ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Misc. No. 78-0616)
Before Adams, Gibbons and Weis, Circuit Judges.
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 ...