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UNITED STATES v. DRUM

August 12, 1983

UNITED STATES OF AMERICA
v.
JOHN DRUM



The opinion of the court was delivered by: HERMAN

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 569 F. Supp.]

 ORDER

 AND NOW, this 12th day of August, 1983, in accordance with the accompanying matter, IT IS HEREBY ORDERED AND ADJUDGED that Defendant, John Drum, is found guilty of criminal contempt pursuant to 18 U.S.C. § 401(3) and Federal Rule of Criminal Procedure 42(b). The Probation Office is directed to prepare a presentence report. A sentencing date will be scheduled thereafter.

 The present action concerns the government's motion for criminal contempt sanctions against Defendant, John Drum, following his refusal to testify before a grand jury. Upon Drum's knowing and voluntary waiver of his right to a jury trial on the contempt citation, a non-jury trial commenced on June 22, 1983. The court took the matter under advisement upon completion of the trial and requested briefs. The action is now ripe for decision.

 I. FINDINGS OF FACT

 On September 17, 1982, in the Eastern District of Pennsylvania, Drum entered a plea of guilty in criminal action No. 82-173-1 to the crimes of conspiring to manufacture methamphetamine and of attempting to manufacture methamphetamine. Defendant's Exhibit 2, at 6. The guilty plea was entered pursuant to a plea agreement in which the Eastern District United States Attorney's Office dismissed two counts of a four-count indictment. Moreover, the government agreed that no prosecution would be brought against Drum in the Middle District of Pennsylvania, although information concerning his activities in the Middle District would be presented to the Eastern District court for consideration in sentencing. Id., at 2-3. These were the sole terms of Drum's plea agreement; the government never promised not to call Drum as a witness before a Middle District grand jury. Subsequently, the Eastern District Court sentenced Drum to five years in prison.

 On March 16, 1983, while a grand jury investigating illegal drug activities was convened in the Middle District, *fn1" the government applied for an immunity order for Drum in order to compel Drum to testify before the grand jury. The court considered the motion during a hearing in chambers at 10:45 a.m. on that day. Government Exhibit 1 (Transcript of March 16, 1983, proceeding). Drum was unrepresented and informed the court that he thought his attorney, Edward Reif, would be arriving. Drum also stated that his Eastern District plea agreement provided that he "would not be bothered with the Middle District of Pennsylvania," either in the sense of prosecution or grand jury testimony. Id., at 4. The court recessed the proceeding for the government to determine the status of the Eastern District plea agreement and the whereabouts of Drum's counsel.

 Later that morning, the government informed the court that it was apparent that Drum's counsel would not be attending the hearing. The government also produced a letter from the Eastern District United States Attorney's Office that memorialized the pertinent part of Drum's plea agreement. The letter clearly indicated that no prosecution would be brought against Drum in the Middle District. The letter did not mention any provision that Drum would not be called as a grand jury witness. Id., at 7-8.

 Accordingly, the court noted that the plea agreement, as characterized by the letter, stated only that the government would not prosecute Drum in the Middle District. The court then explained the immunity order to Drum, signed the order, and directed Drum to testify before the grand jury. Id., at 11-12. The court and the government further informed Drum that if he did not testify he could be held in civil or criminal contempt. Id., at 12.

 Immediately thereafter, the government called Drum as a witness before the grand jury. Drum admitted that he had consulted with his attorney that morning. He then stated that he would not comply with the court's order to testify and he refused to state his reasons for this refusal. Government Exhibit 2 (Transcript of Drum's grand jury testimony), at 3, 5-6. Subsequently, the government moved for criminal contempt sanctions against Drum pursuant to Fed. R. Crim. P. 42(b) and 18 U.S.C. § 401(3). *fn2"

 II. DISCUSSION

 Based upon the above findings of fact, we find that Drum is guilty of criminal contempt of this court's immunity order of March 16, 1983. We clearly explained the order to Drum and informed him that his testimony could not be used to incriminate himself, unless he committed perjury. The court also told Drum that everybody owes his testimony to the government and that he had to testify. The immunity order, plus this court's oral statements to Drum, commanded Drum to answer all questions before the grand jury. Drum explicitly refused to obey the court's order and, thus, demonstrated his contempt of this court's authority. We find beyond any reasonable doubt that Drum wilfully, intentionally, and knowingly refused to obey the court order.

 Drum raises three arguments why he should not be held in criminal contempt, all of which are without merit under the facts of this case. First, Drum contends that the government was required to bring a civil contempt action not a criminal contempt action.

 A. Civil Versus Criminal Contempt

 When an immunized witness refuses to testify before a federal grand jury, the witness may be held in civil or criminal contempt. See UNITED STATES v. PETITO, 671 F.2d 68 (2d Cir. 1982); cert. denied, 459 U.S. 824, 103 S. Ct. 56, 74 L. Ed. 2d 60 (1982); IN RE GRAND JURY INVESTIGATION, 600 F.2d 420 (3d Cir. 1979). The purpose of civil contempt is to coerce the witness into testifying. The purpose of criminal contempt is to punish the witness for his refusal to obey the court's order, thus vindicating the court's authority. Id. at 422-23. The decision to treat a refusal to testify as criminal contempt, rather than civil contempt, falls within the trial court's discretion. United States v. Leyva, 513 F.2d 774, 779 (5th Cir. 1975); WATKINS v. HOWARD, 441 F. Supp. 486, 488 (E.D. Wisc. 1977). In exercising this discretion, the court should consider the feasibility of coercing the witness' testimony by civil contempt. United States v. Wilson, 421 U.S. 309, 317, 44 L. Ed. 2d 186, 95 S. Ct. 1802 n.9 (1975), quoting, Shillitani v. United States, 384 U.S. 364, 371, 16 L. Ed. 2d 622, 86 S. Ct. 1531 n.9 (1966); IN RE GRAND JURY PROCEEDINGS, HARRISBURG GRAND JURY, 658 F.2d 211 (3d Cir. 1981). Moreover, the court is not required to expressly consider civil contempt on the record prior to the institution of criminal contempt proceedings against recalcitrant witnesses. Id., at 217-18; UNITED STATES v. NORTH, 621 F.2d 1255, 1261 n.9 (3d Cir. 1980).

 Under the present circumstances, civil contempt would have been futile since the grand jury's term, at the time when Drum was called as a witness, had only two months remaining before its expiration. Therefore, any civil contempt sanction imposed upon Drum would have been merely two months, which is not a lengthy period to attempt coercion. When the potential duration of civil coercive confinement is severely limited, a court may consider civil contempt a futile sanction. NORTH, 621 F.2d at 1263; HARRISBURG GRAND JURY, 658 F.2d at 218 (civil contempt is not available when the grand jury has expired). Moreover, civil contempt may not be sufficient when "the contemnor is already incarcerated and is therefore unlikely to respond to a threat of summary civil contempt." NORTH, 621 F.2d at 1261 n.9, citing, WILSON, 421 U.S. at 317 n.9.

 Here, Drum was serving a five-year sentence. The maximum sentence he could receive for civil contempt was two months. We agree with the government that such a sentence, while Drum already was incarcerated, would have little coercive effect and would be "a small price for [Drum] to pay for his refusal to comply with the court's order." NORTH, 621 F.2d at 1255; Government's Brief, at 15. Finally, by the time the government had obtained pertinent documents and had proceeded against Drum, the grand jury ...


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