Walter Martin, Jr. v. United States ( 1975 )

GIBSON, Chief Judge.

This appeal presents the question of whether a federal district judge has the power to impose a civil contempt sentence upon a witness serving a prior criminal sentence and thus suspend the service of that criminal sentence during the contempt confinement. Petitioner, Walter Martin, Jr., was. convicted January 3, 1973, of two counts of distribution of heroin and received concurrent sentences of 10 years imprisonment to be followed by a three-year special parole term.¹ Upon appeal his conviction was affirmed. United States v. Martin, 482 F.2d 202 (8th Cir. 1973).

On February 20, 1973, after Martin had begun service of his sentence and during the pendency of his appeal, he was called before a grand jury in the Eastern District of Missouri. After being granted immunity, he was questioned regarding the source of the heroin he had distributed. Upon his refusal to testify, repeated before the District Court,² Judge Meredith adjudged Martin in contempt, pursuant to 28 U.S.C. § 1826(a),³ and ordered him confined for the duration of the grand jury proceedings or until he testified, but in no event for more than 18 months. In addition, the court ordered that the contempt sentence was not to be credited towards service of petitioner’s criminal sentence. Martin was in custody pursuant to the contempt citation until September 26, 1973, when the grand jury session ended and as a result of the contempt confinement the termination date of his criminal sentence was extended some seven months.

The present proceeding was instituted by a 28 U.S.C. § 2255 (1970) motion to vacate the civil contempt sentence as an unauthorized interruption of the original criminal sentence. The motion was denied by the District Court on March 5, 1974, and this appeal taken. Martin’s basic contention is that the District Court had no power to stay the running of the prior criminal sentence during the period of Martin’s confinement for civil contempt.⁴ Two circuits have considered this same basic contention and rejected it. United States v. Liddy, 166 U.S.App.D.C. 289, 510 F.2d 669 (1974) (en banc), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975); Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1353, 43 L.Ed.2d 440 (1975). We reject it as well.

We would first note that after conviction for an offense, a grant of immunity to compel a prisoner to testify concerning that same offense can present disturbing questions, especially when, as here, there is a suggestion that the refusal to testify is motivated at least in part by a fear for personal safety. However, whatever our personal feelings about the course adopted by the Government in this case, compelling testimony in identical circumstances was approved by the Supreme Court in Piemonte v. United States, 367 U.S. 556, 81 S.Ct. 1720, 6 L.Ed.2d 1028 (1961). While the result seems harsh and may smack of “unjustifiable harassment,” see Piemonte v. United States, supra at 564, 81 S.Ct. 1720 (Warren, C. J., dissenting), we are bound by the Piemonte decision and thus cannot say that Martin could not be compelled to testify in these circumstances.

Once it is established that petitioner’s testimony could be compelled under the grant of immunity,⁵ the question is what the power of the court was when confronted by Martin’s refusal to testify. The dissent would limit the court to criminal contempt proceedings. However, we can find no such limitation upon the court’s power.

There is no indication that the civil contempt sanction provided by 28 U.S.C. § 1826(a) was not to be available to punish already incarcerated contemnors.⁶ United States v. Liddy, supra, at 675 n. 24. Nor do we understand Martin’s argument to be that the court may not find him in civil contempt under 28 U.S.C. § 1826(a). Rather, his claim is that the court has no power to interrupt the running of his present criminal sentence in order to give coercive effect to the civil contempt confinement. If Martin’s argument is correct, any such confinement would be tantamount to a concurrent sentence and as a practical matter would remove the coercive effect of the contempt confinement.

We think it unlikely that Congress, had it considered the problem, would have intended to immunize incarcerated witnesses from the coercive sanctions of § 1826(a) when all other classes of witness are subject thereto. See Kastigar v. United States, 406 U.S. 441, 446-47, 92 S.Ct. 1653, 1657, 32 L.Ed.2d 212 (1972):

The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of such offenses, and their primary use has been to investigate such offenses.

No sound policy reason exists to support a conclusion that prisoners can escape the application of § 1826(a) when a person charged but not convicted of an offense, or one convicted but not yet sentenced would be subject to its application.

However, Martin argues that such a result is compelled by 18 U.S.C. § 3568 (1970) which prescribes the method of computation of criminal sentences. That section provides:

The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense * * * which is in violation of an Act of Congress and is triable in any court established by Act of Congress.

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No sentence shall prescribe any other method of computing the term.

Martin argues that the last quoted sentence of § 3568 provides that once the service of a sentence is commenced, it cannot be interrupted by an intervening civil contempt confinement, noting the very limited power that a trial court has to modify the terms of a sentence once imposed. But it is not entirely correct to speak of the action of the District Court in this case as a modification of the prior criminal sentence. First and foremost it was the imposition of a civil sanction for a refusal to testify. To be sure, Judge Meredith ordered that the civil custody should not be credited towards service of the criminal sentence, but we are convinced that this result would have obtained absent the court’s order. See Anglin v. Johnston, supra at 1169 & n. 4.

Confinement pursuant to § 1826(a) is a civil sanction and not punishment for a criminal offense. See United States v. Liddy, supra, at 675; Anglin v. Johnston, supra at 1167.⁷ As succinctly stated by the court in Anglin :

The language of section 3568 is unambiguous. Credit shall be given for time spent “in connection with the offense or acts for which sentence was imposed” and “offense” is defined as a “criminal offense.” The confinement for which petitioner seeks credit was imposed in connection with a civil contempt (refusal to testify) and not in connection with the criminal offense “for which sentence was imposed.”

Anglin v. Johnston, supra at 1167.

Thus, the question is not whether the District Court had the power to interrupt the presently running criminal sentence, but whether the civil contempt sentence validly imposed by the court for violation of § 1826(a) operates to interrupt the prior criminal sentence. We hold that it does. Of course, the court could specifically provide for concurrency, although it is unlikely that it would wish to eliminate the coercive effect of the confinement. We think that interruption of the criminal sentence by a civil confinement pursuant to § 1826(a) is not in derogation of 18 U.S.C. § 3568 but arises from the clear and unambiguous provisions of that statute.

Our analysis is not conditioned upon what might be termed the “fault of the prisoner.” See United States v. Liddy, supra. Although there are instances in which the “fault” of a prisoner serves to interrupt the running of a criminal sentence and thus postpones its termination date, see United States v. Liddy, supra at 674-75; Anglin v. Johnston, supra at 1168-69, determination of the effect of a civil contempt sentence is not dependent upon a finding of fault of the prisoner. Such a determination rests upon the interpretation of § 1826(a) and § 3568.

We further question the applicability in this case of the general proposition that a district court lacks the power to change the term of a sentence once imposed or that its jurisdiction to do so is lost while the case is on appeal. See United States v. Liddy, 166 U.S.App.D.C. 289, 510 F.2d 669 (1974) (MacKinnon, J., dissenting). The civil contempt proceeding here was an entire ly separate court proceeding from the criminal case (indeed, different judges imposed the sentences at issue, although that factor would not change the result). If the court had the power to find Martin in contempt during the pendency of his criminal appeal, as it surely did, it had the power to impose a sanction based upon that finding unaffected by the pending appeal in the criminal case.

The judgment of the District Court denying relief is affirmed.

1 . Sentence was imposed by the Honorable John K. Regan, United States District Judge for the Eastern District of Missouri.

2 . The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri.

3 . 28 U.S.C. § 1826(a) (1970) was enacted as section 301(a) of Title III of the Organized Crime Control Act of 1970, Pub.L. No. 91-452 (Oct. 15, 1970). The section provides:

§ 1826. Recalcitrant witnesses.

(a) Whenever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to comply with an order of the court to testify or provide other information * * * the court, upon such refusal, or when such refusal is duly brought to its attention, may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony or provide such information. No period of such confinement shall exceed the life of—

(1) the court proceeding, or

(2) the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, but in no event shall such confinement exceed eighteen months.

4 . He also contends that the imposition of the civil sentence vacated the prior criminal sentence because of the “illegal admixture.”

5 . Indeed, the grant of immunity may not have been necessary. See Reina v. United States, 364 U.S. 507, 513, 81 S.Ct. 260, 5 L.Ed.2d 249 (1960).

6 . See H.R.Rep.No. 1549, 91st Cong., 2d Sess. (1970), reprinted in U.S.Code Cong. & Admin. News 4007, 4022 (1970):

Section 1826(a) becomes applicable to any proceeding before or ancillary to any court or grand jury in which a witness unjustifiably refuses to testify or produce other information.

7 . See also H.R.Rep.No.1549, 91st Cong., 2d Sess. (1970), reprinted in U.S.Code Cong. & Admin.News 4007, 4022 (1970):

The confinement is civil, not criminal; its purpose is to secure the testimony through a sanction, not to punish the witness by imprisonment.