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In re Grand Jury Proceedings Harrisburg Grand Jury 79-1 Robert McNabb

September 8, 1981

IN RE GRAND JURY PROCEEDINGS HARRISBURG GRAND JURY 79-1 ROBERT MCNABB, APPELLANT


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Misc. No. 80-00109

Author: Adams

Before: ADAMS, ROSENN and HIGGINBOTHAM, Circuit Judges.

ADAMS, Circuit Judge .

This appeal from a jury conviction and sentence for criminal contempt based on Robert McNabb's failure to comply with a bench warrant that was issued after McNabb ignored a subpoena duces tecum requiring his appearance before a federal grand jury raises several issues concerning the procedural law of criminal contempt. Appellant challenges the failure of the government to file an affidavit of purpose in support of its motion for a bench warrant or enforcement proceeding under 18 U.S.C. § 401. Further, he attacks the failure of the district court to consider the alternative of civil contempt before entertaining criminal contempt proceedings.

I.

A federal grand jury in Harrisburg was investigating possible criminal conduct in connection with the bankruptcy of Global Realty Company, a corporation of which McNabb was a former president and principal shareholder. In the course of the proceedings, a subpoena for McNabb's appearance was issued in February 1980. Because McNabb could not be found, that subpoena was never served on him. On March 10, 1980, however, a subpoena duces tecum issued, commanding McNabb to appear before the grand jury on March 27. An FBI agent served this second subpoena on McNabb in Florida, on March 14.

The day before McNabb's required grand jury appearance, his counsel sought a continuance from the United States Attorney. Realizing that the grand jury term was ending and that there would be no grand jury meeting for another month, the United States Attorney refused any postponement. He further indicated that he would seek a bench warrant if McNabb failed to appear. McNabb did not appear. Consequently, on March 28, the district court, in response to the government's motion for a bench warrant for McNabb's arrest, issued the requested warrant pursuant to 18 U.S.C.§ 401. The United States Attorney notified McNabb's counsel of the bench warrant, and this information was then conveyed to McNabb.

That same day, March 28th, McNabb fled to North Carolina with his family and some bodyguards. Although McNabb refused to reveal his whereabouts, he called his counsel each day to inquire about receipt of the warrant. During this period McNabb also used two false names in several bank transactions. McNabb was finally arrested on June 4. At that point, the United States Attorney applied for criminal contempt proceedings based on McNabb's wilful failure to appear before the grand jury and his subsequent intentional concealment of his whereabouts. Taking account of these circumstances, and reasoning that because the grand jury had been dismissed McNabb would be unable to purge himself civilly, the district court issued an order to show cause why McNabb should not be held in criminal contempt.

McNabb was tried and convicted by a jury on the charge of criminal contempt. At trial, McNabb as well as government witnesses testified that McNabb had received threats against himself and his family both before and after issuanc of the subpoena. Although McNabb relied on these threats to justify his refusal to obey the subpoena, the district court, in ruling on a post-trial motion, found that McNabb

did not contact police for protection or school officials concerning the threats to his children. Indeed, McNabb told one of his bodyguards not to worry about it. Furthermore, none of the specific threats related directly to his appearance before the grand jury.

After denying the motion for a new trial or, in the alternative, in arrest of judgment, the district court sentenced McNabb to eight months in prison. He now appeals, and we affirm.

II.

McNabb's principal assault on his criminal contempt conviction is based on a rule of this Court, known as the Schofield Rule, requiring the government to make a minimal showing of proper purpose before invoking the district court's powers to enforce obedience to a grand jury subpoena.The Schofield rule was adopted pursuant to the federal court's supervisory power over grand juries and over civil proceedings brought in the district court under 28 U.S.C. § 1826(a). Devised in the context of a witness who refused to furnish handwriting exemplars, fingerprints and photographs, the rule imposes a duty on the government "to make some preliminary showing by affidavit that each item is at least relevent to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose." In re Grand Jury Proceedings (Schofield I ), 486 F.2d 85, 93 (3d Cir. 1973).

In demanding applicable of the Schofield affidavit requirement in the present case, McNabb seeks to make two unwarranted extensions. First, the Schofield case addressed the propriety of matters requested by the subpoena; it did not purport to encompass the appropriateness of an appearance before the grand jury. Second, the procedural safeguards fashioned in Schofield involved the factual showing which must be made before a district court adjudges a witness in ...


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