United States v. Di Mauro

• Decision Date: 12 April 1971
• Docket Number: No. 20295,20384,and 20297.,20295
• Citation: 441 F.2d 428
• Parties: UNITED STATES of America, Plaintiff and Appellee, v. Ross John Di MAURO, Defendant and Appellant. UNITED STATES of America, Plaintiff and Appellee, v. Donald Veryl JONES, Defendant and Appellant. UNITED STATES of America, Plaintiff and Appellee, v. Nicholas SIRIAN, Defendant and Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

441 F.2d 428 (1971)

UNITED STATES of America, Plaintiff and Appellee, v. Ross John Di MAURO, Defendant and Appellant.

UNITED STATES of America, Plaintiff and Appellee, v. Donald Veryl JONES, Defendant and Appellant.

UNITED STATES of America, Plaintiff and Appellee, v. Nicholas SIRIAN, Defendant and Appellant.

Nos. 20295, 20384, and 20297.

United States Court of Appeals, Eighth Circuit.

April 12, 1971.

COPYRIGHT MATERIAL OMITTED

John J. Higgins, Jr., J. Patrick Green, J. Thomas Rowen, Omaha, Neb., for defendant-appellant Di Mauro.

S. J. Albracht, Omaha, Neb., for defendant-appellant Jones.

David L. Herzog, Omaha, Neb., for defendant-appellant Sirian.

Richard A. Dier, U. S. Atty., District of Neb., William K. Schaphorst, Asst. U. S. Atty., for appellee.

Before VAN OOSTERHOUT, GIBSON and BRIGHT, Circuit Judges.

GIBSON, Circuit Judge.

The defendants, Ross John Di Mauro, Donald Veryl Jones and Nicholas Sirian, appeal from judgments of conviction rendered against them in the District of Nebraska for criminal contempt pursuant to 18 U.S.C. § 401(3)¹ and Rule 42(b), Fed. R.Crim.P.² The contempt charges were tried to a jury pursuant to an information filed by the United States Attorney at the direction of the trial court, and a verdict of guilty was returned. The circumstances leading to the contempt conviction were as follows.

A grand jury was empanelled in Omaha, Nebraska, on January 7, 1969, for the purpose of investigating crimes relating to 18 U.S.C. §§ 1084 (transmission of wagering information), 1952 (travel or transportation in aid of racketeering enterprises), and 371 (conspiring). Defendants Di Mauro, Sirian, and Jones, were subpoenaed to appear before the grand jury and each appeared at various times. Each refused to answer questions put to him by the United States Attorney, relying on his privilege against self-incrimination. The United States Attorney then brought the defendants before the District Court and requested that they be cited for contempt, alleging they had been granted immunity pursuant to 18 U.S.C. § 2514.³

Initially the trial judge accepted the Government's position, but subsequently ruled, properly, that the defendants could not be adjudged in contempt of court for the reason that they had not actually been granted immunity under § 2514, since that section requires an application to the court and a judicial grant of immunity with an accompanying order to testify, and therefore that they had properly invoked their privilege against self-incrimination.

Thereupon, the Court treated the Government's motion as an application for a grant of immunity and order to testify. The immunity was granted and the orders given. The defendants were returned to the grand jury, where they continued their refusal to testify. The Government then requested that the court find them in civil contempt or in the alternative cite them for criminal contempt.

The trial court specifically rejected the civil contempt alternative, stating that it viewed the matter as much more serious than that. The defendants' conduct had seriously impeded the grand jury's investigation, they had had the constant advice of experienced counsel and had still persisted in refusing to obey the court's order, and if they had a sufficient explanation for their conduct it could be better made to a jury rather than the court alone. The court therefore directed the Government to file an information against the defendants, which was done. The jury trial and conviction then followed.

Upon entering the judgment of conviction, the court sentenced each of the defendants to three years imprisonment. It then commented that counsel was well aware of Rule 35, Fed.R.Crim.P., and that if the defendants chose to testify prior to the discharge of the grand jury or the expiration of the 120-day period of Rule 35, it would take that factor into account in a motion to reduce sentence under that rule. The defendants subsequently all testified before the grand jury, and their sentences were reduced to three years probation.

At the outset, we are confronted with the question of whether these contempt citations comport with the principles laid down by the Supreme Court in Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). There are two questions raised by the application of Shillitani to this case which may be phrased in the alternative. 1.) Was the proceeding one for civil contempt because its primary purpose was to coerce testimony before the grand jury, hence requiring unconditional release of the defendants now because the term of the grand jury has expired? 2.) In the alternative, if the proceedings are for criminal contempt, are they void because they violate the "least possible power" rule, in that the trial court did not first resort to civil sanctions before invoking the criminal sanction?

We feel that the conclusion is unavoidable in this case that the convictions were for criminal contempt. It is true that the Supreme Court in Shilli- tani stated the test for distinguishing civil from criminal contempt as: "what does the court primarily seek to accomplish by imposing sentence? Here the purpose was to obtain answers for the grand jury." 384 U.S. at 370, 86 S.Ct. at 1535. However, that test was necessary in that case because there were indicia of both civil and criminal proceedings in the sanctions imposed. Therefore, prior to reaching the main substantive issue in that case — whether the defendants had the right to a jury trial — the court had to determine what kind of contempt it was dealing with. In the instant case, however, there are significant differences in the procedures followed from those in the Shillitani case, which clearly mark it a criminal contempt in character and make resort to the "purpose" test (in order to classify the contempt) unnecessary.

The most important difference is that, in contrast to the defendants in Shillitani, the defendants here received a jury trial to determine their guilt. This is obviously the mark of a criminal contempt conviction. See Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). In addition, the sentences given in this case were unconditional. They contained no purge clause, as did the sentences in Shillitani, and of course, the defendants' subsequent compliance with the court's order in testifying before the grand jury did not result in their unconditional release. This also marks the conviction as being for criminal contempt.

It is also pertinent to note that the record clearly reflects the trial court's intention that this proceeding be for criminal contempt. The court expressly recognized the option of proceeding in civil contempt and just as expressly rejected that alternative, stating:

"By way of civil contempt and in aid of the Court\'s implementing and carrying out of its orders may commit a defendant to jail until he answers the question.

"* * * Under the circumstances the defendant himself held the keys to the jail and could release himself upon responding to the order of the court.

"I have chosen not to do that in this case * * *."

"* * * The Court is now directing the United States Attorney to file criminal contempt charges against the defendants under Rule 42(b) of the Federal Rules of Criminal Procedure." (emphasis added.)

As noted above, the Government filed an information against the defendants expressly designating the charges as criminal contempt under Rule 42(b). This also supports the conclusion that the proceedings were for criminal contempt, as the committee notes to Rule 42(b) indicate:

"The requirement in the second sentence that the notice shall describe the criminal contempt as such is intended to obviate the frequent confusion between criminal and civil contempt proceedings * * *."

The basis of the defendants' argument that this proceeding must be viewed as civil, rather than criminal contempt, is the trial court's remark that if the defendants did in fact testify, it would consider that in a motion to reduce sentence, and that the sentences were in fact reduced from imprisonment to probation when compliance followed the convictions. We cannot accept the argument that this converts the proceedings to civil contempt. The logical result of accepting this argument would be either that a trial court could never consider ultimate compliance with its order as a factor justifying mitigation of a criminal contempt conviction, an extremely harsh result without any reasonable justification, or that criminal contempt sanctions can never be imposed for violation of a court order where compliance is still possible. This latter result appears to be the one actually contended for by the defendants, and it is to this issue that we now turn our attention.

The defendants argue that the criminal contempt convictions are void because the trial court did not first resort to a civil contempt sanction in an effort to coerce the testimony, thus violating the "least possible power" rule as enunciated in Shillitani. This rule was stated in footnote 9 to the Court's opinion:

"This doctrine further 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.

This question is not without considerable difficulty. However, we have concluded that Shillitani does not prohibit the imposition of criminal sanctions in the first instance for a contempt consisting of a refusal to testify, so long as those sanctions are surrounded by the safeguards of an ordinary criminal proceeding. (It may be noted in this respect that there are no issues raised in this case as to the conduct of the criminal contempt trial itself.)

We have been unable to discover any cases which directly discuss the question of whether Shillit...