UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
October 4, 1985;
IN THE MATTER OF GUIDO COVILOVO
The opinion of the court was delivered by: KNAPP
MEMORANDUM & ORDER
WHITMAN KNAPP, D. J.
Guido Cocilovo seeks release from an order of civil contempt entered by me on December 20, 1984. He claims that because he has been confined for almost ten months on that order with no indication that he might yield to its coercive effect, I must conclude that the order has lost such effect and release him. He relies on two Court of Appeals, opinion: Simkin v. United States (2d Cir. 1983) 715 F.2d 34, and Sanchez v. United States (2d Cir. 1984) 725 F.2d 29.
Without going into detail as to my reasons, I am satisfied that the authorities cited compel me to release him. However, like Judge Brieant (In the Matter of Dorie Clay (S.D.N.Y. June 27, 1985) M-11-188), I firmly believe those cases to have been wrongly decided and shall try to set forth my reasons for so believing, supplementing the views I rather hastily expressed in Matter of Parish (S.D.N.Y. 1985) 613 F. Supp. 356.
Prior to Simkin, it was generally assumed that contemnors who had no emotional or other disability which prevented them from testifying had "the keys of their prison in their own pockets," Shillitani v. United States (1966) 384 U.S. 364, 368, 86 S. Ct. 1531, 1534, 16 L. Ed. 2d 622; In Re Weiss (2d Cir. 1983) 703 F.2d 653, 661; United States v. Handler (2d Cir. 1973) 476 F.2d 709, 714; In Re Grand Jury Investigation (3d Cir. 1979) 600 F.2d 420, 423 & n.8, all citing In Re Nevitt (8th Cir. 1902) 117 F. 448, 461, and that it was accordingly permissible to hold them in jail for the full eighteen months (or for the life of the grand jury should that be shorter) provided by 28 U.S.C. § 18269(a). Judge Brieant's opinion in Matter of Thornton (S.D.N.Y. 1983) 560 F. Supp. 183, sets forth the then existing rule, which was based on the assumption that § 1826 itself establishes that a civil contempt sentence of eighteen months or less is "coercive, not punitive." Thus, he observed (560 F. Supp. at 184):
The purpose of civil contempt is to coerce, not punish. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441- 42, 31 S. Ct. 492, 498, 55 L. Ed. 797 (1911). In cases of indefinite civil confinement the court is called upon periodically to review the contemnor's status, to prevent a de facto sentence of life imprisonment. Catena v. Seidl, 65 N.J. 257, 262, 321 A.2d 225, 228 (1974). Cf. Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 1858, 32 L. Ed. 2d 435 (1972), holding that '[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.'
A contemnor held pursuant to 28 U.S.C. § 1826, however, faces no similar risk, because Congress in enacting the statute set an eighteen month maximum limitation on the incarceration of those who refuse to comply with grand jury requests. By Congressional definition, then, the eighteen month period is regarded as coercive, not punitive. United States v. Dien, 598 F.2d 743, 745 (2d Cir. 1979).
In Dien, the case cited by Judge Brieant, the contemnor had sought to make the point that the facts in his peculiar situation -- specifically, his "fear of reprisal against himself and his family" -- indicated that he would never testify and that "his incarceration for contempt" was therefore "punitive rather than coercive." The Court of Appeals refused to consider this contention, observing (598 F.2d at 745):
Such an argument if sustained would only benefit those who persistently refuse to cooperate despite immunity orders and in effect would emasculate section 1826. (Emphasis supplied.)
Simkin -- apparently sub silentio overruling Dien -- specifically required consideration of the contention rejected by Dien. Under Simkin a district court in each and every case must, despite the congressional determination that eighteen months is by definition coercive, make an individual decision whether the particular contemnor before it is likely to yield to further incarceration. This ruling, quite naturally, has generated a host of motions and has resulted in the release in this District alone of a total of at least nine contemnors, including two by myself. Demetrios Papadakos (June 11, 1985) 613 F. Supp. 109 (WK); Dorie Clay (June 27, 1985) Docket #M-11-188 (CLB); Lionel Jean-Baptiste (July 3, 1985) Docket #M-11-188 (PKL); Milton Parish (July 24, 1985) 613 F. Supp. 356 (WK); Dr. Jean Ford and Michelle Thomas (July 26, 1985) Docket #M-11-188 (RWS); Jacqueline Bernard and Olive Armstrong (July 31, 1985) Docket #M-11-188 (GLG); and Jesse Lopez (October 22, 1984) Docket #M-11-188 (CBM).
In consequence, there seems to be developing a rule of thumb that, absent some extraordinary showing by the government, a contemnor who has shown sufficient fortitude to withstand about six months in jail is entitled to release. It has thus come to pass -- exactly as predicted by the Court of Appeals in Dien -- that the proposition there rejected but adopted in Simkin has only benefitted those who persistently refuse to cooperate despite immunity orders and has in effect emasculated section 1826(a). This, I feel, is an unfortunate turn of events.
Properly to evaluate Simkin's departure from the Dien doctrine, one must start with the origins of § 1826(a). The enactment of that section was part of a congressional response to a critical problem faced by the criminal justice system. It is a recognized fact that there are certain types of criminal conduct (including terrorism and the furtherance of organized crime) which threaten the very fabric of our society and which, as a practical matter, cannot be prosecuted unless "insiders" are persuaded or compelled to testify against their accomplices. As part of its effort to deal with this problem Congress (having in 18 U.S.C.§§ 6002 and 6003 authorized the grant of use immunity), in § 1826(a) authorized prosecutors to confront a potential witness with the choice of testifying or facing up to eighteen months in jail. It was hoped that the coercive effect of such a threat would produce a significant amount of relevant testimony. (See 1970 U.S. Code Cong. and Admin. News, p. 4022.)
The constitutional authority for the enactment of such legislation was established by the Supreme Court in Shillitani v. United States, supra. There (in circumstances where the involved contemnors had -- like Simkin -- spent considerable time in jail with no sign of weakening) the Court was confronted with the question whether one could lawfully be given a two-year sentence for contempt without the protections afforded by criminal procedures. Recognizing that any confinement in jail had punitive aspects, the Court fashioned a very simple test to determine whether such a sentence was constitutionally permissible: (1) was it the purpose of the confinement to compel testimony? and (2) was it within the power of the contemnor to supply such testimony (i.e., did he have the keys to the jail house in his pocket)? The Court thus expressed it sholding (384 U.S. at 370):
While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial [ i.e., coercive] if the court conditions release upon the contemnor's willingness to testify. (Emphasis supplied.)
In conformity with that principle, the Court ruled that a contemnor must be discharged at the conclusion of the term of the grand jury before whom he had been subpoenaed, because he would then have lost his ability to comply with the subpoena. There is, however, no suggestion in the opinion that, in addition to using the above-quoted litmus for determining the purpose of the confinement, a court should also be concerned with its effect (i.e., the extent of the contemnor's desire to use the key in his pocket). Indeed -- as above indicated -- it was quite apparent that the particular sentences there involved had had no coercive effect whatever. It is therefore clear that, as the Simkin court itself recognized, there is no constitutional requirement for the Simkin rule. As to its wisdom, the pertinent questions would appear to be: (1) is the rule likely to result in a situation where contemnors will almost routinely be released after six months? and (2) will such result emasculate § 1826(a), as the Dien court predicted?
As to the first question, the Simkin court, by emphasizing a district judge's "virtually unreviewable discretion" in these matters, sought to forestall an affirmative answer (715 F.2d at 38). However, such unreviewable discretion will, I predict, have little effect on the number of contemnors released. District judges are not governed wholly by fear of reversal, but must consider the implication of their oaths of office. Once the Shillitani holding -- focussing on the purpose of the sentence and the contemnor's continuing ability to respond to the subpoena -- is rejected in favor of an obligation to make a case by case determination of the strength of the contemnor's intransigence, we are off on an uncharted sea. I predict that the outcome will be an almost routine release of contemnors after about six months.
The plain fact of the matter is that once a person has served six months in jail with no sign of weakening, there will rarely be any valid reason for assuming that the next twelve months (or any part thereof) are going to be any more effective.
It is no answer -- as the Simkin opinion suggests -- that emasculation of the remedy of civil contempt leaves available the sanction of criminal contempt, which "can fully vindicate the court's authority" (715 F.2d at 37). In the first place, where the Congress has seen fit to establish two coercive mechanisms, the judiciary -- absent constitutional necessity (which Simkin does not assert and which Shillitani in any event precludes) -- is without warrant to emasculate one of them. Moreover, it hardly needs demonstration that the "threat" that there might some day be found a prosecutor, grand jury, petit jury and judge who would all agree that a particular recalcitrant be sent to jail for more than six months is far less persuasive than having a single judge look him or her in the eye and say "you testify today or you don't go home either tonight or for the next eighteen months (unless you use the key I am putting in your pocket)."
Perhaps the Simkin court's above-noted concern with vindicating "the court's authority" provides an insight into a misunderstanding of the judiciary's proper role in implementing § 1826(a). When Congress, in connection with the enactment of the Organized Crime Control Act of 1970, P.L. 91-452, 84 Stat. 802 (1970), codified the judicial practice previously sanctioned by Shillitani, it was not concerned with protecting judicial dignity but with advancing its war against crime. Indeed, in its Statement of Findings and Purpose, Congress specifically stated the Act's goal to be the "eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process. . ." (emphasis added). (1970 U.S. Code Cong. & Admin. News, p. 1073.) Moreover, Congress certainly could not have assumed that many terrorists, drug dealers and organized crime figures (who routinely risk their lives for "the cause" or wealth or power) would be worn down by eighteen months in jail. What it was attempting to do was to create a credible threat which would induce at last some recalcitrants to avoid imprisonment altogether by joining forces with the righteous. I respectfully suggest that it is not within the province of the judiciary to drain this threat of all credibility and thus -- adapting the language of Dien -- emasculate an act of Congress.
So far, I have discussed only the coercive effect of § 1826. That section also plays a significant part in enabling prosecutors to obtain testimony through persuasion, and its usefulness in that area has also been eroded. During my years as a prosecutor I came to the firm belief -- which has been strengthened by subsequent experience at the Bar and on the Bench -- that most criminals and their associates have a strong impulse to come to terms with established society, which impulse it is the prosecutor's duty to exploit. There are, of course, many strong counterforces, among the strongest of which is the almost universal repugnance to being a "rat" or traitor to one's associates. It is the prosecutor's task to overcome such countervailing forces. Section 1826(a), in its pristine state, gave the prosecutor a valuable weapon in that struggle. If a recalcitrant can be certain that the price of silence is eighteen months in jail, he may be able to persuade himself -- and even some of his associates -- that the price to himself and to those dependent on him is too high, and that in testifying he is not being a "rat," but yielding to the inevitable. Obviously a six-month threat (or a lesser one as the process of emasculation continues) is far less effective in this regard.
Despite my foregoing views, I am constrained by Simkin and Sanchez to order the contemnor's release. However, in view of the importance of the question and the clear conflict of those cases with the Court of Appeals' former decision in Dien, I most respectfully but strongly urge that -- in this or some other case
-- the matter be again reviewed at the appellate level.