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October 4, 1985;


The opinion of the court was delivered by: KNAPP



 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). *fn1" 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 ...

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