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Opinion Doe 22312

Opinion Doe 22312

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Published by Gina Smith

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Published by: Gina Smith on Feb 25, 2012
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FILEDU.S. COURT OF
 
APPEALSELEVENTH CIRCUITFEBRUARY 23, 2012JOHN LEYCLERK 
[PUBLISH]IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT________________________ Nos. 11-12268 & 11-15421 ________________________ D.C. Docket No. 3:11-mc-00041-MCR-CJK In RE: GRAND JURY SUBPOENADUCES TECUM DATED MARCH 25, 2011UNITED STATES OF AMERICA,Plaintiff-Appellee,versusJOHN DOE,Defendant-Appellant._________________________ Appeals from the United States District Courtfor the Northern District of Florida ________________________ (February 23, 2012)
Case: 11-12268 Date Filed: 02/23/2012 Page: 1 of 36
 
Before TJOFLAT, MARTIN and HILL, Circuit Judges.TJOFLAT, Circuit Judge:This is an appeal of a judgment of civil contempt. On April 7, 2011, JohnDoe was served with a subpoena duces tecum requiring him to appear before a Northern District of Florida grand jury and produce the unencrypted contentslocated on the hard drives of Doe’s laptop computers and five external harddrives. Doe informed the United States Attorney for the Northern District of 
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Florida that, when he appeared before the grand jury, he would invoke his FifthAmendment privilege against self-incrimination and refuse to comply with thesubpoena. Because the Government considered Doe’s compliance with the
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subpoena necessary to the public interest, the Attorney General, exercising his
The contents of the drives were encrypted. The subpoena required Doe to decrypt and
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 produce the contents.The Fifth Amendment to the United States Constitution reads:
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 No person shall be held to answer for a capital, or otherwise infamous crime,unless on a presentment or indictment of a Grand Jury, except in cases arising inthe land or naval forces, or in the Militia, when in actual service in time of War or  public danger; nor shall any person be subject for the same offence to be twice putin jeopardy of life or limb; nor shall be compelled in any criminal case to be awitness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without justcompensation.U.S. Const. amend. V.2
Case: 11-12268 Date Filed: 02/23/2012 Page: 2 of 36
 
authority under 18 U.S.C. § 6003, authorized the U.S. Attorney to apply to the
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district court, pursuant to 18 U.S.C. §§ 6002 and 6003, for an order that would
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grant Doe immunity and require him to respond to the subpoena.
18 U.S.C. § 6003 reads:
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(a) In the case of any individual who has been or may be called to testify or  provide other information at any proceeding before or ancillary to a court of theUnited States or a grand jury of the United States, the United States district courtfor the judicial district in which the proceeding is or may be held shall issue, inaccordance with subsection (b) of this section, upon the request of the UnitedStates attorney for such district, an order requiring such individual to givetestimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this title.(b) A United States attorney may, with the approval of the Attorney General, theDeputy Attorney General, the Associate Attorney General, or any designatedAssistant Attorney General or Deputy Assistant Attorney General, request anorder under subsection (a) of this section when in his judgment— (1) the testimony or other information from such individual may benecessary to the public interest; and(2) such individual has refused or is likely to refuse to testify or provideother information on the basis of his privilege against self-incrimination.18 U.S.C. § 6002 states that when a witness refuses, on the basis of his Fifth
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Amendment privilege against self-incrimination, to testify or provide other information before agrand jury and the government grants immunity under this title, thenthe witness may not refuse to comply with the order on the basis of his privilegeagainst self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to complywith the order.3
Case: 11-12268 Date Filed: 02/23/2012 Page: 3 of 36

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