U.S. v. Powers
| Decision Date | 06 October 1980 |
| Docket Number | No. 79-1697,79-1697 |
| Citation | 629 F.2d 619 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. John Allen POWERS et al. Defendants, William Nichols, Contemnor/Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Truman R. Young, Phoenix, Ariz., for plaintiff/appellee.
Appeal from the United States District Court for the District of Arizona.
Before TANG, SKOPIL and FARRIS, Circuit Judges.
This is an appeal from a ninety-day criminal contempt sentence. Contemnor William Nichols argues that the district court exceeded its authority under Fed.R.Crim.P. 42 by incarcerating him without bail pending a contempt hearing and by holding the contempt hearing two days after conclusion of the trial. Our review of the record convinces us that the district court confused the various forms of contempt proceedings. We find, however, that the court's actions were all part of one criminal contempt proceedings and that any resulting confusion did not prejudice Nichols' notice of a criminal contempt charge or his ability to prepare a defense. We affirm.
William Nichols was called as a witness in a criminal case. When called to the stand to testify on September 12, 1979, Nichols refused to answer any questions on the ground that his testimony might incriminate him. The government offered Nichols immunity, which the court characterized as "transactional". The government's offer of immunity at that point in the trial was rejected by the court. The prosecutor lacked authority to grant the immunity.
On September 14 the government filed a motion to compel the testimony of Nichols. Approval of the offer of immunity had been obtained from the Department of Justice. The immunity approved, however, was "use" immunity, not the transactional immunity originally proposed. Nichols' attorney objected to the narrower form of immunity. Nevertheless, the court accepted the grant of use immunity and rejected Nichols' argument that his refusal to testify was justifiably based on fear of reprisal. Nichols was told repeatedly that his refusal to testify could result in a judgment of contempt and a jail sentence. Nichols' attorney asked for a clarification of the court's contempt powers:
Shortly after the above dialogue the United States Attorney sought further clarification of the possible contempt charges against Nichols:
Nichols again took the stand and refused to testify. The court questioned Nichols to make sure he understood the consequences of his refusal to testify. When it became clear that Nichols realized the consequences of his decision but refused to testify, the court found him in contempt. A contempt order, prepared by the court, stated that Nichols was found "summarily in civil contempt of this court". He was ordered incarcerated for the balance of the trial and until a hearing was held to determine "further punishment." The hearing was set for September 20.
The trial proceeded without Nichols' testimony. On September 18 the trial ended, but Nichols remained in custody.
On September 20 the contempt hearing was held. It was announced as a hearing for "civil contempt". Attorneys for both sides immediately sought clarification. A lengthy discussion took place to define the type of contempt that had transpired. 1 After After the recess the court announced that it had reviewed the matter and concluded that Nichols was in criminal contempt. The only question in the court's mind was whether summary disposition under Fed.R.Crim.P. 42(a) was appropriate or if notice and a hearing were necessary. The court determined that summary contempt proceedings would be sufficient, but since proper notice under Fed.R.Crim.P. 42(b) had been given, a hearing would be conducted. Nichols' attorney noted the unfairness to his client of changing the status of the proceedings and challenged the notice given by the court. The court rejected this argument and stated that Nichols and his attorney were well apprised of the situation. 2
discussion of relevant statutes and rules the court persisted in calling the contempt civil. The U.S. Attorney then concluded that if the contempt was civil in nature, the court had no discretion except to release Nichols. A short recess was called to allow the court to do some research.
The hearing was conducted. Nichols and his wife testified that Nichols had refused to testify at the trial out of fear of reprisal to his family. The court rejected this explanation and found Nichols guilty of contempt. Nichols was sentenced to 90 days imprisonment, to begin from the date of his incarceration on September 14. Bail pending appeal was set.
Nichols argues that the district court exceeded its authority under Fed.R.Crim.P. 42 by incarcerating him without bail pending the contempt hearing and by holding the hearing two days after conclusion of the trial. Inherent in that argument is the
contention that Nichols was prejudiced by the court's confusion over the types of contempt and the court's failure to follow a proper procedure.
The inherent power of the courts to punish contempt of their authority and to coerce compliance with orders is not disputed. Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Nor can it be disputed here that Nichols' refusal to testify is contemptuous behavior punishable by the court. E. g., United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975). The court's authority to punish or coerce compliance is not, however, without limitation. United States v. Abascal, 509 F.2d 752 (9th Cir.), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). The court's powers are defined by statute and limited by the requirements of due process. This appeal requires us to ascertain the nature of the court's power and determine if it was properly exercised.
Title 18 U.S.C. §§ 401 and 402 3 provide federal courts statutory authority to punish contemptuous actions. Section 401 applies to both criminal and civil contempt and contains no limitation on the power of the district court to impose fine or imprisonment for a violation. The district court decision is reviewed for an abuse of discretion in setting punishment. United States v. Miller, 588 F.2d 1256, 1259 (9th Cir. 1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); In re Scott, 605 F.2d 736 (4th Cir. 1979). Because there is no statutory limit on punishment for criminal contempt, we have the power to modify an excessive sentence. Miller, supra.
Federal Rule of Criminal Procedure 42 defines procedural requirements for contempt proceedings. 4 Although the rule is labeled "criminal", we have previously determined that the procedural safeguards established by Rule 42 apply equally to civil contempt proceedings. United States v. Alter, 482 F.2d 1016, 1023 (9th Cir. 1973).
Rule 42(a) allows a judge to punish summarily if the contemptuous activity occurred in the courtroom before the judge. United States v. Wilson, supra. We call this "direct contempt". Although the language of the rule does not require that a warning be given, courts have recognized that a warning is favored before the power of the court is exercised. E. g., United States v. Brannon, 546 F.2d 1242, 1249 (5th Cir. 1977); United States v. Abascal, 509 F.2d 752, 755 (9th Cir. 1975), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975). In addition, the court must issue a certificate stating the relevant facts supporting the contempt order. United States v. Marshall, 451 F.2d 372, 375 (9th Cir. 1971).
A summary contempt proceeding under Rule 42(a) is justified when a witness who has been granted immunity refuses to testify. In United States v. Wilson, supra, the Supreme Court noted that, although not delivered disrespectfully, a witness's refusal to testify after receiving immunity constituted contemptuous conduct and plainly fell within the language of Rule 42(a). This circuit has held, however, that application of summary punishment for contempt should be narrowly limited. United States v. Abascal, supra at 755-56. This is necessary since due process requirements of notice and hearing need not be observed in a summary contempt proceeding. Recognizing this point, the Supreme Court warned that trial judges must first consider the feasibility of coercing testimony through the imposition of civil contempt before resorting to criminal contempt. "Only the least possible power of the court adequate to the end proposed should be used in contempt cases." Wilson, supra 421 U.S. at 319, 95 S.Ct. at 1808. See also Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966).
Most direct contempts and all contempts occurring outside the courtroom (indirect), must be dealt with in accordance with Rule 42(b). That rule defines the procedural...
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