Federal Contempt of Court
By Joel M. Androphy and Keith A. Byers

The authority of a federal court to hold either an individual (whether a party, witness, spectator, or attorney) or a corporate entity in contempt of court is an effective tool designed to allow the judiciary to maintain order in the courtroom and guarantee the orderly administration of justice. In particular, the threat of contempt enables a court to control overzealous and/or uncooperative litigants, attorneys, and witnesses.

If federal courts were unable to rely on the threat of imposing contempt sanctions, judges would be essentially powerless to ensure the orderly administration of justice within their courtrooms and in connection with the legal proceedings on their dockets. Arguable, the absence of judicial contempt powers could lead to chaos in both the courtroom and the legal system as a whole.

Current federal jurisprudence grants judges wide latitude in the exercise of contempt powers, which in turn can lead to dire consequences for anyone (otherwise known as a contemnor) who has committed contempt of court. Despite the possibility of such consequences, the authority to hold individuals in contempt of court is one of the least-regulated areas of judicial power in the American legal system.¹

Considering the frequent state of confusion surrounding this area of the law, this article will attempt to provide federal practitioners with a basis, but better understanding of existing federal contempt of court jurisprudence. This is no easy task considering the fact that "[t]he literature on contempt of court is unanimous on one point: the law is a mess."² Moreover, "[f]ew legal concepts have bedeviled courts, judges, lawyers, and legal commentators more than contempt of court."³

Defining Contempt of Court

Contempt of court is defined as any act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen the authority or dignity of a court.⁴ In light of this broad definition, it should come as no surprise that the federal contempt power has included a wide range of "casualties": Iran/Contra figure Lt. Col. Oliver North,⁵ famed criminal defense lawyers F. Lee Bailey⁶ and William Kunstler;⁷ Hustler magazine publisher Larry Flynt;⁸ Cable News Network (CNN);⁹ mob boss John Gotti's lawyer Bruce Cutler;¹⁰ Attorney General Griffin Bell;¹¹ Whitewater figure Susan McDougal;¹² Birmingham, Ala., Mayor Richard Arrington;¹³ alleged Czechoslovakian Intelligence Service spy Hana Koecher;¹⁴ Watergate participant G. Gordon Liddy;¹⁵ former U.S. Rep. Mel Reynolds;¹⁶ and Philippine President Ferdinand Marcos and his wife Imelda.¹⁷ It has also been reported that the late (no pun intended) federal judge William Daniel Murray once held himself in contempt of court and self-imposed a fine following his failure to arrive on time for court.¹⁸ Going a step further, one federal bankruptcy judge even held a NationsBank computer in contempt of court.¹⁹

Inherent Contempt Authority

Judicial authority to cite an individual for contempt of court is as old as the courts themselves.²⁰ Moreover, the power to punish acts of contempt has been recognized as inherent in all courts.²¹ This inherent authority originates from the necessity for enforcing court orders and judgments, as well as maintaining basic order in the courtroom. "For this reason, 'Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their present, and submission to their lawful mandates.'"²² Regardless of the inherent nature of the contempt power, the U.S. Supreme Court has suggested that the exercise of the power be limited to the "'least possible power adequate to the end proposed."'²³

Distinguishing Between Criminal and Civil Contempt

The distinction between criminal and civil contempt has been one of the most confusing and problematic areas of contempt jurisprudence.²⁴ Some of this confusion results from the fact that criminal contempt can occur in either a criminal or civil proceeding, just as civil contempt can occur in either a criminal or civil proceeding.²⁵ Moreover, single acts of contempt can result in both criminal and civil contempt sanctions in some cases.²⁶ Despite the difficulty in categorizing acts of contempt, the ability to distinguish between civil and criminal contempt is of vital importance. This importance originates from the fact that different rules, procedures, and constitutional safeguards (which will be discussed throughout this article) apply to the two types of contempt.

The U.S. Supreme Court struggled with the distinction between civil and criminal contempt as early as 1911. Although Gompers v. Buck's Stove & Range Co.²⁷ continues to be the most influential case, the court has revisited this complex issue on several occasions.²⁸ In Gompers, the court first acknowledged the difficulty in distinguishing between criminal and civil contempt.

In an attempt to draw a distinction between the two types of contempt, the court focused on the "character and purpose" of the sanction imposed.²⁹ The court reasoned that a contempt sanction should be considered to be civil in nature it if is remedial and intended to benefit the complainant.³⁰ The court, for instance, explained that a contempt sanction is civil if it is "intended to be remedial by coercing the defendant to do what he had refused to do."³¹ Additionally,

[i]f the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order.³²

In contrast with the purpose of a civil contempt sanction, the purpose of a criminal contempt sanction (e.g., an unconditional and determinate period of imprisonment or a fixed monetary fine) is to punish the contemnor and vindicate the authority of the court.³³ Consequently, criminal contempt is punitive in character.³⁴

In Gompers, the court also articulated a mandatory-prohibitory test to assist in determining whether a civil or criminal contempt sanction is appropriate. Basically, the court opined that civil contempt is appropriate for coercing future compliance with a previously violated mandatory court order (e.g., one that said "Do X"), while criminal contempt is appropriate for punishing a past violation of a prohibitory court order (e.g., one that said "Don't do X").

In United States v. United Mine Workers, the Supreme Court applied the Gompers analysis to contempt fines.³⁵ This opinion, however, only served to muddle the already confusing distinction between civil and criminal contempt. By equating the coercive use of fines with the coercive use of imprisonment, new confusion arose as the court approved of the use of fines as a method for coercing compliance with court orders. As a direct result, "the court made it possible for courts to set out prospective fine schemes and then levy fixed fines in subsequent civil, rather than criminal contempt proceedings."³⁶ Thereafter, lower courts basically saw this as an opportunity to punish future acts of contempt with prospectively affixed sanctions - but without the procedural requirements of a criminal contempt proceeding.³⁷

Despite the original distinctions between criminal and civil contempt offered by the Supreme Court, distinguishing between civil and criminal contempt still poses a considerable challenge. In part, this results from the fact that in many respects all contempt proceedings contain both coercive and punitive elements.³⁸ For example, even a fixed sentence of confinement imposed as punishment will also coerce subsequent compliance with present, as well as future court orders.

Because of the fine line between coercion and punishment, there is always the possibility that a civil/coercive contempt sanction might evolve into a criminal sanction. This possibility exists in cases where a civil contemnor is subjected to continued "coercive" confinement despite the fact that there is "no realistic possibility or no substantial likelihood that additional confinement will coerce."³⁹ In such cases, the sanction should lost its civil status essentially because a coercive purpose no longer justifies continued confinement. This scenario is especially problematic because the incarcerated and uncoercible contemnor finds him or herself the victim of criminal confinement without having received the benefits of the required criminal procedural protections.⁴⁰ As a result, the presiding judge is required to make a "conscientious effort" to ensure that the contemnor is not subjected to further civil confinement in the absence of an ongoing and realistic possibility of coercing compliance.⁴¹

Besides recognizing problems with the coercive/punitive distinction, the Supreme Court has also acknowledged problems with the mandatory-prohibitory test. This second test does nothing more than focus on the semantics of the violated court order: for example, "an injunction ordering the union: 'Do not strike' would appear to be prohibitory and criminal, while an injunction ordering the union: 'Continue working,' would be mandatory and civil."⁴² Subsequently, this sort of distinction should not be determinative of the degree of due process and constitutional protections that an accused contemnor receives in "borderline cases [where] injunctive provisions containing essentially the same command can be phrased either in mandatory or prohibitory terms."⁴³ The distinction between mandatory and prohibitory order violations is best and most easily "applied in the classic contempt scenario, where contempt sanctions are used to enforce orders compelling or forbidding a single, discrete act,"⁴⁴ as opposed to a complex contempt scenario involving multiple court orders.

In recognition of the ever-growing confusion surrounding the characteristics of criminal and civil contempt, the Supreme Court further refined the analysis used to determine whether a contemnor is entitled to the heightened protections of a criminal contempt proceeding or the less stringent protections of a civil contempt proceeding. The revised analysis adheres to the following premise: if the contemnor is given the opportunity to purge him or herself of the contempt by complying with the violated court order, then only the protections of a civil proceeding are required;⁴⁵ or, in other words, if the contemnor "carries the keys to the jail in his own pocket," then a civil contempt proceeding is appropriate."⁴⁶ Even before the above-mentioned refinement, the court already had ruled that "[w]here a fine is not compensatory, it is civil only if the contemnor is afforded an opportunity to purge."⁴⁷

Most recently in 1994, in International Union, United Mine Workers v. Bagwell, the Supreme Court once again considered the distinction between civil and criminal contempt.⁴⁸ The court's review of this case potentially was linked to the growing tendency of the lower federal courts to liberally use civil contempt proceedings to impose determinative fines.⁴⁹ Not too surprising in light of this trend, Bagwell involved the review of a trial court's decision to levy a total of $64 million in contempt fines against the United Mineworkers for 400 separate violations of an injunction prohibiting unlawful strike activity.⁵⁰ During its review, the court focused on the lower court's decision to classify the fines as civil, which thereby seemingly enabled the court to avoid the jury trial requirement that otherwise would have been required if the fines had been labeled as criminal contempt sanctions. Disapproving of the lower court's decision, the court ruled that "out-of-court violations of complex injunctions" require criminal procedural protections.⁵¹ Even more significantly, the court "decline[d] to conclude that the mere fact that the sanctions were announced in advance rendered them coercive and civil as a matter of constitutional law."⁵²

Despite the basic guidelines that the court has provided, judges and attorneys still face a difficult task distinguishing between criminal and civil contempt.

Direct Versus Indirect Contempt

Besides classifying a contemptuous act on the basis of the criminal and civil distinctions, a contemptuous act also can be classified as being either direct or indirect/constructive.

At one time, the Supreme Court construed the contempt laws as allowing for summary punishment of all actions perceived as having a "reasonable tendency" to disrupt the judicial process, regardless of whether they occurred in the physical presence of the court.⁵³ This broad interpretation, however, was overruled in 1941 in favor of a strict physical presence test.⁵⁴ The distinction between direct and indirect contempt revolves around where the contempt occurred: Did it occur within the presence of the court, or outside the presence of the court? For instance, direct contempt occurs when contemptuous behavior is committed in the physical presence of the judge, or within an integral part of the court, while the court is performing any of its judicial functions. In contrast, indirect contempt occurs out of court.⁵⁵ Unlike direct contempt, indirect contempt is usually associated with the refusal of a party to comply with a lawful court order, injunction, or decree which imposes a duty of action or forbearance.

Labeling an act of contempt as direct or indirect becomes important because the distinction controls the manner in which the court may dispose of the matter. In Bagwell, the Supreme Court noted that "[d]irect contempts that occur in the court's presence may be immediately adjudged and sanctioned summarily."⁵⁶ Prior to Bagwell, the court already had defined the summary contempt proceeding as follows:

Summary...refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure [i.e., the formal trial or hearing process] is to inform the court of events not within its own knowledge.⁵⁷

Supporting the use of the summary contempt power, the Fifth Circuit Court of Appeals explained, "When the contempt occurs totally in the presence of the judge, there is no necessity for the production of evidence ... Indeed there is no burden of persuading the trier of fact as there is no fact finding process to be conducted."⁵⁸ Believing that the traditional "standards of proof have no practical relevance" in cases involving direct contempt, the Fifth Circuit added, "Where the contumacious conduct is committed in the presence of the court in the immediate view of the judge, it is unnecessary for the court to apply any evidentiary standard of proof in order to summarily hold the contemnor in contempt of court."⁵⁹

Despite the lack of procedural formalities, summary punishment is viewed as a vital mechanism for allowing a judge to maintain the authority of the court. The summary process has been held to be reasonable in situations where there is an immediate need to restore order and the judge has witnessed all the events leading up to the charge. To be more exact, the exercise of the summary contempt power is justified only in cases of necessity where there is a need for immediate vindication of the court's dignity and authority.⁶⁰

In Matter of Pilsbury, the court also cautioned that "where a reasonable person would not know that the court considered his conduct contemptuous, warning is required before a summary contempt conviction may be made, and some opportunity to be heard must be provided unless inconsistent with the preservation of order."⁶¹ Moreover, use of the summary contempt power should only be exercised after considering the following words of the Supreme Court: "Summary punishment always, and rightfully, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes."⁶²

Additionally, Rule 42 of the Federal Rules of Criminal Procedure specifies the various procedures that must be followed in order for a federal court to exercise its criminal contempt power in response to acts of indirect and direct contempt.⁶³ Whenever a criminal contempt is not committed in the actual presence of the judge,⁶⁴ Rule 42(b) states that the indirect contempt shall be prosecuted only after having provided the accused with notice of all of the following: the time and place of the contempt hearing, the essential facts constituting the criminal contempt charged, and the criminal nature of the proceeding. Besides the express mandates of Rule 42, basic due process considerations automatically require that there be notice and an opportunity to be heard in cases involving an alleged act of indirect contempt.⁶⁵ The required notice can be provided via any of the following: by the judge in open court in the presence of the defendant, on application of the U.S. Attorney or an attorney appointed by the court, by a written "order to show cause," or by an order of arrest. Following notice, the accused must be granted a reasonable amount of time to prepare a defense. Furthermore, if the act of indirect contempt consisted of an act of disrespect or criticism directed at the judge, the judge is prohibited from presiding over the accused's contempt hearing or trial (absent the accused's consent).⁶⁶

Rule 42(b) also provides the basic framework for the use of the summary contempt power in cases of direct contempt. Unlike cases involving an act of indirect contempt, "[a] criminal contempt may be punished summarily if the judge certifies that the judge saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." Following a summary finding of contempt, the judge must enter into the record and issue a signed order of contempt which recites the relevant facts surrounding the act of contempt.

Even in cases of direct contempt, "serious" criminal contempts must be tried by a jury."⁶⁷ As a result, a court may not impose a sentence of more than six months confinement in the absence of a jury trial.⁶⁸ The law is less certain when it comes to distinguishing between "serious" and "petty" criminal fines. Unlike the six-month confinement standard which clearly establishes the threshold at which a sentence must be classified as serious (and deserving of a jury trial), there is not such bright line for determining at what point a criminal fine becomes "serious." Therefore, it is especially difficult to determine if a jury trial is required in those criminal cases where a court levies only a punitive fine or a fine combined with a sentence of confinement which is less than six months in duration.⁶⁹

Although a presiding judge has the authority to immediately and summarily cite a contemnor for direct contempt, it is within the court's discretion to delay taking action until the conclusion of the underlying trial or hearing.⁷⁰ The Supreme Court offered the following explanation:

We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if in his opinion, delay will prejudice the trial. We hold on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power.⁷¹

When a substantially contemporaneous disposition does not occur, however, there is less of a compelling argument to support the judge's decision to preside over the contempt proceeding. For example, the Supreme Court has stated, "[W]here conditions do not make it impracticable, or where the delay may not injure public or private right, a judge, called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place."⁷² Whenever a judge becomes "personally embroiled" in a conflict with an accused contemnor (e.g., by repeatedly yelling and bickering with a lawyer), the judge must recuse himself from presiding over the post-trial contempt hearing.⁷³ Moreover, constitutional due process considerations likely will require the judge to recuse himself from the post-trial contempt proceeding in instances where the judge has been personally insulted by an act of direct contempt.⁷⁴ The appropriate inquiry is whether there is "such a likelihood of bias or an appearance of bias" that the presiding judge is "unable to hold the balance between vindicating the interests of the court and the interests of the accused."⁷⁵

Statutory and Judicial Restraints

Although the federal courts historically have believed that the authority to hold an individual in contempt is an inherent power of the judiciary, they have acknowledged and accepted some statutory restraints on this power.⁷⁶ The federal judiciary also has even self-imposed some restraints on the contempt of court power.

The Judiciary Act of 1789 was the first federal statute recognizing the contempt power of the federal courts.⁷⁷ Today, a handful of federal statutes gives the federal judiciary explicit authority to cite an individual for contempt.⁷⁸ At the same time, these statutes also regulate to some degree the use of the contempt power within the federal courts.

The most significant of these statutes, 18 U.S.C. § 401, grants the federal courts broad powers to punish acts of criminal contempt. This power, however, can only be exercised if not barred by a congressionally established five-year statute of limitations.⁷⁹

This general federal contempt statute states:

A court of the United States shall have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as -

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.⁸⁰

Rather remarkably, this general contempt statute provides the only existing congressional guidance regarding what types of acts actually constitute contempt for the authority of a court.

In order to establish a criminal violation of § 401(l), the following four elements must be established beyond a reasonable doubt:

(1) misbehavior,

(2) in or near the presence of the court,

(3) with criminal intent,

(4) that resulted in an obstruction of the administration of justice.⁸¹

Attempting to explain just what type of misbehavior is required, one court has explained that "the contemnor's conduct must constitute misbehavior which rises to the level of an obstruction of and an imminent threat to the administration of justice, and it must be accompanied by the intention on the part of the contemnor to obstruct, disrupt, or interfere with the administration of justice."⁸²

Furthermore, the Supreme Court has declared that there must be a finding of "an actual obstruction of justice" in all § 401(1) cases involving an exercise of the summary contempt power.⁸³ Another court has even held that the obstruction requirement is "a prerequisite to all criminal contempts."⁸⁴ Considering the importance associated with a court's determination that an actual obstruction occurred, the First Circuit Court of Appeals has offered some helpful guidance: "Where there is no physical disorder in the courtroom, no laughing, shouts or abusive language, and no significant delay in the proceedings, obstruction of justice is not shown."⁸⁵

Despite its reference to officers of the court, § 401(2) "does not apply to counsel appearing before the court."⁸⁶ In actuality, the statutory language of § 401(2) "refers to court clerks and other 'conventional court officers.'"⁸⁷ As a result, § 401(1) and/or § 401(3) typically will be the controlling statutory provisions whenever attorney misconduct is involved.

Before a criminal violation of 18 U.S.C. § 401(3) can be said to have occurred, one appellate court has stated that the following essential elements must be proved beyond a reasonable doubt:

(1) the court entered a lawful order of reasonable specificity;

(2) the accused contemnor violated the order; and

(3) the violation was wilful.⁸⁸

In contrast to § 401(1), the obstruction of justice element is not applicable in cases involving § 401(3) violations.⁸⁹

Whenever an attorney is accused of having violated § 401(3) based upon a failure to comply with a court order, "willfulness may be inferred if a lawyer's conduct discloses a reckless disregard for his professional duty."⁹⁰

Similarly, another court has held that there must be evidence that the attorney "deliberately or recklessly disregarded his obligation to the court, or intended some disrespect to the court."⁹¹ In order to hold a party accountable for violating an order, the order is required to have been clear and unambiguous.⁹² Consequently, a lay witness clearly should not be held in contempt when there is ambiguity surrounding the court's directions.⁹³

While § 401 specifies neither the minimum nor maximum penalty that may be imposed,⁹⁴ it does prohibit a federal judge from legally imposing both a fine and a sentence of imprisonment.⁹⁵ As a result, any contemnor who is erroneously ordered to pay a fine and serve a period of incarceration would be well-advised to promptly pay the fine. After doing so, the contemnor's counsel should attempt to have the contemnor released on the grounds that only one of the two punishments is permissible and because the fine already has been paid, the contemnor must be released from custody.⁹⁶

Along with its failure to adequately define or limit the contempt authority of the federal judiciary, § 401 also declines to expressly create a statutory right to a jury trial. As already explained, existing federal case law recognizes that a jury trial must occur before a court can impose a "serious" criminal sanction in response to any act of direct or indirect criminal contempt.⁹⁷

A must less frequently used statute which also grants courts authority to cite individuals for contempt is 18 U.S.C. § 402.⁹⁸ Unlike § 401, this statute specifically is intended to address those acts of contempt constituting crimes. In particular, § 402 allows for the prosecution of any contemptuous act that is of such a character as to also constitute a criminal offense under the laws of the United States or of the state in which the act was committed. In such cases, the offending person or corporation may be punished by both fine and imprisonment. In those cases where by accused is a natural person, however, the term of imprisonment shall not exceed six months, and the amount of any fine paid to the United States shall not exceed $1,000. Unlike contemnors charged under § 401, some categories of contemnors charged under § 402 are statutorily entitled to a jury trial before any punishment can be imposed.⁹⁹

It is important to note that the limits and protections of § 402 do not apply to all contempt proceedings involving contemptuous acts that constitute crimes. For example, § 402 is not to be applied to acts of contempt "committed in the presence of the court, or so near thereto as to obstruct the administration of justice."¹⁰⁰ Furthermore, § 402 is not to be construed as relating "to contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States."¹⁰¹ As a result, neither the statutory right to a jury trial nor the expressed fine and imprisonment limits apply in these types of cases. The contemptuous act instead is to be "punished in conformity to the prevailing usages at law" - or in other words, in conformity with other existing statutory, procedural, and constitutional requirements. Regardless of the exact manner in which the contempt is prosecuted, no proceeding for criminal contempt within § 402 shall be brought, unless begun within one year from the date of the commission of the allegedly contemptuous behavior.¹⁰²

Another significant contempt statute, often referred to as the federal recalcitrant witness statute, is 28 U.S.C. § 1826. This statute is triggered "[w]henever a witness in any proceeding before or ancillary to any court or grand jury of the United States refuses without just cause shown to testify or provide other information."¹⁰³ In cases where the witness so refuses without just cause, the involved court may summarily order the confinement of the witness until such time as the witness changes his or her mind. Although a stubbornly resistant witness may be confined to coerce compliance, the period of confinement may not exceed the term of the grand jury or the life of the court proceeding.¹⁰⁴ In no case, however, may this coercive-oriented confinement exceed 18 months¹⁰⁵ - creating the possibility that coercive confinement will terminate even in fact of disobedience.¹⁰⁶

Due to the statutory requirement that the recalcitrant witness must have acted without just cause before the court can order confinement, the witness can avoid incarceration if he or she can justify the refusal to comply with the court's order to testify. A court can only make this determination after affording the witness an opportunity to present his or her reasons for refusing to testify - even if this only occurs in a summary proceeding.¹⁰⁷ Just cause has been found to exist in cases where the recalcitrant witness based his or her refusal to comply on one of the following grounds: insufficient time to prepare,¹⁰⁸ illegal electronic surveillance formed the basis for the questioning,¹⁰⁹ or the questions asked were outside of the coverage of the witness' immunity agreement.¹¹⁰ On the other hand, the use of the Fifth Amendment privilege against self-incrimination will not provide just cause in cases where the witness is questioned about issues for which he or she has been granted immunity from prosecution.¹¹¹ Moreover, fear for one's safety does not even justify the actions of a recalcitrant witness in most cases.¹¹²

Considering the important relationship between Rule 42 and criminal contempt proceedings, it is rather odd that there is no analogous federal statute or procedural rule (other than the general provisions of the recalcitrant witness statute) which directly governs civil contempt proceedings.¹¹³ Compared to criminal contempt, the elements of civil contempt are significantly less demanding. Before imposing civil contempt sanctions based upon the violation of a court order, a court only must conclude:

(1) the underlying order violated was valid and lawful;

(2) the underlying order was clear, definite, and unambiguous; and

(3) the contemnor had the ability to comply with the underlying order.¹¹⁴

Another court has provided similar guidance by requiring that the moving party establish that:

(1) the order the contemnor failed to comply with is clear and unambiguous,

(2) the proof of the noncompliance is clear and convincing, and

(3) the contemnor has not diligently attempted to comply in a reasonable manner.¹¹⁵

Moreover, it is especially important to realize that a finding of willfulness is not a prerequisite for imposing civil contempt sanctions.¹¹⁶ Additionally, civil contempt simply must be proved by clear and convincing evidence.¹¹⁷ "The clear and convincing evidence standard is higher than the 'preponderance of the evidence' standard, common in civil cases, but not as high as 'beyond reasonable doubt.'"¹¹⁸ In contrast to an accused contemnor facing punishment for an act of "serious" criminal contempt, an accused contemnor facing civil coercive or remedial sanctions is not entitled to a jury trial.¹¹⁹

Unlike a federal district court judge, a federal magistrate is not granted independent contempt powers. In accordance with 28 U.S.C. § 636(e), however, a federal magistrate may certify to a district court judge the facts surrounding an act of contempt which occurs in any proceeding before the magistrate. After hearing the evidence, the district court judge then determines whether punishment is warranted.

Other Applicable Federal Rules of Civil and Criminal Procedure

Besides Rule 42 of the Federal Rules of Criminal Procedure, various federal procedural rules pertain to the exercise of the contempt power. For instance, Rule 37 of the Federal Rules of Civil Procedure permits a court to issue a contempt of court order in response to the failure of a party to cooperate in the litigation discovery process.¹²⁰ A federal judge also can use the contempt power whenever a deponent continues refusing to answer a question after being ordered to do so.¹²¹ Moreover, "[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed in contempt of the court from which the subpoena issued."^`122 Likewise, any offending party or attorney may be adjudged guilty of contempt if responsible for presenting any affidavits in bad faith or solely for the purpose of delay in connection with a motion for summary judgment.¹²³ The contempt power is also available to deal with a party who does not comply with a judgment which has ordered the party to perform a specific act.¹²⁴ Additionally, Rule 6(e)(2) of the Federal Rules of Criminal Procedure states that the contempt of court power may be used to punish knowing violations of grand jury general rule of secrecy.

Federal Rules of Evidence

Federal practitioners should also be aware that the federal rules of evidence "apply generally to civil actions and proceedings, including ... contempt proceedings except those in which the court may act summarily."¹²⁵

A Summary of Basic Rights and Safeguards

Even though many of the basic rights to which a contemnor is entitled have been mentioned throughout this article, a basic review of these rights is probably needed at this point.

In summary, the Supreme Court has recognized that a criminal contemnor deserves all of the following: the right to be advised of the charges;¹²⁶ the right to the assistance of counsel;¹²⁷a right to a jury trial if the sentence imposed will exceed six months confinement or constitute a "nonpetty" fine;¹²⁸ the presumption of innocence;¹²⁹ the requirement that guilt be proved beyond a reasonable doubt;¹³⁰ the right to be tried by an unbiased judge in a public trial in those cases deserving a trial;¹³¹ the right to a "disinterested prosecutor";¹³² the privilege against self-incrimination;¹³³ the right to cross-examine government witnesses;¹³⁴ the opportunity to present a defense and call witnesses (except when the contempt is committed in open court and no serious sanction is imposed);¹³⁵ the protection against double jeoparty;¹³⁶ and the availability of a presidential pardon.¹³⁷

In comparison, a civil contemnor is entitled to minimal due process.¹³⁸ Consequently, the Supreme Court has explained that civil contempt sanctions "may be imposed in an ordinary civil proceeding upon notice and opportunity to be heard."¹³⁹ Unlike in cases of criminal contempt, no proof beyond a reasonable doubt is required to impose civil sanctions.¹⁴⁰ Also, a jury trial is not required.¹⁴¹ The premise that the civil contemnor "carries the keys to the jail in his own pocket" basically results in the criminal contemnor receiving fewer procedural rights (or, in other words, less due process) than the criminal contemnor.¹⁴²

Sanctions for Contempt

The civil and criminal distinction not only determines the applicable procedural protections, it also affects the type of sanctions that can be imposed. If the proceeding is civil, the sanction must serve either a remedial or coercive function.¹⁴³ Furthermore, the civil coercive sanction must be immediately lifted upon the contemnor's compliance with the relevant court order. If the proceeding is criminal, the sanction must be determinate (e.g., a fixed jail sentence or monetary fine).¹⁴⁴ Imprisonment and/or fines are the traditional forms of sanctions imposed in both civil and criminal contempt proceedings.

When the criminal contempt proceeding meets all the procedural requirements, there is usually no problem associated with a court imposing a punitive fine or ordering confinement for a specified period of time. Although there is no statutory maximum limit regulating the amount of time a contemnor can be ordered to spend in confinement,¹⁴⁵ the requirement that a jury trial be granted in criminal contempt cases involving sentences over six months in jail acts as a check on this power.¹⁴⁶

The U.S. Sentencing Guidelines also significantly impact the punitive sanctions that may be imposed on the criminal contemnor. This is true despite the fact that Section 2J1.1 of the guidelines simply states, "Apply §2X5.1." In turn, Section 2X5.1 states that the court should apply "the most analogous offense guideline." As a result, a court will be required to make a highly fact-specific inquiry when determining the appropriate punitive sentence. As an example, courts have equated the refusal of a witness to testify with all of the following: Obstruction of Justice;¹⁴⁷ Misprison of Felony;¹⁴⁸ and Failure to Appear by Material Witness.¹⁴⁹

The particular analogy that a court draws is very significant considering that the maximum sentence for a witness' failure to appear is six months,¹⁵⁰ whereas other comparisons can result in considerably longer periods of confinement.¹⁵¹ Whenever an offense has no directly-applicable sentencing guideline and the trial court is forced to fashion a sentence by drawing an analogy to another offense (as in the case of criminal contempt), the standard of review will focus on whether the imposed sentence is "plainly unreasonable."¹⁵² Moreover, the "factual findings upon which the court based the sentencing determination are reviewed for clear error."¹⁵³

In contrast, the civil contemnor is usually imprisoned or fined until he purges himself of the contempt by submitting to the orders of the court. The fact that the civil contemnor is confined, however, can directly affect his ability to purge himself of the contempt. This happens whenever the termination of the civil confinement is conditioned upon the occurrence of an action that must be done outside of the prison. To avoid this sort of predicament, a judge ordinarily will release the contemnor in return for an expression of his willingness to perform the desired act or comply with the court order in question.

Civil contempt sanctions also may include denying a litigant some of the normal rights or privileges of litigation. This is true because the act of seeking affirmative judicial relief involves an offensive use of the courts; therefore, a party's requests for such "favors" can be denied when he or she has failed to comply with the orders of the court.¹⁵⁴

Basically, "[t]he district court has broad discretion in fashioning coercive remedies."¹⁵⁵ Although there is no clear restriction on the type of civil sanctions a court could impose, the sanctions must be remedial or coercive.¹⁵⁶ Once coercive sanctions lost their coercive effect, they are no longer considered to be civil; therefore, the sanctions must be terminated at that point. In cases where the contemnor finds himself literally incapable of complying with the court's order, this is also true because the "civil" sanctions would no longer serve any purpose other than to punish the contemnor.¹⁵⁷

Appellate Relief

The distinction between criminal and civil contempt also affects a contemnor's ability to request appellate relief. An order finding a party in criminal contempt is a final judgment; therefore, appellate review may be obtained immediately by the contemnor regardless of whether he or she is a party or non-party.¹⁵⁸ Except for a civilly confined recalcitrant witness who is entitled to have his appeal disposed of within 30 days of its filing,¹⁵⁹ any other party has no right to immediately appeal an adjudication of civil contempt.¹⁶⁰ "[A]n order of civil contempt is interlocutory and may not be challenged on an appeal until the entry of final judgment."¹⁶¹ As a general rule, however, an adjudication of civil contempt is final and appealable as to a non-party.¹⁶²

Regardless of when appellate review actually occurs, an appellate court reviews contempt orders for an abuse of discretion.¹⁶³ The competency of the trial court's underlying findings will be reviewed under the clearly erroneous standard.

Conclusion

Considering the vast and largely unregulated contempt powers of a federal judge, anyone appearing in federal court would be well-advised to avoid the approach taken by the legendary actress Mae West. In the movie My Little Chickadee, "[w]hen the judge warned Mae West that she might be in contempt of court, she rolled her eyes and drawled, 'I'm trying my best to hide it, your honor.'"¹⁶⁵

FOOTNOTES

1. See Joan Meier, The "Right" to a Disinterested Prosecutor of Criminal Contempt: Unpacking Public and Private Interests; 70 Wash. U.L.Q. 85 (1992).

2. Earl C. Dudley, Jr., Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts; 79 Va. L. Rev. 1025 (1993).

3. Robert J. Martineau, Contempt of Court: Eliminating the Confusion Between Civil and Criminal Contempt. 50 U. Cin. L. Rev. 677 (1981).

4. Black's Law Dictionary 288 (5th ed. 1979).

5. In re Sealed Case, 484 U.S. 1027 (1988).

6. John Gibeaut, F. Lee Bailey's New Digs, A.B.A. J., May 1996, at 24; Joseph Wharton, F. Lee Bailey Wins Freedom with Deal, A.B.A. J., July 1996, at 41.

7. In re Dellinger, 370 F.Supp. 1304 (N.D. Ill. 1973), aff'd, 502 F.2d 813 (7th Cir. 1974).

8. United States v. Flynt, 756 F.2d 1352 (9^th Cir. 1985), amended by 764 F.2d 675 (9th Cir. 1985).

9. United States v. Cable News Network, Inc., 865 F.Supp. 1549 (S.D. Fla. 1994).

10. United States v. Cutler, 840 F.Supp. 959 (E.D. N.Y. 1994); United States v. Cutler, 815 F.Supp. 599 (E.D. N.Y. 1993).

11. Socialist Workers Party v. Attorney General, 458 F.Supp. 895 (S.D. N.Y. 1979), cert. denied, 444 U.S. 903 (1979).

12. In re Grand Jury Subpoena, 97 F.3d 1090 (8th Cir. 1996).

13. In re Grand Jury Subpoena Duces Tecum, 91-02922, 955 F.2d 670 (11th Cir. 1992).

14. In re Grand Jury Subpoena U.S. (Koecher), 755 F.2d 1022 (2d Cir. 1985).

15. In re Liddy, 506 F.2d 1293 (D.C. Cir. 1974).

16. Michael Gillis, Reynolds Threatened Witness, Judge Rules, Chi. Sun Times, Apr. 19, 1997, at News 9; Judge Rules Reynolds Mouthed Obscenity; May Affect Sentence, Chi. Trib. Apr. 19, 1997, at News 5.

17. Hilao v. Estate of Marcos, 103 F.3d 762 (9th Cir. 1996); In re Doe, 860 F.2d 40 (2d Cir. 1988); In re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108 (4th Cir. 1987), cert. Denied, 484 U.S. 890 (1987).

18. Deaths Elsewhere, Chi. Daily L. Bull., Oct. 4, 1994, at 1.

19. In re Vivian, 150 Bankr. 832 (Bankr. S.D. Fla. 1992).

20. Ex parte Robinson, 86 U.S. (19 Wall) 505, 510 (1873)("The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power [i.e., the contempt power].").

21. Chambers v. NASCO, Inc., 501 U.S. 32 (1991); accord Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980); Green v. United States, 356 U.S. 165 (1958); Gompers v. Buck's Stove & Range Co., 221 U.S. 418 (1911); United States v. Shipp, 203 U.S. 563 (1906); In re Terry, 128 U.S. 289 (1888); Ex parte Robinson, 86 U.S. (19 Wall.) 505 (1873); Anderson v. Dunn, 19 U.S. (6 Wheat) 204 (1821).

22. Chambers v. NASCO, INC., 501 U.S. 32, 43 (1991)(quoting Anderson v. Dunn, 19 U.S. (6 Wheat) 204, 227 (1821).

23. United States v. Wilson, 421 U.S. 309, 319 (1975)(quoting Anderson v. Dunn, 19 U.S. (6 Wheat) 204, 231 (1821).

24. See International Union, United Mine Workers of America v. Bagwell, 114 S.Ct. 2552, 2557 n.3 (1994) (noting that scholars have criticized the distinction between criminal and civil contempt for more than half a century); United States v. Rylander, 714 F.2d 996, 998 (9th Cir. 1983), cert. Denied, 467 U.S. 1209 (1984) ("Courts frequently have difficulty distinguishing between civil and criminal contempt").

25. See In re Rumaker, 646 F.2d 970, 871 (5th Cir. 1980).

26. See United States v. United Mine Workers, 330 U.S. 258 (1947); United States v. Ryan, 810 F.2d 650, 653 (7th Cir. 1987); Hubbard v. Fleet Mortgage Co., 810 F.2d 778 781-82 (8th Cir. 1987) (per curiam); United States v. Rose, 806 F.2d 931, 933 ((9th Cir. 1986) (per curiam).

27. Gompers v. Buck's Stove & Range Co., 221 U.S. 418 (1911).

28. See, e.g., Hicks v. Feiock, 485 U.S. 624 (1988); Shillitani v. United States, 384 U.S. 364 (1966); United States v. United Mine Workers, 330 U.S. 258 (1947).

29. Gompers, 221 U.S. at 441.

30. Id.

31. Id. at 442.

32. Hicks v. Feiock, 485 U.S. at 632.

33. Shillitani, 384 U.S. at 370; Gompers, 221 U.S. at 441. See generally, Gino F. Ercolino, Comment, United Mine Workers v. Bagwell; Further Clarification of Civil and Criminal Contempt, 22 New Eng. J. on Crim. & Civil. Confinement 291, 295 (1996)("A determinative jail sentence is regarded as criminal because it serves no coercive effect.").

34. Gompers, 221 U.S. at 441.

35. United States v. United Mine Workers, 330 U.S. 258 (1947).

36. Philip A. Hostak, Note, International Union, United Mine Workers v. Bagwell: A Parodigm Shift in The Distinction Between Civil and Criminal Contempt, 81 Cornell L. Rev. 181, 201 (1995).

37. Id.; see e.g., Aradia Women's Health Org. v. Operation Rescue, 929 F.2d 530 (9th Cir. 1991); Roe v. Operation Rescue, 919 F.2d 857 (3d Cir. 1990); New York State NOW v. Terry, 886 F.2d 1339 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990).

38. See Hicks v. Feiock, 485 U.S. 624 (1988)("In contempt cases, both civil and criminal relief have aspects that can be seen as either remedial or punitive or both").

39. Doug Rendleman, Disobedience and Coercive Contempt Confinement: The Terminally Stubborn Contemnor, 48 Wash. & Lee L. Rev. 185, 200 (1991); see generally Linda S. Beres, Civil Contempt and the Rational Contemnor, 69 Ind. L. J. 723, 724 (1994) (describing the "no realistic possibility of compliance" standard).

40. See generally Hicks v. Feiock, 485 U.S. at 621 (explaining that "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings").

41. Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1983). But see In re Grand Jury Investigation (Brown), 600 F.2d 420, 427 (3d Cir. 1979)("[W]e are reluctant to conclude, in the absence of unusual circumstances, that, as a matter cognizable under due process, confinement for civil contempt that has not yet reached the eighteen-month limit has nonetheless lost its coercive impact and become punitive.")

42. International Union, United Mine Workers of America v. Bagwell, 114 S.Ct. 2552, 2561 (1994).

43. Id.

44. Id.

45. Hicks v. Feiock, 485 U.S. 624, 640 (1988); Shillitani v. United States, 384 U.S. 364, 370-71 (1966).

46. Hicks v. Feiock, U.S. at 633; see also In re Nevitt, 117 F.2d 448, 461 (8th Cir. 1902)(explaining that civil contemnors "carry the keys of their prison in their own pockets").

47. International Union, United Mine Workers of America v. Bagwell, 114 S.Ct. 2552, 2558 (1994)(citing Penfield Co. of California v. SEC, 330 U.S. 585, 590 (1947).

48. Bagwell, 114 S.Ct. 2552.

49. See Hostak, supra note 36, at 204.

50. Bagwell, 114 S.Ct. at 2555-56.

51. Id. at 2560-61.

52. Id. at 2562. The Court made this decision after noting that the contemnors had been given no opportunity to purge the prospectively-established "determinate fines of $20,000 or $100,000 per violation." Id.

53. See Toledo Newspaper Co. v. United States, 247 U.S. 402, 421 (1918).

54. Nye v. United States, 313 U.S. 33, 50-52 (1941).

55. Bagwell, 114 S.Ct. At 2557 n.2.

56. Bagwell, 114 S.Ct. 2552, 2557 n.2 (1994); see also Fed. R. Crim. P. 42.

57. Sacher v. United States, 343 U.S. 1, 9 (1952).

58. Farmer v. Strickland, 652 F.2d 427, 434 (5th Cir. 1981), cert. denied, 455 U.S. 944 (1982).

59. Farmer v. Strickland, 652 F.2d at 434.

60. See United States v. Wilson, 421 U.S. 309, 318 (1975); Harris v. United States, 382 U.S. 162, 164 (1965).

61. Matter of Pilsbury, 866 F.2d 22, 27 (2d Cir. 1989).

62. Sacher v. United States, 343 U.S. 1, 8 (1952).

63. Fed. R. Crim. P. 42.

64. For example, the refusal of a grand jury witness to testify takes place outside the view of the judge and is therefore an indirect contempt. See Harris v. United States, 382 U.S. at 164-65. In such cases, the summary contempt power should not be exercised as a means to impose criminal contempt sanctions. Id. at 167.

65. Bagwell, 114 S.Ct. At 2560.

66. Fed. R. Crim. P. 42.

67. Bloom v. Illinois, 391 U.S. 194, 290-10 (1968). The Supreme Court has since explained that "those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes." Codispoti v. Pennsylvania, 418 U.S. 506, 512 (1974).

68. Codispoti v. Pennsylvania, 418 U.S. 506, 514 (1974); Cheff v. Schackenberg, 384 U.S. 373, 380 (1966). A jury trial is also required if the aggregate total sentence imposed for direct multiple contempts will exceed six months. Codispoti, 418 U.S. at 516-17, See generally Jeff E. Butler, Note, Petty Offenses, Serious Consequences: Multiple Petty Offenses and the Sixth Amendment Right to Jury Trial, 94 Mich. L. Rev. 872 (1995)(discussing the situations in which a defendant is entitled to a jury trial).

69. See generally United States v. Twentieth Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989), cert. denied, 493 U.S. 1021 (1990)(holding that no criminal contempt fine in excess of $100,000 can be levied against a corporation without a jury trial). There is no right to a jury trial in a civil contempt proceeding despite the fact that civil contempt sentences can be quite harsh. See Bagwell, 114 S.Ct. at 2557.

70. Sacher, 343 U.S. at 10. In regards to an act of direct contempt committed by an attorney, a court might chose to delay taking immediate action in order to avoid prejudicing the attorney's client. Id. According to another court, a trial judge should not summarily fine a lawyer for contempt in front of the jury, because the "risk of prejudice is great with such a strong showing of displeasure." United States v. Williams, 809 F.2d 1072, 1090 (5th Cir. 1987), cert. denied, 484 U.S. 896 (1987).

71. Sacher, 343 U.S. at 11.

72. Cooke v. United States, 267 U.S. 517, 539 (1925).

73. Offutt v. United States, 348 U.S. 11 (1954).

74. See Mayberry v. Pennsylvania, 400 U.S. 455, 466 (1971); In re Dellinger, 461 F.2d 389, 395 (7^th Cir. 1972).

75. Taylor v. Hayes, 418 U.S. 488, 501 (1974)(quoting Ungar v. Sarafite, 376 U.S. 575, 588 (1964)).

76. See Bloom v. Illinois, 391 U.S. 194, 202-04 (1968).

77. Judiciary Act of 1789, 1 Stat. 73, 83.

78. See, e.g., 18 U.S.C. §§ 401 & 402; 28 U.S.C. § 1826.

79. United States v. Diapulse Corp. of America, 365 F.Supp. 935 (E.D. N.Y. 1973).

80. 18 U.S.C. §401 (emphasis added). See generally United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988)("[I]f a district court does not have subject-matter jurisdiction over the underlying action, and the process was not issued in aid of determining that jurisdiction, then the process is void and an order of civil contempt based on refusal to honor it must be reversed.").

81. American Airlines, Inc. v. Allied Pilots Ass'n, 968 F.2d 523,531 (5th Cir. 1992). Except in summary proceedings involving direct criminal contempts where the judge has personally witnessed the commission of the act in question, all other criminal contempts must be proved beyond a reasonable doubt. See Bagwell, 114 S.Ct. At 2557.

82. In re Williams, 509 F.2d 949, 960 (2d Cir. 1975)(citing Eaton v. City of Tulsa, 415 U.S. 697 (1974)).

83. In re McConnell, 370 U.S. 230, 234 (1962).

84. In re Gustafson, 619 F.2d 1354, 1360 (9th Cir. 1980); see also In re Michael, 326 U.S. 224, 228 (1945)("the presence of that [obstruction] element must clearly be shown in every case where the power to punish for contempt is exerted'")(quoting Ex parte Hudgins, 249 U.S. 378, 383 (1919).

85. Fernos-Lopez v. United States Dist. Court, 599 F.2d 1087, 1091-92 (1st Cir. 1979), cert. denied, 444 U.S. 931 (1979).

86. United States v. Time, 21 F.3d 635, 641 (5th Cir. 1994)(citing Cammer v. United States, 350 U.S. 399, 405 (1956); In re Holloway, 995 F.2d 1080, 1081 (D.C. Cir. 1993), cert. denied, 511 U.S. 1030 (1994)("an attorney is not an officer of the court within the meaning of 18 U.S.C. § 401(2)").

87. Time, 21 F.3d at 641 (citing Cammer v. United States, 350 U.S. 399, 405 (1956).

88. See United States v. Turner, 812 F.2d 1552, 1563 (11th Cir. 1987); see also In re Levine, 27 F.3d 594 (D.C. Cir. 1984), cert. denied 115 S.Ct. 1356 (1995)(stating that "the disobedience must be willful"); United States v. Ryan, 810 F.2d 650, 654 (7th Cir. 1987)(requiring that the defendant must have been aware of the order).

89. See In re Holloway, 995 F.2d 1080, 1082 n.1 (D.C. Cir. 1993).

90. In re Holloway, 995 F.2d at 1082 (citations omitted).

91. DeVaughn v. District of Columbia, 628 F.2d 205, 207 (D.C. Cir. 1980).

92. See Cooper v. Texaco, Inc., 961 F.2d 71 (5th Cir. 1992); United States v. O'Quinn, 913 F.2d 221 (5th Cir. 1990)(per curiam).

93. In re Williams, 509 F.2d 949, 960 (2d Cir. 1975).

94. United States v. Carpenter, 91 F.3d 1282, 1283 (9th Cir. 1996).

95. United States v. Holmes, 822 F.2d 481, 487 (5th Cir. 1987)("The contempt statute [§ 401] is only one of a very few provisions in Title 18 that allow a court to impose either a fine or imprisonment but not both.").

96. See, e.g., United States v. Sampogne, 533 F.2d 766 (2d Cir. 1976); Philipps v. United States, 457 F.2d 1313 (8th Cir. 1972); International Bhd. Of Teamsters v. United States, 275 F.2d 610 (4th Cir. 1960), cert. denied, 362 U.S. 975 (1960).

97. See supra notes 67-69 and accompanying text. There is no bright line standard for determining the point at which a punitive fine must be classified as serious. Id.

98. 18 U.S.C. § 402.

99. See 18 U.S.C. §§ 402, 3691 & 3692. It should be pointed out that the protections of § 402 were created by Congress in 1912 in an attempt to prevent the "formidable federal judicial contempt power" from acting as "the instrument of private law enforcement to the detriment of weaker parties, most especially labor unions" which might violate federal or state statutes when committing acts of contempt in the course of labor disputes. See United States v. Wright, 516 F.Supp. 1113, 1116 (E.D. Pa. 1981). One commentator has further explained, "In an effort to halt the Sixth Amendment's attrition, Congress provided in the Clayton Act [18 U.S.C. §§402, 3691] that an accused criminal contemnor tried in federal court was entitled to a jury trial if the act charged as contempt would also constitute a statutory crime." Dudley, supra note 2, at 1041.

100. 18 U.S.C. § 402; see also 18 U.S.C. § 3691.

101. 18 U.S.C. § 402; see also 18 U.S.C. § 3691. See, e.g., United States v. Duncan, 503 F.2d 1021 (10th Cir. 1974)(explaining that §402 was not applicable because the contemnor allegedly had violated an injunction issued in an action involving the Securities and Exchange Commission). The statutory jury trial requirement was dispensed with in cases involving the United States apparently because "Congress felt the United States should be enabled to proceed expeditiously 'to enforce its judgments,'" and because it was less likely to engage in the types of abuses that the statute was intended to address. United States v. Wright, 516 F.Supp. 1113, 1116 (E.D. Pa. 1981).

102. 18 U.S.C. § 3285.

103. 28 U.S.C. § 1826.

104. Consequently, an imprisoned recalcitrant witness is entitled to the disclosure of the commencement and termination dates of the grand jury, notwithstanding Federal Rule of Criminal Procedure 6(e) which calls for secrecy surrounding grand jury proceedings. In re Grand Jury Investigation, 903 F.2d 180 (3d Cir. 1990).

105. 28 U.S.C. § 1826.

106. "Once it is determined that the civil contempt remedy is unavailing, the criminal contempt sanction is available." Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1983)(citing Shillitani v. United States, 384 U.S. 364, 371 n.9 (1966).

107. See United States v. Powers, 629 F.2d 619, 626 (9th Cir. 1980).

108. In re Grand Jury Investigation (Bruno), 545 F.2d 385 (3d Cir. 1976).

109. United States v. McNulty (In re Askin), 47 F.3d 100 (4th Cir. 1995), cert. denied, 116 S.Ct. 382 (1995); Grand Jury v. Gassinara, 918 F.2d 1013 (1st Cir. 1990).

110. In re Vericker, 446 F.2d 244 (2d Cir. 1971).

111. See Kastigar v. United States, 406 U.S. 441 (1972); In re Grand Jury Subpoena, 97 F.3d 1090 (8th Cir. 1996); In re Grand Jury Proceedings, 943 F.2d 132 (1st Cir. 1991).

112. See, e.g., In re Grand Jury Proceedings, 914 F.2d 1372 (9^th Cir. 1990); In re Grand Jury Investigation, 922 F.2d 1266 (6th Cir. 1991). See generally Lynn Waltz, Witness Intimidation Continues; FBI Agent-in-Charge Says He's Never Seen Such A High Level of Witness Intimidation in a Federal Trial, The Virgian-Pilot, Mar. 12, 1996, at B1 (describing how a witness was jailed on contempt of court charges after he refused to testify despite the Norfolk FBI agent-in-charge's comment that he had never seen a higher level of witness intimidation in a federal trial in his 27 years of experience). But see Daniel Wise, Judge Refuses to Jail Witness Who Refuses to Testify, N.Y. L. J. June 2, 1992, at 1 (describing how a federal judge stated that he would refuse to jail a recalcitrant witness who feared for his life short of the grand jury foreman directly requesting that he do so).

113. See generally Rogers v. Webster, 776 F.2d 607, 610 (6th Cir. 1985)(stating that a civil contempt action is governed by the Federal Rules of Civil Procedure); Shakman v. Democratic Org. of Cook County, 533 F.2d 344, 352 (7th Cir. 1976), cert. denied, 429 U.S. 858 (1976)(stating that "pleadings in a civil contempt proceeding must comply with rule 8 of the Federal Rules of Civil Procedure).

114. United States v. Koblitz, 803 F.2d 1523, 1527 (11th Cir. 1986).

115. King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995).

116. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949); United States v. Crawford Enterprises, Inc., 643 F.Supp. 370, 380 (