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In re Grand Jury Proceeding

decided: November 14, 1989.

IN THE MATTER OF: GRAND JURY PROCEEDING, SPECIAL APRIL 1987. APPEAL OF: JANE DOE


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, John F. Grady, Chief Judge.

Bauer, Chief Judge, Cummings and Flaum, Circuit Judges.

Author: Bauer

BAUER, Chief Judge

Jane Doe appeals from a contempt order of the district court for failure to comply with a subpoena requiring the production of certain documents. Doe contends that the language of the district court's limited immunity order fails to provide protection coextensive with her fifth amendment rights. We believe that the order does provide the necessary protection against self-incrimination and affirm.

I.

The facts are not in dispute. The Special April 1987 Grand Jury is conducting a criminal tax investigation into the affairs of "Richard Roe."*fn1 Jane Doe has been employed as Mr. Roe's secretary for over twenty years. On May 1 and June 9, 1989, as part of its investigation, the grand jury issued subpoenas duces tecum to Ms. Doe calling for her to appear and produce certain documents. Specifically, Doe was required to produce any and all records in her custody or control concerning the business and financial records of Mr. Roe. Doe refused to do so, citing her constitutional privilege against self-incrimination under the fifth amendment. Although Doe was not a target of the investigation, the prosecution was unwilling to waive the possibility that future charges might be brought against her.

Following a status hearing in which the government challenged Doe's assertion of her privilege, Chief Judge Grady entered an order on August 15, 1989 upholding Doe's right to refuse production of the documents. The court stated that because there was the potential for incrimination in Doe's act of production, she was not required to produce the subpoenaed documents absent a grant of immunity.

On September 7, 1989, the government petitioned the district court for an order granting such immunity. That same day, Acting Chief Judge Aspen entered the order granting the immunity and ordering Doe to produce the subpoenaed documents. Both the government and Doe recognized that the immunity provided by the order extended only to the act of production itself and not to the contents of any specific document. United States v. Doe, 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984). Doe, however, filed a motion to amend the immunity order objecting to the last phrase of the order which states "said immunity does not extend to the contents of said documents or any information directly or indirectly derived therefrom," (emphasis added). Doe argued that this phrase might allow the derivative use of her act of production. Thus, the immunity order would provide less protection than required by the fifth amendment.

Following a complete briefing by both parties, Judge Grady denied Doe's motion to amend at a hearing held on October 5, 1989. The court, relying on its earlier decision, In the Matter of Trader Roe, 720 F. Supp. 645 (N.D.Ill. 1989), stated "it is permissible for the government to make use of the physical act of producing the records even though it is precluded from offering evidence of that physical act in the trial of the case or before the grand jury."

Five days later, on October 10, 1989, Doe again appeared before Judge Grady and refused to produce the documents. In her "Statement Regarding Noncompliance with Court Order," Doe reasserted her belief that the order of immunity entered by the district court contained language not authorized by 18 U.S.C. § 6002 which could permit derivative use of her act of production, and thus render her fifth amendment privilege useless. Therefore, she would not comply with the court's directive to produce the subpoenaed documents. Following Doe's refusal, Judge Grady found her in civil contempt and ordered her confined until she complied with the court's order. The confinement was stayed, however, pending appeal to this court. Two days later, on October 12, 1989, Doe filed her notice of appeal.

II.

The sole issue presented for resolution by this appeal is whether the language in the district court's immunity order is coextensive with the witness' rights under the immunity statute, 18 U.S.C. §§ 6001-5, and her privilege against self-incrimination under the fifth amendment. If, as Doe contends, the immunity granted by the order is deficient, then Doe is correct in refusing to comply with it. On the other hand, if the order is consistent with the immunity statute and Doe's constitutional privilege, then her recalcitrance is impermissible and the contempt order will stand.

Paragraph Seven of Doe's immunity order provides:

Doe contends that this last phrase ("or any information directly or indirectly derived therefrom") improperly permits the derivative use of her act of production. The government contends that this language is merely a standard reading of the Supreme Court's holding in United States v. Doe, permitting the use of the contents of the produced documents. In order to resolve this dispute a brief analysis of both the statutory program for ...


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