FILED

NOT FOR PUBLICATION OCT 19 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: GRAND JURY TESTIMONY. No. 12-35774

D.C. No. 12-GJ-00149

MATTHEW DURAN,

Witness - Appellant, MEMORANDUM*

v.

UNITED STATES OF AMERICA,

Appellee.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted October 15, 2012**

Before: WARDLAW, CLIFTON, and BYBEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Matthew D. Duran appeals the district court’s September 13, 2012 order

holding him in civil contempt and ordering confinement under 28 U.S.C. § 1826.

We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 1826(b),

and we affirm.

We review the district court’s denial of the motion to quash a grand jury

subpoena for abuse of discretion. See In re Grand Jury Subpoena (Mark Torf/Torf

Envtl. Mgmt.), 357 F.3d 900, 906 (9th Cir. 2004). We also review the district

court’s finding of contempt for abuse of discretion. See In re Grand Jury

Proceedings (Lahey), 914 F.2d 1372, 1373 (9th Cir.1990) (per curiam). We

review the district court’s factual findings for clear error. See In re M.H., 648 F.3d

1067, 1070-71 (9th Cir. 2011). We review mixed questions of law and fact de

novo. See id.

A federal grand jury subpoenaed Duran to testify in a criminal investigation,

but Duran refused to provide answers to any of the grand jury’s questions. The

district court refused to quash the subpoena, held Duran in civil contempt, and

ordered him confined. Duran contends that the district court’s order impermissibly

violated his First Amendment right to association, and that the district court abused

its discretion when it held him in civil contempt. Duran argues that to compel his

testimony the Government must meet the standard set forth in Bursey v. United

2 12-35774 States, 466 F.2d 1059 (9th Cir. 1972), because the subpoena “collides” with his

First Amendment rights.

We conclude, however, that the Bursey analysis is not implicated by this

appeal. Mr. Duran has failed to show that his First Amendment right to association

has been infringed upon. In the alternative, even if Duran’s rights were implicated,

we held in In re Grand Jury Proceedings (Scarce), 5 F.3d 397 (9th Cir. 1993), that

a First Amendment privilege applies only in limited circumstances, namely when

“the questions were posed in bad faith, [when the questions] had a tenuous

relationship to the subject of the investigation, [when] law enforcement did not

have a legitimate need for the information, or [when the questions] were posed as a

means of harassment.” Id. at 400. None of those conditions apply here. The grand

jury is seeking the identity of those persons who vandalized the Nakamura

Courthouse on May 1, 2012. This information does not implicate Duran’s First

Amendment right to association. Accordingly, the district court did not abuse its

discretion in denying the motion to quash Duran’s grand jury subpoena or in

holding Duran in civil contempt for his refusal to testify before the grand jury

pursuant to that subpoena. See Mark Torf, 357 F.3d at 906.

The district court’s order finding Duran in civil contempt of court and

ordering his confinement is therefore affirmed.

3 12-35774 Duran is entitled to proceed in forma pauperis on this appeal because the

district court appointed counsel to represent Duran under the Criminal Justice Act.

The Clerk shall amend the docket to reflect this status. The opening, answering,

and reply briefs, received on October 1, October 9, and October 12, 2012,

respectively, are deemed filed.

AFFIRMED.

4 12-35774