In re Proceedings Before the Federal Grand Jury February 1987 Term

677 F. Supp. 26, 1988 U.S. Dist. LEXIS 303, 1988 WL 3740
CourtDistrict Court, D. Maine
DecidedJanuary 13, 1988
DocketMisc. No. 86-0116-P
StatusPublished
Cited by2 cases

This text of 677 F. Supp. 26 (In re Proceedings Before the Federal Grand Jury February 1987 Term) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Proceedings Before the Federal Grand Jury February 1987 Term, 677 F. Supp. 26, 1988 U.S. Dist. LEXIS 303, 1988 WL 3740 (D. Me. 1988).

Opinion

GENE CARTER, District Judge.

MEMORANDUM OF DECISION AND ORDER

This matter comes before the Court on Barry Griffin’s Motion for Discharge from his current confinement for civil contempt, imposed after he refused to answer questions before the grand jury. For the reasons outlined below, the motion is denied.

Facts

In February 1986, Griffin was incarcerated at the federal prison in Sandstone, Minnesota, while serving a sixteen-year sentence for conspiracy with intent to distribute an amount of marijuana in excess of 1,000 pounds, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(6). Pursuant to a writ of habeas corpus ad testifican-dum, Griffin was returned to Maine to appear before the grand jury as a material witness. On February 24, Griffin appeared before the grand jury but refused to answer several questions, asserting his fifth amendment privilege against self-incrimination. Griffin was then notified that he had been granted use and derivative-use immunity for the testimony and information given, and that this Court had ordered him to testify. The order was read to Griffin, he had the opportunity to read it himself, and he conferred with his counsel about it. Nevertheless, he again refused to testify.

At a hearing on the following morning, this Court, per Gignoux, S.D.J., ordered Griffin to return to the grand jury and to answer any questions asked of him. Upon his return to the grand jury, Griffin again refused to answer the questions. Judge Gignoux held another hearing later that morning, found that Griffin’s refusal to comply with the order was without just cause, and ordered that Griffin be confined until he is willing to testify. Pursuant to [27]*2728 U.S.C. § 1826,1 the period of confinement is to continue for the life of the term of the grand jury currently sitting in Portland, but in no event shall exceed eighteen months.

Griffin subsequently filed this Motion for Discharge, arguing that no amount of incarceration will cause him to answer the questions put to him by the grand jury, and that his diabetic condition renders his incarceration “exceedingly more punitive than for those without such an affliction.” Memorandum in Support of Motion for Discharge at 2. Griffin has waived oral argument and a factual hearing on this matter.

Discussion

It is well established that “courts have an inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Section 1826(a) codified the practice governing the imposition of civil contempt for a refusal to comply with a court order to testify or produce documents. In re Grand Jury Investigation (Braun), 600 F.2d 420, 425-26 (3d Cir.1979). In order to coerce compliance with the Court’s order, confinement can extend for the life of the term of the grand jury, including extensions, but cannot exceed eighteen months. Thus, the statute balances two competing values: to preserve the efficacy of the civil contempt power as an instrumentality for investigating crime, and to ensure that the civil contempt power is not abused by employing it to punish an intractable witness who will not be coerced by further confinement. Id. at 427.

A civil contempt sanction is a coercive device; it is imposed for the sole purpose of securing compliance with a court order. Shillitani, 384 U.S. at 370, 86 S.Ct. at 1535. When continued confinement loses its coercive characteristics, the confinement becomes punitive in nature. Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981). Since criminal penalties may not be imposed in civil contempt proceedings, the contemnor must be released when the incarceration has lost its coercive force. In re Grand Jury Investigation (Braun), 600 F.2d at 423-24. Courts recognize that there is a narrow line between incarceration as coercion to induce compliance with a court order and incarceration as punishment for refusal to obey a court order. In re Pantojas, 639 F.2d 822, 825 (1st Cir.1980).

Courts generally agree that “in the absence of unusual circumstances, a reviewing court should be reluctant to conclude, as a matter of due process, that a civil contempt sanction has lost its coercive impact at some point prior to the eighteen-month period prescribed as a maximum by Congress.” Simkin v. United States, 715 F.2d 34, 37 (2d Cir.1983); Matter of Crededio, 759 F.2d 589, 591 (7th Cir.1985); In re Grand Jury Investigation (Braun), 600 F.2d at 427. Yet that does not end a court’s inquiry, since “[tjhere must be an individualized decision, rather than application of a policy that the maximum eighteen month term must be served by all recalcitrant witnesses.” Simkin, 715 F.2d at 38. The district court retains broad discretion to determine whether a civil contempt sanction has lost its coercive effect upon a particular contemnor at some point short of eighteen months. Id. at 37. See also Sanchez v. United States, 725 F.2d 29, 31 (2d Cir.1984) (Congress specified the maximum period that may be found to be coercive; nevertheless, the court must determine whether the confinement of any particular [28]*28contemnor has ceased to be coercive at some point within that maximum period).

The contemnor properly bears the burden of demonstrating that there is no “realistic possibility” that continued confinement might cause the contemnor to testify. Simkin, 715 F.2d at 37. Cf. In re Grand Jury Investigation (Braun), 600 F.2d at 425 (contemnor bears the burden of demonstrating that “there is no ‘substantial likelihood’ that continued confinement would accomplish its coercive purpose”). “As long as the judge is satisfied that the coercive sanction might yet produce its intended result, the confinement may continue.” Simkin, 715 F.2d at 37.

Griffin has failed to demonstrate that there is no realistic possibility that continued confinement might cause him to testify. He has offered insufficient evidence in support of his motion; the only evidence that he has offered is a one-page affidavit containing nothing but conclusory assertions. He waived a factual hearing. In short, Griffin has provided this Court with absolutely no concrete facts upon which the Court could possibly find that he has met his burden. With regard to his conclusory assertions, the Court will address each in turn.

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677 F. Supp. 26, 1988 U.S. Dist. LEXIS 303, 1988 WL 3740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proceedings-before-the-federal-grand-jury-february-1987-term-med-1988.