U.S. v. Armstrong, s. 84-1255

• Citation: 781 F.2d 700
• Decision Date: 24 January 1986
• Docket Number: Nos. 84-1255,s. 84-1255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clarence S. ARMSTRONG, William John Williams, and Vincent Sammarco, Defendants-Appellants. to 84-1257.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 700

781 F.2d 700

UNITED STATES of America, Plaintiff-Appellee, v. Clarence S. ARMSTRONG, William John Williams, and Vincent

Sammarco, Defendants-Appellants.

Nos. 84-1255 to 84-1257.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 10, 1985.

Decided Jan. 24, 1986.

L. Eric Johnson, Geoffrey Anderson, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Richard A. Wright, Wright, Shinehouse, & Stewart, Las Vegas, Nev., for defendants-appellants.

Appeal from the United States District Court for the District of Nevada.

Before POOLE and REINHARDT, Circuit Judges, and KELLER, ^* District Judge.

POOLE, Circuit Judge:

In October 1981, appellants were subpoenaed to appear before a special federal grand jury investigating possible skimming or diversion of funds from casino properties owned by Trans-Sterling, Inc., where they were supervisors. The scheduled appearances were postponed to permit resolution by the district court of appellants' motions for disclosure of electronic surveillance Shortly before appellants' first appearances before the grand jury on January 4, 1983, they filed a second set of Gelbard motions which were substantially the same as those denied in April 1982. At the grand jury hearing, appellants refused to answer substantive questions based on claims of illegal electronic surveillance and self-incrimination although they were made aware of the immunity and compulsion orders issued by Judge Claiborne.

pursuant to Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972). Judge Harry Claiborne denied those motions in April 1982, and subsequently signed immunity and compulsion orders for all three appellants pursuant to 18 U.S.C. Sec. 6001.

In March 1983, Judge Claiborne denied the second Gelbard motions. Appellants then appeared for a second time before the grand jury and again refused to answer substantive questions. On April 21, 1983, Judge Claiborne, on the government's motion, issued an order to show cause why appellants should not be held in civil contempt.

In response, appellants filed requests for untimely reconsideration of the denial of the Gelbard motions, for voire dire or dismissal of the grand jury based on juror bias, and for prosecutorial misconduct sanctions against the government's attorney. After a hearing, Judge Claiborne entered an order denying appellants' motions but recusing the one grand juror who was accused of bias. Judge Claiborne did not rule on the government's motion to hold appellants in civil contempt, but instead ordered appellants a third time to appear and testify before the grand jury in September 1983.

At that appearance, appellants were read Judge Claiborne's order directing them to testify. They were also reread their compulsion orders, reminded of the two Gelbard denials, and warned that a refusal to testify could result in criminal and/or civil contempt sanctions. Appellants again refused to respond. On January 10, 1984, the federal grand jury returned three separate one-count indictments charging each appellant with criminal contempt for willfully refusing to testify before the grand jury in violation of 18 U.S.C. Sec. 401(3) and Fed.R.Crim.P. 42(b). Identical motions to dismiss the indictment were filed on behalf of each appellant due to the government's failure to consider the feasibility of civil contempt claimed to be required by Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966), and on account of prosecutorial vindictiveness.

On June 13, 1984, Judge Roger Foley adopted the magistrate's recommendations that appellants' motions to dismiss be denied. Appellants were thereafter tried and found guilty of criminal contempt on August 31, 1984. Each was fined $500. Timely notices of appeal were filed on September 6, 1984.

I.

Appellants first argue that their convictions must be reversed because the trial court failed to consider civil contempt sanctions before the grand jury returned indictments for criminal contempt. Because this issue involves a question of law, our standard of review is de novo. See Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

Appellants base their claim on language contained in Shillitani, 384 U.S. 364, 86 S.Ct. 1531, where, as here, the petitioners refused to testify before the grand jury under a grant of immunity and were found guilty of contempt pursuant to Fed.R.Crim.P. 42(b). The petitioners argued that reversal of their convictions was warranted because they had been entitled to, and did not receive, indictments and jury trials. 384 U.S. at 365, 86 S.Ct. at 1533. The Court first found that the contempt proceedings had been civil in nature because appellants' release from custody had been conditioned upon the contemnors' willingness to testify. Thus, indictments and jury trials had not been constitutionally required. Id. The Court then ruled that contumacious witnesses cannot be confined after the grand jury has been discharged The "least possible power doctrine" requires that courts exercise the "least possible power adequate to the end proposed," Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (1821). The Court in Shillitani relied upon this doctrine to create a procedural rule restricting the exercise of judicial contempt power. That rule appears in footnote nine of the opinion, and states:

when the contempt orders are coercive in nature, since the witnesses would have no opportunity to purge themselves of contempt. It was in the context of explaining that this restriction on confinement is in accordance with the "least possible power doctrine," that the Shillitani Court enunciated the rule which appellants urge is applicable here.

[The "least possible power doctrine"] ... requires that the trial judge first consider the feasibility of coercing testimony through the imposition of civil contempt. The judge should resort to criminal sanctions only after he determines, for good reason, that the civil remedy would be inappropriate.

384 U.S. at 371 n. 9, 86 S.Ct. at 1536.

Appellants claim that this dictum in Shillitani was intended to serve as a rule to be followed in every case in which criminal contempt sanctions are imposed. Thus, they urge that when a witness refuses to testify before a grand jury under a grant of immunity and pursuant to a lawful court order, the court must first consider holding the witness in civil contempt before a grand jury may return an indictment for criminal contempt. We disagree. Appellants' interpretation fails to consider significant factual differences between the situation in Shillitani and the one before us. In Shillitani, the court, rather than the grand jury, initiated the contempt charges. Moreover, the charges were brought for the purpose of coercing compliance with the court's order to testify, and not to punish the witnesses for their contumacious conduct.

Appellants' argument also ignores the fact that the same conduct may result in both civil and criminal contempt. United States v. United Mine Workers of America, 330 U.S. 258, 303, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947); United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980). The distinction between the two forms of contempt lies in the intended effect of the punishment imposed. United States v. Asay, 614 F.2d 655, 659 (9th Cir.1980). The purpose of civil contempt is coercive or compensatory, whereas the purpose of criminal contempt is punitive. United States v. Rylander, 714 F.2d 996, 1001 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984); Powers, 629 F.2d at 624. Criminal contempt is intended to vindicate the court's authority in the face of contumacious and disrespectful acts. See Asay, 614 F.2d at 659. When a grand jury witness refuses to testify, civil contempt sanctions can be imposed to coerce compliance with the court's order, and penalties for criminal contempt can be assessed to punish the witness' disobedient conduct.

Additionally, appellants' interpretation of Shillitani fails to recognize the historical relationship between the grand jury and the courts, and the contempt powers of each. The power of a court to punish a defendant for refusing to comply with its direct order cannot be disputed. See Rylander, 714 F.2d at 1001; Powers, 629 F.2d at 624. This authority has been codified in 18 U.S.C. Sec. 401(3), under which appellants were convicted. The statute provides that

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as--

* * *

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(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Rule 42 of the Federal Rules of Criminal Procedure sets forth the procedural requirements for prosecuting criminal Appellants do not challenge the grand jury's power to return an indictment and thereby to initiate a prosecution. Indeed, they could not, because under 18 U.S.C. Sec. 401, contempt is a criminal offense. Appellants only argue that before the grand jury may perform its historically independent role of bringing an indictment, the court must first consider civil sanctions.

                contempt. 1   Part (b) that rule provides for disposition of criminal contempt upon notice and hearing when, as here, the contempt was not committed in the actual presence of the court.  Rule 42 is merely procedural, however, and does not purport to vest exclusive authority to initiate contempt charges in the court.    Brown v. United States, 359 U.S. 41, 51, 79 S.Ct. 539, 547, 3 L.Ed.2d 609 (1959), overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965);  United States v. Williams, 622 F.2d 830, 838 (5th Cir.1980) (per curiam), cert. denied, 449 U.S. 1127, 101 S.Ct. 946, 67 L.Ed.2d 114 (1981);  United States v. Leyva, 513 F.2d 774, 778 (5th Cir.1975).  The power of the grand jury to initiate contempt

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