Grand Jury Spite Warrants Criminal Contempt Conviction

The Tenth Circuit Court of Appeals, like many federal courts, thinks grand jury proceedings are serious, and will not save witnesses who don't share that view from themselves.

In a cautionary tale, the Tenth Circuit upheld a criminal contempt conviction against a witness who appeared before the grand jury, but refused to answer even basic biographical questions.

A grand jury in the District of Utah subpoenaed Jordan Halliday, founder of the Animal Defense League of Salt Lake City, as part of an investigation into attacks on three mink farms. Prosecutors believed Halliday had information relevant to the grand jury's investigation. Halliday, however, denied that he knew anything about the attacks.

At his first appearance before the grand jury, Halliday refused to take the oath, and answered almost every question with "no comment."

Halliday employed a similar strategy during his second grand jury appearance. During a recess, the district court instructed Halliday that he must answer questions unless he had a legally recognizable privilege. When the grand jury reconvened, Halliday pleaded the Fifth to every question, including questions such as where he lived or if he intended to answer any questions.

After each of grand jury appearance, Halliday sent text messages about the proceedings to William Viehl, a target in the grand jury's investigation who was subsequently convicted in connection with two of the mink farm attacks.

After refusing a third time to answer questions, the court jailed Halliday for civil contempt. A separate grand jury later indicted Halliday for criminal contempt, and he pleaded guilty.

The court sentenced Halliday to 10 months under the guidelines after determining that "Obstruction of Justice" was the most analogous offense under the sentencing guidelines. Halliday appealed to the Tenth Circuit Court of Appeals, arguing that the district court should have applied "Failure to Appear by a Material Witness" as the most analogous offense.

The Tenth Circuit found that the district court had not abused its discretion in applying the Obstruction of Justice offense because there was ample evidence to support the district court's finding that Halliday intended to impede the prosecution.

Halliday was in frequent communications with Viehl, who was ultimately convicted in two mink farm attacks, and his post-grand jury text messages to Viehl expressed disdain for the grand jury, efforts to coordinate testimony, and a plan to "resist" the investigation.

If you represent a client who wants to fight the power, warn your client that refusal to answer questions before a grand jury, absent a recognizable privilege, can result in criminal contempt charges. And if your client likes to text about his civil disobedience, tell him to stop.

Related Resources:

• U.S. v. Halliday (Tenth Circuit Court of Appeals)
• What Has it Got in its Pocketses? No Terry Search Guessing Game (FindLaw's Tenth Circuit blog)
• No Reasonable Person Here: Court Refuses to Suppress Evidence (FindLaw's Tenth Circuit blog)