Grand Jury Investigation, In re, 79-1520

• Citation: 600 F.2d 420
• Decision Date: 06 June 1979
• Docket Number: No. 79-1520,79-1520
• Parties: In re GRAND JURY INVESTIGATION. Appeal of Joseph BRAUN, Witness.
• Court: U.S. Court of Appeals — Third Circuit

Page 420

600 F.2d 420

In re GRAND JURY INVESTIGATION Appeal of Joseph BRAUN, Witness.

No. 79-1520.

United States Court of Appeals Third Circuit.

Argued May 3, 1979.

Decided June 6, 1979.

Daniel J. DiGiacomo, Joel Harvey Slomsky (Argued), Philadelphia, Pa., for appellant.

Peter F. Vaira, U. S. Atty., Philadelphia, Pa., Joel M. Friedman, Robert E. Madden, Jerome M. Feit, Sara B. Criscitelli, (Argued), U. S. Dept. of Justice, Washington, D. C., for appellee.

Before ADAMS, GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this appeal we must decide whether appellant's confinement for civil contempt pursuant to 28 U.S.C. § 1826(a) exceeds the period of time permissible under the due process clause, and whether an evidentiary hearing must be held before a decision is made not to terminate his confinement prior to the time set forth in the statute.

I.

A federal grand jury was empanelled on February 28, 1978, in the United States District Court for the Eastern District of Pennsylvania to investigate a number of alleged federal violations, including loansharking, mail fraud, obstruction of justice, and interstate transportation of stolen property. Seeking the cooperation of the appellant, Joseph Braun, who was one of the targets of the investigation, government agents approached Braun at Allenwood prison in May, 1978, where he was incarcerated under a two-year sentence. That sentence, which Braun began serving on January 10, 1978, stemmed from the operation by Braun of a check cashing agency at which embezzled private and government checks had been cashed. ¹ Following the pattern that he had set throughout his own prosecution, Braun declined to cooperate with the government.

In August, 1978, the federal prosecutor obtained a writ of habeas corpus Ad testificandum for the purpose of securing Braun's testimony before the grand jury. Braun was brought to the courthouse, but refused to answer any questions. He was then granted immunity by the district judge, yet persisted in declining to testify. For this refusal he was held in civil contempt of court on September 29, 1978.

Adhering to the time limits specified in 28 U.S.C. § 1826(a), ² the district court ordered that Braun be confined until such time as he was willing to testify before the grand jury, but not longer than the term of that grand jury, including extensions, and in no event in excess of eighteen months. In addition, the district judge directed that the running of time on the two-year sentence that had previously been imposed be suspended for the duration of the confinement under the contempt order. ³

Braun moved on December 22, 1978, to terminate the order of confinement for civil contempt. In his motion, Braun contended that inasmuch as there was no substantial likelihood that he would testify before the grand jury, his continued incarceration no longer bore a reasonable relationship to the purpose for which he was committed namely, to obtain his testimony and therefore it violated due process. That there is no substantial likelihood that he will testify is evident, Braun argued, from his refusal to cooperate with the government over a two and one-half year period because of his fear for his and his family's safety. ⁴ Braun ended his motion with a request for an evidentiary hearing at which he would seek to establish that there is no substantial likelihood that he would be coerced by the contempt order.

The district court, on January 3, 1979, denied Braun's motion without affording him a hearing, and subsequently, on February 26, 1979, dismissed a petition for reconsideration. A notice of appeal was timely filed.

II.

Embedded in Anglo-American law is the inherent power of the judiciary 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 a trial in civil contempt, and then imprisoning him until he complies. ⁵ In contrast to criminal contempt, whose purpose it is to punish acts that are contumacious and disrespectful of the court and thereby to vindicate the authority of the court, civil contempt is primarily coercive in nature, and is designed to benefit a party that has complained to the court about the contemnor's recalcitrance. ⁶

The basis for permitting a court summarily to order coercive imprisonment for recalcitrant individuals without affording them the safeguards of a criminal proceeding ⁷ is that the contemnors hold "the keys of their prison in their own pockets" ⁸ and therefore may purge themselves of civil contempt at any time. This rationale, however, delimits the permissible scope of such a sanction. Since it is impossible to succeed in coercing that which is beyond a person's power to perform, continued incarceration for civil contempt "depends upon the ability of the contemnor to comply with the court's order. Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 411, 92 L.Ed. 476 (1948)." ⁹ Thus, with respect to a witness who is held in civil contempt for refusing to testify before a grand jury, the Supreme Court has declared in Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), that "(w)here the grand jury has been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt. . . . Once the grand jury ceases to function, the rationale for civil contempt vanishes, and the contemnor has to be released." ¹⁰

In recent years a number of courts, when presented with situations involving indeterminate periods of confinement for civil contempt, have spoken of an additional constraint upon the civil contempt power. ¹¹ Because the contemnor's imprisonment is said to be justified as a coercive measure, these courts have declared that when the confinement has lost its coercive force it essentially becomes punitive, and the contemnor must then be released since it is well established that criminal penalties may not be imposed in civil contempt proceedings. ¹² According to these courts, even though the government may still have an interest in obtaining the information requested from a recalcitrant witness and the witness can still purge himself of contempt by testifying, he may no longer be held once it becomes evident that the duress will not succeed in breaking his silence. Typical is the reasoning of the New Jersey Supreme Court in Catena v. Seidl, 65 N.J. 257, 262, 321 A.2d 225, 228 (1974):

It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the court's order. Most commentators agree that in civil contempt proceedings involving an adamant contemnor, continued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment. "Contempt: Civil Contempt Order May Not Include Absolute Sentence," 47 Minn.L.Rev. 907 (1963); "The Coercive Function of Civil Contempt," 33 U.Chi.L.Rev. 120 (1965); See also Goldfarb, The Contempt Power (1963), Colum.Univ.Press.

The legal justification for commitment for civil contempt is to secure compliance. Once it appears that the commitment has lost its coercive power, the legal justification for it ends and further confinement cannot be tolerated.

As indicated by the foregoing passage from Catena, the limitation referred to there was initially conceived as being logically rooted in the theory undergirding civil contempt. Subsequently, however, the Ninth Circuit recognized in Lambert v. State of Montana, 545 F.2d 87 (9th Cir. 1976), that once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt also constitutes a violation of due process. The Lambert tribunal observed that the Supreme Court has had a number of occasions to discuss the due process implications of continued, non-punitive confinement in contexts closely related to civil contempt. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Supreme Court was faced with a mentally deficient deaf mute who, having been determined by physicians to lack sufficient comprehension to be able to stand trial for two robberies, was committed to a state mental institution until such time as he became sane and could stand trial. And, in McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), the Supreme Court reviewed the confinement of a convicted person for an indefinite period, already in excess of the sentence imposed, that was to terminate only when that person submitted to a psychiatric examination to ascertain whether he should be committed to a mental institution as a defective delinquent. The standard enunciated in Jackson and repeated in McNeil is that "(a)t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." ¹³ Accordingly, the court in Lambert reasoned, inasmuch as imprisonment for civil contempt is for the purpose of compelling compliance with a judicial directive, when the confinement has lost its coercive force and consequently no longer bears a reasonable relationship to the purpose for which the contemnor was committed, due process requires that he be released. ¹⁴

Although the due process test is easily formulated, the point at which coercive imprisonment actually ceases to be coercive and essentially becomes punitive is not readily discernible. Obviously, the civil contempt power would be completely eviscerated were a defiant witness able to secure his release merely by boldly asserting that he will never comply with the court's order. What has emerged, therefore, is a practice whereby the contemnor must bear the burden of establishing that there is no "substantial likelihood" that continued...