*1 ..., dards Act employer if the shows to the
satisfaction of the court the act or giving
omission rise to such action was in
good may, faith ... the court in its sound
discretion, liquidated damages.”) award no
It is irrelevant that earlier investi
gations prosecu of Carls did not result
tion for the pharmacists’ pay. See Marshall Dodge Corp., supra, Sam Dell’s F.Supp. at 305. Every FLSA investi Lumbard, Judge, Circuit filed dissent-
gation cannot be a thorough shakeout of an ing opinion. employer’s enterprise. But while individual investigations may only focus on portions of business, investigation each will put
employer on notice that the business is sub
ject FLSA, independently triggering the and,
willfulness rule if the law proceeds as should, prompting the employer to exam
ine his own light business in FLSA
to comply with the law. Where the em
ployer comply fails to with the law despite
notice that it applies, year’s added liabili
ty for penalty. violations is the
Judgment affirmed. Jury
In re Grand Witness Chanie
WEISS, Appellant.
No. Docket 83-6026. Appeals, Court of States
Second Circuit.
Argued Feb. 1983.
Decided March
lenges the principally order on grounds (1) that authorizes a con- § tempt adjudication only with wit- respect to completely nesses who refuse to answer and not witnesses whose answers are “arguably evasive,” (2) government failed prove by convincing clear that evidence Weiss’s re- answers constituted deliberate below, fusals to answer. For the reasons adjudication we conclude that of civil contempt should be reversed on the latter ground.
I. BACKGROUND present The arises in the context appeal ongoing grand jury investigation of an into suspected by various fraud individuals operation “Project the conduct anof called Joint,” a project that obtained funds under Training the Comprehensive Employment (“CETA”), (Supp. Act 29 U.S.C. 801-999 §§ V 1981). jury into grand inquiring falsely the possibility Project Joint claimed to approximately have trained Lewin, Nathan Washington, (Ste- D.C. January students between 1977 and June Miller, phen Braga, L. Cassidy, Larroca & none, 1978 when in it had trained fact Lewin, D.C., Washington, Guy L. Heine- obtained, had by means false documenta- mann, New City, brief), York on for appel- tion one million dollars approximately lant. training federal moneys for of such Nordenbrook, Ruth A. Asst. Atty., U.S. Weiss, nonexistent the only per- students. Brooklyn, Dearie, (Raymond N.Y. J. U.S. son listed in Joint’s books coun- Atty., E.D.N.Y., Mary Davis, McGowan selor January through from June N.Y., Asst. Atty., Brooklyn, brief), was testify grand summoned to before the for United States of America. jury. On the district November signed granting court her immuni- order FEINBERG, Before Chief Judge, and ty on the basis of her prosecution KEARSE, LUMBARD and Circuit Judges. not, however, testimony. Weiss was immu- for ob- against prosecution perjury, nized KEARSE, Judge: Circuit justice, struction other crime Chanie appeals Weiss from an order of testimony be- stemming from untruthful the United States District Court for the fore grand jury. York, Eastern District of New Thomas C. From the Weiss’s outset Platt, Judge, adjudging to be in con- enlightening. less than Weiss testified tempt of court to 28 pursuant U.S.C. Project Joint, she had but when worked for 1826(a) (1976) her refusal give program Project asked what Joint kind of truthful and ques- nonevasive answers to was, stated, conferring she with her after posed by tions jury federal after room, grand jury counsel outside the being court, ordered to do so since officer or administra- ordering her she was not an imprisoned long so as her refusal she couldn’t Appellant “really shall chai- tor of the program continue. (11/3/82 5.) Q it.”1 Tr. at speak for You mean children between the speak only stated that she could in terms of of 14 and 18 ages years old? did for Joint. Even this what she A It really would be hard for me to information, however, elusive. proved to be really remember. don’t remember. example, although For Weiss testified Q You do not recollect “[j]ob which “counseling,” involved and, fact, only Joint was for adults (id. placement if I remember correctly” *3 money received to train adults? 18), stated that she did remember I A I worked with adults and worked of ages persons she counseled: with children. I worked with adoles- A .... cents, these that had— [Cjounseling encompassed every- ... Q Project At Joint worked with you thing. encompassed It to stu- talking adolescents? dents, it encompassed talking parents, people. A I counseled encompassed finding placements. That Q You counseled who adolescents is what I did. Joint, Project were enrolled as is that Q And for students of what kind of your testimony? institution? my A I would like to meet with coun- really A I worked in —I would like to sel. my see counsel. (Witness room.) Jury exits Grand (Witness room.) Jury exits Grand (Witness room.) Jury returns to Grand (Witness room.) enters Jury Grand Q THE We What quorum. ages your FOREMAN: have a were the counse- Project lees at Joint? Q What is the answer to the last question? A I have seen a lot of in all the people counseled, years
A I that I have and truthful- understand it was a school. ly, very decipher it is hard for me to Q For age what students? exactly which I saw whom and years A I my would like to confer' with what. counsel, please. Q it is do not your testimony you So (Witness room.) exits Jury Grand ages your recall cou[n]selees Joint; Project is that correct? (Witness room.) Jury enters Grand A Yeah.... Q youDo know the answer to the last (Id. 14-17.) Weiss remember question, Ms. Nor could Weiss? jobs: help what she did to the students find recollection, A The my best of all ages. Q was the school term or long How Project enrollees at training term for
Q eight year Seven and olds were stu- Joint? Project dents at Joint?
A You A I many people asked me how don’t remember. there were —what ages. Q your What were duties as a coun-
Q Correct. selor? A That were in a whole. specifically. A It’s hard to remember Q I Project you many asked at Joint different Basically people I saw counseling. ranged personal reasons. They for me to re- placement very hard sorry. A I am I your misunderstood —it’s at that specifically member what question. time. specific recollection, my To best re- I would member Basically, counseling. adolescents. I did secrecy grand jury proceed- they present opinion Because are deemed used in the ings, appeal the record has been sealed. unsealed. portions To the extent of the record are
Q you Q What did counsel? You Did say you have a list of employers might potentially employ who the stu- placement, you what did do with the stu- Program? dents of the Joint regard placement? dents with have, might A I I don’t remember. A .... 16-17.)2 (11/10/82 Tr. at things. There were all sorts There Weiss also testified she could not were people looking positions which I remember, alia, any- inter whether she had helped them find. Joint, one under her at working Q positions What kind of were they counselors, whether there were other what looking for? was, size her office whether she shared that A I don’t remember specifically. else, anyone kept office with or whether she any records of information obtained from .... Q recog- her counselees. did “not now” She calling prospective Did that entail em- nize completed Joint forms ployers on behalf of the students? *4 her, shown and stated that she not could job A I don’t remember. This is the say any handwriting whether or nutshell, in a but I don’t remember exact- printing in which information had been ly what I did. filled in her. was done Q taking Did that entail information testified, Although Weiss after confer- from students what counsel, about their curricu- ring job Project with that her job Joint was a full lum had been? time best of “[t]o 33-34; recollection,” (11/3/82 Tr. at [her] A I don’t remember. 24), see also 11/10/82 Tr. at she could not Q Did that testing any entail sort were, recall what her hours what she was regard with to their proficiency some hour, paid, paid by whether she was vocation craft? was, Project what the address of Joint what have, might A It but I specifi- don’t time, her own home address was at the cally remember. period during job.3 which she held the people asking you part your 2. Weiss testified that she also counseled I’m whether a Q respect problems job place- job description you being with ment, other than for which were paid Project public money they but she could not Joint out of remember what counseling regard per- enrollees with to their were: problems schooling? sonal unrelated to their your testimony Jury It’s to this Grand Q say look, A I would it would I entail — you any places cannot remember other specifics. say don’t remember I would as far you Project enrollees, counseled Joint Ias am able to recall it it could have en- your save office? tailed— A Yes. have, asking I’m not what it could did Q you counseling And cannot remember Q you regard counsel enrollees with to their regard subject them with matter save personal problems you while were on the job placement, you’re telling is that what this Project staff of Joint? Jury? Grand remember, might A I don’t have No, people many A I counseled for differ- happened. things. ent things you What other did counsel Q things? What other They ranged Q regard them with to? personal problems— A A I don’t remember. personal problems What kind of Q job placement. Besides Q you counsel them in? A I don’t remember. personal problems. A All kinds of (11/10/82 25-26.) Tr. at being paid by Project You were Joint to Q regard personal counsel enrollees with gave following testimony 3. Weiss as to the matters, is that correct? job: requirements of her time Counseling A to me— employee, You time is that were full Q is, you question being paid by The were Q correct? Project regard Joint to counsel enrollees with Yes, A I recall I was was. best matters, personal is that correct? correctly. there full time. If I remember counsel, counseling, A To I have That involved a 40 hour work week? Q done— A I don’t remember. only minute stretch say unequivocally During forty-seven even would She put to Weiss. Project thirty-one for whether at the time she worked finishing college also her edu- Joint she was grand jury appeared Weiss before cation. 24, 1982, after four times. On November appearance, government third Weiss, old at the time years who was 34 1826(a) to pursuant moved to 28 U.S.C. § testified, first was asked whether she Weiss, Feder, along with one Rivka for mental ill- hospitalized had ever been testify called to with re- another witness ness, undergone surgery whether she had Joint, held civil spect functioning, her mental impaired had hearing was evasive answers. A giving trau- any physical whether she had suffered the govern- December held on memory, her ma that would have affected on the ment indicated checkmarks taking any currently and whether she was answers it considered jury transcripts what responded mood-altering medication. She by counsel argument After contumacious. negative question. in the to each Feder, court instructed counsel for memory respect attributed her lack of with the witnesses witnesses to confer both had Joint to the facts that she whether their recollections to determine working for jobs had two other since they whether would refreshed and could be Joint, number large had counseled a with, than rather cooperate commence to fused; memories had people, and her obstruct, Following that grand jury. interim and had that she had been ill in the conference, the court directed Weiss personal problems occupied had mind; Jury and answer job that her had not been memo- to return to Grand *5 her, posed that were questions these rable. by checked off that have been transcript excerpts above As some of the Government, than something other indicate, profusely was Weiss’s “I don’t remember.” from the departures her punctuated colloquy, 5.) After further (12/2/82 Tr. with her counsel. grand jury room to confer the court stated: During appearance first before prosecutor I’ve told was one THE COURT: example, there grand jury, again, ask these go which back and period during forty-seven-minute ev- attempt, seven- and I want a bona-fide to confer with counsel Weiss exited attempt of a bona-fide ery of these confer- indication lengths teen times. The everything that, A, through gone she has one to seven minutes. ranged ences day Well, you a full you If less than worked if worked less —what Q Q —did day? check, salary you your salary get? you have a work what did set days far as I had set work A I don’t remember. A Of course Well, you you don’t if worked I remember. Q less — you just it long supposed you what to be don’t remember remember how were But Q day? there each was? jobs really, since A I held numerous Not A I don’t. day, you exact- set for me to remember than the then. It’s difficult worked less IfQ every particu- ly my paychecks day? you paid what were full for a were definitely position I lar I held. I know was know. I I wasn’t. I don’t A I assume morning. am, I days know I am normally put there nine o’clock I in full wherever 4:30, 4:00, stayed many remember, that I a time until I am infrequently I don’t out. counseling, anybody I would 4:30. If needed sorry. stay you later. were whether don’t remember You Q my specific exactly I remember what don’t hourly paid or— basis were, to 3:00 or 9:00 hours whether from 9:00 I remember. A don’t me to It’s difficult for to 4:00 or 9:00 to 4:30. 12-13.) not remem- (11/10/82 She did Tr. at that. remember salary paycheck $760 whether a ber her Suppose you into work one didn’t come Q one week’s for more than her was endorsed day? day, you paid were for that 22-23.) (11/3/82 pay. Tr. at remember, I had but I assume Á I don’t I don’t remember. sick leave. every possible Q and searched out source to It is now 3:47. You may be ex- cused. answer these and if she questions, has no answers, finding means in out if she (Witness grand jury leaves room and explains satisfactorily it to the returns.) Grand may not Jury, they may accept it. It’s A I if participation don’t know is the a lot more certainly going accepta- to be exact I words. don’t remember the exact ble used, to me. probably they terms but most
trainees or counselees. Q Were these trainees or counselees only MR. I HEINEMANN: wish to program? involved in the Joint your Honor clarify thing, sug- one has counsel, A May speak I please? gested, in the argu- and this was earlier Q request I you would before ment, at portion least the which I was grand jury leave the room that the notes present for, your Honor believes that you you have before remain. obligation is an witness to search A I Can take out with me now refreshing out means her own recollec- (indicating)? just wrote the question tion. out. Yes, I THE do. COURT: Yes, A you should return with (Id. 8-9.) them. Weiss returned to the jury on Jan- (Witness grand jury room leaves uary Having originally 1983.4 charac- returns.) students, terized her counselees yes. A The to that is answer Counsel answering now had difficulty questions call- leave the instructed me to notes outside. ing them describing students or them as (Ms. grand jury Nordenbrook leaves in the having “participated” program: returns.) room and Q regard your Now with duties as Q one trainee you Can name or coun- Joint, you counselor at actu- selee that in that two and a you saw half ally see students who were participating years worked at you Joint? program? A I I’m sorry. don’t remember. A I to speak my would like attor- Q name one You cannot trainee or *6 ney, please. counselee; is that correct? Q It is now 3:41. A I don’t remember. You may be excused. Q repeat my question. Just to (Witness grand jury leaves room and What is the name of one counselee or returns.) trainee? MS. NORDENBROOK: The witness speak A to to my I would like attor- has been grand jury out of the room for ney, please. four minutes. Q may. You THE I would FOREPERSON: remind (Witness grand room.) jury leaves oath; you you that are you still under do understand that? room.) (Witness grand jury to returns THE I that. WITNESS: understand (contin- BY MS. NORDENBROOK: I people, saw I don’t know if stu- ued) dents is the term. correct Q indicate Please let the record Q Were people you saw par- gone grand the witness has been from the ticipating in the Joint program? jury room for nine minutes.
A speak Let me to my attorney, your question A I answered to the please. my ability. best of delay testify 4. The return Weiss’s was caused Weiss’s refusal to further without a new immunity conflicting grant immunity. obligations A new order of counsel for 26, government Weiss, January signed and of was on 1977. counsel Counsel has pointed advised me that I have out that Federal funds are not to already your question, answered that it is purpose, be used for that she switched to improper you repeat your question to adults and then she couldn’t remember to me. were; what ages they (1/26/83 3-6.) Tr. at Immediately after Four, the names of persons colloquy, when the Assistant office; whom she worked in her Attorney States informed Weiss that she Five, the completed forms she or was permitted was not to record the grand required complete; to jury’s questions and take them out of the Six, recognition of her printing or room to confer with her attorney, Weiss handwriting bearing documents her again conferred with counsel. Upon her name. return she testify refused to further under Seven, the names and numbers of other such a restriction. counselors doing similar work to which government The immediately renewed its doing allegedly doing; was application to have Weiss held in contempt. Eight, any kind of a description of her It position took the that the court had held duties; the required hearing on December Nine, worked, any hours that she and had at given that time the oppor- dates employment, of her and even the tunity purge contempt herself of the address at which her office was. that no further hearing required. The testimony that I read this morning court parties instructed the appear in the November and January next morning, January sessions, was a compounding of court, On January after hearing pattern, point where she argument counsel, held Weiss in con- couldn’t anything answer without run- tempt. With respect ap- Weiss’s first ning talking outside and her counsel pearance before the jury, on Novem- protracted for some period of time and 3,1982, ber the court found that Weiss had the total effect is one of utter incredibili- given 25 evasive answers and had claimed ty, utter falsehood and utter 19 failures of recollection. With respect to for the and its Jury processes, Grand second appearance, on November Court, indeed utter for this who the court found 27 additional evasive an- her, Weiss, given has Ms. more than suf- swers and 34 additional failures of recollec- ficient time in which go before tion.5 The court re- found Weiss’s Grand Jury questions put answer the sponses pattern followed a revealed to her in a truthful manner. their falsehood: (1/27/83 20-21.) Tr. at After reading Jury these Grand min- utes, Accordingly, the court sentenced Weiss find that pattern there was a *7 conduct, follows: of inability to remember and/or
evasive answers as to: right. THE All COURT: One, people she counselled —if Having contempt, held Ms. Weiss in any part of her work for period will sentence her to a of six —as Joint; jail, months in or the duration —or the Two, what she counselled such persons Jury, termination date of this Grand about; first, and I will tell Ms. whichever occurs
Three, the
her re-
any
key
names of
Weiss that she holds the
to
counselees and
lease,
ages
communicating
with Ms.
parenthetical-
by merely
counselles —
ly
ages,
she was asked what
that she
to an-
prepared
and she
Nordenbrook
is
Adolescents,
truthfully
answered:
and when
questions fully
it was
swer the
approximately
5. The court indicated that there was
a total of
answers that
some over-
was
lapping
categories
and that
the count
failure-of-recollection
it would call evasive or
might
precise;
not be
but
it found that
there
answers.
her,
put
to
which I don’t
period
be-
information. No
of such confine-
has been done.
lieve
ment shall exceed the life of—
(Id.
32-33.)
ability
As to Weiss’s
(1) the court
or
proceeding,
by recanting
prior
secure her release
(2)
grand jury,
the term of the
in-
answers,
give responsive
refusals to
extensions,
cluding
court stated as follows:
which such refusal to
with
comply
before
THE
....
COURT:
occurred,
the court order
no event
recantation will
be deemed sat-
eighteen
shall such confinement exceed
isfactory,
every question,
if after
or even
months.
every
question,
after
tenth
she insists
that,
law,
as a matter of
contends
upon running
talking
out and
to her
power
1826(a)
court has no
under
to hold
§
counsel.
per-
as a recalcitrant witness a
going
go
give
is
in there and
She
outright
son who does not refuse
answer
accurate and correct statement of the
grand jury’s questions
gives
but rather
out,
running
truth without
because
answers that
the court concludes are false
out,
going
if she is
to run in and
and have
powers
or evasive. Given the traditional
her counsel feed her answers that are
the court to
witnesses
deal
obdurate
evasive,
contemptuous,
might
types
historically
and the
of conduct
forget
well
it.
prompted
the exercise of its
(Id.
30.)
1826(a)
powers, we conclude that
reaches
§
This appeal followed.6 Weiss contends
disguised
refusals to answer
as evasive re-
principally
contempt adjudication
sponses.
the court’s
beyond
power under 28
1826(a),
U.S.C.
and that her contempt
§
A.
Contempt
Sanctions for
proven by
was not
clear and convincing
Acts of willful disobedience to clear
reject
evidence. We
the former argument
the court
unambiguous orders of
consti
but find a certain merit in the latter.
Gompers
tute
contempt of court.
Bucks
Co.,
418, 441,
Range
Stove &
1826(a)
II. APPLICABILITY OF
TO
§
(1911).
until has a two- willing such time as the witness is “The exercise of this first, give proper such provide aspect, namely: such fold *8 immediately currently appeal. 6. Weiss to remain Since incar- moved at liber- this cerated, Weiss is not ty pending appeal. 1826(b), requiring provision That motion was denied on of § the January 28, 1983, by panel appeal which ordered that an from an order of confinement thirty appeal expedited. disposed the of within be A renewed mo- under be § February 3, 1983, applica- granted days filing appeal, tion was is not the of the of the Rosahn, 690, panel (2d appeal, which 693-94 heard the and Weiss was ble. In re 671 F.2d Cir.1982). pending released on that date determination of
661
punishment
guilty party
of the
for his
by ending his contumacious behavior. See
order,
the
disrespect to
court or its
and
Co.,
Gompers
Range
v. Bucks Stove &
su-
second,
compel
performance
his
441-43,
498-99;
pra, 221
at
31
at
U.S.
S.Ct.
duty required
some act or
of him by the
Irving,
In re
supra.
court, which he
perform.”
refuses to
[In
Chiles,
(22 Wall.) 157, 168,
re
89
22
Many
may
U.S.
forms of disobedience
be
(1874)]
L.Ed. 819
dealt
contempt,
with either as acts of civil
contempt,
or as acts of criminal
or as both.
Co.,
324,
Bessette v.
Conkey
W.B.
194 U.S.
Workers,
United States v. United Mine
330
327,
665, 666,
24
(1904).
S.Ct.
the conduct as
criminal
and im-
dicate
authority
of the court.
pose a jail
term or a monetary fine as
Co.,
Gompers
Range
v. Bucks
&
su-
Stove
vindication of the court’s authority. See 18
pra, 221
have held
a number of
may
any
take
of
too must be accorded some of the safe
may
categorical-
forms. The
refuse
witness
42,
guards provided by Fed.R.Crim.P.
see In
ly
respond
way
in a
may
answer. Or he
1252,
Sadin,
(2d
re
Cir.1975),
509 F.2d
1255
information, as, for
providing
that avoids
opportunity
pre
such as notice and an
memory of the events
example, by denying
defense,
Fula,
279,
pare a
In re
672 F.2d
283
acquaintance with
inquiry, denying
under
(2d Cir.1982);
the trial
by
need not be
targets
denying
of the
or
knowl-
inquiry,
In
jury.
contempt proceeding,
a criminal
he
edge of facts
to be elicited. Or
sought
contempt
because criminal
“is a crime in
facts in
may purport
to state informative
sense;
the
...
ordinary
violation of the
response
while in fact testi-
to the
law,
Illinois,
a public wrong,” Bloom v.
391
fying falsely.
194, 201,
1477, 1481,
88
20
U.S.
S.Ct.
L.Ed.2d
obduracy
Any three forms of
these
(1968),
522
designed
and the sanction is
or
may
imposition
be met
the
of one
punish
degree,
to a fixed
over which the
judicial
sanctions.
governmental
more
control,
contemnor
given
govern
no
the
refused
example,
ment must establish its
For
when the witness has
beyond
ease
rea
sonable doubt. See Michaelson v. United
in
may
adjudged
to answer
he
be
questions,
Paul,
Chicago,
Minneapolis
States ex rel.
answer,
St.
e.g.,
contempt
civil
ordered to
Co.,
42, 66,
& Omaha Railway
266
45
U.S.
States, supra,
v.
Shillitani
United
18, 20,
(1924);
S.Ct.
663
performance
of its duty,
appears
the witness
The
as it
in the
testimony
rec-
may be met with sanctions for civil con
ord evinces a deliberate purpose to
378,
tempt,
parte Hudgings,
see Ex
249 U.S.
prevent
conceal the truth and
the trustee
383,
(1919),
39
63 L.Ed.
S.Ct.
656
or
becoming possessed
of facts which
Michael,
contempt,
criminal
see In re
326
would lead to a recovery
missing
224, 227-29,
78, 79-80,
66
U.S.
S.Ct.
90
The
property.
being
witness was
asked
(1945).
L.Ed. 30
regarding
directly
transactions
within his
category
middle
of testimonial obdu
knowledge and facts which he
have
must
i.e.,
racy,
the witness’s equivocal responses
When, therefore,
known.
he answered
of knowledge memory,
disclaimers
has
remember,”
repeatedly “I don’t
it is obvi-
also been dealt with as contemptuous con
deliberately
ous that he was
withholding
duct, warranting sanctions that were coer
information to which the trustee was en-
cive, punitive,
long
or both. It has
been the
titled.
In effect his attitude was one of
practice of courts viewing
such
defiance. He
not affirmatively
did
tell
evasive,
false
intentionally
and as a
the referee
he
refused to disclose the
sham or subterfuge
purposely
avoids
facts which would enable the trustee to
answers,
giving responsive
to ignore the
follow the property, although these facts
response
form of the
and treat
the witness
him,
were well known to
but his conduct
See,
having
refused to answer.
In
e.g.,
produced the same result as if he had
Schulman,
re
167
(S.D.N.Y.1909),
F. 237
purpose openly.
stated his
aff’d,
(2d Cir.1910);
held a criminal
guilty
contempt
imposi
of criminal
and the
against a
who
unequivo-
witness
would not
sanctions,
of punitive
tions
and
seeks
cally
disposed
state how he
of the proceeds
deny
their relevance on that basis. This
payable
of five checks
to him in the total
is an astigmatic
misperceives
view which
$380,000:
sum of
inquiry.
considering
focus of our
In
[Pjlainly having
...
resorted persist-
obduracy may
whether a witness’s
con
be
evasion,
ently
subterfuge
and
if not to
answer,
sidered a refusal to
and hence “re
falsifying,
deliberate
to prevent a disclo-
1826(a),
calcitrance” under
or must
in
sure
knowledge
of what
he had and was
proceeding
stead be dealt with in a
in crimi
give,
guilty
asked to
he was
of obstruct-
contempt
prosecution
perjury
nal
or a
ing
grand jury
performing
in
its
justice,
obstruction of
we must
take care
duties, and was properly held in con- not to confuse the nature of the conduct
tempt.
with the
judicial
govern
nature of the
witness’s
tion,
thought
testimony Appel
to determine whether in
that the
was
but instead
face,
being equivocal
inquiry
was
“on its mere
and without
fact
the witness
substance,
refusing
fide effort to
and,
collaterally,
... not
bona
evasive
at all.”
in the venerable United
answer
answer. As stated
mere fact that
Appel,
States v.
“[t]he
228-29,
at 80.
Id. 326 U.S.
some answer cannot be an
gives
witness
was confronted
Hudgings,
In
the Court
Here there
for
no element
true,
presence
that
of
it follows
except perjury “clearly
ing
shown.” Nor
be shown in
clearly
element
need we consider cases like
must
United States
punish
495, 496,
case where the
Appel,
pressed upon
every
211 F.
us
cause,
Congress’s
argues
1826(a)
inapplica-
light
intention to
in
stated
9. Weiss also
§
practice,
codify existing
contempt
“ambiguity concerning
we do
civil
ble because
the ambit
1826(a)
ambiguous.' See
not believe that §
of criminal statutes should be resolved
favor
States,
342-
lenity,”
450
Albernaz v. United
Rewis v. United
(1981).
1137, 1144,
(1971).
L.Ed.2d
L.Ed.2d 493
S.Ct.
inapposite
principle
We view this
here be-
contempt
principle which,
is exerted —a
signed
impede
grand jury’s
investiga-
applied
hand,
to the
subject
exacts that
tion.
In
court
Battaglia, the
remanded for
punish
order to
perjury
presence
a determination
government
of whether the
of the court
contempt
as a
there must be
had met
and convincing
“clear
evi-
added to the essential elements of perjury
dence” test. But both courts interpreted
under the general
law the further
1826(a)
ele-
to reach this form of
§
recalci-
ment of
trance,
to the
obstruction
court in the
interpretation
is well with-
performance
duty.
in the
its
As
teaching
illustrative
of Michael and Hudgings.
this,
see United
v. Appel,
States
sum,
In
long prior
we conclude
Fed.Rep. 495.
the enactment
1826(a),
courts had con-
Id.
We are aware two only reported deci- order carry establishing its burden of sions discussing applicability of false recalcitrance in the form assertions 1826(a) to a responses memory, witness whose the government § are absence of equivocations show, rather outright convincing than refusals must and by clear evi- dence, to answer. One is our decision earlier claimed this the witness’s lack of Bongiorno, supra, Term In re We memory and the was not credible. noted that other is In re Battaglia, supra. may include See also evidence extrinsic “[s]uch Gouletas, Martin-Trigona supra (so proof, recordings, documents, ap- tape such as discussion). plying may without In be found in the photographs; answers, Bongiorno we on the his focused character of witness’s demeanor and if the issue, construed, the conduct at of those pattern and in the and substance answers con- circumstances, responses answers are inher- the witness’s of vinces the court that the knowledge ently lack of or lack of incredible.” 694 F.2d 922. In that memory as plainly adequate proof false evasive case had been assertions de- we found that photo- in the form
presented principally
are constrained to reverse the court’s hold-
graphs
persons including
of various
the wit-
ing
having
Weiss in civil
for
re-
professed
ness in
the witness
to rec-
which
information,
give
fused to
for we find
one,
ognize
selectivity
no
and the
lacking any
convincing
clear and
evidence
memory
which the witness’s
failed.
of the truth of the district court’s basic
evident that the
Bongiorno
quite
it seemed
premise, i.e.,
actually
that Weiss
worked at
knowledge
memory
witness had
job
Project
she is said to have held at
that he denied.10
Joint.
The
ease shares certain obvious
present
that Weiss worked as a
supposition
Bongiorno
characteristics with
and the
Project
counselor at
Joint comes from the
in Part II.B.
cases discussed
above. Like
organization
records of the
and from an-
failures,
Bongiorno’s,
memory
Weiss’s
relatively
swers of Weiss that are
clearcut.11
found,
the district court
followed a certain
grand jury’s
But the thrust of the
investi-
pattern
inability
in that she claimed an
gation suggests
may
in fact she
not
provide unequivocally any details as to a
there. The
worked as
counselor
i.e.,
particular subject,
job
Project
grand
into whether
jury
inquiring
Schulman,
Joint. Like the witness in In re
Joint claimed funds for nonexistent CETA
supra,
example,
professed
for
not to
trainees,
its claims
means of
supported
remember —53 times in her first two
documentation,
thereby
fraudulent
jury appearances, according to the district
funds
obtained one million dollars
CETA
professed
court’s count —and she
not
un-
Thus,
trained no one at all.
having
questions concerning
derstand
the nature of
very
inquiry
nature of the
absence
quibbled
Joint and
with various
any employment
documentation
questions’ terminology though
pre-
she had
inquiry
itself
suspect
treated as
viously phrased
just
her answers in
such
suggest
that Weiss
have no details to
terms.
counselees, there
give.
If there were no
however,
Bongiorno,
there
Unlike
would have been little need for
counselor.
was here no extrinsic evidence to contradict
filed,
Project’s
If
false documents
inability
Weiss’s claimed
to remember.
showing
books
Weiss as a counselor have
Thus,
compelled
rely
the court was
sim
credibility.
little
If false claims were made
ply
credibility
the intrinsic
lack of
—or
“salary
training expenses, supposed
it —of Weiss’s answers. We are inclined to
payable
Joint made
checks” from
agree with the district court’s assessment
*15
Weiss
mean that she worked there.
do not
inherently
that
it is
incredible that a 34-
The
credited extrinsic evi-
absence of
year-old person, with no traumatic
me
or
premise
dence
factual
for the de-
loss,
memory
dicinal reason for a
who
distinguishes
of Weiss
questioning
tailed
years
job
worked for one-and-a-half
at a
present
the
circumstances from those cases
years
that ended less than five
earlier
were held refusals
in which evasive answers
virtually
memory
would retain
no
of
example,
Appel,
to
For
in
there
hours,
answer.
salary,
detail
to her
her
her co
as
account
counseled,
evidence of bank
workers,
was concrete
people she
where she
the
worked,
time,
question
and the
was how
where she lived at the
or the withdrawals
Nonetheless,
money;
in
spent
nature
she did.
we witness had
McGovern
of what
above,
that,
and we
believe there is one. The asser-
10. We note
as indicated
Part I
do not
present
in the
case took the
or ab-
district court
fide lack of information
tion of a bona
position
required
memory
Weiss was
to make an
that
not constitute contuma-
sence of
does
respond
cy.
effort
obtain information in order to
to
general
jury’s questions,
“go[]
to the
through everything
every pos-
and
out
“[Project
search! 1
was a
Joint]
11. Weiss testified that
questions.”
sible
(12/2/82
to answer
these
source
for,”
4),
(11/3/82
program
Tr. at
I worked
8.)
Tr. at We are aware of no author-
basically,
counseling,” (id.
“My job,
at
was
ity imposing
obligation
such an
on a witness
(id.
19).
Project
17);
Joint”
“I counseled for
requiring him to refresh his own recollection
question
the same
was
respect
might
asked with
It
be argued that
the civil con-
money
order is
payable
tempt
reflected in checks
to the
sustainable on the ground
witness;
Howard,
that
in fact
if
Weiss cannot answer the
there was
of
evidence
as to
questions
counseling
the details of her
deposits
the question
bank
Project
job with
Joint
she
because
had no
origin of the money.
questioning
The
of
job,
such
she nevertheless has the
keys
proceeded
the witnesses in each case
prison
her
in her pocket because she could
unimpeachable premise
finan-
recant
simply
predicate
her
testimony that
occurred;
cial transactions had
the witness-
she did work
Project
as
counselor at
Joint.
es’ evasions were considered
re-
deliberate
disagree.
We
Bypassing
technical ob-
only
fusals
answer
because
testi-
“[their]
stacle that Weiss
has not
fact been or-
mony
considered
connection with
[was]
recant
predicate testimony,
dered to
undisputed circumstances,”
the known and
difficulty
fundamental
with the argu-
supra,
Schleier United
72 F.2d at
ment is
such an
would
order
not have
417, and the questions sought to
“facts
elicit
proper
been a
application
1826(a).
of §
[they]
which
have
must
known.”
re
recalcitrance,
Section
deals with
Schulman, supra,
(emphasis
to civil contempt upon ability the CONCLUSION of the comply contemnor to with the court’s Had there been clear convincing and evi- order,” States, supra, Shillitani v. United as a dence that Weiss worked counselor at 371, 1536; 384 86 also S.Ct. see Joint, Project upheld we would have the 1025, United Wendy, States v. 575 F.2d 1826(a) contempt adjudication civil under § (2d Cir.1978), 1030-31 and since Weiss’s for her refusal to information as to supply give wherewithal to details is the suspect, any details. Given absence of such the imposition fact, of the civil coercive sanction of as to predicate evidence that which is contempt was inappropriate. linchpin finding the both of the that her
670 was in- memory
claimed lack of for detail swers the court the convinces that answers justification herently incredible and of Platt inherently Judge are incredible.” sanction, coercive we reverse the court’s Reading record so convinced. and adjudication contempt, remand of civil and it, I Judge Kearse’s detailed recital of do appro- as proceedings may for such other be disagree the not see how we can with as- priate. judge. sessment of the district If, this, as on as clear a record extrin
LUMBARD,
Judge, dissenting:
Circuit
necessary,
certainly
sic evidence is
I dissent.
here. There are at least two items
present
agree
Judge
I
with all of
Kearse’s thor-
which
of extrinsic evidence
the record
to
comprehensive opinion except
the
ough
me are relevant. The first
is a series of
conclusion reached in Part III that Chanie
checks,
salary
by
five
made out to Weiss
recalcitrance, which
to a
Weiss’s
amounted
“Project
Joint,
experience,”
adult work
by
refusal
to
testify, was
established
18,
from March
1977 to
which
dated
clear and convincing evidence.
admit,
30,
after
June
1978. She
at
tempting
answering,
evade
that
demonstrates,
Judge
opinion
As
Kearse’s
checks,
her,
by
all
which were
indorsed
Congress,
pre-
law the
codified into
that
salary
were for
she cashed the
vailing
views on the
of the courts
the money. Although
checks and received
illegally
deal with witnesses whose conduct
checks,
salary
Thus,
Judge
sug
these
Kearse
investigations.
grand jury
obstructs
(1976) gests, may
suspect
showing
terms
agree
1826(a)
we all
that 28 U.S.C. §
Joint,
powers
actually
does not
to deal
that Weiss
worked at
“limit the court’s
tangible
with conduct that
in essence constitute
establish a
relation
they obviously
testify
both a contumacious refusal to
Joint
ship
between Weiss
dur
perjurious
allegedly
effort at evasion.”
ing
period
when she was
em
Similar,
ployed by
organization.
government,
expe-
Here the
order to
therefore,
circumstances in the three
investigation
govern-
dite an
of misuse of
Kearse,
cited
illustratively
by Judge
cases
funds,
ment
the remedy
seeks
of §
(S.D.N.Y.
211
495
Appel,
United States v.
F.
summary
with
imposed
sanctions
1913);
McGovern,
60 F.2d
United States
im-
court. The
purpose
sanctions
denied,
(2d Cir.),
53
cert.
287 U.S.
secure,
posed by Judge
possi-
is to
if
Platt
(1932);
Howard v.
L.Ed.
ble, the
who has
testimony of the witness
Cir.),
(8th
who must and that is Chanie (1933)). L.Ed. 993 Weiss. testimony, It to me that Weiss’s seems Judge analysis, however, Under Kearse’s in conjunction when viewed as a whole and Weiss, by perjuring predicate herself evidence, to a with the extrinsic amounted question of whether she actually worked at If transparent testify. refusal Weiss did Project Joint and then to fol- responding perjury actually worked commit questions with low-up stating answers a Joint, must have known the she remember, failure to has been able deliber- Thus, her surrounding employment. details ately process to obstruct the grand jury lack to such memory claim of details while, circumventing simultaneously, If, hand, would evasive. on the other very sanctions that were enacted to secure respect she to her perjure did herself with compliance cooperation of a witness concerning predicate question process. with that Such result is not must have known that employment, she law; warranted logic either case Joint, work never short, it makes no sense. claiming inability thus answers noted,
As of her work would previously we all remember details agree Congress, enacting 1826(a), again My colleagues seem to “did not be evasive. existing prac- acknowledge by responding intend curtail courts’ to these respect imposition tice with stating of civil a failure of answers *18 within, deliberately knowledge, Weiss has been able dom their to determine memory, Anyone to best be secured. perjuriously perjury and cover earlier how evidence meaningful and law any any experience still evade with of enforcement subject on the of Joint. I do not of prosecutions knows that for the crime conduct, see how such which acts to especially are difficult. More perjury turn process inquiry” “thwart the of invariably fail point, prosecutions such form,” into a can investigation evidence, “futile produce they always result anything amount to less than an intentional any investigation. of We delay excessive grand jury process. obstruction of the prosecutor have no business to tell the perjury he can with a case or even proceed Judge holding Kearse asserts that a of can, seek suggest alternatively, that he in this inappropriate civil situa- contempt. punitive sanction of criminal if ground tion on Weiss did there whether Our business is determine actually work at Joint she will nev- finding court’s of is a basis for the district er be able to terminate her confinement 1826(a). In Brown v. contempt under § answering many questions concerning 148, 153-54, 78 S.Ct. her employment. details of I do not 622, 625-26, (1958), the Su L.Ed.2d find this argument persuasive, however. justi “We are not preme Court cautioned: had, has, and still to an- ability sliding disagreement fied in from mere swer these questions stating simply a trial court has dealt way in which performed she never any work of particular with a matter obstruction [of Joint. justice] . . . into a condemnation Accordingly, anyone I do not see how can court’s action as an abuse of discretion.” read this record and reach conclusion my colleagues’ judg must conclude that by Judge other than the one reached Platt: ment, procedure their obvi opinion Weiss has refused to answer ously suggests to witnesses who do not wish which obviously capable of answer- it even more questions, to answer will make ing. agen difficult for federal law enforcement mounting There has been concern over white collar crime. prosecute cies to the increase in white collar crime and the I would affirm the order of the district obstructions in investigating encountered court mandate issue and direct our and prosecuting those who commit it. forthwith. Gathering evidence of such crime is time- consuming and difficult for law enforce- agencies
ment and it strains their limited agen-
facilities. To enable law enforcement evidence, get necessary Congress cies to America, Appellee, UNITED STATES provided has essential weapons: two grants immunity to secure to wit- they nesses so that cannot testifying evade HINTON, Defendant-Appellant. Alfred self-incrimination, aby claim of and the No. Docket 82-1209. power to seek wit- against sanctions those who, nesses despite grants immunity, Appeals, United States Court of eyidence refuse give about matters with- Second Circuit. in their knowledge. system Under our Argued Oct. 1982. law, the play part courts must their to see Decided March 1983. that these are powers effectively prop- 13, 1983. June Denied erly Certiorari according used to law. See prose-
But the courts must leave it to the cuting authorities to determine how those
powers get It is evidence are to used. province
not within the and sel- judges,