Ochoa v. U.S.

• Decision Date: 22 May 1987
• Docket Number: D,No. 717,717
• Parties: Eduardo OCHOA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 86-2357.
• Court: U.S. Court of Appeals — Second Circuit

Page 366

819 F.2d 366

Eduardo OCHOA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 717, Docket 86-2357.

United States Court of Appeals Second Circuit.

Argued Jan. 21, 1987.

Decided May 22, 1987.

Diarmuid White, New York City (Richard Ware Levitt, New York City, on the brief), for petitioner-appellant.

Stephen F. Markstein, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for S.D. of New York, Nancy Kilson, Asst. U.S. Atty., New York City, on the brief), for respondent-appellee.

Before KAUFMAN, KEARSE and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Eduardo Ochoa, a federal prisoner incarcerated upon a conviction of criminal contempt for refusing to testify before a grand jury, appeals from a judgment of the United States District Court for the Southern District of New York, John M. Cannella, Judge, denying his petition for a writ of habeas corpus. To the extent pertinent to this appeal, the petition challenged Ochoa's continued incarceration on the grounds that the United States Parole Commission ("Parole Commission" or "Commission") (1) improperly failed to grant him credit pursuant to 18 U.S.C. Sec. 3568 (1982) (repealed effective Nov. 1, 1987, Pub.L. 98-473, tit. II, Secs. 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended, and reenacted in part as 18 U.S.C. Sec. 3585 effective Nov. 1, 1987, by the same legislation) for the time he had spent in jail in civil contempt in connection with the same refusal to testify, and (2) violated his rights under Fed.R.Crim.P. 32(c)(3)(D) and the Constitution by deciding his release date on the basis of hearsay statements in his presentence report that were not relied on by the district court in imposing sentence. Finding no merit in these contentions, we affirm.

I. BACKGROUND

The procedural events are not in dispute. On October 12, 1982, Ochoa was ordered, under a grant of immunity, to answer questions posed by a grand jury investigating a series of crimes attributed to "Omega 7," an alleged terrorist group of anti-Castro Cuban exiles. When he refused, he was held in civil contempt pursuant to 28 U.S.C. Sec. 1826 (1982). After maintaining his refusal for 17 months and, as a result, remaining incarcerated for that period, Ochoa was indicted for criminal contempt under 18 U.S.C. Sec. 401 (1982) for his October 12, 1982 refusal to testify. He was convicted in May 1984, following a bench trial.

The presentence report on Ochoa included statements attributed to one Eduardo Arocena (the "Arocena hearsay"), linking Ochoa to terrorist activities. Prior to sentencing, Ochoa disputed certain parts of the report, including the Arocena hearsay, and the sentencing court expressly declined to consider the disputed parts in imposing sentence. The district court sentenced Ochoa to six years' imprisonment.

On appeal from the judgment of conviction, Ochoa challenged the length of his sentence as excessive, and this Court, in light of our then-recent decision in United States v. Gracia, 755 F.2d 984 (2d Cir.1985), reduced his sentence to four years' imprisonment. In addition, Ochoa argued, inter alia, that the disputed parts of the presentence report should be stricken or corrected. We rejected that contention, stating as follows:

The district judge specifically noted Ochoa's challenge to portions of the report, and stated on the record that he would not consider those portions in fixing Ochoa's sentence. Joint Appendix at 454-56. That is all he was required to do. United States v. Charmer Industries, 711 F.2d 1164, 1172 n. 8 (2d Cir.1983); Rosati v. Haran, 459 F.Supp. 1148, 1160 (E.D.N.Y.1977). Ochoa has suffered no present harm resulting from the allegedly inaccurate information; as to the future, his rights are protected by the due process safeguards built into the Parole Commission and Reorganization Act of 1976, 18 U.S.C. Secs. 4201-4218. These, inter alia, require written notice of and a particularized statement of reasons for adverse determinations; specify the information that the Commission must consider; and afford the applicant the opportunity to appear and testify on his own behalf at the hearing.

United States v. Ochoa, 760 F.2d 254 (2nd Cir.1985).

In March 1985, the Parole Commission held a hearing with respect to the calculation of Ochoa's presumptive date of release from prison. Following that hearing, the Commission elected to credit the Arocena hearsay in calculating Ochoa's offense severity rating. In light of the offense severity score thus awarded, the Commission ruled that Ochoa should remain incarcerated until the expiration of his four-year sentence, less statutory good time.

After this determination had been made, two provisions of law pertinent to this appeal had potential relevance to the calculation of Ochoa's precise release date. First, 18 U.S.C. Sec. 3568 provided that a prisoner was to receive "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." 18 U.S.C. Sec. 3568. Second, a Commission regulation provided that "[t]ime spent serving only a civil contempt sentence is not considered jail time under 18 U.S.C. Sec. 3568." 28 C.F.R. Sec. 522.11(g) (1986). In calculating Ochoa's release date, however, the Commission did not apply the regulation, for it apparently was unaware that Ochoa's prior 17-month confinement was for civil contempt rather than pretrial detention on the criminal contempt charge. Thus, it credited Ochoa with those 17 months and set his release date for January 1986.

Accordingly, in January 1986, Ochoa was "mandatorily released" pursuant to statutes governing good time allowances. He was rearrested four months later, after it was discovered that he had inadvertently been granted credit for time spent in civil contempt.

Upon his rearrest, Ochoa commenced the present proceeding, contending that he was entitled to remain free on the grounds (1) that Sec. 3568, as well as notions of estoppel and due process, required that he receive credit toward his criminal contempt sentence for the time he had spent in civil contempt; and (2) that the Parole Commission could not properly use the Arocena hearsay when the sentencing court had declined to rely on those statements. The district court rejected these contentions, and this appeal followed.

II. DISCUSSION

On appeal, Ochoa argues that he is entitled to release because (1) Sec. 3568 entitled him to 17 months of jail time credit, and (2) the Commission's consideration of the Arocena hearsay violated his rights under Fed.R.Crim.P. 32(c)(3)(D) and the Due Process Clause of the Fifth Amendment. We find all of his contentions to be without merit.

A. The Claim for Credit for Time Spent in Civil Contempt

Section 3568 provides, in pertinent part, as follows:

Sec. 3568. Effective date of sentence; credit for time in custody prior to the imposition of sentence

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed....

18 U.S.C. Sec. 3568 (1982) (repealed effective Nov. 1, 1987, Pub.L. 98-473, tit. II, Secs. 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended, and reenacted in part as 18 U.S.C. Sec. 3585 effective Nov. 1, 1987, by the same legislation). Ochoa contends that since both his civil contempt and his conviction of criminal contempt were based on his refusal to answer questions before the grand jury, his criminal contempt conviction was based on the same underlying "acts" for which he had previously been held in civil contempt, and that Sec. 3568 thus entitles him to credit for the period of his civil contempt confinement. We reject this contention because it attributes to "acts" a meaning that is analytically inconsistent with the character and traditional treatment of confinement for civil contempt, is unjustified by its context and the legislative history of the section, and would deprive the civil contempt sanction of much of its efficacy.

It is, of course, well established that a court may impose both civil and criminal sanctions in connection with the same contumacious behavior. See, e.g., Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 133, 2 L.Ed.2d 95 (1957); United States v. United Mine Workers, 330 U.S. 258, 299, 67 S.Ct. 677, 698, 91 L.Ed. 884 (1947). When the conduct is of a continuing nature and the contemnor has the power to terminate it, the court may hold the contemnor in civil contempt and impose a sanction that is designed to coerce him to comply with the court's order. E.g., Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Badgley v. Santacroce, 800 F.2d 33, 36 (2d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). The sanction generally takes the form of a jail term or a monetary fine, but it is not intended to be punitive, and the judgment will normally provide that the imprisonment or fine is to end as soon as the contemnor ceases his contumacious behavior. See, e.g., Shillitani v. United States, 384 U.S. at 368, 86 S.Ct. at 1534; Gompers v. Bucks Stove & Range Co., supra, 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911); In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979); 28 U.S.C. Sec. 1826(a) (allowing summary confinement of recalcitrant witness "until such time as the witness is willing to give" the required testimony or information). Thus, civil contemnors "are imprisoned only until they comply with the orders of the court.... They carry the keys of their prison in their own pockets." In re Nevitt, 117 F. 448, 461 (...