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In re Grand Jury Proceedings

*fn* submitted: June 7, 1994.

IN RE: GRAND JURY PROCEEDINGS; OSCAR B. GOODMAN, WITNESS-APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-94-312-PMP. Philip M. Pro, District Judge, Presiding.

Before: Thomas Tang, Harry Pregerson and Thomas G. Nelson, Circuit Judges.

Author: Per Curiam

Order AND OPINION

Per Curiam:

Oscar B. Goodman appeals the district court's judgment of contempt for his refusal to produce records pertaining to fee information and arrangements for the legal representation of Natale Richichi.*fn1 We have jurisdiction under 28 U.S.C. §§ 1291 and 1826(a). We review the district court's adjudication of civil contempt for abuse of discretion, In re Grand Jury Proceedings (Lahey), 914 F.2d 1372, 1373 (9th Cir. 1990) (per curiam), and we affirm.*fn2

A witness who refuses without just cause to comply with an order of the court to testify or produce documents before the grand jury may be held in civil contempt. 28 U.S.C. § 1826.

Eighth Amendment

Goodman contends that his compliance with the grand jury subpoena would violate his Eighth Amendment right to be free from excessive fines.*fn3 Specifically, Goodman appears to claim that by complying with the grand jury subpoena to produce fee records, he would be forced to reveal the fact that he did not complete Internal Revenue Service Form 8300 as required, thereby subjecting him to substantial fines pursuant to Internal Revenue Service Code § 6050-I.*fn4 This argument fails, however, because by virtue of the March 16, 1994 letter from the Internal Revenue Service (herein "IRS") to Goodman, it is clear that the IRS is already aware that Goodman has failed to complete entirely Form 8300.

Goodman also appears to claim that his compliance with the grand jury subpoena would constitute a waiver of his Eighth Amendment protection in the event that the IRS initiates enforcement proceedings against him. This contention is without merit.

First, the Eighth Amendment is not applicable until there has been a formal adjudication of guilt in accordance with due process of law. See Ingraham v. Wright, 430 U.S. 651, 671-72 n.40, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). Here, Goodman's argument is speculative and premature. It assumes that the IRS will initiate civil enforcement proceedings against him and impose a fine. See id. The time to raise the issue of an Eighth Amendment violation of his right to be free from excessive fines is after the imposition of such a fine. See id.

Second, Fed. R. Crim. P. 6(e) prohibits the disclosure of information obtained during a grand jury investigation for use in civil proceedings in the absence of a court order authorizing such disclosure. Therefore, the IRS would not be automatically entitled to information obtained by the grand jury.

Third, this court has generally found that before a defendant is deemed to have waived a right, the court must be convinced that the waiver was made intentionally and expressly. Adamson v. Ricketts, 789 F.2d 722, 727 (9th Cir. 1986) (citing United States v. Anderson, 514 F.2d 583, 586 (7th Cir. 1975)). Here, even if the Eighth Amendment did apply, it is clear that Goodman has not intentionally nor expressly waived his Eighth Amendment protection, and his compelled production of information before the grand jury would not constitute a waiver. See id.

Accordingly, we find that Goodman's refusal, on the basis of the Eighth Amendment, to produce records or to testify regarding records pertaining to fee arrangements for his representation of Natale Richichi has no bearing on the grand jury's inquiry. The district court's finding is supported by a reasonable ...


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