In Re Grand Jury Proceedings. United States of Am. v. James Owen Mallory, 797 F.2d 906 (10th Cir. 1986). · Go Syfert
In Re Grand Jury Proceedings. United States of Am. v. James Owen Mallory, 797 F.2d 906 (10th Cir. 1986). Cases Citing This Book View Copy Cite
15 citation events (1 in the last 25 years) across 7 distinct courts.
Strongest positive: Wells Fargo Equipment Finance, Inc. v. Virk Systems, Inc. (caed, 2022-02-01)
Top citers, strongest first. 13 distinct citers. How cited ↗
discussed Cited as authority (rule) Wells Fargo Equipment Finance, Inc. v. Virk Systems, Inc.
E.D. Cal. · 2022 · confidence medium
See F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (“We review 23 a district court’s civil contempt order for an abuse of discretion.”); In re Grand Jury Proceedings, 24 797 F.2d 906, 907 (10th Cir. 1986) (decision left “to the reasonable discretion of the trial court”). 25 In this regard, if plaintiff wishes to pursue defendants’ arrest as a civil contempt sanction 26 it must do so by way of a motion making the appropriate showing.
cited Cited as authority (rule) National Commodity and Barter Ass'n v. United States
10th Cir. · 1992 · confidence medium
In re Grand Jury Proceedings (Mallory), 797 F.2d 906, 907 (10th Cir.1986).
cited Cited as authority (rule) State of Kansas v. Mark Call, Glenda Waggoner, and Mike Burch, Otto Privette Robert Benton, Movants-Appellees
10th Cir. · 1992 · confidence medium
In re Grand Jury Proceedings, 797 F.2d 906, 907 (10th Cir.1986); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 226 (10th Cir.1979). 4 II.
cited Cited as authority (rule) In Re Grand Jury Proceedings. Michael C. Lahey, Witness-Appellant v. United States
9th Cir. · 1990 · confidence medium
In re Grand Jury Proceedings (Mallory), 797 F.2d 906, 907 (10th Cir.1986).
cited Cited as authority (rule) United States v. Walter George Strickland, Jr.
6th Cir. · 1990 · confidence medium
In re Grand Jury Proceedings, 797 F.2d 906, 907-908 (10th Cir.1986) (citing cases).
cited Cited as authority (rule) Jimmy Ray Coffelt v. United States
6th Cir. · 1988 · confidence medium
In re Grand Jury Proceedings (Mallory), 797 F.2d 906, 907 (10th Cir.1986).
cited Cited as authority (rule) In Re Grand Jury Proceedings. John Doe, M.D. And Steve Roe, Witnesses-Appellants v. United States
9th Cir. · 1986 · confidence medium
In re Grand Jury Proceedings, 797 F.2d 906, 907 (10th Cir.1986).
discussed Cited "see" In Re Grand Jury Subpoena for Attorney Representing Criminal Jose Evaristo Reyes-Requena, John Doe, Intervenor-Appellant. In Re Grand Jury Subpoena for Mike Deguerin Mike Deguerin, and John Doe, Intervenor-Appellant. In Re Grand Jury Subpoena for Attorney Representing Criminal Jose Evaristo Reyes-Requena, United States of America
5th Cir. · 1991 · signal: see · confidence high
See In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir.1986) Section 1826, by providing that a court "may" find a recalcitrant witness in contempt, leaves to the reasonable discretion of the trial court the grant of the denial of a contempt motion.
cited Cited "see" In re Grand Jury Subpoena for Attorney Representing Criminal Reyes-Requena
5th Cir. · 1991 · signal: see · confidence high
See In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir.1986).
discussed Cited "see, e.g." United States v. Doe
1st Cir. · 1994 · signal: compare · confidence low
Compare In re Grand Jury Proceedings (Mallory), _______ ______________________________________ 797 F.2d 906 (10th Cir. 1986) (affirming denial of contempt petition where witness was thought to be in real danger due to breach of grand jury secrecy). -9- 1170 (7th Cir. 1990) ("overwhelming sense of immediate danger").
discussed Cited "see, e.g." United States v. Doe
1st Cir. · 1994 · signal: compare · confidence low
Compare In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir. 1986) (affirming denial of contempt petition where witness was thought to be in real danger due to breach of grand jury secrecy). -9- 1170 (7th Cir. 1990) ("overwhelming sense of immediate danger").
discussed Cited "see, e.g." In Re Grand Jury Proceeding. United States v. John Doe
1st Cir. · 1994 · signal: compare · confidence low
Compare In re Grand Jury Proceedings (Mallory), 797 F.2d 906 (10th Cir.1986) (affirming denial of contempt petition where witness was thought to be in real danger due to breach of grand jury secrecy). 4 .
cited Cited "see, e.g." Universal Motor Oils Co., Inc. v. Amoco Oil Co.
D. Kan. · 1990 · signal: see also · confidence medium
V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 226 (10th Cir.1979); see also In re Grand Jury Proceedings, 797 F.2d 906, 907 (10th Cir.1986); United States v. Riewe, 676 F.2d at 420 . 3.
Retrieving the full opinion text from the archive…
In Re GRAND JURY PROCEEDINGS. UNITED STATES of America, Appellant,
v.
James Owen MALLORY, Appellee
85-1494.
Court of Appeals for the Tenth Circuit.
Jul 30, 1986.
797 F.2d 906
William S. Price, U.S. Atty., and Karla McAlister, Asst. U.S. Atty., Oklahoma City, Okl., for appellant, U.S., Frank R. Courbois and Fred L. Staggs, Oklahoma City, Okl., for appellee, James Owen Mallory.
Holloway, Moore, Theis.
Cited by 13 opinions  |  Published
THEIS, District Judge.

Appellee, James Owen Mallory, is a prisoner serving a fifteen-year sentence for conspiracy to distribute cocaine and distribution of cocaine. On February 20, 1985, Mallory appeared before the Honorable Luther B. Eubanks, Chief United States District Judge for the Western District of Oklahoma, upon the Government’s application to grant him immunity and compel him to testify regarding upper-level narcotic suppliers. At the immunity hearing, counsel for the Government argued that Mallory was the only one who could provide information about the drug suppliers.

During the course of the immunity hearing, Judge Eubanks observed a newspaper reporter from the Daily Oklahoman, Judy Fossett, at the courtroom door. Fossett had been monitoring the grand jury proceedings, and Judge Eubanks noted that Fossett probably already knew the reason for the hearing. The judge commented on the record that Mallory would be in danger if his grand jury appearance was reported in the paper.

On February 21,1985, Mallory refused to answer grand jury questions which he claimed were the product of an illegal wiretap. The Government filed a motion for contempt of court. At an in camera hearing on March 4, 1985, Judge Eubanks denied the Government’s motion for contempt on the basis of danger to Mallory from news coverage of the proceedings. The United States appeals the trial court’s denial of its contempt motion.

The Government first raises the issue of the wire tap’s validity. This Court does not need to reach the question of whether the wire tap was valid, since the Court concludes that the trial court properly denied the contempt motion for other reasons.

The language of 28 U.S.C. § 1826 permits a court to order the incarceration of a witness who refuses to obey a court order to testify, unless “just cause” is shown. Section 1826, by providing that a court “may” find a recalcitrant witness in contempt, leaves to the reasonable discretion of the trial court the grant or denial of a contempt motion. Thus, in reviewing the trial court’s finding in a contempt case, this Court is “limited to determining whether the ruling of the district court amounts to an abuse of discretion.” V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 226 (10th Cir.1979).

Mallory suggests that the trial court properly denied the contempt motion since the secrecy of the grand jury proceedings had been broken by the newspaper reporter’s presence. The Government cites the competing proposition that fear of reprisal cannot excuse a witness from testifying before a grand jury. The two concerns are not irreconcilable.

“[T]he proper functioning of our grand jury system depends upon the secrecy of the proceedings.” Douglas Oil Co. v. Petroleum Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667, 1672, 60 L.Ed.2d 156 (1979). Since one of the reasons underlying the policy of secrecy is to encourage full disclosure by witnesses without fear of retaliation, it follows that a witness may object to the presence of unauthorized persons during his grand jury testimony. United States v. Di Girlomo, 393 F.Supp. 997, 1000 (W.D.Mo.), aff'd. 520 F.2d 372 (8th Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975); see also, United States v. Tager, 638 F.2d 167 (10th Cir.1980). While a speculative fear of dan[*908] ger or reprisals is not a defense to contempt, Martin-Trigona v. Gouletas, 634 F.2d 354, 360 (7th Cir.1980); In Re Grand Jury Proceedings (Gravel), 605 F.2d 750, 752-53 (5th Cir.1979), an actual showing that the secrecy of the grand jury proceedings has been impaired may constitute “just cause” for a refusal to testify and a defense to a contempt action. See, e.g., In Re Grand Jury Investigation, 424 F.Supp. 802, 805 (E.D.Pa.1976), appeal dismissed, 576 F.2d 1071 (3d Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 343 (1978); United States v. Di Girlomo, 393 F.Supp. at 1000.

In the present case, the trial judge properly exercised his discretion in denying the Government’s motion for contempt because he believed Mallory to be in actual danger since the secrecy of the grand jury proceedings had been undermined by the newspaper reporter’s presence and knowledge. Moreover, Judge Eubanks stated that Mallory could be re-subpoenaed before a grand jury for which secrecy had been preserved. This Court finds no abuse of discretion in the district court’s denial of the Government’s motion for contempt.

Since the Court finds no reversible error, the judgment of the lower court is AFFIRMED.