U.S. v. Marquardo

• Citation: 149 F.3d 36
• Decision Date: 25 February 1998
• Docket Number: No. 97-1486,97-1486
• Parties: UNITED STATES, Appellee, v. John A. MARQUARDO, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 36

149 F.3d 36

UNITED STATES, Appellee, v. John A. MARQUARDO, Defendant, Appellant.

No. 97-1486.

United States Court of Appeals, First Circuit.

Heard Feb. 25, 1998.

Decided July 17, 1998.

Henry D. Katz, for Defendant, Appellant.

Fred M. Wyshak, Jr., Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Andrea N. Ward, Assistant United States Attorney, were on brief for Appellee.

Before TORRUELLA, Chief Judge, BOUDIN and LYNCH, Circuit Judges.

TORRUELLA, Chief Judge.

Among other matters, this appeal raises issues that require us to focus on the diverse nature of civil as compared to criminal contempt, and on the consequence of such differences in the context of allegations of due process and double jeopardy violations. Appellant also challenges the validity of the criminal contempt statute, 18 U.S.C. § 401(3), alleging that it is unconstitutionally vague, claims that his motion for acquittal was improperly denied by the trial judge in that the government failed to prove his willfulness to commit the charged crime beyond a reasonable doubt, and lastly, contends that he was improperly sentenced under the obstruction of justice guideline, § 2J1.2, rather than the purportedly more analogous § 2J1.5, which deals with failures to appear by a material witness. We consider these issues seriatim, and ultimately conclude that the rulings of the district court should be affirmed in all respects.

I. Relevant Background

In April 1993, appellant was subpoenaed to testify before a grand jury convened in the United States District Court for the District of Massachusetts. On this occasion appellant declined to testify, invoking his Fifth Amendment privilege against self-incrimination. Thereafter, the Government moved the district court for an order pursuant to 18 U.S.C. §§ 6002 et seq., granting appellant immunity and compelling his testimony. This motion was granted, and an order issued to that effect on May 7, 1993.

On May 20, 1993, appellant was again summoned before the grand jury and a copy of the May 7th order was served upon him and his attorney. Nevertheless, appellant refused to comply with the order and to give evidence before the grand jury. On that same day, shortly after his refusal, a hearing was conducted before the district judge, at which time appellant again reiterated his refusal to comply with the May 7th order and to testify before the grand jury. He was thereafter adjudged in civil contempt by the district judge and pursuant to the civil contempt statute, 28 U.S.C. § 1826, was committed to federal custody until such time as he obeyed the May 7th order, or until the expiration of the grand jury, whichever event occurred first. The order granted appellant two weeks within which to report to the U.S. Marshal to start his confinement, and thus he actually commenced his detention on June 4, 1993.

As things would have it, the grand jury's commission expired on September 12, 1994, without the benefit of appellant's testimony. Appellant thus remained in custody without purging his contempt from June 4, 1993, to September 11, 1994, when he was released from civil incarceration. Approximately two years later, however, on May 7, 1996, another grand jury returned an indictment against appellant charging him with criminal contempt, for his failure to comply with the May 7, 1993 order in violation of 18 U.S.C. § 401(3).

Appellant moved to dismiss the indictment, alleging that his prosecution was barred on double jeopardy, vagueness, and fair warning/due process grounds. These contentions were rejected by the district court. After a brief bench trial appellant was convicted on December 18, 1996, and thereafter was sentenced to fifteen months' imprisonment on March 25, 1997. This appeal followed.

II. Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States provides that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V (emphasis supplied). This provision protects persons against multiple prosecutions or punishments for the same offense. See United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

In a nutshell, appellant argues that because he was "punished" by 17 months' incarceration pursuant to the civil contempt order issued May 20, 1993, he cannot be also punished criminally for the same offense. See United States v. Ursery, 518 U.S. 267, 273, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). This is an allegation that clearly misconstrues the distinction between civil and criminal contempt, as well as fails to take into account longstanding unmodified precedent that exists in this area of the law. See, e.g., Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Yates v. United States, 355 U.S. 66, 74, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); United States v. Nightingale, 703 F.2d 17, 19 (1st Cir.1983). Appellant was neither "punished" for his civil contempt, nor prosecuted for the "same offense" when he was later charged and convicted for criminal contempt, notwithstanding that both contempts arose out of the same operative facts. This conclusion becomes clearly apparent when one considers the nature and purpose of civil versus criminal contempt, as well as the consequences that flow from a judicial finding in each case.

The purpose of civil contempt is to coerce compliance with an order of the court. See G. & C. Merriam Co. v. Webster Dictionary Co., 639 F.2d 29, 40 (1st Cir.1980). The subjects of the court's order have "the keys [to their] prison in their own pockets." Shillitani, 384 U.S. at 368, 86 S.Ct. 1531. They can be incarcerated for no time, if there is compliance before custody commences; for some time, if there is submission to the order after incarceration begins; or for as long a time as the grand jury is extant, if there is unrepented contumacy. In any event, it is totally clear that incarceration for civil contempt is not for the purpose of punishing recalcitrant respondents but rather is the modern "persuasive" tool that is used in substitution of the barbaric placing of stones on the subject's chest, which was formerly used to literally press the recipient into submission. See J. Langbein, Torture and the Law of Proof 74-76 (1977); see also L. Levy, The Origins of the Fifth Amendment 276-277 (1968). Incarceration for civil contempt only seeks acquiescence to a court's order, not retribution for noncompliance with its command.

Criminal contempt, on the other hand, is used to punish disobedience with a judicial order, and thus vindicates the authority of the court. G. & C. Merriam Co., 639 F.2d at 40. This crime is completed when contumacious conduct has taken place, regardless of whether the subject later complies with the order he or she had earlier violated. That is, once the subject of an order willfully refuses to meet the court's order, criminal contempt has been committed independently of whether this conduct receives the additional attention of the court by the issuance of a civil commitment order seeking compliance. For example, in its May 20, 1993 order, the district judge in this case found appellant in "willful failure to obey the Order" of May 7, 1993, and directed his commitment to the custody of the Marshal until such time as he complied, or the grand jury's term expired, which ever occurred first. The district judge granted appellant two weeks to report to begin his incarceration. Had he complied with this order before he reported to the Marshal, the civil commitment would have become automatically ineffective, yet he would still have been subject to a criminal contempt charge because that offense was consummated once he willfully failed to comply with the May 7th order.

The distinction between civil and criminal contempt is not limited to the difference in the purposes served by each, the first being remedial, the second being punitive. Clearly, this differentiation emphasizes the crucial condition that only criminal contempt is an "offense," which is the relevant language used by the Double Jeopardy Clause. However, there are also variances in the technique and scope within which they traditionally operate.

Although in the present appeal both the civil and criminal contempts arise within the context of criminal matters, this is neither a sine qua non nor probably its most common setting. A frequent scenario for civil contempt situations arises as a result of the exercise of the courts' equity jurisdiction, in which the coercive tool is often periodic (daily, weekly, etc.) monetary fines, tailored to compensate the party aggrieved for the damages suffered as a result of the contumacious conduct of the noncomplying party. See International Union v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). The payment of such civil fines by one party to another, a common technique used by courts not only to force obedience, but also to remedy the harm caused, emphasizes another basic distinction between civil and criminal contempt. In the latter, what is sought, as in the case of all criminal charges, is the vindication of public rights. Thus, if criminal fines are imposed in addition to or in substitution for incarceration, they cannot be used for the purpose of compensating an aggrieved party. They are directed towards punishing the crime that has already been committed, and to act as a deterrent against future violations. Because these criminal monetary penalties are not related to compensation, but are instead punitive, they need not be geared to the actual damages caused, and are only limited by the parameters of the sentencing discretion allowed for that crime. On the other hand, a civil fine, which seeks to compensate the aggrieved party, must bear some relationship to the damages being suffered, and for this reason is considered remedial rather than...