decided: June 22, 1976; As Amended July 7, 9, 1976.
Appeal From the United States District Court for the Eastern District of Pennsylvania
Aldisert, Gibbons, and Garth, Circuit Judges. Aldisert, Circuit Judge, concurring and dissenting.
This is an appeal from an order of the district court adjudging Alexander Hartzell in civil contempt of court for refusing to obey an order directing him to answer questions propounded by a federal grand jury in the Eastern District of Pennsylvania. We affirm.
Hartzell was convicted, on March 28, 1975, of loansharking. He was sentenced on April 29, 1975 to a five year prison term which on May 3, 1975 he began to serve at the Danbury Federal Correctional Institution. On March 10, 1976, pursuant to a writ of habeas corpus ad testificandum, he was brought before the federal grand jury in Philadelphia and interrogated about the loansharking activities of one Frank Sindone. Sindone was a codefendant in the 1975 trial, but had been acquitted. The interrogation before the grand jury appears to have been directed toward a new indictment of Sindone. Hartzell answered some questions, but invoked the privilege against self-incrimination as to others.
Thereafter the government, with appropriate authority from an Assistant Attorney General, moved before the district court for an order under 18 U.S.C. § 6001-05 granting Hartzell use immunity. On March 22 the district court granted this motion and entered an order directing Hartzell to answer all questions propounded to him relating to possible violations of Title 18 U.S.C. §§ 371, 1962 and 892-94. On March 24 Hartzell was once again brought before the grand jury. He answered some questions, but the interrogation was continued until March 31. On that date he was advised of the grant of immunity and of his right to consult with counsel. He waived counsel and, despite the grant of immunity and the court order directing him to testify, refused to do so.
On April 6 the government petitioned the district court for an order holding Hartzell in civil contempt for refusing to answer the questions posed to him on March 31. On April 9 the court scheduled a hearing on that petition for April 14. During the hearing the district court advised Hartzell of the possible penalties for contempt, and inquired whether he wished to purge himself of contempt of the March 22 order. He also advised Hartzell of the right to counsel. Hartzell waived the assistance of counsel and refused to testify. The court thereupon ordered Hartzell confined until he testified, or for a maximum of 18 months. See 28 U.S.C. § 1826(a)(2). The order also provides that the running of Hartzell's federal sentence on his 1975 conviction is suspended during the period of his civil confinement.
After entering this order the district court advised Hartzell of his right to appeal in forma pauperis, and at his request directed the Clerk to file a notice of appeal on his behalf. Counsel was appointed for the appeal.
Hartzell's first contention on appeal is that the March 22 order directing him to testify was void because it was entered without any showing by the government of relevance of the proposed interrogation to a legitimate grand jury investigation. See In re Grand Jury Impaneled January 21, 1975, 529 F.2d 543 (3d Cir. 1976), cert. denied, 425 U.S. 992, 48 L. Ed. 2d 816, 44 U.S.L.W. 3670 (1976); In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (3d Cir. 1973). This contention, however, was never presented to the district court. That alone should preclude its consideration on appeal, for although Hartzell was unrepresented, and thus may not have been fully aware of the defenses which might have been available in the contempt proceeding, he made an informed choice to waive counsel. But even if the district court had been asked to consider the point, on the record in this case it would have to conclude that the affidavit in support of the government's application for the March 22 order sufficiently established relevancy and proper purpose. See In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, 966-67 (3d Cir.), cert. denied, 421 U.S. 1015, 95 S. Ct. 2424, 44 L. Ed. 2d 685 (1975); In re Grand Jury Impaneled January 21, 1975, supra, 529 F.2d at 548. That affidavit was before the court in the contempt proceeding.
Hartzell next argues that he did not receive adequate notice of the contempt hearing. As with the Schofield I objection, this contention was not urged in the district court and should, perhaps, for that reason be disregarded. Nevertheless, we have examined the record to determine whether, either from lack of time or from lack of information, the notice here given resulted in prejudice, and we have found none. Hartzell urges that in a proceeding under 28 U.S.C. § 1826 the court should comply with the notice and hearing provisions of Rule 42(b), Fed. R. Crim. P. Those circuits which have considered the question have concluded that despite the "civil" nature of a § 1826 proceeding, Gelbard v. United States, 408 U.S. 41, 33 L. Ed. 2d 179, 92 S. Ct. 2357 (1972), and despite the "summarily" language in that statute, Rule 42(b) does provide the appropriate standard for notice and hearing. The leading case is United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). See also In re Grand Jury, 524 F.2d 209, 218-19 (10th Cir. 1975); In re Sadin, 509 F.2d 1252, 1255-56 (2d Cir. 1975); In re Lochiatto, 497 F.2d 803, 807 & n.9 (1st Cir. 1974).
At the outset of the hearing on April 14 the district court stated fully the essential facts constituting the contempt charged. Rule 42(b) expressly permits such oral notice. Thus any deficiency in the district court procedure would lie in the length of time afforded for preparation of a defense. But the difficulty with Hartzell's objection to the length of time allowed in this case is that nowhere does he suggest that he had any defense to present which would have required more time than was afforded. Certainly there is merit to the position of those circuits holding that the procedural safeguards of Rule 42(b) should be followed in a § 1826 case. But if there was a technical departure from those safeguards in this instance, the error was harmless.
Hartzell's principal attack on the contempt order is addressed to the provision which suspends the running of his criminal sentence during his civil confinement. He urges that once service of a sentence has commenced, the running of that sentence cannot be tolled. The theory underpinning this argument is that at common law the running of a sentence could not have been interrupted to punish a contemnor, and that 18 U.S.C. § 3568*fn1 codifies the common law rule. This argument has been rejected by the four courts of appeals which have considered it. Martin v. United States, 517 F.2d 906 (8th Cir. 1975); Williamson v. Saxbe, 513 F.2d 1309 (6th Cir. 1975) (per curiam); United States v. Liddy, 166 U.S. App. D.C. 289, 510 F.2d 669 (1974) (en banc), cert. denied, 420 U.S. 980, 43 L. Ed. 2d 661, 95 S. Ct. 1408 (1975); Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), cert. denied, 420 U.S. 962, 43 L. Ed. 2d 440, 95 S. Ct. 1353 (1975). Two Justices of the Supreme Court have expressed approval of these holdings. United States v. Wilson, 421 U.S. 309, 321 n.2, 44 L. Ed. 2d 186, 95 S. Ct. 1802 (1975) (Blackmun & Rehnquist, JJ., concurring). Hartzell would have us adopt the view of the dissenters in Martin v. United States, supra, 517 F.2d at 910, and United States v. Liddy, supra, 510 F.2d at 667.
We conclude that not only the numerical but the analytical weight of authority lies with the sixteen federal appellate judges who have concluded that a civil confinement pursuant to § 1826 may interrupt a sentence. They reason that 18 U.S.C. § 3568 merely prescribes the method of calculating the commencement of a sentence, and that the coercion of § 1826 would be meaningless against prisoners if credit against the original sentence must be given for time spent in confinement for civil contempt. Certainly the law-and-order spirit which motivated Congress to enact § 1826 would be inconsistent with an intention that it provide a remedy useless against prisoners. The dissenters urge that the sanction of criminal contempt remains. But it remains for non prisoners as well. It seems highly unlikely that Congress intended prisoners to be in an exempt category.*fn2
Hartzell also urges that § 1826 is an unconstitutional bill of attainder, and a violation of the cruel and unusual punishment clause of the eighth amendment. These contentions lack merit. He also urges that the thirty-day limitation for disposition of appeals in 28 U.S.C. § 1826(b) deprives him of appellate due process. Since in this case we granted adequate ...