Appeal from the United States District Court for the Central District of Illinois. No. 01 GJ 28--Joe B. McDade, Chief Judge.
Before Bauer, Kanne, and Diane P. Wood, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Argued and Decided September 19, 2001
The district court found Sergius A. Rinaldi in contempt for failing to produce documents responsive to a grand jury subpoena and conditionally fined and imprisoned him. On August 13, 2001, the district court denied Rinaldi's motion for reconsideration, and he filed his notice of appeal on August 20, 2001. Oral argument on the appeal was heard on September 19, 2001, and on that day we summarily affirmed the order of contempt and denied Rinaldi's motion for release pending appeal.*fn1
Rinaldi is an orthodontist with offices in Springfield and Edwardsville, Illinois. On January 23, 2001, the grand jury issued a subpoena to Rinaldi, demanding the production of records related to Rinaldi's orthodontic practice by February 7, 2001. The subpoenaed records included, inter alia, patient sign-in sheets, daily schedules, calendar schedules of patients, and patient charts. Following several informal conferences between the government and Rinaldi, numerous documents demanded by the subpoena remained outstanding. Specifically, the government required production of (a) original case files and claim forms for twenty-five patients; (b) the original explanation medical benefit forms for these patients; (c) Rinaldi's appointment books for the years 1995-99; and (d) the sign-in sheets, daily and weekly appointment logs, and daily cancellation sheets for the years 1995-2000. The district court ordered Rinaldi to appear personally on June 15, 2001 to show cause why he should not be held in contempt for failing to comply with the grand jury subpoena by producing the documents. On June 15, 2001, the district court ordered Rinaldi to comply with the subpoena in full and produce the documents. Pursuant to an agreement between Rinaldi and the government, Rinaldi was granted an extension until July 6, 2001, but Rinaldi never produced the documents. On July 10, 2001, the dis trict court held a contempt hearing regarding Rinaldi's failure to comply with the June 15 order.
At that hearing, FBI Special Agent Kirk Staats testified that a consensual search of Rinaldi's Springfield office was executed on June 26, 2001, and of his Edwardsville office on July 3, 2001. Agent Staats testified that the July 3 search was scheduled to begin at 7:00 a.m. At approximately 6:30 a.m., law enforcement officials observed Rinaldi place a box in a dumpster outside of the McDonald's restaurant next to his office. Agent Staats testified that FBI agents recovered the box from the dumpster and found within the box several sign-in sheets covered by the subpoena. Agent Staats stated that Rinaldi had previously denied the existence of these sign-in sheets.
The government also called Judy Keran to testify. She stated that she has worked for Rinaldi at his Springfield office since May 1994, and addressed the accumulation and storage of sign-in sheets prior to January 23, 2001. Keran testified that the sign-in sheets would initially be left at the Springfield office's reception desk. On a daily basis, Keran would then transfer the sign-in sheets to a desk drawer. When a significant amount of sign-in sheets accumulated in that drawer, Keran dated, banded, and placed the sign-in sheets in a closet in the Springfield office. Keran testified that the sign-in sheets remained in that closet from May 1994 until approximately March or April 2001. Keran also testified that appointment books from 1994 through the current year were located in the closet prior to January 23, 2001.
Keran then testified that sometime after January 23, 2001, Rinaldi removed all the sign-in sheets and appointment books that were stored in the closet. Keran noted that she went into the closet on a daily basis and that the sign-in sheets and appointment books were removed from the closet "definitely after the [issuance of the] subpoena" on January 23, 2001. Keran stated that she asked Rinaldi about their removal, and that Rinaldi told her that he had removed the sign-in sheets and appointment books. Keran was then asked whether Rinaldi had destroyed any records on any previous occasion. Keran responded, "[a]bsolutely not. Dr. Rinaldi did not want us to destroy anything. He likes . . . to keep everything . . . down to the simplest items" and that Rinaldi saved records "just in case" they were needed in the future.
Rinaldi then testified on his own behalf. He stated that he had not destroyed or removed any sign-in sheets since the service of the subpoena. Rinaldi testified that he had placed the box in the dumpster because he deemed the material "personal" and not responsive to the subpoena. He then stated that contrary to Keran's testimony, all the sign-in sheets were systematically destroyed within one or two months after their creation. Therefore, Rinaldi concluded, he could not produce any responsive documents because the documents no longer existed.
At the conclusion of the hearing, the court made several factual findings and credibility determinations. Specifically, the court noted that it gave "absolutely no credence" to Rinaldi's testimony and found that "Dr. Rinaldi ha[d] lied" and "h[ad not] been truthful with th[e] Court." Further, the court found that the records did exist because "[t]he fact that . . . [Rinaldi] had been observed taking a box of records out of his office and putting them in or by the Dumpster persuade[d] the Court that [Rinaldi] ha[d] these . . . records in his possession [but was] not turning them over." Further, the court noted that there had "been no accounting for the boxes of records that Judy Keran put together and put in the" Springfield closet. The court then stated that there had been "no evidence" that Rinaldi destroyed the evidence. Therefore, the court concluded that it found that the documents were in still existence, that they were in Rinaldi's possession or control, and that Rinaldi would not produce the records voluntarily.
The court then ordered the following:
I don't believe [Rinaldi is] ever going to furnish these records voluntarily, because [Rinaldi] doesn't think the Government has a right to them. And I think he's in wilful contempt of this Court's order requiring him to produce these records by July 6th, and the Court w[ill] sentence the Defendant to the custody of the Marshal for up to six months . . . and to be released sooner upon his furnishing the records called for to the United States Attorney's Office. (Emphases added).
The court also issued an order fining Rinaldi $1,500.00 per day "starting 7/10/01 [and continuing] until [Rinaldi] complie[d] with [the] grand jury subpoena." The initial order stated that the district court found Rinaldi in criminal contempt, but the district ...