574 F.2d 78 (2nd Cir. 1978), 352, In re Liberatore

Docket Nº:352, Docket 77-1384.
Citation:574 F.2d 78
Party Name:In re Thomas A. LIBERATORE, Appellant.
Case Date:February 24, 1978
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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574 F.2d 78 (2nd Cir. 1978)

In re Thomas A. LIBERATORE, Appellant.

No. 352, Docket 77-1384.

United States Court of Appeals, Second Circuit

February 24, 1978

Argued Oct. 17, 1977.

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Jon C. Blue, Legal Assistance to Prisoners, Hartford, Conn. (Richard S. Cramer, Asst. Federal Public Defender, Hartford, Conn., on the brief), for appellant.

Hugh W. Cuthbertson, Asst. U. S. Atty., New Haven, Conn. (Richard Blumenthal, U. S. Atty., New Haven, Conn., on the brief), for appellee.

Before WATERMAN, ANDERSON and MANSFIELD, Circuit Judges.

WATERMAN, Circuit Judge:

This is an appeal from an order of the United States District Court for the District of Connecticut, Clarie, C. J., adjudging Thomas A. Liberatore to be in civil contempt of court for his refusal to comply with a court order directing him to provide a grand jury in the District of Connecticut with handwriting exemplars and so-called "major case" prints. The adjudication of contempt of court from which Liberatore appeals contained two operative provisions. The first such provision commanded that Liberatore be held in federal confinement until the expiration of the federal grand jury's term in April of 1978, 1 unless prior to that time the contemnor were to purge himself of his contempt by providing the material requested by the grand jury. Liberatore was serving a Connecticut state sentence of imprisonment at the time of his contempt of the federal court, and the second operative provision required that the state sentence of imprisonment be suspended during the period of his federal confinement. Challenging the order of contempt in its entirety, Liberatore presents three contentions on appeal. Two of these points assail the propriety of the procedures by which Liberatore was adjudged to be in

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civil contempt of the federal court. His first contention is that he was not afforded adequate notice of or opportunity to defend against the charge of civil contempt; the second is that the government failed to demonstrate the relevance and necessity of the prints and handwriting exemplars sought by the grand jury. We conclude that each of these contentions is easily refuted, either on its merits or because it was not presented, as it should have been, to the district court below. However, while we are not persuaded that there is any basis for reversing the district court order which adjudged Liberatore to be in civil contempt of court and mandated his conditional confinement, we do agree with appellant's principal argument on appeal, namely, that the federal district court lacked authority to interrupt the service of the state sentence Liberatore was already serving for his prior convictions on various state charges. Accordingly, we reverse the district court's order insofar as that order purported to mandate the interruption of Liberatore's preexisting state sentence.

The salient facts are simply recited. On September 15, 1976, Liberatore, following his conviction in the Connecticut state courts on charges of six violations of state law, was sentenced to two consecutive one-year sentences. Liberatore began to serve his state sentences immediately and, if during his term in state prison he were to earn the maximum amount of "good conduct time" to which he would be entitled under Connecticut law, the earliest date he could expect to be released from state custody would be January 19, 1978. 2

Meanwhile, on June 14, 1977, when Liberatore was exclusively in state custody at the Connecticut Correctional Institution in Somers, the federal prosecutors in the District of Connecticut obtained a writ of habeas corpus ad testificandum for the purpose of having Liberatore appear on June 29, 1977 before a federal grand jury in the District of Connecticut which was then investigating possible violations of the federal criminal statutes prohibiting forgery and uttering, 18 U.S.C. § 495, and possession of stolen mail, 18 U.S.C. § 1708. Upon appearing before the grand jury, Liberatore was asked to provide handwriting exemplars and "major case fingerprints." Liberatore refused on fifth amendment grounds, and the federal prosecutors thereupon requested and were granted a hearing at which they sought an order from the district court directing Liberatore to provide the handwriting sample and prints.

The hearing was conducted later that same day. In support of its application for an order compelling compliance with the grand jury's request, the government submitted an affidavit of the Assistant United States Attorney in charge of the proceedings before the grand jury and offered the testimony of the grand jury foreman. While persisting in his refusal to supply the materials requested, Liberatore now advanced as a justification for his refusal a ground different from the fifth amendment ground he had earlier asserted before the grand jury. Liberatore now predicated his refusal to provide the exemplars and the prints upon the ground of "lack of necessity," that is, that there was no need for him to provide the materials requested inasmuch as each type of evidence was supposedly already on file elsewhere in some law enforcement records to which the federal government had ready access. The government responded that the prints and the handwriting sample were, in fact, necessary. More particularly, the federal prosecutor argued that the accuracy of handwriting analysis is substantially enhanced by having the handwriting written on a standard analysis form and, although the federal prosecutor did not dispute that the government may well have had access to samples of Liberatore's handwriting, the government did not at that point have available to it Liberatore's handwriting on

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a standard government handwriting analysis form. As to the need for the major case prints, the government stated it needed these because it did not have available to it any of Liberatore's prints which depicted not only the tips of Liberatore's fingers but the print of the lobe of his thumb and of his palm as well.

Satisfied with the government's presentation, the district court orally granted the government's motion for an order compelling Liberatore to provide the handwriting sample and the prints. After ascertaining that Liberatore had been fully and accurately advised by his counsel concerning the consequences of his refusal to comply with a court order compelling production of the materials the grand jury was seeking and after assiduously warning Liberatore that, were he to persist in his contumacious conduct, he would be held in civil contempt of court, would be incarcerated until he decided to comply with the court's order compelling him to provide the materials or until the expiration of the grand jury's term, whichever occurred first, and would have the running of the state sentence he was then serving tolled while he remained in federal confinement for civil contempt, Judge Clarie offered Liberatore one final opportunity to agree to cooperate. Notwithstanding the consequences which had been carefully explained to him by his attorney and the judge, Liberatore reasserted his absolute refusal to comply with the court order compelling production. Thereupon the judge, as he had indicated he would, held Liberatore in contempt. The substance of this oral ruling was incorporated into a written order Judge Clarie issued later that afternoon. It directed that Liberatore be held in federal custody 3 until the expiration of the grand jury's term in April of 1978, unless prior to that time the contemnor decided to supply the prints and the handwriting sample which had been requested by the grand jury. At this point the court's written order directing confinement did not, however, direct that the running of Liberatore's preexisting state sentence be suspended during the period of his federal confinement. At no point either before or at the time the order adjudging him in contempt of court was issued did Liberatore raise any objection that he had not been afforded adequate notice of or opportunity to defend against the charge of civil contempt.

Approximately one month later, on July 29, 1977, Liberatore filed a memorandum with the court, raising for the first time the argument that he had not been given sufficient notice of the contempt charge or ample opportunity to prepare a defense to it. Liberatore also contended in this memorandum that the district court ought not direct that the service of his state sentence be interrupted during the period of his confinement for civil contempt of the federal district court. The district court rejected Liberatore's entreaties and, by virtue of a "substitute order" entered on August 2, 1977, formalized its previously expressed intention that the running of Liberatore's state sentence be suspended while he remained in federal confinement.

Liberatore presently remains confined at the Connecticut Correctional Institution in Somers, the facility at which he was serving his preexisting state sentence and to which he was committed pursuant to Judge Clarie's order of confinement.

I

Liberatore's arguments directed to the validity of the contempt order as a whole need not detain us long. First, inasmuch as the point was not properly preserved before the district court, we need not, and do not, reach the merits of Liberatore's argument that he did not receive adequate notice of the application for contempt to allow him to prepare a defense to it. We have reviewed the transcript of the hearing held to consider the government's joint applications for orders compelling compliance with the grand jury's demands and adjudging Liberatore in contempt, and we find that, in the words of Liberatore's

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own counsel, Liberatore's "only objection, for the record" was that, inasmuch as the material was available to the government...

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