United States v. Irving North. Appeal of William D. Eyler, an Immunized Witness in the Case of United States v. North

V. decision, we deter- earlier court’s lost exempt status

mined that of nonexempt

through performance

work, determining the task left duty should measured primary

whether court.

on a workweek basis adoption of any conclusion

Our evaluating pri- frame

particular time provisos test duty short

mary under rulemaking

involves the district reverse

requires us to the district court’s on a primary duty work- interpreting is, however, a basis. There continu-

week injunction against Western Union re-

ing pay manage- it to overtime to those

quiring perform who employees nonexempt

rial impossible, But it will be until

work. since promulgated,

a rule is to determine when tests,

exempt the short status is lost under dissolve

we direct the district court to

injunction, prejudice to whatever without

rights conclusion parties procedures. rulemaking judgment of the district court will be case remanded for

reversed and the further opin- inconsistent with this

proceedings not Each side to bear its own costs.

ion. America, Appellee,

UNITED STATES

Irving NORTH. EYLER,

Appeal William D. witness in the case of

immunized North.

United States v.

No. 79-2352. Appeals, Court of

United States Circuit.

Third 16, 1979. Oct.

Argued

Reargued April En Banc May

Decided Ober, Wallace, (argued),

Russell J. Jr. Ober, Pa., Chapas Pittsburgh, appel- & lant. Cindrich,

Robert Atty., J. U. S. Edward J. Schwabenland, Atty. (argued), Asst. U. S. Pa., Pittsburgh, appellee.

Argued Oct. 1979. SEITZ, Judge, Before Chief and GARTH VITER, Judges. and SLO Circuit Reargued April SEITZ, Before Judge, Chief and ALDI- SERT, ADAMS, GIBBONS, ROSENN, WEIS, GARTH, HIGGINBOTHAM and VITER, Judges. SLO Circuit _ THE OPINION OF COURT GARTH, Judge. Circuit This appeal us to requires ascertain the nature, consequences therefore of a imposed upon William who, immunized, having been there- testify Irving refused to trial of North, (Eyler) when he was called appeals Government. now the denial of his motion to reduce the term of the six-month him. It contention that his con- tempt was civil in nature and must there- governed fore be U.S.C. 1826.1 § provides part just 28 U.S.C. in relevant § of the United States refuses without comply recalcitrant witnesses be held in civil cause shown to with an order of the contempt: court, upon . . ., may summarily such refusal . . (a) any proceeding Whenever a witness place his confinement at a suitable until such ancillary grand jury before or court or released, day, The next Thus, argues that he must be at which he was sen- Twice proceeding refused again since however, has ended. We conclude judge explained tenced that he contempt, held in Eyler was and that would be compelled applica- no which U.S.C. has he re- sentenced held tion, accordingly affirm the 22a, Each time App. at 27a. fused. modify Eyler’s to six-month court’s refusal either, contempt sentence a that told was contempt sentence. sen- criminal interrupt his current would stay lengthen his tence, that would or I. 23a, was also Eyler jail. Id. at 27a. in Eyler’s appeal arises out of events purge himself that he could informed transpired course trial in during of the at 22a. When Id. contempt by testifying. North, No. 79-98 United States v. Crim. to testify, his refusal Eyler persisted in (W.D.Pa.), a North case in which defendant contempt and sentenced finally held in was charged complex was in a bank fraud being given again in jail to six on Jury scheme. trial of North commenced himself. opportunity purge to July Eyler’s trial continued without North’s co-conspirators of the Eyler was one days July on testimony and ended four later charged in the indictment and named North 17, 1979, when jury guilty returned pled companion Eyler in a indictment. had which on all counts with North was verdicts a and had guilty to number counts charged.3 Thereupon, July Ey- on to with the agreed cooperate Government of sentence ler filed a motion for reduction North’s November trial. On 35, claiming to pursuant Fed.R.Crim.P. on and plea, sentenced ended, contempt since North’s trial had his was concurrent three-and-one-half- was a civil sentence—which he claims for subpoe- when year four-year and contempt August also end. On —must testify against naed to North. by denied this motion was 12,1979, by called On was argu- appeal court. This followed. After Ey- to at North’s trial. Government 16,1979, panel on on ment before October testify, invoking ler refused his fifth rehearing en banc was November privilege against amendment self-incrimi- Argument before by ordered this court. date, was nation. On that same April on the court en was then heard banc immunity use under 18 U.S.C. granted 28, 1980. was then ordered to 6003 and §§ by He advised court at testify.2 was II. he still to testi- this time that should refuse case The critical issue in this is whether He was fy contempt. he would be held held or in crimi- Eyler was in civil At- by told an Assistant United also contempt. undisputed Ey- that if nal of this torney that he could himself contempt, ler was held see 28 U.S.C. contempt by testifying thereafter. willing give proceeding such was held before a different witness is 2. This time as the testimony conducting con- ... No of such than one who was ultimately finement exceed the life of— trial and shall North who sentenced (1) proceeding, provides that a § for 18 U.S.C. may once not refuse to tes- witness tify, immunized (cid:127) (cid:127) (2) (b) pursuant person testimony sub- No confined no use made of his (a) given. provided Exceptions section shall be admitted this section for so are appeal pending prosecutions, giving bail of an perjury the determination of a false state- ment, failing comply taken him his confine- from the for with the or otherwise appears appeal ment if it frivolous that the specifies order. court’s 18 U.S.C. § delay. Any appeal or taken for from an immunity. procedure granting for order of shall confinement under this section disposed practicable, of as soon as but not August fugitive has 3. North been a since thirty days filing of such later than from the appear sentencing. when failed to appeal. supra, words, note 1 THE quoted plain COURT: In other reduced, must be but if he held in was English, have, say, years more you two 401,4 contempt, see 18 U.S.C. § you serve and would refuse district court’s refusal reduce sen- contempt, say and you would remain in Although tence must be affirmed. the dis- year, you still have two more specify particular trict court failed to years go your present incarceration. statute under which you MR. MANNING: Do understand? or to characterize the MR. EYLER: understand. criminal, a either civil or careful examina- you MR. If would be held to, MANNING: leading up tion of the record follow- is, contempt, purge your- ing, Eyler’s contempt you in our judgment, scrutiny conclusive. Our self of that thereafter —hav- record satisfies us that the district court did ing been held in —thereafter refusing not err in to reduce sen- deciding will you You un- correspond length tence to of North’s derstand that? trial. MR. EYLER: No. Well, MR. if you MANNING: should A. testify you refuse to are held in On when appeared contempt— Judge before district Simmons and was Right. MR. EYLER: granted immunity, Judge Simmons and the Assistant United Attorney, at the MR. MANNING: (continuing)—and counsel, behest of Eyler’s explained the con- go Jail, you Allegheny County over to the sequences refusing of testify to after a wherever, or your attorney comes grant of immunity. transcript The record Honor, says, back and “Your client reveals following: will testify,” now you then would no MR. MANNING United [Assistant longer be in contempt. You understand? States Attorney]: Eyler, you Mr. should Oh, get MR. you EYLER: don’t me for refuse testify stage pro- to at this of the perjury wanting to talk afterwards? ceedings, the Government would then MR. MANNING: No. present petition Court, the Dis- MR. Okay. EYLER: Court, trict you to have held in contempt fact,

for failure to testify. that can be App. at 15a-17a. orally. prepared done It need not be the following day, Eyler again On when written. And evidence will be presented claimed a privilege fifth amendment you to the Court to show that did fail to against testifying, the testify, at which time the Court could presiding who was at North’s trial informed you determine that were in of Eyler: you order of court and hold incarcer- Court ... time, [THE COURT:] [A] ated for a at the determi- testify cannot you force to but it can hold court, nation of the which would extend you in contempt failing whatever to you presently sentence are Now, serving and cannot run if concurrently you are in contempt, held thereto. You say- understand what I’m punishment is a sentence of the Court to ing? might incarceration and that sentence

MR. EYLER: Yes. quite prison. severe and it is a to provides: (2) 4. 18 any U.S.C. § Misbehavior of of its officers in transactions; their official A court of the United States shall have (3) Disobedience or resistance to its lawful power punish by imprisonment, fine or at writ, order, rule, decree, process, or com- discretion, authority, its such of its mand. other, and none as— (1) any person pres- Misbehavior of in its ence or so near as thereto to obstruct justice; administration of right. All no further THE COURT: finding you have So no right, I have choice Fifth Amendment Id. at 22a-23a. you and if you to here but to order ensued, Thereafter, id. a discussion the Fifth grounds refuse counsel stated 25a-28a, in which grounds, to sen- any other Amendment or to be for your con- penalty to some you tence entitle in excess six tempt. Apparently in this jury to a trial. opportunity further if want you So connection, attorney referred the you can have it your attorney, to talk to of U.S.C. provisions court to the right time. He is it a brief long so in certain jury for a provides which you If do not want this here in Court. contempt.5 point At that of criminal cases know now whether opportunity, I want to Eyler: addressed again the court testify or not. you going to are Mr. I want THE COURT: not, I you tell me are then want you If thoroughly a little more explain this you are con- make you per- you. you Do understand you propose and that tempt testify, going I am your sist refusal you until that order continues then going I am you contempt? to find yourself of the until sentence you. the end of the sentence. The sentence will the effect Now, course, you purge yourself can running your interrupting the contempt by agreeing will The effect sentence. and by testifying. longer. it make extend that understanding, although I do understand? you Do record, I not know is on the but have Yes, Honor. THE Your WITNESS: I I it think sen- recollection of because at 27a. App. I you, tenced did not? Yes. THE WITNESS: which After a brief recess in are in with his you given And I think a chance to consult THE COURT: sentences, serving position, now two his prison counsel and to reconsider concurrently testify with here and one and was sen again refused to once District in the Southern tenced: Ohio? Very well. Let the rec- THE COURT: Yes, Your Honor. THE WITNESS: in held show that defendant ord refusing COURT: Or some other district

THE pain in So the effect of the Ohio. do so under directed him to pris- lengthen your be to sentence would contempt of being sentenced for Court. Now, on want to talk to you sentence. do contempt herewith and He is held in your again? attorney prison. Let sentenced to six months No, Your Honor. THE WITNESS: prison. is in the record show defendant you going Are testi- running THE COURT: six will interdict The fy? will criminal sentence and an order of his No, accordingly. Your Honor. made

THE WITNESS: by jury, as tied to trial which conform states: shall U.S.C. 3691 practice in other crimi- near charged Whenever shall consist nal cases. writ, any in willful lawful disobedience contempts apply shall not This section order, rule, decree, process, or command of court, presence or so committed in by any the United near thereto as to obstruct the administration doing thereof, any thing omitting or or in violation act contempts justice, to any nor committed thing and the act or done or omitted writ, process, or- lawful disobedience der, rule, any also constitutes a criminal offense under decree, or entered in command Congress, Act of or under laws omitted, prosecuted brought or in the suit or action it or state which was done accused, of, of, on the United States. therefor, name behalf shall be enti- demand gentlemen. right, following repeated All If there is noth- eration and refusal else, ing testify, although Mr. so. Eyler can be taken back ordered to do wherever he go. is to It is now that William D. found is in of the court’s order and Eyler]: May MR. OBER [Counsel accordingly is the defendant sentenced to please— of six imprisonment period for a months. Now, THE you COURT: can witness, In view of the fact that now yourself contempt by testify- of that incarcerated, is now William D. but, refusal, ing; persisting in the we are Zlk years a term of two through proceeding with the and we are 78-157, imposed at Criminal No. in the ready proceed with the trial. Pennsylvania Western on No District of App. supplied).6 (emphasis 28a concurrently vember to run The (docket entry court’s minute number the sentence in the Northern 22) reflects these circumstances in the fol- District of Criminal No. 78-12Y Ohio at lowing language: August 3, 1978, the sentences shall be Witness William D. takes witness adjusted accordingly.7 stand & Takes 5th Amendment & refuses After sentence to testify Contempt & is held in & is transcript discloses that other discussions jail sentenced to 6 mos. in —Jail among took place, counsel and the court to interdict the sentence he is these discussions had reference to matters serving. pertaining Ey- to North’s and not to signed formal order and en ler’s contempt. At the conclusion of these (docket tered the district court entry proceedings, Eyíer’s again counsel ad- 24), number reads: dressed the court as follows: NOW, AND following Honor, MR. Your just OBER: could I witness, the immunization of the William question ask one in connection with Mr. D. Eyler, following Now, his refusal Eyler’s status? will he be incarcer- open during ated six locally this date on the month ground Morgantown? or will he be might that he incriminate returned himself after he had been advised THE intention My COURT: is to re- fully in the attorney matter under consid- is. turn him he to wherever imposing 42(a). The fact that the requirements satisfies the rule Rule provided contempt 42(a) that the six-month reads: Eyler’s prior sentence would interdict sen contempt may punished A criminal sum- tences is consistent with the service of a crimi marily judge if the certifies that he saw or contempt Although nal sentence in this case. constituting contempt heard the conduct the generally the device of interdiction has been pres- and that it was committed in the actual employed contempt referred to and cases, see, in civil contempt ence of the court. The order of g., Jury Investigation e. In re Grand signed by shall recite the facts and shall be (Hartzell), 166, (3d 1976), 542 F.2d Cir. judge and entered of record. denied, cert. 429 U.S. 97 S.Ct. requirement We note that the that the facts be (1977), perceive practical L.Ed.2d 762 no specifically stated is fundamental because “[a] served, Eyler’s difference in terms of time to be contempt order like other convic- prior “breaking between his into” sentences tion of crime must stand or fall on the sufficien- adding six months to the end of those cy specification wrongdoing upon sentences. based,” Gordon, which it is Tauber v. 350 F.2d 1965) (en banc) (per 845 n.l Cir. cu- Eyler raised no issue as to satisfaction of riam). 42(a) by While rule does not its terms 42(a) Fed.R.Crim.P. at the time of initial brief- require contempt, a characterization of the it is ing. supplemental It was not until a en banc evident that issues such as the instant one can briefing Eyler rule, alleging that referred to that contempt specifies avoided the order of noncompliance claiming that the failure to contempt whether it is a civil or a criminal by cite the rule the district court that indicated Moreover, contempt. See infra at 1265. be- contempt was civil rather than criminal. seemingly mandatory language cause of the However, Eyler did not address or refer us to 42(a), rule the district courts should observe its the order of the district court dated strictly.- terms (docket entry 24), fully number which signifi- he It immediately. unless did so Pine. MR. OBER: immediately upon imposing us cant to that not realize he was did THE COURT: Eyler: intention is told Morgantown sentence the court go there. will back Now, yourself that con- you purge can All fine. right, MR. OBER: but, persisting tempt by testifying; now effect of THE COURT: refusal, through with the in the we are his sen- contempt sentence will be that ready proceed we are proceeding and lengthened accordingly. will be tence with the trial. at 38a-39a. App. Thus, supplied). App. (emphasis at 28a deliberately We set forth at have last gave Eyler this one judge district dispel any length record references himself, providing he did so purge chance Eyler’s concern that refused, thereupon that time.9 at have been construed as conceivably could sen- activating unconditional six-month by length to be measured that been decreed. The court tence First, we observe that had of North’s trial. signed the commitment order minutes and as a civil con intended judge completely are by the district court been no need to tempt, there that action. consistent trial, jury an issue question consider the Third, conclusion of the at the re and which is raised counsel in- response counsel’s proceeding, a criminal con in the case of quired only was to be incar- as to whether quiry Schnackenburg, tempt, v. 384 U.S. Cheff six months of his locally for the cerated 1523, 1525-1526, 373, 379-80, was to be returned or whether he (1966); Liddy, v. L.Ed.2d 629 United States Virginia, where Morgantown, West 1974) (en (D.C.Cir. F.2d 676 n.29 prior denied, banc), cert. Morgantown. Eyler back ordered (1975); United L.Ed.2d contemplat- if it was still evident us that Boe, (8th 1974). 491 F.2d Cir. 1979) (July ed at time DiMauro, See United States testifying (8th 1971) obviously “is himself (jury thereafter, no the mark of a criminal convict there would have been time ion”).8 Virginia to West reason return holding custody. in local than him rather Second, reading apparent from a fair it is regard obviously Eyler's do not While we court’s advice to district Morgantown as a determinative return sen- intended that assessing con- the nature factor tence, un- once was to become an an- imposed, it does constitute still tempt fur- six-month sentence with no conditional in- contumacy the district court opportunity curing other indication ther require- para- inappropriate.” Although added the it is clear from the second DiMauro 8. 3691, expressly supra, judge quoted graph that “the trial consider of U.S.C. note 5 ments the 18 imposition contempt of civil and that of would not be the that that statute itself case, any jury right that the alternative was con- trial in the instant record reveal civil source (empha- rejected.” probative court 441 F.2d at 435 we deem the intent of the sidered and supplied). recognition This Circuit has subscribed and of the of the nature sis to the latter rule. the one last chance counsel’s However, considered, being contempt observe that reference (cid:127) given contempt to to was made a criminal statute and himself, contempt concept jury was im- of a that context. before criminal posed, than satisfies Shillitani and would more event, States, 364, have satisfied DiMauro as well. In Shillitani v. United Supreme n.9, n.9, has 1531,1536, noted that the Shillitani the admonition carries little Court 622 L.Ed.2d 86 S.Ct. here, where, weight as (1966), Supreme “the trial noted that Court is feasibility is incarcerated and judge the contemnor first consider [must] unlikely respond coercing testimony imposition to a threat through therefore summary son, n.9, contempt. United States v. Wil- judge The civil criminal sanctions should resort n.9, determines, he remedy U.S. (1975). reason, good be the civil to, did, NOW, tended regard the contempt August 21, 1979, AND letter being sentence as 14, 1979, criminal in August having nature. dated re-

ceived at the from the Warden Federal Morgantown, Correctional Institution at B. West Virginia, asking for clarification of The judge actions the district court our order of July concluded, taken after the trial had buttress THEREFORE, the order is NOW clari- our conclusion.10 In his motion for correc- fied. It means that the sentences Wil- sentence, 13a, tion of App. at 41a— liam shall D. is now be assertion, with no record basis for of six interrupted for a claimed had been di- that his incarceration while from the date of the order pursuant rected 28 U.S.C. § serves the contempt imposed by that he therefore should have been released order of July from confinement North’s trial when ended. III. Eyler’s Obviously, motion was denied. The Supreme taught us has Court provi- district court with the was familiar controlling distinguishing that the factor in sions of section if for no other reason between civil contempt and criminal con quotation Eyler’s than its motion. tempt is the purpose for which the sentence therefore not us to difficult for conclude imposed. States, Shillitani v. United that had the court intended that district 364, 368-70, 1531, 1534-35, imposed imposed upon (1966); Gompers L.Ed.2d 622 v. Bucks a civil contempt rather than a criminal con- 418, 441, Range Co., Stove & tempt, undoubtedly would have correct- 55 L.Ed. 797 A sen pursuant ed to that stat- action, imposed tence such as a to coerce ute’s requirements. testimony, witness’ is generally held to fol low imposed from a civil one contempt; Moreover, on the day same on which the punish, is to follow from generally held judge change Ey- refused to contempt which is criminal nature. sentence, ler’s responded district court discloses that The in this case record to a letter written by the warden of the Morgantown penitentiary, where was First and fore- upon Eyler for two reasons. imprisoned. warden, obviously having immunized, most, Eyler, having been order, received the supra see contumacious, unex- being punished for his 1260, sought clarification portion of that testify. The Government plained refusal of the order which provided Eyler’s testimony believed that was essen- years “sentences and one-half [three sought, and therefore had tial to its case11 years adjusted four shall ac- concurrent] granted, immunity Eyler. and had been cordingly” provide for the six-month con- Indeed, ar- Eyler’s counsel at oral admitted tempt sentence. The district court gument us that before and, answered the inquiry warden’s in so imposed a sentence of legally have doing, large part question answered the here, and wbuld be con- posed by appeal, directing the entry sidered so had the record done unequivocal of an statement.12 order which reads: such revealed Hughey, 10. Cf. United States v. and found that the had been civil in 1978)(circumstances 114-16 surround- nature. ing imposition including 11. The fact that North was convicted without it by judge, is, later relevant in course, actions taken district of irrelevant. Hughey, determining contempt). nature of In Wilson, 12. Cf. United States v. 421 U.S. attempt jeopardy in bar to an to erect a double (1975) (uncondition- S.Ct. 44 L.Ed.2d 186 subsequent prosecution, a the contemnor ar- contempt sentence) (contumacious al refusal to gued that had once been sentenced for crim- testify justifies summarily imposed criminal however, Circuit, contempt. inal noted, The Second contempt sentence). alia, judge inter that the district had by Nor are we troubled the allocution re- ended, released the contemnor when the trial quirement contempts for criminal articulated in denied, however, that It cannot be that just not the dis plausible purpose, court, had as an an additional presented with immunized trict Ac- Eyler’s testimony. a desire to secure to in the witness’ refusal face of occasions, Eyler cordingly, least three on at have explicit warnings, three would chosen contempt to avoid sanctions urged had been contempt a merely impose to civil Eyler’s face refusal by In the of testifying. practical term would as a matter whose finally was to the district court testify, days, by within a few as measured expire uncondi- obliged by its order to enforce the length of North’s trial. Such a sen e. a crimi- punishment tional six-month —i. Eyler’s in imposed tence someone situ nal sentence. ation, have no virtually would had coercive op- still an Eyler already prison, Eyler was in and claims that there was effect. contempt his as him to cure portunity there for for approxi was scheduled to remain continued; being that long as trial North’s years regardless more mately three so, that it contempt was civil in was resulting from his refusal testi sanction coercive, his purely and therefore contempt fy. Although a civil beyond extend the termination not prison his in could add to total time trial, 1826. The see 28 North U.S.C. prior his In re interrupting this contention is that not difficulty with (Hartzell), Jury Investigation Grand record, but unsupported by is it 166,169 denied, 1976), cert. F.2d lead to we out it would a pointed have 50 L.Ed.2d 762 wholly and result. illogical ineffective (1977), Eyler, as well as the district court Ey- his obtain Having failed in efforts to have judge, recognized had to that North’s court, as testimony, ler’s we trial was almost over. The addition of but acknowledged, have settled for a satisfac- days to Eyler’s prior another four sentences purposes leading two tion one of the (the Eyler’s ended four re days trial Ey- Eyler’s contempt punished citation —he testify) price a small for fusal to would be sentencing unconditionally him to a ler his pay for refusal to comply term. six-month Thus, cannot impute court’s order. we limited, the imposition of such a and indeed Even if we were certain than we less futile, sanction to the district court. See sentence was in are that an unconditional Wilson, United States would tended still and indeed n.9, n.9, persuaded uphold Eyler’s sentence.14 (1975) (threat Although learning civil of little is that the traditional use result already contempts where contemnor is incarcerate civil coercive generally d).13 permit the con- conditional sentences which 488, 496-500, Hayes, Taylor imply We do not mean 2697, 2702-2704, appropriate for would never be an sanction required process example, jail.

That held that if case due witness who is For hearing and a the contemnor be afforded notice the trial believed that the trial last imposed time, where the were sentences substantial a coercive summarily during after trial for conduct trial. last sentence of civil that would ei- case, con- the instant sentence was ther until the witness testified or until temporaneously duct, contemptuous con- might with the ended well be considered. repeated and in had event him, warnings lay repeated of what in store pass upon 14. We have no occasion here actions, opportunities explain re- and any ambiguity effect peated punishment chances to avoid quite created in mind. We think it was testimony himself of at the time facing clear that he was an extra six sought required by agreeing jail testify, should he refuse to crystal record makes clear that ended since North’s trial without testi- precisely knew not he did mony, Eyler may not that he was now claim argument would be held At oral prejudiced by an six-month sen- unconditional expressly counsel stated that his client thought tence which he now to have claims been denied plete that there allocution and was com- was still conditional. contempt proceedings. awareness 1264 (1960),

temnor to relieve himself from all sanctions affirmed the conviction through pu- approved and that compliance, generally impliedly the District contempts nitive do not sentencing technique. contem- “hybrid” Court’s self-relief, plate such but rather result in technique However, was cast in this see, terms, jail unconditional immutable following comment doubt e.g., Shillitani, 368-70, 384 U.S. at 86 States, S.Ct. in v. United 384 Court Shillitani 1534-35; White, 685, v. at Skinner 6, 364, 370 86 S.Ct. U.S. n. (5th 1974); Liddy, 689 510 F.2d at Cir. (1966): L.Ed.2d [16 622] 675-76, combines both ele- a sentence which a impose determi- The court also may imposed ments has nonetheless purge a nate includes sentence which approved. “hybrid” criminal con- a Such would clause. of sentence type This imposed Reina, in In re tempt sentence was incorrigible benefit witness. It rais- an (S.D.N.Y.), 170 592 aff’d sub now. F.Supp. surrounding es none a problems of the Reina, 273 United States v. F.2d 234 judicial that unless the wit- command aff’d, 1959) curiam), (per 364 81 U.S. specified ness testifies within time he (1960). S.Ct. The Second for a term imprisoned years. will be aspect did this Circuit not discuss of the States, Reina 364 See v. United U.S. Court, Supreme case. The while apparently 507 S.Ct. 249] [81 sentence, finding no fault with such a ex- identify any specific The Court did issue, plicitly declined to reach that in “problems” “hybrid” inherent crim at despite 81 at Justice S.Ct. Reina, technique inal but it dissent, id., Black’s as it had not been alluding holding have been to its raised. Reference was thereafter made to Schnackenburg, that same in day Cheff type in Liddy, of sentence 510 F.2d at 1523, 16 86 L.Ed.2d 629 676 n.29: (1966), may not that a contemnor be sen When with a confronted contumacious impris tenced to six months’ more than grand jury witness who was im- onment for criminal without a prisoned, the District Court In re Rei- jury trial. na, F.Supp. (S.D.N.Y.1959), sen- Thus, even if were not satisfied that we tenced the years’ contemnor two im- unconditional, sentence was prisonment expira- to commence at the gain for at the nothing, very would least his tion of the sentence is in substance no different than days allowed him from the date of approved the criminal judgment himself of the con- hybrid Reina.15 like the tempt, two-year in which case the sen- Reina, still would re tence would Both the be vacated. Second Circuit, tain a (1959), criminal character thus would F.2d and the Su- preme Court, States, underlying not end when Reina United conclude Kuhns, Summary L.Ed.2d 249 d.16 Contempt See subsequently 15. As a matter of interest we observe that all testified contemnors and their obstinately thereupon whereas court’s order at asserted his had flouted the from sentences were reduced three times, years’ imprisonment years’ probation. three least Reina to three legal testifying position for not F.2d 431. While the DiMauro court good contumaciously faith and was not disre- distinguished that from one situation where spectful of the court’s order. 364 U.S. at express purge tence, is included in clause the sen- 81 S.Ct. at 264. conditional, thereby making the sentence perceive little difference between the two. DiMauro, sentencing 16. In the con- supporting We therefore read DiMauro as unconditionally, the temnors district court in- “hybrid” contempt sentence. Wilson as formed prior counsel that if contemnors testified well, Supreme approved a criminal Court grand jury discharge of the or the sentence where the had “made expiration 120-day period for reduction 35, reducing it clear that he contempt consider of sentence under Fed.R.Crim.P. the court eliminating them com- compliance would take the contemnors’ into pletely, respondents testify.” decided to deciding account in tence in whether reduce the sen- U.S. at at 1804. response a rule 35 motion. The 295-98, Workers, Perspective, Mine and a New Critique Power: A (1978) 696-98, (1947). (suggesting 91 L.Ed. Yale L.J. 113-18 using desirability propriety the summary; no were proceedings These sentence with determinate Consequently, filed. charges written were a recalcitrant in the case of purge clause hearings the the record of rely we must on Note, Contempt and the witness); Coercive had fair appellant to determine whether Jury, 79 Colum.L.Rev. Federal Grand or state- Certainly notice. no document (same). (1979) government the or the dis- ment either this need for court to determine prior The informed him explicitly trict court imposed on was in if the sentence charged with that he was conviction be for criminal or civil tended to contempt. criminal have been obviated had the easily proceedings them- Assuming that the merely specified court the basis on district notice, can we sufficient provide selves can acting. supra. note 7 In which it was See put appellant the proceedings that these say future, judges specify should the the record quotations The from on notice? particular the nature of the and, in- majority opinion contained in the conditions, sentence, any, attached to deed, itself demon- majority opinion including statutory authority upon district court nor the that neither the strate predicated, which the criminal nature focused on the government presented situations such as the one on that contempt proceedings.1 Obviously, can appeal be avoided. then, appel- their actions could not inform regard. I do not think that one lant in that IY. of a criminal charged with notice should We conclude that the six-month record. charge ambiguous on such an imposed imposed for a crimi- Furthermore, though even civil and crim Therefore, contempt. nal we will affirm charges may together, be tried United inal 1979 order of the district August Workers, supra at Mine States United motion to modi- court which denied proceeding does such a fy his sentence. rights real risks that a defendant’s create SEITZ, be lost or ob Judge, dissenting. charge may Chief on the Here, postulate if we fair even scured. of the con- determining the nature charge, appellant was notice of the criminal tempt appellant, on the the district substantially by prejudiced controlling majority regards right him his of allo give court’s failure to court’s “in- its construction of the district charge. Taylor Hayes, cution on the view, intention tention.” In the court’s 2697, 2703, 41L.Ed.2d 488, 498, 94S.Ct. appel- until we that is irrelevant determine Notwithstanding contrary (1974). timely lant received notice that he was oral attorney at appellant’s statement of charged with a criminal This no- offense. plain record makes argument, the system tice is fundamental in our of crimi- person- appellant address the justice. nal United v. United court did not See running prior interrupt crimi- not show The record does sentence, contempt. strictly procedural Fi- a feature of civil court conformed re- nal nally, Rather, quirements type complied critical the court the most of either with appellant contempt: gave proceeded feature of civil with indiscriminate refer- opportunity requirements majori- the sentence. himself of ences to the of both. The States, court, ty compliance Shillitani v. United notes that See 370-72, only applicable proceedings, to criminal rules the ma- While I choose not to contest the sentence to six months. limited The dis- appellant’s jority’s of criminal conclusion that the indicia trict court also stated that refusal to foregoing persuades up contempt predominate, imprisonment for could lead to to 18 months, applied only district court itself determined a limitation to civil con- me that the 1826(a) (1976). proceeding tempt. was criminal in nature 28 U.S.C. its provided appellant’s contempt the fact. imposition rather than of a concurrent or required by and in the Fed.R. ally manner 32(a). Crim.P. is unwar- consecutive criminal unprecedented. ranted and empty allocution an right Nor is the of summary ritual in this of type my disap previously expressed I have may be able to contempt. A contemner sandwiching of the of a proval consider, sentencing judge to persuade the of a in the midst of the service sentence determining length the of when Jury Inves criminal sentence. In re Grand danger the mitigating such factors as (Aldi (Hartzell), F.2d tigation 542 169 family him or his were he to Such sert, J., concurring dissenting), rehear considerations would be irrelevant for- denied, 1976) ing mulating or- the terms of a (Aldisert, J., petition denial of opinion sur der. denied, rehearing), cert. the considerations that I have men- Given (1977). I 50 L.Ed.2d 762 reaf S.Ct. tioned, I believe the doubt should be re- court lacks firm view that a district against treating contempt pro- solved these jurisdiction a criminal sentence. so to alter ceedings as criminal. The construction that 35, Federal Rules of Criminal Pro See Rule place place I on the order would no double my opinions in Hartzell. Rule cedure and subsequent criminal con- jeopardy bar to a clearly power limits the of a district tempt proceeding against appellant. I criminal sentence after 120 court to touch a case to would therefore remand the days. appellant, pleading In this case after modify district court to its order. on November guilty, sentenced 8, 1979, the days, After 120 or after March HIGGINBOTHAM, J., joins in this dis- jurisdiction longer court no had senting opinion. modify that sentence. The ALDISERT, Judge, dissenting. Circuit however, suspend running proceeded, holding I dissent from the court’s 13,1979, of the sentence on for a term appellant may be convicted of a criminal expressed of six months. For the reasons charge, offense without notice of a criminal Hartzell, I my dissenting opinions new and at same time that a criminal would reverse the order of the district year sentence for half a may interrupt court. running appel- of year a four has been my position Since Hartzell begun serving eight some and one- lant strengthened opinion Supreme agree half months earlier. I thus Addonizio, v. Court in United States Judge ap- Chief that without notice Seitz pellant’s contempt proceedings may not be (1979). In the Court said: that case Moreover, in nature. considered criminal [Ojnce imposed, a has been practice permitting do not of the approve authority modify it is judge’s interrupt a sentence to the run- Rule Federal circumscribed. ning criminal sentence under of a current Crim.Proc. 35 now authorizes District circumstances, whether the is to reduce a sentence within 120 Courts In a case of criminal civil or criminal. here, it is or after it has days contempt, majority such as the finds after term, appeal. peri- The time interruption current criminal been affirmed of a of, having Aug. denying 35(b), review or effect Fed.R.Crim.P. effective Court provides: upholding, judgment of conviction. The may upon revo- also reduce may Reduction re- of Sentence. —The probation provided by law. cation days duce a sentence after within Changing in- a sentence from a sentence of days sentence is within 120 after grant probation receipt by to a shall con- carceration mandate issued court of a permissible judgment stitute a reduction of sentence affirmance of or dismissal days entry appeal, of the this subdivision. or within 120 under judgment Supreme order or however, od, jurisdictional BALTIMORE, OF HOSPITAL SINAI

be extended. INC., Appellant, (emphasis at 2242 442 U.S. 45(b); United

added). Fed.R.Crim.P. See Robinson, HORVITZ, Individually Wayne and as L. Footnote sixteen Federal Media- Director of the National noted: of Addonizio Service, Appellee, tion and Conciliation 35, the trial Rule adoption Prior to the authority. “The be courts had no such the sentence in a of the service of ginning Hospital 1199E, Union District National of the court power criminal case ends the RWDSR, Employees, and Health Care change it.” in the same term to even AFL-CIO, Defendants. 347, Murray, 275 U.S. v. United States No. 78-1863. 146, 149, 309], 72 L.Ed. This 358 S.Ct. [48 though change even applied rule was Appeals, United States Court pair second of a related Fourth Circuit. which itself was sentences consecutive the time. Affronti v. being not served at 3, Argued Dec. 1979. 79, 171, States, 76 S.Ct. 350 U.S. United 1, 1980. May Decided 100 L.Ed. 16, at 2242 n. 16. at 189 n. 99 S.Ct. 442 U.S. question on a the issue turns

Because to this: if a defendant

jurisdiction, it comes of a court to jurisdiction not invoke the days, 120 a fortio-

reduce his sentence after

ri, invoke that government may interrupt increase or jurisdiction

same indirectly, by directly or term of criminal

sandwiching into it new minority,2 in a recognize that I stand

I 35(b) believe, of Rule light

Addonizio, ap- the cases that of criminal sen- interruption

proved decided. wrongly have been

tences I would reverse the order of

Accordingly, court. 1978); ours, (9th including per appeals, United States v. Eight 572 F.2d 1373 Cir. courts 1974), (D.C.Cir. Liddy, de sandwiching cert. sentences. Unit 510 F.2d 669 mit nied, 980, 1408, Dien, (2d 1979); 43 L.Ed.2d F.2d 743 Cir. 420 U.S. 95 S.Ct. ed States v. Wilson, (Hartzell), Jury Investigation also United States v. In re See Grand denied, 1808, 1976), F.2d 166 cert. 95 S.Ct. Cir. 421 U.S. (1977); J., (1975) (Blackmun, joined In re 50 L.Ed.2d 762 S.Ct. L.Ed.2d 186 Jury (Marshall), J., concurring). Proceedings Rehnquist, 532 F.2d Grand Justice Wilson denied, (5th Cir.), “despite 429 U.S. cert. in dictum that Blackmun noted (1976); respondents Williamson 50 L.Ed.2d 309 incarcerat were fact that Saxbe, Anglin 1975); offenses, (6th appears 513 F.2d 1309 Cir. ed for substantive Johnston, 1974), (7th cert. 504 F.2d 1165 of their sentences to be clear that service denied, compel interrupted 420 U.S. 95 S.Ct. them to serve have been States, (1975); contempt.” Martin v. United intervening Id. at denied, (8th Cir.), cert. at 1809 n. 2. 321 n. Garmon, (1975); In re

Case Details

Case Name: United States v. Irving North. Appeal of William D. Eyler, an Immunized Witness in the Case of United States v. North

Court Name: Court of Appeals for the Third Circuit

Date Published: May 22, 1980

Citation: 621 F.2d 1255

Docket Number: 79-2352

Court Abbreviation: 3rd Cir.