Crededio, Matter of, 85-1274

• Decision Date: 03 April 1985
• Docket Number: No. 85-1274,85-1274
• Citation: 759 F.2d 589
• Parties: In the Matter of John CREDEDIO, a witness before the Special December, 1983 Grand Jury.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 589

759 F.2d 589

In the Matter of John CREDEDIO, a witness before the Special December, 1983 Grand Jury.

No. 85-1274.

United States Court of Appeals, Seventh Circuit.

Argued March 19, 1985.

Decided April 3, 1985.

Melbourne A. Noel, Jr., Laser, Schostok, Kolman & Frank, Chicago, Ill., for plaintiff.

Charles B. Sklarsky and Robert W. Tarun, Asst. U.S. Attys., Chicago, Ill., for defendant.

Before CUMMINGS, Chief Judge, and BAUER and POSNER, Circuit Judges.

BAUER, Circuit Judge.

John Crededio appeals the January 21, 1985 order of the District Court for the Northern District of Illinois refusing to terminate his commitment for civil contempt. Crededio was subpoenaed to testify before the Special December 1983 Grand Jury but invoked his fifth amendment right against self-incrimination. Although the court granted Crededio immunity, Crededio still refused to testify and, by minute order dated June 14, 1984 was remanded to the custody of the Attorney General "until he obeys the order to appear and testify, or for the life of the Grand Jury, whichever occurs first." (R. at 6).

Crededio moved on December 14, 1984 to terminate the district court's order of confinement for civil contempt on the grounds that (1) breaches of grand jury secrecy jeopardized his safety; (2) inasmuch as Crededio had decided that he would not testify before the grand jury, his incarceration was no longer coercive, but punitive and (3) the investigation for which Crededio was subpoenaed had ceased and, accordingly, his testimony is no longer needed. In support of his motion for release, Crededio attached an eight-page affidavit and asserted that it would be morally wrong for him to testify "at the expense of hurting a third party to whom he was related." (Petition of Crededio, para. 4). In response to Crededio's motion, the district court held two hearings, at which Crededio was present and spoke, and ordered the government to produce for in camera examination documentation of the ongoing criminal investigation and Crededio's importance to it. By memorandum and order dated January 21, 1985, Judge McGarr denied Crededio's motion for release, stating:

It is the finding of the court, therefore, that Mr. Crededio's continued incarceration, forming as it does the basis for a compulsion upon him to testify and contribute information to an ongoing investigation, is sanctioned by law.

(R. at 9, p. 2). Crededio appeals. We affirm.

Our analysis commences with the proposition that the judiciary possesses the inherent power "to coerce obedience to its orders by summarily holding a recalcitrant person--such as an immunized witness who refuses to testify at a grand jury proceeding or at trial--in civil contempt and then imprisoning him until he complies." In re Grand Jury Investigation (Braun), 600 F.2d 420, 422 (3d Cir.1979) (footnote omitted). Unlike criminal contempt, the purpose of which is to punish contumacious acts and vindicate the court's authority, civil contempt is primarily coercive in nature. United States of America ex rel. Thom v. Jenkins, 760 F.2d 736, 738 (7th Cir. 1985) (citing McNeil v. Director, Patuxent Institution, 407 U.S. 245, 251, 92 S.Ct. 2083, 2087, 32 L.Ed.2d 719 (1972)); Simkin v. United States, 715 F.2d 34, 36-37 (2d Cir.1983); In re Grand Jury Investigation, 600 F.2d at 422. The rationale underlying civil contempt is simply that contemnors hold "the key of their prison in their own pocket." Braun, 600 F.2d at 423 (citing In re Nevitt, 117 F. 448, 461 (8th Cir.1902)).

Where incarceration for civil contempt, however, ceases to be coercive and becomes punitive, "due process considerations oblige a court to release a contemnor from civil contempt ...." Simkin, 715 F.2d at 37; Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981); Braun, 600 F.2d at 423-24; Lambert v. State of Montana 545 F.2d 87, 89-91 (9th Cir.1976). Because no "bright line" may be drawn between civil and criminal contempt, i.e., "civil contempt may have an incidental punitive effect and, likewise criminal contempt may result in an incidental benefit to the complainant," Braun, 600 F.2d at 423 n. 6 (citing Gompers v. Buck Stove & Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)), the determination whether a civil contempt sanction has lost its coercive effect rests within the sound discretion of the district court. Thom, at 738; Simkin, 715 F.2d at 37; Soobzokov, 642 F.2d at 31; Braun, 600 F.2d at 425-27. "[I]n the absence of unusual circumstances, a reviewing court should be reluctant to conclude, as a matter of due process, that a civil contempt sanction has lost its coercive impact at some point prior to the eighteen-month period prescribed as a maximum by Congress [in 28 U.S.C. Sec. 1826]." ¹ Simkin, 715 F.2d at 37 (citing Braun at 428). The district court's conclusion in this regard is "virtually unreviewable." 715 F.2d at 38.

Turning now to Crededio's arguments, Crededio relies upon two recent Second Circuit cases, Sanchez v. United States, 725 F.2d 29 (2d Cir.1984) and Simkin v. United States, 715 F.2d 34 (2d Cir.1983), for the proposition that the district judge evaluating a motion for release from civil contempt incarceration must make an "individualized decision" based upon "a conscientious assessment of the relevant factors" as to whether incarceration has lost its coercive effect and has become punitive. Simkin, 715 F.2d at 37 n. 1, 39. Crededio contends that the district court ignored the standards enunciated in Sanchez and Simkin and denied his motion for release without any consideration of his affidavit explaining his moral beliefs and without consideration of other relevant circumstances, such as the effect of his incarceration upon his family and business. Crededio argues that this Court must remand the case to the district court for a detailed evidentiary hearing into the reasons for Crededio's refusal to testify.

In Simkin v. United States, 715 F.2d 34 (2d Cir.1983), the contemnor sought his release on four occasions during a period of eight months, each time asserting that he would not testify because of fear for himself and his family and for religious reasons. The district judge denied Simkin's motion for release, stating, inter alia, that "[c]ivil contempt says that if he is never going to talk then he has to suffer the consequences." 715 F.2d at 39. In remanding the case to the district court for further consideration, the Second Circuit held that the district court had failed to make an individualized determination whether "continued confinement of [Simkin] retains any realistic possibility of achieving its intended purpose." 715 F.2d at 39. The Second Circuit explained:

The judge need not, of course, accept as conclusive a contemnor's avowed intention never to testify. United States v. Dien, supra, 598 F.2d at 745. Even if the judge concludes that it is the contemnor's present intention never to testify, that conclusion does not preclude the possibility that continued confinement will cause the witness to change his mind. Id. What is required of the judge is a conscientious effort to determine whether there remains a realistic possibility that continued confinement might cause the contemnor to testify. The burden is properly placed on the contemnor to demonstrate that no such realistic possibility exists. As long as the judge is satisfied that the coercive sanction might yet produce its intended result, the confinement may continue. But if the judge is persuaded, after a conscientious consideration of the circumstances pertinent to the individual contemnor, that the contempt power has cased to have a coercive effect, the civil contempt remedy should be ended.

715 F.2d at 37.

In Sanchez v. United States, 725 F.2d 29 (2d Cir.1984), the Second Circuit digressed further upon the standards enunciated in Simkin. In this case, Sanchez moved for release on the grounds that incarceration was no longer coercive and had, in fact, become punitive. Sanchez had been incarcerated for a year and had commenced a hunger strike. The district court summarily rejected Sanchez's motion for release finding that Sanchez failed to demonstrate "unusual circumstances" which justified releasing him prior to the eighteen-month period set forth by Congress in 28 U.S.C. Sec. 1826 and that Sanchez had failed to show "a realistic possibility" that continued confinement would not coerce him to testify. The Second Circuit remanded the case to the district court, stating that the eighteen-month period in Sec. 1826 was the maximum period which could be found to be coercive; the district court retains nonetheless a "broad discretion ... to determine that a civil contempt sanction has lost its coercive effect ...." 725 F.2d at 31, citing Simkin at 37. The Second Circuit reiterated that "[t]he issue is whether the contemnor has persuaded the district judge that there is no realistic possibility that continued confinement might cause the contemnor to testify." Id. at n. 2.

Applying the standards of Simkin and Sanchez to the facts of the present case, we conclude that the district court made a "conscientious assessment of the relevant factors" and an individualized determination that Crededio's incarceration had not lost its coercive effect. Unlike Simkin, where the district court denied the contemnor's motion after consideration of his affidavit, 715 F.2d at 38 n. 2, or Sanchez, where the court heard argument by contemnor's attorney and considered his affidavit, 725 F.2d at 30, here the district court considered Crededio's motion and supporting affidavit and held two hearings. Crededio was present at both hearings and permitted to explain to the Court why he would not testify. The district court ordered the government to submit documentation in camera to support its claim that the investigation for which Crededio had been subpoenaed was still continuing. At the close of the second hearing, the district court invited Crededio to...