In the Matter of a Grand Jury Investigation ( 2017 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
16-P-215 Appeals Court
IN THE MATTER OF A GRAND JURY INVESTIGATION.
No. 16-P-215.
Middlesex. October 5, 2017. - December 11, 2017.
Present: Sullivan, Blake, & Singh, JJ.
Witness, Compelling giving of evidence, Self-incrimination.
Constitutional Law, Self-incrimination. Cellular
Telephone. Grand Jury. Privacy. Public Records.
Practice, Criminal, Assistance of counsel. Contempt.
Motion filed in the Superior Court Department on January
22, 2016.
The proceeding was heard by Kimberly S. Budd, J., and entry
of a judgment of contempt was ordered by her.
Joanne M. Daley, Committee for Public Counsel Services, for
the petitioner.
Kevin J. Curtin, Assistant District Attorney, for the
Commonwealth.
BLAKE, J. The petitioner appeals from an order directing
him to enter his personal identifying number (PIN) access code
(hereinafter PIN code) into his Apple iPhone (a "smart" cellular
2
telephone, hereinafter iPhone), and a subsequent judgment of
contempt for refusing to comply. We affirm.
Background. A Middlesex County grand jury requested that
an assistant district attorney seek an order from a Superior
Court judge as part of an ongoing investigation of an assault
and battery on two children. The Commonwealth thus moved for an
order that the petitioner produce the PIN code and any other
electronic key or password required for the iPhone. A search
warrant previously issued in the Lowell Division of the District
Court Department had authorized a search of the contents of the
iPhone.
The motion, the proposed order, and two additional
documents were filed in court under seal. The motion and the
proposed order were served on counsel for the petitioner; the
additional documents were not. One of the additional documents
was a statement showing the petitioner's ownership and control
of the iPhone and the Commonwealth's knowledge thereof. The
other document was an affidavit of the assistant district
attorney, which summarized the evidence before the grand jury;
appended to the affidavit was a transcript of the grand jury
proceedings.
The petitioner filed a reply. After a hearing, in which
petitioner's counsel participated, the Commonwealth's motion was
allowed, and an order entered detailing the protocol by which
3
the petitioner would enter the PIN code so that the search
warrant could be executed. The order also prohibited the
Commonwealth from introducing evidence of the petitioner's act
of production in any prosecution of him.
When the petitioner refused to comply with the order, the
Commonwealth filed a petition for civil contempt. The same day,
the petitioner was adjudicated in civil contempt and was ordered
held in custody until he purged the contempt by complying with
the order. A stay of execution of the judgment was allowed by
agreement. This appeal followed.
Discussion. A. Order to enter PIN code. The Fifth
Amendment to the United States Constitution provides that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." The protections of the Fifth
Amendment apply to testimonial statements that may support a
conviction, and to those that "would furnish a link in the chain
of evidence needed to prosecute" a defendant. Hoffman v. United
States, 341 U.S. 479, 486 (1951). See Couch v. United States,
409 U.S. 322, 328 (1973).
When the Commonwealth compels a witness to produce
evidence, the act of production itself may implicate Fifth
Amendment concerns. Commonwealth v. Gelfgatt, 468 Mass. 512,
520 (2014). This is so because the act itself could be
4
considered testimonial. Id. at 520-521. The Supreme Judicial
Court has summarized the applicable law as follows:
"Although the Fifth Amendment privilege typically applies
to oral or written statements that are deemed to be
testimonial, . . . the act of producing evidence demanded
by the government may have 'communicative aspects' that
would render the Fifth Amendment applicable. . . . Whether
an act of production is testimonial depends on whether the
government compels the individual to disclose 'the contents
of his own mind' to explicitly or implicitly communicate
some statement of fact. . . . More particularly, the act
of complying with the government's demand could constitute
a testimonial communication where it is considered to be a
tacit admission to the existence of the evidence demanded,
the possession or control of such evidence by the
individual, and the authenticity of the evidence."
Ibid. Nonetheless, the law provides that the compelled
information may lose its testimonial character in certain
limited circumstances. Id. at 522. That is, even if the
compelled production does force the accused to disclose a
statement of fact, the sought-after information may lose its
testimonial character and not violate the defendant's Fifth
Amendment rights if the information provided is a "foregone
conclusion." Ibid.
"The 'foregone conclusion' exception to the Fifth Amendment
privilege against self-incrimination provides that an act of
production does not involve testimonial communication where the
facts conveyed already are known to the government, such that
the individual 'adds little or nothing to the sum total of the
Government's information.'" Ibid., quoting from Fisher v.
5
United States, 425 U.S. 391, 411 (1976). To establish the
foregone conclusion exception, the Commonwealth bears the burden
to show "its knowledge of (1) the existence of the evidence
demanded; (2) the possession or control of that evidence by the
defendant; and (3) the authenticity of the evidence." Ibid. In
short, where the Commonwealth's motion compels a defendant to
tell "the government what it already knows," the motion "does
not violate the defendant's rights under the Fifth Amendment."
Id. at 524. Contrast United States v. Hubbell, 530 U.S. 27, 43-
45 (2000).
The foregone conclusion exception has applied when the
government independently and with specificity established the
authenticity, existence, and possession of the compelled
information. Gelfgatt, supra at 522. In Gelfgatt, the
Commonwealth possessed "detailed evidence" of fraudulent
mortgages linked to a financial services company. 468 Mass. at
523. When the defendant was arrested, he admitted to the police
that he worked for the financial services company and had
communications with the company contained on his home computers,
which he had encrypted and only he could decrypt. Id. at 517.
Although the court acknowledged that by entering an encryption
key into his computers, "the defendant implicitly would be
acknowledging that he has ownership and control of the computers
and their contents[,] . . . facts that would be relevant to the
6
Commonwealth's case," id. at 522, the court found that "the
factual statements that would be conveyed" were a "foregone
conclusion," id. at 523, because "the defendant's act of
decryption would not communicate facts . . . beyond what the
defendant already . . . admitted to investigators." Id. at 519.
Here, the Commonwealth contends that the act of the
petitioner entering the correct PIN code, in light of the
evidence already known to the Commonwealth, communicates only
evidence that is merely a foregone conclusion and "adds little
or nothing to the sum total of the Government's information."
Id. at 522, quoting from Fisher, supra. We agree. To meet its
burden under this doctrine, the Commonwealth was required to
demonstrate knowledge of the petitioner's ownership and control
of the iPhone and its contents, as well as "knowledge of the
fact of [PIN code protection], and knowledge of the [existence
of the PIN code]." Id. at 524. The Commonwealth was not
required to show that it knew the specific content of the
iPhone, but it did need to demonstrate knowledge of the
existence and the location of the content. Id. at 523, citing
United States v. Fricosu, 841 F. Supp. 2d 1232, 1237 (D. Colo.
2012) ("Fifth Amendment not implicated by requiring production
of unencrypted contents of computer where government knew of
existence and location of files, although not specific content
7
of documents, and knew of defendant's custody or control of
computer").
Here, the Commonwealth demonstrated sufficient knowledge to
show that the factual statements that the petitioner's act of
entering his PIN code would convey are foregone conclusions. As
summarized in the grand jury materials submitted to the judge
under seal, the Commonwealth already knew that the iPhone
contained files that were relevant to its investigation based,
in part, on information provided by the petitioner. In
addition, the Commonwealth knew that a PIN code was necessary to
access the iPhone, that the petitioner possessed and controlled
the iPhone, and that the petitioner knows the PIN code and is
able to enter it. Accordingly, the Commonwealth established
independently and with specificity the authenticity, existence,
and possession of the compelled information.
Thus, the order does not require the petitioner to
communicate information that would fall within constitutional
self-incrimination protection. The affidavit in support of the
search warrant application established that the Commonwealth had
probable cause to believe that the iPhone contained evidence of
the crimes that are the subject of the grand jury investigation.
The order simply allows execution of that warrant. See ibid.,
quoting from Fisher, 425 U.S. at 411 ("In those instances when
the government produces evidence to satisfy the 'foregone
8
conclusion' exception, 'no constitutional rights are touched.
The question is not of testimony but of surrender'").
B. Discovery. The petitioner contends that he was
entitled to discovery and to review the documents submitted to
the judge under seal. The petitioner has not been charged with
a crime. No member of the public, including the petitioner, has
any right to access matters occurring before the grand jury
during the preindictment phase of an ongoing criminal
investigation. WBZ-TV4 v. District Attorney for the Suffolk
Dist., 408 Mass. 595, 599-602 (1990).1 Until he is a criminal
defendant, the petitioner is not entitled to discovery of any
grand jury materials or the status of the grand jury
investigation. See Mass.R.Crim.P. 14(a)(1)(A)(ii), as amended,
444 Mass. 1501 (2005). This is so because grand jury
investigations are secret. Mass.R.Crim.P. 5(d), as appearing in
442 Mass. 1505 (2004) (prosecutors required to maintain secrecy
of grand jury proceedings). See generally Opinion of the
Justices, 373 Mass. 915, 918-919 (1977) (reviewing history of
secrecy of grand jury proceedings). In addition, a judge may
examine the Commonwealth's ex parte grand jury submission, and
1
The petitioner argues that the denial of his access to the
grand jury materials was compounded by a remark made by the
Commonwealth at the motion hearing suggesting that he had the
burden to establish that the foregone conclusion exception was
inapplicable. The remark, when read in context, does not
support the petitioner's position.
9
an appellate court will examine that submission as well to
review the accuracy of the judge's determination. See Pixley v.
Commonwealth, 453 Mass. 827, 836-837 (2009) (determination
whether judge erred in finding valid invocation of Fifth
Amendment privilege can be made to appellate court without
disclosure to parties of content of privilege hearing). See
also In re: Sealed Case, 162 F.3d 670, 673 n.3 (D.C. Cir. 1998)
(appellate court reviewed in camera grand jury materials to
determine whether government had established crime-fraud
exception to justify calling attorney to grand jury).
The judge did not abuse her discretion in declining to
release the grand jury materials.
C. Ineffective assistance of counsel. The petitioner next
contends that he was denied the effective assistance of counsel
because he was denied access to the Commonwealth's ex parte
submissions. We disagree. As conceded by the Commonwealth,
G. L. c. 277, § 14A, inserted by St. 1977, c. 770, provides that
"[a]ny person shall have the right to consult with counsel and
to have counsel present at . . . [the] examination before the
grand jury." See Commonwealth v. Griffin, 404 Mass. 372, 373
(1989). However, "[t]he attorney who accompanies a client into
the grand jury room has, by statute, a very limited role." Id.
10
at 375.2 Here, the petitioner neither was charged with a crime
nor testified before the grand jury when invited to do so.
Nevertheless, counsel was appointed on his behalf, and her role
was appropriately limited by the nature of the proceedings.
Even in this limited role, counsel was quite effective, as the
contempt judgment was stayed pending this appeal. In addition,
the judge put parameters and limitations on the Commonwealth as
set forth in the order. There was no ineffective assistance of
counsel.
D. Contempt judgment. Finally, the petitioner's
contention that the judge abused her discretion in adjudicating
him in contempt for failure to comply with the order is
misplaced. "[T]o constitute civil contempt there must be a
clear and undoubted disobedience of a clear and unequivocal
command." Birchall, petitioner, 454 Mass. 837, 851 (2009),
quoting from Manchester v. Department of Envtl. Quality Engr.,
381 Mass. 208, 212 (1980). The petitioner has the "burden of
proving his inability to comply with the court order." Mahoney
v. Commonwealth, 415 Mass. 278, 286 (1993). The petitioner made
no such showing. This burden of production is also not
2
By statute, an attorney can advise her client on
privileges and can consult with her client upon reasonable
request for the opportunity to do so, but is not entitled to
discovery and may not make "objections or arguments or otherwise
address the grand jury or the district attorney." G. L. c. 277,
§ 14A.
11
violative of the prohibition against self-incrimination. Matter
of a Care & Protection Summons, 437 Mass. 224, 237-239 (2002).
The judge did not abuse her discretion in finding the petitioner
in civil contempt or in committing him until he purged the
contempt. See Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125, 129
(1999).
Order dated January 26, 2016,
affirmed.
Judgment dated January 29,
2016, affirmed.