Parrish, Matter of, 574

• Decision Date: 21 January 1986
• Docket Number: D,No. 574,574
• Parties: In the Matter of Milton PARRISH. UNITED STATES of America, Appellant, v. Milton PARRISH, Appellee. ocket 85-1321.
• Court: U.S. Court of Appeals — Second Circuit

Page 325

782 F.2d 325

In the Matter of Milton PARRISH.

UNITED STATES of America, Appellant, v. Milton PARRISH, Appellee.

No. 574, Docket 85-1321.

United States Court of Appeals, Second Circuit.

Argued Dec. 10, 1985.

Decided Jan. 21, 1986.

Warren Neil Eggleston, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., New York City, on the brief), for appellant.

Noah A. Kinigstein, New York City, for appellee.

(Linda Backiel and Margaret Ratner, New York, N.Y., submitted a brief on behalf of the Center for Constitutional Rights as amicus curiae.)

Before VAN GRAAFEILAND, NEWMAN, and MINER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This is an appeal by the United States from an order of the District Court for the Southern District of New York (Whitman Knapp, Judge) discharging Milton Parrish, a recalcitrant grand jury witness, from confinement for civil contempt. Judge Knapp concluded that, after incarceration for seven months, there was no " 'realistic possibility that continued confinement might cause [Parrish] to testify.' " In re Parish, 613 F.Supp. 356, (S.D.N.Y.1985), (quoting Simkin v. United States, 715 F.2d 34, 37 (2d Cir.1983)). On appeal the Government makes a general challenge to Simkin and related decisions and specifically contends that this case should be remanded with directions that the District Court reconsider the issue of Parrish's release in light of what the Government claims is a "strong presumption that any period of incarceration up to 18 months is coercive, not punitive." Brief for Appellant at 9. We conclude that no such presumption exists and that Judge Knapp correctly applied the pertinent standard. We therefore affirm.

The Government's contact with Parrish began on October 18, 1984, at 12:10 a.m. when agents of the Joint Terrorist Task Force executed a search warrant at his apartment in New York City. Parrish was awakened, handcuffed, and told that he was under arrest. The agents were investigating a criminal enterprise allegedly involving armed robberies and prison escapes. One of the participants was alleged to be Coltrane Chimurenga. During a four-hour search of Parrish's apartment, agents seized false and illegal identification of Chimurenga, a police radio scanner, books on police radio frequencies, and, from the top of the stove, a pot containing burnt documents. At the conclusion of the search Parrish was taken, in handcuffs, to the New York City office of the Federal Bureau of Investigation. There Parrish overheard agents discussing his arrest as a "fishing expedition" and speculating that he would probably sue. At that point (it was then 4:50 a.m.) Parrish was handed a grand jury subpoena, the handcuffs were removed, and he was told he could leave. In the Government's view, Parrish "was not formally arrested." Brief for Appellant at 3.

A hearing on a motion to quash the subpoena was held December 20, 1984. The motion was denied, and Parrish was ordered to appear before the grand jury that afternoon. He appeared but refused to answer questions, despite the issuance of a use immunity order. See 18 U.S.C. Sec. 6002 (1982). The same day Parrish was cited for civil contempt pursuant to 28 U.S.C. Sec. 1826(a) (1982) and ordered confined until he answered the grand jury's questions, until the grand jury's term expired, or until June 20, 1986, the end of the statutory maximum period of eighteen months, whichever occurred first.

Chimurenga and others were indicted and tried on a variety of charges. Parrish was named as an unindicted co-conspirator. On July 15, 1985, he testified as a defense witness at trial and was cross-examined by the Government. The trial concluded on August 5 with convictions on counts charging weapons and false statement violations and acquittals on counts charging RICO, Hobbs Act, and prison escape violations.

Previously, on June 21, 1985, Parrish had moved for release from confinement for contempt, alleging in an affidavit that no length of incarceration would coerce him into testifying before the grand jury. The District Court held a hearing on the motion on July 19 and July 23. Parrish testified to his adamant refusal ever to answer questions before the grand jury. He claimed that doing so would be a betrayal of the "Black Liberation Movement" and that he was "opposed to the grand jury." He presented one witness who reported that Parrish had said he would never testify before the grand jury. The Government presented no evidence. On July 24, Judge Knapp granted the motion, stating that he was persuaded that there was no realistic possibility that continued confinement might persuade Parrish to testify. Judge Knapp supplemented his ruling the following day with a memorandum emphasizing that he had not exercised discretion in the matter but had only determined the issue posed for him by this Court's decision in Simkin v. United States, supra. See also Sanchez v. United States, 725 F.2d 29 (2d Cir.1984). The trial judge also expressed his displeasure with Simkin and characterized the result of his ruling as "unwarranted."

Discussion

It is not entirely clear whether the Government, in pressing this appeal, is critical of the District Court's ruling, of the Simkin decision which that ruling faithfully applied, or simply of the fact that Parrish has not been required to serve the eighteen months that Congress has authorized as the maximum confinement for a recalcitrant grand jury witness. See 28 U.S.C. Sec. 1826(a). Whatever the Government's rationale, the order releasing Parrish is not in any respect erroneous.

In Soobzokov v. CBS, 642 F.2d 28, 31 (2d Cir.1981), we said, "When it becomes obvious that [civil contempt] sanctions are not going to compel compliance, they lose their remedial characteristics and take on more of the nature of punishment." In several cases dealing with recalcitrant grand jury witnesses, we have recognized the difficulty faced by district judges in determining when it may fairly be said that confinement has ceased to serve the purposes of civil contempt and has become punishment, which may be achieved, where warranted, by criminal contempt. See In re Dickinson, 763 F.2d 84 (2d Cir.1985); Sanchez v. United States, supra; Simkin v. United States, supra. The determination to be made by the district judge is far removed from traditional factfinding. What is called for is obviously not a retrospective determination of a historical fact, nor even a prospective determination of a future fact, such as the amount of medical expenses a tort victim will incur. The determination is not even akin to fact-finding as to a future hypothetical matter, such...