freely in testifying. His evidence is of a generalized, unspecific nature. Furthermore, because the court and the government have offered adequate safeguards, the Appellant may not continue to claim duress. See In re Grand Jury Proceedings, 943 F.2d 132, 135 (1st Cir. 1991) (a witness may not frustrate the grand jury's access to information on the basis that he will be put in danger by giving it and, at the same time, reject an offer to remove or minimize the danger). No evidentiary hearing on duress was necessary in light of the offer of the government and the court to minimize or remove any danger that may have caused the Appellant to fear for the safety of himself or his family.
For the reasons stated above, we affirm the district court's judgment.