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
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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.
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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
E.g., United States v. Chacon, 663 F.2d 494, 495 (4th Cir. 1

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

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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. But Doe's argument in this case turns largely on the 1
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).

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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
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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
The canon has so far been applied by the Supreme Court to 2

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. 

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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
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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
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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.