IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20941
______________________
NATURAL GAS PIPELINE CO. OF AMERICA, ET AL.,
Plaintiffs-Appellees,
v.
ENERGY GATHERING, INC., ET AL.,
Defendants,
and
NAVARRO CROWSON,
Movant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-88-3202)
_________________________________________________________________
September 18, 1996
Before KING, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Navarro Crowson appeals the denial of his third motion
for release from confinement and motion to vacate a contempt
order. We vacate the order of the district court.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
I. BACKGROUND1
Crowson took bribes and illegal kickbacks on natural gas
sale contracts in the mid 1980s while working for Natural Gas
Pipeline Company (“Natural Gas”). After being indicted in
federal court, Crowson pled guilty to charges of mail fraud
arising out of one of these kickback schemes. In 1991, Crowson
had two substantial default judgments rendered against him, for a
total of over 6 million dollars in damages. Following the
judgments, Crowson’s judgment creditors sought to discover the
location and extent of Crowson’s assets. Because of Crowson’s
failure to respond to post-judgment discovery, the district court
entered a contempt order, ordering that Crowson be confined to
jail indefinitely until he purged himself of his contempt. A
week later, Crowson entered into an agreed order which required
that he produce all of his financial and business records and
that he answer the interrogatories and requests for production
that had previously been served upon him.
Upon being conditionally released under the terms of the
agreed order, Crowson did not cooperate with discovery and
collection efforts. Instead, he hid assets and removed documents
from his accountant’s file. Crowson then fled to Mississippi,
filed for bankruptcy, and checked into a hospital to avoid arrest
1
The background of this case is set out in Natural Gas
Pipeline Co. v. Energy Gathering, Inc., 2 F.3d 1397 (5th Cir.
1993) (a related case involving review of a civil contempt order
issued against Crowson’s attorney).
2
by the U.S. Marshal Service. Ultimately, the court entered an
order revoking the conditional release and directing that Crowson
be returned to indefinite confinement. Crowson has been
incarcerated since August 28, 1992.
Several months after he was incarcerated, Crowson filed his
first motion requesting that he be released, on the ground that
forcing him to comply with the court’s order would violate his
Fifth Amendment right against self-incrimination. Crowson
appealed the denial of this motion, but his appeal was dismissed
for want of prosecution.
On February 18, 1994, almost eighteen months after he was
taken into custody, Crowson filed his second motion for release
from confinement. Crowson argued that he should be released
based on the eighteen month limitation on confinement in the
Recalcitrant Witness Statute. 28 U.S.C. § 1826(a) (1994).2 The
court denied this motion on May 27, 1994, holding that the
eighteen month statutory limitation was inapplicable because it
applies only to contempt arising out of grand jury proceedings
and not to a post-judgment refusal to disclose assets. Natural
Gas Pipeline Co. v. Fritz, 853 F. Supp. 236, 237 (S.D. Tex.
1994). Crowson did not appeal.
2
Crowson filed an amended motion for release and a motion to
vacate the order of contempt on May 16, 1994. In addition to the
§ 1826 ground, he argued that he should be released because his
confinement had become punitive and because he was “uncoercible.”
The district court did not address the additional grounds.
3
In July 1994, the court granted summary judgment in favor of
Winnie Pipeline Company and Southeastern Marketing Company
against Crowson and his co-defendant Kenneth Patterson in a
consolidated case. The judgment held Crowson and Patterson
liable for an additional 7.6 million dollars. Crowson filed a
Notice of Appeal and sought leave to proceed in forma pauperis,
which the district court denied. Crowson appealed the denial,
but his appeal was dismissed. Although this court subsequently
reversed the district court’s July 1994 grant of summary judgment
against Crowson’s co-defendant Kenneth Patterson, Crowson was not
a party to that appeal.
On September 26, 1995, Crowson filed his third motion for
release from confinement and motion to vacate the order of
contempt. The motion urged the court to “reconsider its
position” as to the applicability of the Recalcitrant Witness
Statute, as well as its holding that Crowson waived his Fifth
Amendment privilege. Crowson also made several other arguments:
that he is subject to confinement forever, that he has done all
he can to purge himself of his contempt, and that he is entitled
to relief because his confinement has become punitive. He
concluded by asking for his immediate release or, alternatively,
for a hearing to determine his eligibility for release. The
court denied the motion in a one-line order, without giving any
reasons for its decision. Crowson now brings this appeal.
4
II. JURISDICTION
Crowson appeals a final decision by the district court
refusing to release him from confinement or to vacate the
contempt order. The court has jurisdiction to hear this appeal
under 28 U.S.C. § 1291. Natural Gas’s argument that the court
has no jurisdiction, based on United States v. Wheeler, 952 F.2d
326 (9th Cir. 1991), is without merit. In Wheeler, the district
court issued a contempt order against Wheeler because he refused
to provide the relevant books and records requested in an IRS
investigation. Id. at 326-27. Wheeler did not appeal the order.
Instead, he later filed an affidavit, which the district court
treated as a motion to vacate the contempt order, in which he
claimed that the requested records never existed. Id. at 327.
The district court denied the motion and Wheeler appealed. The
Ninth Circuit held that it lacked jurisdiction to hear the case
because “a district court’s order refusing to vacate an
underlying contempt order is nonappealable when the ground on
which the vacatur is sought existed at the time the contempt
order was entered and the contemnor failed to appeal timely from
that order.” Id. Assuming arguendo that Wheeler is rightly
decided,3 it is nevertheless inapposite. Crowson’s third motion
3
In their treatise, Wright, Miller, and Cooper note that
instead of dismissing the appeal, the Ninth Circuit should have
affirmed the district court’s decision on the ground that a
motion to vacate cannot be used to secure review of the
underlying order. 15B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3917 n.70 (Supp. 1995).
5
contains several grounds which did not exist at the time the
contempt order was entered, and it is these issues that we
consider on appeal.
III. DISCUSSION
A. Standard of Review
A court of appeals reviews a district court’s order denying
a Rule 60(b) post-judgment motion for abuse of discretion.
Browder v. Director, Ill. Dep’t of Corrections, 434 U.S. 257, 263
n.7 (1978). On such an appeal, the court should restrict itself
to addressing only the district court’s action in denying the
motion and should not review the underlying judgment. Id.;
Trinity Carton Co. v. Falstaff Brewing Corp., 816 F.2d 1066, 1070
(5th Cir. 1987); 15B CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 3916, at 351 (1992).
B. Issues Resolved in Prior Motions
Crowson raised five issues in his third motion for release
from confinement and motion to vacate the original order and
raises a sixth issue on appeal. First, he urged the district
court to reconsider its judgment on his earlier motions, in which
he asserted claims under the Recalcitrant Witness statute and the
Fifth Amendment. In Natural Gas Pipeline Co. v. Fritz, 853 F.
Supp. 236 (S.D. Tex. 1994), the district court held that 28
U.S.C. § 1826 applies only to witnesses testifying before a grand
6
jury, not to the actual parties in a lawsuit. Id. at 237.
Because Crowson failed to appeal this ruling, it became the law
of the case. The district court’s ruling on the Fifth Amendment
issue is also the law of the case because Crowson’s appeal of
that ruling was dismissed.
Crowson gives no reasons on appeal as to why the district
court abused its discretion in refusing to reexamine its original
orders. Instead of “reveal[ing] the traditional equities
favoring relief from the judgment,” Trinity Carton, 816 F.2d at
1070, Crowson only argues that the original decisions were wrong.
In essence, Crowson is trying to use this appeal to review the
underlying judgments. We do not review underlying judgments on
an appeal of a denial of a Rule 60(b) post-judgment order. Id.
C. New Issues
Crowson asserted for the first time in his third motion that
he is subject to confinement forever because he “may well have”
entrusted the bookkeeping to his attorney and, thus, he may not
know the nature and location of his assets. The district court
correctly disposed of this assertion in denying the third motion.
Crowson should have made this argument at the time the contempt
order was issued. He cannot now seek to use this motion to
review the contempt order. 15B CHARLES A. WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 3916 at 364 (1992).
7
Crowson claimed in his third motion that he has done all he
can to purge himself of his contempt. Crowson must offer
something more, however, than his own self-serving statements to
satisfy his burden of production, and this he failed to do. In
United States v. Sorrells, 877 F.2d 346 (5th Cir. 1989), a case
involving similar facts, this court held that “[u]nless and until
[the contemnor] complies with the enforcement order, or meets his
burden of producing credible evidence showing that he is
presently unable to comply, [he] remains in contempt of the
court’s order.” Id. at 352. Thus, the district court correctly
disposed of this issue.
In his appellate brief, Crowson argues for the first time
that the January 4, 1996 reversal of the district court’s grant
of summary judgment in favor of Winnie Pipeline and Southeastern
Marketing relieves him of further liability.4 The Fifth Circuit
reversal of the summary judgment as to Kenneth Patterson in this
case does nothing to relieve Crowson of further liability.
Crowson was not a party to the appeal, so the original judgment
is still valid as to him.
D. The Thom Analysis
4
Although we do not usually consider arguments raised for
the first time on appeal, we note that the Fifth Circuit reversal
did not occur until after the district court’s order. In the
interest of forestalling another appeal, we address Crowson’s
argument at this time.
8
Finally, Crowson asserted in his third motion that the
passage of time has demonstrated that he will never comply with
the contempt order, thus making his confinement punitive rather
than coercive.5 Crowson relies on United States ex rel. Thom v.
Jenkins, 760 F.2d 736 (7th Cir. 1985), to support the argument
that a person confined as the result of a civil contempt order
must be released if he can show that his confinement has become
punitive. As the Seventh Circuit noted in Thom, “although
incarceration for civil contempt may continue indefinitely, it
cannot last forever.” Id. at 740 (citing Maggio v. Zeitz, 333
U.S. 56, 76 (1948)). When it becomes clear that a civil
contemnor will never yield to the coercion of incarceration, the
court must release the contemnor. Id. The determination of the
point at which the contemnor should be released is left to the
discretion of the district court, id., and we review the district
court’s order under an abuse of discretion standard. In this
case, however, it is impossible to evaluate the district court’s
exercise of discretion based on its one-sentence order. A Thom
inquiry is necessarily fact-bound, but in this instance the
5
Although Crowson raised this issue in his amended second
motion for release from confinement, he is not barred from
raising it now because of the ongoing nature of the claim. See
Kilgoar v. Colbert County Bd. of Educ., 578 F.2d 1033, 1035 (5th
Cir. 1978) (“Subsequent conduct, even if it is of the same nature
as the conduct complained of in a prior lawsuit, may give rise to
an entirely separate cause of action.”).
9
district court did not hold a hearing on the matter or make any
explicit fact findings.
At this point, Crowson has been incarcerated for more than
four years, and it has been more than two years since his last
motion to vacate the contempt order. While Maggio and Thom do
not set out any specific guidelines for the district court to
follow in addressing such a claim, the ongoing nature of the
claim makes it ripe for reevaluation periodically.
The district court is correct in so far as it disposed of
the first five issues Crowson raises on appeal. However, the
district court failed to address adequately Crowson’s argument
that his confinement has become punitive. Normally, we would
remand this case to the district court and ask it to give reasons
for the judgment it made at the time. However, because of the
continuing nature of the Thom inquiry, we remand with
instructions to evaluate Crowson’s claim based on the current
factual situation. The district court shall hold a hearing and
make explicit findings that will enable us to review the
resulting order. We intimate no view on the merits.
IV. CONCLUSION
10
For the foregoing reasons, we VACATE the order of the
district court and REMAND for further proceedings consistent with
this opinion.
11