United States Court of Appeals
For the First Circuit
No. 10-2005
IN RE: GRAND JURY.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Boudin, Lipez and Howard,
Circuit Judges.
Robert L. Sheketoff for appellant.
Michael L. Tabak, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
March 23, 2011
BOUDIN, Circuit Judge. This appeal presents the question
whether, in order to make the federal sanction effective, a federal
district court can suspend the running of a prisoner's state
sentence while the prisoner is temporarily confined for federal
civil contempt. The appellant, whom we will call John Doe, has
been serving a state prison sentence set to expire several years
from now. Last year, he was brought before a federal grand jury by
writ of habeas corpus ad testificandum, granted statutory use
immunity, see 18 U.S.C. §§ 6002-6003 (2006), and ordered to
testify.
Despite warnings and threatened contempt, Doe refused to
testify and was eventually found in civil contempt and placed in
the custody of the U.S. Marshals Service "until such time as [he]
shall obey" the court's earlier orders to testify, the
incarceration not to exceed eighteen months or the end of the grand
jury, whichever occurs first. See 28 U.S.C. § 1826(a) (2006).
Thereafter, at the government's request, the district court amended
the contempt order to provide that the federal contempt confinement
shall interrupt the service of the sentence
imposed on [Doe] by the [state court], which
sentence shall not continue to run during the
period that [Doe] is being held in civil
contempt confinement, and the sentence imposed
on [Doe] by the [state court] shall not be
considered concurrent herewith; rather, that
sentence imposed on [Doe] by the [state court]
shall resume when, and only when, this civil
contempt confinement of [Doe] pursuant to 28
U.S.C. § 1826(a) has terminated.
-2-
Failing to win reconsideration, Doe now appeals, raising
a single claim, namely, that the district court lacked authority
under the recalcitrant witness statute, 28 U.S.C. § 1826, to order
the state to toll the state court sentence while he serves time for
federal civil contempt. The Second Circuit agrees with Doe's
position, In re Liberatore, 574 F.2d 78 (2d Cir. 1978); a divided
Third Circuit supports the government's view, In re Grand Jury
Investigation, 865 F.2d 578 (3d Cir.), cert. denied, 493 U.S. 905
(1989).
Section 1826 reads in relevant part:
Whenever a witness in any proceeding before or
ancillary to any court or grand jury of the
United States refuses without just cause shown
to comply with an order of the court to
testify . . . the court, upon such refusal, or
when such refusal is duly brought to its
attention, may summarily order his confinement
at a suitable place until such time as the
witness is willing to give such testimony or
provide such information. No period of such
confinement shall exceed the life of–-
(1) the court proceeding, or
(2) the term of the grand jury,
including extensions,
before which such refusal to comply with the
court order occurred, but in no event shall
such confinement exceed eighteen months.
Whether the district court has the authority it exercised
presents a question of law that we consider de novo, N. Am.
Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8,
12 (1st Cir. 2009), but to describe it as a question of statutory
-3-
interpretation is perhaps misleading. Nothing in section 1826's
language directly addresses the question whether the federal court
may suspend a state sentence during the period of contempt. Nor
does the legislative history suggest that Congress ever considered
the question.
Congress often leaves unresolved details needed in the
enforcement of federal statutes. Often these are important ones,
such as the statute of limitations applicable to section 1983 acts.
See Bd. of Regents v. Tomanio, 446 U.S. 478, 483 (1980). The
omission is sometimes deliberate, Congress being unable to agree on
the solution, Friendly, The Gap in Lawmaking--Judges Who Can't and
Legislators Who Won't, 63 Colum. L. Rev. 787, 801 (1963), and
sometimes inadvertent, id. at 801-02. It is mere fortuity that a
prisoner held in civil contempt by a federal court happens to be
serving a state sentence.
By chance, when Congress in 1984 amended section 1826 (an
amendment not bearing on the present case), the Senate committee
report took note of and effectively endorsed the practice of
federal courts interrupting federal sentences during incarceration
for civil contempt. S. Rep. No. 98-225, at 330 (1983). And this
practice has been upheld by every circuit to consider the
question.1 But Doe's argument in this case turns largely on the
1
E.g., United States v. Chacon, 663 F.2d 494, 495 (4th Cir.
1981) (per curiam); United States v. Dien, 598 F.2d 743, 744-45 (2d
Cir. 1979) (per curiam); In re Garmon, 572 F.2d 1373, 1376 (9th
-4-
fact that the interrupted sentence is that of the state, which is
to a degree in our federal system a separate sovereign.
Absent explicit language from Congress, resort must be
had to background principles. One of these is the desire to make
the statute serve its central purpose. Passamaquoddy Tribe v.
Maine, 75 F.3d 784, 788-89 (1st Cir. 1996). Here, Congress'
explicit purpose in section 1826 was "to secure the [witness']
testimony through a sanction." H.R. Rep. No. 91-1549, at 46
(1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4022. The contempt
sanction would be much reduced in force if the federal confinement
were offset by an effective reduction in a pre-existing sentence,
Chacon, 663 F.2d at 495; Anglin, 504 F.2d at 1169, even if
collateral disadvantages remain for the contemnor relating to good
time credits and parole.
True, a federal judge could impose a criminal contempt
sentence on Doe, ordering it to be served at the end of the state
court sentence. See Liberatore, 574 F.2d at 86, 88 n.9. But the
criminal contempt sanction aims to punish, while civil contempt is
designed to coerce. H.R. Rep. No. 91-1549, at 46 (1970), reprinted
Cir. 1978); Bruno v. Greenlee, 569 F.2d 775, 776-77 (3d Cir. 1978)
(per curiam); In re Grand Jury Proceedings, 534 F.2d 41, 42 (5th
Cir. 1976); Martin v. United States, 517 F.2d 906, 909 (8th Cir.),
cert. denied, 423 U.S. 856 (1975); Williamson v. Saxbe, 513 F.2d
1309, 1310 (6th Cir. 1975) (per curiam); United States v. Liddy,
510 F.2d 669, 671 (D.C. Cir. 1974) (en banc), cert. denied, 420
U.S. 980 (1975); Anglin v. Johnston, 504 F.2d 1165, 1169 & n.4 (7th
Cir. 1974), cert. denied, 420 U.S. 962 (1975).
-5-
in 1970 U.S.C.C.A.N. at 4022. Thus, the civil sanction allows the
contemnor to end his confinement at any moment by complying.
United States v. Marquardo, 149 F.3d 36, 39 (1st Cir. 1998).
Were this the whole story, the balance of interests would
easily favor the government, but here we are concerned with a
federal court interrupting a state rather than a federal sentence.
True, to achieve federal ends, state power is sometimes constrained
even without express statutory authorization; examples are dormant
Commerce Clause doctrine, e.g., Am. Trucking Ass'ns, Inc. v. Mich.
Pub. Serv. Comm'n, 545 U.S. 429, 433 (2005), and various immunities
of federal officers from state law, e.g., In re Neagle, 135 U.S. 1,
75 (1890). Yet, not surprisingly, courts are hesitant to override
state authority by implication.
Thus, the Supreme Court has adopted a requirement of
plain statement where Congress "intends to alter the usual
constitutional balance between the States and the Federal
Government," Raygor v. Regents of the Univ. of Minn., 534 U.S. 533,
543-44 (2002) (internal quotation marks omitted); see also Gregory
v. Ashcroft, 501 U.S. 452, 461, 464 (1991); United States v. Bass,
404 U.S. 336, 349-50 (1971); but it has said that this applies only
when Congress "intends to pre-empt the historic powers of the
States" or passes legislation in "traditionally sensitive areas
that affect the federal balance," Raygor, 534 U.S. at 543 (internal
-6-
quotation marks and alterations omitted). The critical terms are
elastic and the doctrine requires a substantial intrusion.2
Whatever generalizations are offered by the case law, the
reality is that the strength of the respective interests, state and
federal, vary from one situation to another. In the present context
of federal contempt power, the federal interest will almost always
be considerable; whether there is any practical threat to state
interests is less apparent, see In re Grand Jury Proceedings, 865
F.2d at 582-83, since presumably the state has a comparable
interest in not having its own sentence diluted in force by making
it concurrent with a sentence for different misconduct occurring
later.
Conceivably, in rare situations, the state interest might
be greater--for example, state law might forbid the state from
holding the federal contemnor longer than his original release
date, a claim made and apparently accepted in Liberatore, see 578
F.2d at 89-90. If that or some comparable consideration existed,
it would be up to the contemnor to point it out to the district
judge, who could consider what to make of it. But here no such
2
The canon has so far been applied by the Supreme Court to
ambiguous statutes that would, if read in one way, possibly
abrogate sovereign immunity, Raygor, 534 U.S. at 543-44; "invoke[]
the outer limits of Congress' power," Solid Waste Agency of N. Cook
Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172 (2001);
impinge on "a decision of the most fundamental sort for a sovereign
entity," Gregory, 501 U.S. at 460; or "dramatically intrude[] upon
traditional state criminal jurisdiction," Bass, 404 U.S. at 350.
-7-
concrete conflict was identified by Doe in the district court or,
for that matter, in this court.
On the contrary, the government has pointed to
Commonwealth v. Megna, in which the Bristol Superior Court had no
hesitation in ordering that its civil contempt incarceration
interrupt a pending Massachusetts sentence then being served by the
contemnor. Memorandum of Decision on Civil Contempt, No. BRCR2002-
03078 (Mass. Dist. Ct. Oct. 1, 2004). That court cited some of the
federal cases (see note 1, above), as well as a local case from
another jurisdiction, to explain the necessity for such a step in
order to make the civil sanction effective.
There will be time enough to consider such a real
conflict on the merits, and the contemnor's standing to raise the
objection, see In re Grand Jury Investigation, 865 F.2d at 879 n.2,
if and when it arises. In this case, we think the order is valid
and enforceable against Doe; the state is not a party to the case
and if the state should balk at the implications for Doe's state
sentence, that will be a matter that can be addressed at that time,
assuming that anyone is interested in doing so.
As for Liberatore, a later decision by the Second
Circuit, Dien, 598 F.2d at 745, followed the general pattern of
allowing suspension of a pre-existing federal sentence. While Dien
did not overrule Liberatore, it did undercut aspects of the
reasoning in Liberatore: the supposed rule that sentences are not
-8-
interruptible and the stress laid on the lack of a specific grant
of authority in section 1826. See Dien, 598 F.2d at 744-45.
Whether the Liberatore holding would still be followed today is
uncertain.
Affirmed.
-9-