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UNITED STATES v. PETITO

August 7, 1981

UNITED STATES of America
v.
Amadio PETITO, Defendant



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM OF DECISION AND ORDER

The defendant, Amadio Petito, was charged in a two-count indictment with perjury, in violation of 18 U.S.C. § 1623, and criminal contempt, in violation of 18 U.S.C. § 401. He moved to dismiss the contempt charge prior to trial. The court denied the motion orally and now submits this memorandum fully setting forth its reasoning.

 FACTS

 In July, 1980, Petito was called to testify before a grand jury investigating possible racketeering and tax violations against officials of Local 29 of the Blasters, Drillrunners, and Miners Union. *fn1" Petito refused to answer certain questions posed by the Government by invoking his fifth amendment right against self-incrimination. After being given immunity pursuant to 18 U.S.C. §§ 6002-3, he continued to refuse to answer these questions and was cited for contempt and incarcerated. After spending twenty days in jail, Petito agreed to testify before the grand jury. It was during this testimony that he allegedly committed perjury. He was subsequently indicted for perjury and criminal contempt. *fn2"

 Petito moved prior to trial to dismiss the contempt charge on the ground that once a defendant has been cited for civil contempt, he subsequently cannot be indicted for criminal contempt unless he is warned at his civil contempt proceeding that he may also be prosecuted criminally. In the case at bar, it is undisputed that Petito was not advised of the possibility that he could be indicted for criminal contempt after being cited for civil contempt. Further, it is claimed that the defendant's eventual willingness to testify before the grand jury and the attempt to purge himself of civil contempt should be taken into account by this court in assessing the necessity of prior warning.

 LAW

 This issue seems to be one of first impression in the Second Circuit. Petito bases his claim on the Ninth Circuit's decision in Yates v. United States, 227 F.2d 848 (9th Cir. 1955) (Yates I ). In Yates I the defendant in a Smith Act prosecution was held in civil contempt for refusal to answer four questions posed on June 26. On June 30, the defendant again refused to answer a series of questions, although she was directed to do so by the trial judge. Yates was then sentenced on four separate contempts. The Court of Appeals reversed these latter four sentences. Yates v. United States, 227 F.2d 848 (9th Cir. 1955). *fn3"

 The decision in Yates I was based on due process grounds. After examining the different purposes between civil and criminal contempt, the Ninth Circuit went on to hold that "while coercion (a civil contempt sentence) is applied, the defendant in the criminal case is entitled to know he may yet be subjected to a definite penalty for contempt and that the coercive restraint is not intended to relieve him of the punishment for the criminal refusals which he has already uttered." Yates v. United States, 227 F.2d 848, 850-51. The court based this holding in part on the "notions inherent" in due process of law. Yates I at 851.

 Three years later, the Ninth Circuit reaffirmed and expanded the Yates I holding in Daschbach v. United States, 254 F.2d 687 (9th Cir. 1958). As the court explained, "the circumstances present in that Yates case and in the instant case (Daschbach ) are of such similarity that the due process consideration referred to in the Yates case is equally present here .... the rationale of that opinion, however would apply equally to one who, like appellant Phillips, was a witness but not a defendant." Daschbach at 690. The court thus expanded the Yates I holding to witnesses who refused to testify. The court then concluded that in the absence of any notice that "the coercive restraint was not intended to relieve (appellants) of a possible penal sentence," the subsequent convictions and sentences for criminal contempt deprived appellants of due process of law. Daschbach at 692.

 The rule established in Yates I and Daschbach remains the only precedent directly on point. While the issue of notice under Yates I and Daschbach has never been squarely faced by the Second Circuit, two cases provide the court with guidance in this matter. Both cases suggest a result different from that reached in Yates I and Daschbach.

 In United States v. Berardelli, 565 F.2d 24 (2d Cir. 1977), the court upheld defendant's conviction for criminal contempt. On appeal, it was contended that the trial court's charge was erroneous insofar as it refused to charge that " "the jury in a criminal contempt case must find not only that the defendant intended to disobey the court's order but also that he had the specific intent to disobey the law' .... (emphasis in original)." United States v. Berardelli, 565 F.2d at 30. The court summarized defendant's request as "a charge to the effect that ignorance of "the law' would be a defense." Berardelli at 30. The Second Circuit upheld the trial court's refusal to charge the jury to this effect.

 An additional Second Circuit case providing this court with guidance is United States v. Morales, 566 F.2d 402 (2d Cir. 1977). In Morales, the defendant refused to testify before a grand jury. He was cited for civil contempt and jailed. He was released soon thereafter but was indicted for and convicted of criminal contempt.

 Morales appealed, questioning the power of the grand jury to indict him for criminal contempt insofar as a judge had not referred the alleged contempt to the grand jury. The Court of Appeals held that "(reversal) would not ... be warranted unless Morales could demonstrate that his indictment prejudiced him for example, by failing to accord him the notice or other rights provided by Rule 42, F.R.Crim.P. ...." United States v. Morales, 566 F.2d at 405 (footnote and citations omitted). Insofar as Morales did not claim that the indictment deprived him of notice or any other right provided by Fed.R.Crim.P. 42(b) *fn4" , the court upheld the indictment. The court went on to hold that "Rule 42(b) does not purport to exclude the possibility of proceeding against contemnors by indictment." Morales at 405 n.2.

 The question not reached in Morales, concerning the circumstances under which a defendant may be deprived of proper notice, ...


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