In Re Grand Jury Proceedings. Reinhold Marsoner, Witness-Appellant v. United States

I dissent from the decision affirming the district court’s order finding Reinhold Mar-soner in contempt of court.

The district court ordered Marsoner to sign the disclosure directive authorizing disclosure of information and production of all documents in possession of a bank, including Austrian banks, under threat that noncompliance would result in his incarceration and imposition of a fine. Marsoner refused to sign, and the district court ordered Marsoner incarcerated until he signs the disclosure directive or until the term of the grand jury expires in October 1994.

It is uncontroverted that coerced consent would violate Austrian law. The experts on Austrian law, Bruce Zagaris and Wulf G. Hauser, both expressed the opinion that incarcerating an individual as punishment for refusing to sign a disclosure directive authorizing release of Austrian bank records violates the European Convention on Human Rights (“ECHR”), which is considered constitutional law in Austria. Zagaris deel. ¶ 80; Hauser deck ¶¶41-42. 1 Austria prohibits the use of coercion or threats to obtain a confession or other evidence. Hauser deck *967 ¶42. According to Zagaris and Hauser, an Austrian court is…

I.

Overview

Reinhold Marsoner appeals the district court’s order finding him in contempt for refusing to sign a consent directive as ordered by the district court. The appeal was expedited pursuant to 28 U.S.C. § 1826 (b). On June 3,1994, we entered an order affirming the district court order, with Judge Pre-gerson indicating his dissent. Our order stated that opinions would follow. We now deliver them.

II.

Facts and Procedural History

Marsoner, an Austrian citizen residing in the United States, is the target of an investigation by a federal grand jury, which is investigating possible violations of United States laws stemming from claimed tax liabilities for the years 1989 through 1991. Mar-soner was subpoenaed to appear before the grand jury to sign a disclosure directive. The disclosure directive states that Marsoner authorizes and directs any bank at which Marsoner had a bank or loan account for which Marsoner was, is, or may be the relevant principal, signatory, or beneficiary to disclose all information and produce all documents in its possession to the grand jury or *961 to an attorney or agent of the United States Attorney. The directive also authorizes any bank…

40 F.3d 959 In re GRAND JURY PROCEEDINGS. Reinhold MARSONER, Witness-Appellant, v. UNITED STATES of America, Appellee. No. 94-15781. United States Court of Appeals, Ninth Circuit. Submitted June 1, 1994. Order June 3, 1994. Opinion Nov. 7, 1994. Appeal from United States District Court for the District of Arizona. Stephen E. Silver, Stephen M. Hart, Burch & Cracchiolo, Phoenix, AZ, for witness-appellant. Georgia B. Ellexson, Chief, Appellate Section, Stephen G. Winerip, Asst. U.S. Atty., Phoenix, AZ, for appellee. Before: TANG, PREGERSON, and T.G. NELSON, Circuit Judges. PER CURIAM: I. Overview 1 Reinhold Marsoner appeals the district court's order finding him in contempt for refusing to sign a consent directive as ordered by the district court. The appeal was expedited pursuant to 28 U.S.C. Sec. 1826 (b). On June 3, 1994, we entered an order affirming the district court order, with Judge Pregerson indicating his dissent. Our order stated that opinions would follow. We now deliver them. II. Facts and Procedural History 2 Marsoner, an Austrian citizen residing in the United States, is the target of an investigation by a federal grand jury, which is investigating possible…