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In re Grand Jury Witness Chanie Weiss

decided: March 18, 1983.

IN RE GRAND JURY WITNESS CHANIE WEISS, APPELLANT


Appeal from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, adjudging grand jury witness to be in civil contempt of court pursuant to 28 U.S.C. § 1826.

Feinberg, Chief Judge, Lumbard and Kearse, Circuit Judges. Lumbard, Circuit Judge, dissenting.

Author: Kearse

KEARSE, Circuit Judge:

Chanie Weiss appeals from an order of the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, adjudging her to be in contempt of court pursuant to 28 U.S.C. § 1826(a) (1976) for her refusal to give truthful and nonevasive answers to questions posed by a federal grand jury after being ordered to do so by the court, and ordering her imprisoned for so long as her refusal shall continue. Appellant challenges the contempt order principally on the grounds that (1) § 1826(a) authorizes a contempt adjudication only with respect to witnesses who completely refuse to answer and not witnesses whose answers are "arguably evasive," and (2) the government failed to prove by clear and convincing evidence that Weiss's answers constituted deliberate refusals to answer. For the reasons below, we conclude that the adjudication of civil contempt should be reversed on the latter ground.

I. BACKGROUND

The present appeal arises in the context of an ongoing grand jury investigation into suspected fraud by various individuals in the conduct of an operation called "Project Joint," a project that obtained funds under the Comprehensive Employment Training Act ("CETA"), 29 U.S.C. §§ 801-999 (Supp. V 1981). The grand jury is inquiring into the possibility that Project Joint falsely claimed to have trained approximately 120 students between January 1977 and June 1978 when in fact it had trained none, and had obtained, by means of false documentation approximately one million dollars in federal moneys for the training of such nonexistent students. Weiss, the only person listed in Project Joint's books as a counselor from January 1977 through June 1978, was summoned to testify before the grand jury. On November 2, 1982, the district court signed an order granting her immunity from prosecution on the basis of her testimony. Weiss was not, however, immunized against prosecution for perjury, obstruction of justice, or any other crime stemming from untruthful testimony before the grand jury.

From the outset Weiss's testimony was less than enlightening. Weiss testified that she had worked for Project Joint, but when asked what kind of program Project Joint was, she stated, after conferring with her counsel outside the grand jury room, that since she was not an officer or administrator of the program she "really couldn't speak for it."*fn1 (11/3/82 Tr. at 5.) Weiss stated that she could speak only in terms of what she did for Project Joint. Even this information, however, proved to be elusive. For example, although Weiss testified that she did "counseling," which involved "job placement if I remember correctly" (id. at 18), she stated that she did not remember the ages of the persons she counseled:

A . . . .

Q And for students of what kind of institution?

A I really worked in -- I would like to see my counsel.

(Witness exits Grand Jury room.)

(Witness enters Grand Jury room.)

THE FOREMAN: We have a quorum.

Q What is the answer to the last question?

A I understand it was a school.

Q For what age students?

A I would like to confer with my counsel, please.

(Witness exits Grand Jury room.)

(Witness enters Grand Jury room.)

Q Do you know the answer to the last question, Ms. Weiss?

A The best of my recollection, all ages.

Q Seven and eight year olds were students at Project Joint?

A You asked me how many people there were -- what ages.

Q Correct.

A That were in a whole.

Q I asked at Project Joint that you were counseling.

A I am sorry. I misunderstood your question.

To my best recollection, I would remember adolescents.

Q You mean children between the ages of 14 and 18 years old?

A It would really be hard for me to remember. I really don't remember.

Q You do not recollect that Project Joint was for adults and, in fact, only received money to train adults?

A I worked with adults and I worked with children. I worked with adolescents, these that had --

Q At Project Joint you worked with adolescents?

A I counseled people.

Q You counseled adolescents who were enrolled as Project Joint, is that your testimony?

A I would like to meet with my counsel.

(Witness exits Grand Jury room.)

(Witness returns to Grand Jury room.)

Q What were the ages of your counselees at Project Joint?

A I have seen a lot of people in all the years that I have counseled, and truthfully, it is very hard for me to decipher exactly which years I saw whom and what.

Q So it is your testimony you do not recall the ages of your cou[n]selees at Project Joint; is that correct?

A Yeah. . . .

(Id. at 14-17.) Nor could Weiss remember what she did to help the students find jobs:

Q How long was the school term or training term for enrollees at Project Joint?

A I don't remember.

Q What were your duties as a counselor?

A It's hard to remember specifically. Basically I saw people for many different reasons. They ranged from personal to placement -- it's very hard for me to remember specifically what I did at that specific time.

Basically, I did counseling.

Q What did you counsel? You say placement, what did you do with the students with regard to placement?

A . . . .

There were all sorts of things. There were people looking for positions which I helped them find.

Q What kind of positions were they looking for?

A I don't remember specifically.

Q . . . .

Did that entail calling prospective employers on behalf of the students?

A I don't remember. This is the job in a nutshell, but I don't remember exactly what I did.

Q Did that entail taking information from students about what their curriculum had been?

A I don't remember.

Q Did that entail testing of any sort with regard to their proficiency in some vocation or craft?

A It might have, but I don't specifically remember.

Q Did you have a list of employers who might potentially employ the students of the Project Joint Program?

A I might have, I don't remember.

(11/10/82 Tr. at 16-17.)*fn2

Weiss also testified that she could not remember, inter alia, whether she had anyone working under her at Project Joint, whether there were other counselors, what size her office was, whether she shared that office with anyone else, or whether she kept any records of information obtained from her counselees. She did "not now" recognize the completed Project Joint forms shown her, and stated that she could ...


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