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UNITED STATES v. ESPOSITO

April 22, 1986

UNITED STATES OF AMERICA,
v.
MICHAEL ESPOSITO, Defendant



The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge :

 Defendant Michael Esposito ("Esposito") has moved to dismiss the indictment and for an order to compel the government to furnish certain discovery. The motions are hereby denied.

 BACKGROUND

 On April 25, 1985, Esposito was jailed for civil contempt based on his refusal to testify before a federal grand jury in New Jersey. On July 31, 1985, Esposito was granted immunity and ordered to testify before a federal grand jury in this district. On August 1, 1985, Esposito was found in civil contempt for refusing to testify. On January 30, 1986, Judge Leisure determined that "no realistic probability exists that continued confinement might cause Mr. Esposito to testify before the grand jury." In re Michael Esposito, No. M-11-188 (PKL), slip op. at 5 (S.D.N.Y. Jan. 30, 1986) (Opinion and Order). Judge Leisure ordered the release of Esposito. Id. On January 31, 1986, an indictment was filed in this district charging the defendant with contempt pursuant to 18 U.S.C. § 401 based on the refusal to comply with the July 31, 1985 order to testify.

 Esposito has moved to dismiss the indictment claiming that the repetitive contempt proceedings constitutes a denial of his due process rights. Esposito also claims that the successive contempt proceedings constitutes prosecutorial misconduct which warrants dismissal of the indictment. Defendant further claims that there is no need for his grand jury testimony and has moved to dismiss the indictment or in the alternative for a hearing to determine the need for his testimony. Esposito has also moved for an order compelling the government to comply with certain discovery requests.

 DISCUSSION

 I. Motion to Dismiss

 A. Due Process

 It is well settled that the imposition of a sentence for civil contempt does not bar an action for criminal contempt. Yates v. United States, 355 U.S. 66, 74, 2 L. Ed. 2d 95, 78 S. Ct. 128 (1957); United States v. Debs, 64 F. 724, 745-46 (C.C.N.D. Ill. 1894); accord United States v. Petito, 671 F.2d 68, 72 (2d Cir.), cert. denied, 459 U.S. 824, 74 L. Ed. 2d 60, 103 S. Ct. 56 (1982); United States v. Hughey, 571 F.2d 111, 114 (2d Cir. 1978). In this particular case, there have been two previous terms of incarceration imposed for civil contempt. The number of previous civil contempts cannot limit the government's ability to seek a conviction for criminal contempt. *fn1" This conclusion is mandated by the distinct purposes of civil contempt and criminal contempt. Civil contempt is intended to coerce the contemnor to testify, United States v. Petito, 671 F.2d at 72; see in re Parrish, 782 F.2d 325, 327 (2d Cir. 1986), while criminal contempt is intended to punish the contemnor for disobeying the court order, United States v. Petito, 671 F.2d at 72. The failure to obtain testimony by coercion, regardless of the number of attempts, does not limit the government's ability to punish the contemnor's refusal to testify.

 B. Prosecutorial Misconduct

 Esposito has moved to dismiss the indictment based on prosecutorial misconduct. The nature of the misconduct relates to the number of contempt proceedings as discussed above. The cases cited by defendant are inapposite. For example, Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974), relates to the inclusion of more serious charges when a defendant pursues a statutory right to a trial de novo following conviction on a less serious offense in the initial trial. The Court held that the prosecutor could not "up the ante" to retaliate against a defendant who attacked a conviction. Id. at 27-28. In this case, the government has not affected any right by seeking a conviction for criminal contempt following the defendant's incarceration for civil contempt. Esposito also refers to United States v. Kilpatrick, 594 F. Supp. 1324 (D. Colo. 1984), where the court dismissed an indictment based on prosecutorial misconduct. Id. at 1351-53. The misconduct involved the presentation of evidence to the grand jury in a manner which undermined the ability of the grand jury to exercise independence. Id. at 1352. No such behavior is alleged to have occurred in this case.

 The court finds no misconduct in charging the defendant with criminal contempt following two sentences for civil contempt. Bringing this indictment does not infringe or chill the exercise of any of defendant's rights and is ...


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