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In re Grand Jury Investigation Joseph Braun


decided: June 6, 1979.



Before Adams, Gibbons and Weis, Circuit Judges.

Author: Adams


In this appeal we must decide whether appellant's confinement for civil contempt pursuant to 28 U.S.C. § 1826(a) exceeds the period of time permissible under the due process clause, and whether an evidentiary hearing must be held before a decision is made not to terminate his confinement prior to the time set forth in the statute.


A federal grand jury was empanelled on February 28, 1978, in the United States District Court for the Eastern District of Pennsylvania to investigate a number of alleged federal violations, including loansharking, mail fraud, obstruction of justice, and interstate transportation of stolen property. Seeking the cooperation of the appellant, Joseph Braun, who was one of the targets of the investigation, government agents approached Braun at Allenwood prison in May, 1978, where he was incarcerated under a two-year sentence. That sentence, which Braun began serving on January 10, 1978, stemmed from the operation by Braun of a check cashing agency at which embezzled private and government checks had been cashed.*fn1 Following the pattern that he had set throughout his own prosecution, Braun declined to cooperate with the government.

In August, 1978, the federal prosecutor obtained a writ of habeas corpus Ad testificandum for the purpose of securing Braun's testimony before the grand jury. Braun was brought to the courthouse, but refused to answer any questions. He was then granted immunity by the district judge, yet persisted in declining to testify. For this refusal he was held in civil contempt of court on September 29, 1978.

Adhering to the time limits specified in 28 U.S.C. § 1826(a),*fn2 the district court ordered that Braun be confined until such time as he was willing to testify before the grand jury, but not longer than the term of that grand jury, including extensions, and in no event in excess of eighteen months. In addition, the district judge directed that the running of time on the two-year sentence that had previously been imposed be suspended for the duration of the confinement under the contempt order.*fn3

Braun moved on December 22, 1978, to terminate the order of confinement for civil contempt. In his motion, Braun contended that inasmuch as there was no substantial likelihood that he would testify before the grand jury, his continued incarceration no longer bore a reasonable relationship to the purpose for which he was committed namely, to obtain his testimony and therefore it violated due process. That there is no substantial likelihood that he will testify is evident, Braun argued, from his refusal to cooperate with the government over a two and one-half year period because of his fear for his and his family's safety.*fn4 Braun ended his motion with a request for an evidentiary hearing at which he would seek to establish that there is no substantial likelihood that he would be coerced by the contempt order.

The district court, on January 3, 1979, denied Braun's motion without affording him a hearing, and subsequently, on February 26, 1979, dismissed a petition for reconsideration. A notice of appeal was timely filed.


Embedded in Anglo-American law is the inherent power of the judiciary to coerce obedience to its orders by summarily holding a recalcitrant person such as an immunized witness who refuses to testify at a grand jury proceeding or at a trial in civil contempt, and then imprisoning him until he complies.*fn5 In contrast to criminal contempt, whose purpose it is to punish acts that are contumacious and disrespectful of the court and thereby to vindicate the authority of the court, civil contempt is primarily coercive in nature, and is designed to benefit a party that has complained to the court about the contemnor's recalcitrance.*fn6

The basis for permitting a court summarily to order coercive imprisonment for recalcitrant individuals without affording them the safeguards of a criminal proceeding*fn7 is that the contemnors hold "the keys of their prison in their own pockets"*fn8 and therefore may purge themselves of civil contempt at any time. This rationale, however, delimits the permissible scope of such a sanction. Since it is impossible to succeed in coercing that which is beyond a person's power to perform, continued incarceration for civil contempt "depends upon the ability of the contemnor to comply with the court's order. Maggio v. Zeitz, 333 U.S. 56, 76, 68 S. Ct. 401, 411, 92 L. Ed. 476 (1948)."*fn9 Thus, with respect to a witness who is held in civil contempt for refusing to testify before a grand jury, the Supreme Court has declared in Shillitani v. United States, 384 U.S. 364, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966), that "(w)here the grand jury has been finally discharged, a contumacious witness can no longer be confined since he then has no further opportunity to purge himself of contempt. . . . Once the grand jury ceases to function, the rationale for civil contempt vanishes, and the contemnor has to be released."*fn10

In recent years a number of courts, when presented with situations involving indeterminate periods of confinement for civil contempt, have spoken of an additional constraint upon the civil contempt power.*fn11 Because the contemnor's imprisonment is said to be justified as a coercive measure, these courts have declared that when the confinement has lost its coercive force it essentially becomes punitive, and the contemnor must then be released since it is well established that criminal penalties may not be imposed in civil contempt proceedings.*fn12 According to these courts, even though the government may still have an interest in obtaining the information requested from a recalcitrant witness and the witness can still purge himself of contempt by testifying, he may no longer be held once it becomes evident that the duress will not succeed in breaking his silence. Typical is the reasoning of the New Jersey Supreme Court in Catena v. Seidl, 65 N.J. 257, 262, 321 A.2d 225, 228 (1974):

It is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even though he or she refuses to comply with the court's order. Most commentators agree that in civil contempt proceedings involving an adamant contemnor, continued imprisonment may reach a point where it becomes more punitive than coercive and thereby defeats the purpose of the commitment. "Contempt: Civil Contempt Order May Not Include Absolute Sentence," 47 Minn.L.Rev. 907 (1963); "The Coercive Function of Civil Contempt," 33 U.Chi.L.Rev. 120 (1965); See also Goldfarb, The Contempt Power (1963), Colum.Univ.Press.

The legal justification for commitment for civil contempt is to secure compliance. Once it appears that the commitment has lost its coercive power, the legal justification for it ends and further confinement cannot be tolerated.

As indicated by the foregoing passage from Catena, the limitation referred to there was initially conceived as being logically rooted in the theory undergirding civil contempt. Subsequently, however, the Ninth Circuit recognized in Lambert v. State of Montana, 545 F.2d 87 (9th Cir. 1976), that once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt also constitutes a violation of due process. The Lambert tribunal observed that the Supreme Court has had a number of occasions to discuss the due process implications of continued, non-punitive confinement in contexts closely related to civil contempt. In Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), the Supreme Court was faced with a mentally deficient deaf mute who, having been determined by physicians to lack sufficient comprehension to be able to stand trial for two robberies, was committed to a state mental institution until such time as he became sane and could stand trial. And, in McNeil v. Director, Patuxent Institution, 407 U.S. 245, 92 S. Ct. 2083, 32 L. Ed. 2d 719 (1972), the Supreme Court reviewed the confinement of a convicted person for an indefinite period, already in excess of the sentence imposed, that was to terminate only when that person submitted to a psychiatric examination to ascertain whether he should be committed to a mental institution as a defective delinquent. The standard enunciated in Jackson and repeated in McNeil is that "at the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed."*fn13 Accordingly, the court in Lambert reasoned, inasmuch as imprisonment for civil contempt is for the purpose of compelling compliance with a judicial directive, when the confinement has lost its coercive force and consequently no longer bears a reasonable relationship to the purpose for which the contemnor was committed, due process requires that he be released.*fn14

Although the due process test is easily formulated, the point at which coercive imprisonment actually ceases to be coercive and essentially becomes punitive is not readily discernible. Obviously, the civil contempt power would be completely eviscerated were a defiant witness able to secure his release merely by boldly asserting that he will never comply with the court's order. What has emerged, therefore, is a practice whereby the contemnor must bear the burden of establishing that there is no "substantial likelihood" that continued confinement would accomplish its coercive purpose.*fn15 Moreover, it has been held that this burden is not met where the contemnor's past silence "can be rationally attributed to considerations other than an adamant refusal to purge himself of contempt despite the consequences."*fn16 Even so, application of the due process standard to specific situations remains difficult, since the objectively identifiable facts such as age, state of health, and length of imprisonment of the contemnor often fail to provide a clear indication whether or not further confinement will increase the likelihood that the contemnor will accede to the court's demands.*fn17


The often perplexing task of determining whether the confinement has essentially become punitive is ameliorated in the present case by the fact that Braun was incarcerated pursuant to 28 U.S.C. § 1826(a), which sets a maximum limit of eighteen months imprisonment for recalcitrant witnesses found to be in civil contempt of court. In this respect, Braun's incarceration differs from the indeterminate period of confinement for civil contempt imposed pursuant to state law and practice that marked the cases in which courts have held that at some point the confinement ceases to be coercive and becomes punitive, thereby raising due process concerns. This difference is not without significance: the maximum limit found in the federal civil contempt statute reflects a deliberate congressional attempt to resolve the problem of drawing a line between coercion and punishment.

Section 1826(a) was enacted as part of Title III of the Organized Crime Control Act of 1970,*fn18 legislation aimed at breaking the hold of organized crime over certain businesses and other segments of society.*fn19 The sections of this legislation governing recalcitrant witnesses were framed with an eye toward coercing members of secret syndicates to disobey their vows of silence and to cooperate in grand jury investigations.*fn20 Section 1826(a) was described as codifying the existing practice governing civil contempt for a refusal to comply with a court order to testify or to produce documents.*fn21 As originally proposed in the Senate bill and as passed by that body, the section placed no limitation upon the period for which an intransigent witness might be confined, other than to state that he may not be held beyond the life of the grand jury, including extensions.*fn22

Serious opposition was mounted against the provision when it was debated at the House subcommittee level. It was contended that the absence of any specified time limitation on the period for which a witness could be incarcerated rendered the provision unduly harsh and gave it a punitive character. Thus, for example, the Committee on Federal Legislation of the Association of the Bar of the City of New York submitted this commentary:

It should be noted, however, that the increased life of special grand juries proposed in Title I would allow confinement without trial for civil contempt before such a grand jury for up to three full years, compared with the previous limit of eighteen months. In contrast, in the case of criminal contempt, a defendant would be entitled to a jury trial if he were imprisoned for a period in excess of six months. Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S. Ct. 1523, 16 L. Ed. 2d 629 (1966). Some of us believe that increasing the maximum length of a civil contempt commitment from eighteen months to three years is perfectly compatible with the requirement of a jury trial for criminal contempt sentences in excess of six months. . . . Others, however, feel equally strongly that there must be some limit on the length of civil contempt sentences. They doubt whether the carefully drawn protections afforded the criminal contemnor can constitutionally or should as a matter of policy be circumvented by a civil contempt sentence for as long as three years. In their view, It becomes apparent at some point in time that factors such as the fear of retribution will prevent a witness from testifying, no matter how long he is incarcerated. At that point, it is questionable whether further confinement can be regarded as remedial, rather than punitive, and the assertion that the defendant could be released by testifying has little meaning because it has become clear that he will never testify.*fn23

Confronted squarely with the challenge of ensuring that civil contempt not be used to inflict punitive periods of imprisonment, the House subcommittee adopted the suggestion*fn24 that Title III be amended to add a prohibition against confining a recalcitrant witness for civil contempt for any period in excess of eighteen months. Thus, the House version of the provision, which was eventually enacted as 28 U.S.C. § 1826(a), embodies a legislative balance between two competing values. On the one hand, it preserves the efficacy of the civil contempt power as a weapon for investigating organized crime. On the other hand, it meets the concern that the civil contempt power not be abused by employing it to punish an intractable witness beyond that point where it becomes evident that his testimony cannot be coerced through further confinement.

Given the legislative determination that a balance is to be struck between these competing values by placing an eighteen-month limit upon confinement for civil contempt, we are reluctant to conclude, in the absence of unusual circumstances, that, as a matter cognizable under due process, confinement for civil contempt that has not yet reached the eighteen-month limit has nonetheless lost its coercive impact and become punitive.*fn25 Of course, a court may not abdicate its responsibilities under the Constitution simply because Congress has legislated in a particular area. But Congress has, in effect, addressed essentially the same problem that courts must tackle under a due process analysis, and has thereby filled the void that existed under prior practice, where there was a possibility that unconscionable, indeterminate periods of confinement might be imposed for civil contempt. It has not been suggested that Congress's resolution of the problem is unreasonable, and it would therefore appear to be inappropriate for the judiciary to substitute its judgment for that of the legislative body by undertaking as a routine matter to draw finer lines than Congress has already drawn between coercive and punitive periods of confinement.*fn26


Turning back to the present case, Braun has not alleged any facts that would warrant a departure, at least at this time, from the eighteen-month benchmark laid down by Congress in § 1826(a). Braun's motion, filed when he had served less than three months for contempt, rests primarily on the argument that his persistent refusal to cooperate with the government in the past, dating back to November, 1976, demonstrates that he will not testify in the future. But this history of non-cooperation is not in itself sufficient to meet the heavy burden that Braun must bear in order to establish that his confinement pursuant to § 1826(a) is in violation of due process. Many persons, if given a free and unfettered choice, would prefer not to compromise the illegal dealings of their associates, and thus Braun's behavior prior to his being held in contempt does not persuasively demonstrate that he will not yield under the coercive impact of imprisonment. Nor does Braun's continued silence during the relatively few months that he has been held in coercive imprisonment far less than the eighteen months that in Congress's view approached the punitive level necessarily mean that he will not succumb under the pressure of further confinement. Indeed, incarceration of intransigent witnesses for civil contempt is premised on the notion that the desire for freedom, and concomitantly the willingness to testify, increases with the time spent in prison. And, although at oral argument counsel urged that consideration ought to be given to the poor health and advanced age of Braun and his wife, these factors could just as well be seen as weighing in favor of the coercive impact of additional confinement, at least at this stage of Braun's incarceration.

In sum, we cannot say on the basis of the averments set forth in the motion and the allegations made at oral argument that Braun's continued imprisonment up to a total of eighteen months for civil contempt is so devoid of coercive purpose as to justify substituting our judgment for that of Congress and holding that such confinement violates due process. Moreover, because Braun has suggested nothing in the way of unusual circumstances that would support an inference that he is being deprived of due process under the standard that, in our view, is generally to be applied to confinements under § 1826(a), we decline to accept his claim that he should have been afforded an evidentiary hearing before the district court ruled on his motion.*fn27


It should be emphasized that § 1826(a) specifies a maximum time limit for confinement for contempt, and a district judge may in his discretion either impose at the outset a shorter period of incarceration or reduce the period later as circumstances warrant.*fn28 Although an evidentiary hearing may ofttime be helpful in assisting the district judge in exercising his discretion, on the record before us we cannot say that the district judge abused his discretion in declining to grant an evidentiary hearing and in denying Braun's motion.*fn29

In light of the foregoing, the order of the district court will be affirmed.

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