APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Seitz, Chief Judge, and Garth and Sloviter, Circuit Judges. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
This appeal requires us to ascertain the nature, and therefore the consequences of a contempt sentence imposed upon William Eyler, who, having been immunized, thereafter refused to testify at the trial of Irving North, when he (Eyler) was called by the Government. Eyler now appeals the denial of his motion to reduce the term of the six-month contempt sentence imposed upon him. It is Eyler's contention that his contempt was civil in nature and must therefore be governed by 28 U.S.C. § 1826.*fn1 Thus, he argues that he must be released, since the proceeding at which he was sentenced has ended. We conclude however, that Eyler was held in criminal contempt, to which 28 U.S.C. § 1826 has no application, and accordingly we affirm the district court's refusal to modify Eyler's six-month contempt sentence.
Eyler's appeal arises out of events that transpired during the course of the trial in United States v. North, Crim. No. 79-98 (W.D.Pa.), a case in which defendant North was charged in a complex bank fraud scheme. Jury trial of North commenced on July 10, 1979.
Eyler was one of the co-conspirators named in the North indictment and charged in a companion indictment. Eyler had pled guilty to a number of counts and had agreed to cooperate with the Government at North's trial. On November 8, 1978, Eyler had been sentenced on this plea, and was serving concurrent three-and-one-half-year and four-year sentences, when subpoenaed to testify against North.
On July 12, 1979, Eyler was called by the Government to testify at North's trial. Eyler refused to testify, invoking his fifth amendment privilege against self-incrimination. On that same date, Eyler was granted use immunity under 18 U.S.C. §§ 6002 and 6003 and was then ordered to testify.*fn2 He was advised by the court at this time that should he still refuse to testify he would be held in contempt. He was also told by an Assistant United States Attorney that he could purge himself of this contempt by testifying thereafter.
The next day, on July 13, 1979, Eyler again refused to testify. Twice the district court judge explained to Eyler that he was compelled to testify and that he would be held in contempt and sentenced if he refused. App. at 22a, 27a. Each time Eyler was told either, that a contempt sentence would interrupt his current criminal sentence, or that it would lengthen his stay in jail. Id. at 23a, 27a. Eyler was also informed that he could purge himself of contempt by testifying. Id. at 22a. When Eyler persisted in his refusal to testify, he was finally held in contempt and sentenced to six months in jail after again being given an opportunity to purge himself.
North's trial continued without Eyler's testimony and ended four days later on July 17, 1979, when the jury returned guilty verdicts on all counts with which North was charged.*fn3 Thereupon, on July 23, 1979, Eyler filed a motion for reduction of sentence pursuant to Fed.R.Crim.P. 35, claiming that since North's trial had ended, his contempt sentence which he claims was for a civil contempt must also end. On August 21, 1979, this motion was denied by the district court. This appeal followed. After argument before a panel on October 16, 1979, on November 21, 1979 rehearing en banc was ordered by this court. Argument before the court en banc was then heard on April 28, 1980.
The critical issue in this case is whether Eyler was held in civil contempt or in criminal contempt. It is undisputed that if Eyler was held in civil contempt, see 28 U.S.C. § 1826, quoted note 1 supra, his sentence must be reduced, but if he was held in criminal contempt, see 18 U.S.C. § 401,*fn4 the district court's refusal to reduce his sentence must be affirmed. Although the district court failed to specify the particular statute under which Eyler's contempt was imposed, or to characterize the contempt as either civil or criminal, a careful examination of the record leading up to, and following, Eyler's contempt sentence is, in our judgment, conclusive. Our scrutiny of the record satisfies us that the district court did not err in refusing to reduce Eyler's sentence to correspond to the length of North's trial.
On July 12, 1979, when Eyler appeared before district Judge Simmons and was granted immunity, Judge Simmons and the Assistant United States Attorney, at the behest of Eyler's counsel, explained the consequences of refusing to testify after a grant of immunity. The record transcript reveals the following:
MR. MANNING (Assistant United States Attorney): Mr. Eyler, should you refuse to testify at this stage of the proceedings, the Government would then present a petition to the Court, the District Court, to have you held in contempt for failure to testify. In fact, that can be done orally. It need not be prepared written. And evidence will be presented to the Court to show that you did fail to testify, at which time the Court could determine that you were in contempt of the order of court and hold you incarcerated for a period of time, at the determination of the court, which would extend whatever sentence you are presently serving and cannot run concurrently thereto. You understand what I'm saying?
THE COURT: In other words, in plain English, if you have, say, two more years to serve and you would refuse to testify and you would remain in contempt, say for a year, you would still have two more years to go on your present incarceration.
MR. MANNING: Do you understand?
MR. MANNING: If you would be held in contempt, that you could purge yourself of that contempt by thereafter having been held in contempt thereafter deciding that you will testify. You understand that?
MR. MANNING: Well, if you should refuse to testify and you are held in contempt
MR. MANNING: (continuing) and you go over to the Allegheny County Jail, or wherever, and your attorney comes back and says, "Your Honor, my client will now testify," then you would no longer be in contempt. You understand?
MR. EYLER: Oh, you don't get me for perjury for wanting to talk afterwards?
On the following day, when Eyler again claimed a fifth amendment privilege against testifying, the district court judge who was presiding at North's trial informed Eyler:
(THE COURT:) . . . (A) Court cannot force you to testify but it can hold you in contempt for failing to testify. Now, if you are held in contempt, the punishment is a sentence of the Court to incarceration and that sentence might be quite severe and it is a sentence to prison.
So finding that you have no further Fifth Amendment right, I have no choice here but to order you to testify and if you refuse on the grounds of the Fifth Amendment or any other grounds, to sentence you to some penalty for your contempt.
So if you want any further opportunity to talk to your attorney, you can have it so long as it is a brief time. He is right here in Court. If you do not want this opportunity, I want to know now whether you are going to testify or not.
If you tell me you are not, then I want to make an order that you are in contempt and that I propose to sentence you and then that order continues until you purge yourself of ...