Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 GJ 691-Frank J. McGarr, Chief Judge.
Bauer, Eschbach, and Easterbrook, Circuit Judges.
EASTERBROOK, Circuit Judge.
George Sinadinos was haled before a grand jury under a grant of use immunity. The prosecutor asked him a series of questions about a betting operation in which the prosecutor thought Sinadinos involved. Despite the grant of immunity, Sinadinos refused to testify, stating in response to each question: "I respectfully decline to be a witness against myself. I do not know what other persons have said to you, and if I innocently speak differently from even one other witness, I can be charged with false swearing, and there may be electronic surveillance. I base this on the Fifth Amendment."
The prosecutor moved to hold Sinadinos in contempt under 28 U.S.C. § 1826(a). A hearing on February 14, 1985, dispelled any arguments about surveillance, but Sinadinos asserted that he had a poor memory. A hearing on March 14, 1985, was devoted to this issue. A psychiatrist testified on Sinadinos's behalf that in earlier years Sinadinos had taken Placidyl in conjunction with alcohol, a combination that might have impaired his ability to recall. The psychiatrist concluded that Sinadinos "is going to remember [some] things with accuracy and there is [sic] going to be other things that he is not going to remember. This is going to be inconsistent and without pattern." The district judge concluded that Sinadinos had not demonstrated an inability to answer questions as a general matter. The judge stated that the psychiatrist offered "no support for the proposition that [Sinadinos] would . . . misremember, and is [sic] remember things that did not occur or state things that did not happen . . . I do not find evidence . . . for the contention that he will say things before the Grand Jury that are false and do so innocently because of whatever limited mental impairment or memory impairment that he might have." The judge remarked that if Sinadinos "doesn't remember he is expected to say so".
Before the grand jury later that day, Sinadinos answered many questions. He admitted taking bets and answered other questions about his own life. But Sinadinos rebuffed most efforts to obtain information about his dealings with others in any gambling operation. In response to more than 60 questions about his professional affiliations, Sinadinos repeated the words: "I've been advised by my psychiatrist that my memory is exceedingly poor due to many years of medication. For that reason I must respectfully decline to answer that question because I don't feel confident that I can recall enough to speak the truth." Though Sinadinos answered "I do not remember" to questions such as "What is your social security number" and "What is the approximate number of wagers you have taken during the past month," he used the formulaic answer for most questions about the betting activity of his acquaintances. He simply declined to venture such memory as he possessed. Perhaps he feared that the answer "I do not remember" -- as applied to the identity of the person to whom Sinadinos had given the bets he admitted taking the day before -- would not have been very persuasive.*fn1
Back before the district judge, Sinadinos's counsel invoked In re Battaglia, 653 F.2d 419, 422 (9th Cir. 1981), for the proposition that no one may be committed for refusing to supply information to a grand jury unless the prosecutor first establishes "that the information was not already in the possession of the government". Here, counsel maintained, the government had established only that the information sought was pertinent to a legitimate inquiry of the grand jury; the government had not shown that it lacked the information it sought from Sinadinos. The district judge responded: "I do not agree that the Government must demonstrate that the information was not already in their possession when they ask the witness concerning it. If that is stated in that case, I disagree with it and disregard that as a precedent." The judge then concluded that Sinadinos's formulaic claim of anxiety about the state of his memory was a wilful failure to testify. He held Sinadinos in contempt. We decided the appeal on April 12, 1985, in order to comply with 28 U.S.C. § 1826(b), and we noted that this opinion would follow.
There is a longstanding debate about what sort of showing the government must make to overcome a good faith claim of privilege before the grand jury. One court has required the government to file an affidavit showing that the information sought is relevant to the grand jury's inquiry, that the grand jury has jurisdiction, and that the grand jury has a special need and does not seek the information primarily for a purpose unrelated to the investigation. In re Grand Jury Proceedings (Schofield), 486 F.2d 85 (3d Cir. 1973). This court has rejected such a requirement, and so have many other courts. E.g., In re Walsh, 623 F.2d 489 (7th Cir. 1980); In re Grand Jury Proceedings (Doe), 754 F.2d 154 (6th Cir. 1985). We concluded that even in the face of a colorable claim of privilege, "there can be no privilege to refuse to appear before the grand jury until the government demonstrates some compelling need" for the testimony. Walsh, supra, 623 F.2d at 493.
This case does not involve a claim of privilege, and Sinadinos apparently would be happy with a lower standard: "need" rather than "strong need" or "compelling need" for the information. Sinadinos tells us that the contempt statute is designed to produce information. When the grand jury does not "need" the information, the questioning does not meet the standard for compelling replies. So, Sinadinos concludes, the prosecutor must show by clear and convincing evidence that the grand jury lacks the information in question and thus still needs it from him.
In an extreme case there might be a need for proof of need to dispel a witness's showing of harassment. Suppose the grand jury had wrapped up its investigation. The prosecutor -- perhaps frustrated by inability to get solid evidence against one suspect yet confident that the suspect will never talk -- calls the suspect as a witness for the sole purpose of inducing him to balk, which leads to some punishment for contempt in lieu of punishment for the (unprovable) substantive crime. We have said that the civil contempt process may not be used merely to punish (as opposed to gathering information). In re Crededio, 759 F.2d 589 (7th Cir. 1985). The situation here, though, is leagues from harassment amounting to abuse of process. Sinadinos does not tell us that the grand jury has all the information it seeks; Sinadinos does not so much as hint that the prosecutor called him as part of a ploy to administer punishment rather than obtain evidence.*fn2 He says only that no one may be compelled to testify unless the government proves that the grand jury lacks the evidence around which the questions revolve. Put in this unembroidered form, the argument fails.
The grand jury is an investigative body. It is entitled to ask questions to develop the full picture of a potentially criminal enterprise. It carries on its work expeditiously and in secret. United States v. Sells Engineering, Inc., 463 U.S. 418, 103 S. Ct. 3133, 77 L. Ed. 2d 743 (1983). Courts should permit it to proceed substantially unhindered. United States v. Calandra, 414 U.S. 338, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974). Legitimate claims of privilege or statutory right must be honored, Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972), but the rest of the time the grand jury and the prosecutor, rather than the court and the witness, have the right to select the direction and depth of investigation. The grand jury and the prosecutor best know the status of the investigation, the value of pursuing additional leads or shedding new light on traveled paths, or curtailing the investigation.
We could accept Sinadinos's position only at substantial cost to the traditional role of the grand jury and the rules surrounding it. In order to establish that the grand jury did not have the information it seeks from the witness, the grand jury would have to disclose a great deal of information about the state of the investigation. What facts does the grand jury have, who did it hear, what did they say, where is it going, and what does it still need? To say that disclosing these things would create tension with the traditional rule of secrecy would be to understate greatly. The investigation is ongoing, the time when secrecy is most important. And the person seeking the disclosure here -- and, we suppose, in similar cases -- may be deeply involved in the criminal enterprise. We could not preserve secrecy while accommodating Sinadinos's request.
Even if the district court could preserve much of the secrecy of the investigation, perhaps by holding any hearing in camera, it could not do this without interrupting the progress of the investigation. The interruption would be the occasion of a trial on a small scale, inquiring into the current state of the investigation and how much information it "really" needs. Calandra held that expedition is so highly valued that a court should not stop to investigate claims that the prosecutor is using illegally seized information. 414 U.S. at 349-52. The claim for a mid-investigation investigation of the grand jury is much weaker here. The usual rule -- that a witness has no legal right even to be told the nature of the inquiry and whether he is a "target" of the investigation -- responds to ...