Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

MEMORANDUM^** 

Nudo appeals the district court's order (1) holding him in civil contempt for refusing to testify before the grand jury concerning his girlfriend's involvement in a robbery to which he had pled guilty, and (2) directing that he be incarcerated, consecutive to his robbery sentence, until he testifies as ordered, the grand jury term expires, or 18 months elapse, whichever occurs first.

A grand jury witness may be held in civil contempt if he refuses to testify without just cause. 28 U.S.C. § 1826. Because prosecution promises that induce a guilty plea must be fulfilled, see United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988), Nudo would have had just cause not to testify if the prosecution had promised to refrain from compelling him to testify against other participants in crimes to which he had confessed. The written plea agreement, that Nudo and his counsel signed and which expressly states that it is a complete agreement, nowhere releases Nudo from responsibility for testifying against co-participants.

Nudo contends that the contempt order must be vacated because no amount of incarceration will persuade him to testify against his girlfriend and that, therefore, incarceration would be punitive. The determination as to whether a civil contempt sanction has lost its coercive effect upon a particular contemnor rests within the sound discretion of the district court. Securities and Exchange Commission v. Elmas Trading Corporation, 824 F.2d 732 (9th Cir. 1987). See also In re Grand Jury, 851 F.2d 499, 502 (1st Cir. 1988); Simkin v. United States, 715 F.2d 34,d 37 (2d Cir. 1983); In re Grand Jury Investigation (Braun), 600 F.2d 420, 427 (3d Cir. 1979) (holding that, in the absence of unusual circumstances, a reviewing court should be reluctant to conclude, as a matter of due process, that a civil contempt sanction has lost its coercive impact at some point prior to the eighteen-month period prescribed as a maximum by 28 U.S.C. § 1826).

Nudo has been in custody for the robbery he committed since August 22, 1988, and has been confined for the civil contempt only since June 13, 1989. His insistence that he will never testify, made after less than a month's confinement, is not a persuasive indicator of the strength of his resolve in the future. Accordingly, the district court did not abuse its discretion by deciding that the contempt sanction would continue to have a coercive effect.

Nudo further contends that punishing him for refusing to assist in his girlfriend's prosecution violates the United States Sentencing Commission's Sentencing Guideline which provides that a "defendant's refusal to assist in the investigation of other persons may not be considered as an aggravating sentencing factor." Guideline Sec. 5K1.2.

The contention is misguided because the relevant guideline prohibits only the enhancement of a criminal sentence. Incarceration pursuant to an order of civil contempt does not constitute a criminal sentence since the contemnor can terminate his incarceration at any time. See Securities and Exchange Commission, 824 F.2d at 732; United States v. Armstrong, 781 F.2d 700, 703 (9th Cir. 1986). Moreover, the civil contempt action is distinct and separate from the criminal action that resulted in Nudo's incarceration. See In re Garmon, 572 F.2d 1373, 1377 (9th Cir. 1978).

Nudo contends that requiring him to serve his contempt incarceration consecutive to his sentence for robbery violates the Sentencing Guideline's requirement that any additional sentence, arising out of "the same transactions or occurrences as the unexpired sentences ... shall run concurrently, except to the extent otherwise required by law." Guideline Sec. 5G1.3.

Nudo concedes that, prior to the Sentencing Guidelines, a district court clearly could interrupt a pre-existing federal sentence with a civil contempt sentence. Garmon, 572 F.2d at 1377. The Guidelines do not affect that authority. As noted above, Nudo's incarceration for civil contempt does not constitute a criminal sentence, and does not arise from the same transaction that led to his robbery conviction. See Securities and Exchange Commission, 824 F.2d at 732; Garmon, 572 F.2d at 1377. Accordingly, Nudo's incarceration in no way offends the Sentencing Guidelines.¹ 

AFFIRMED.

PREGERSON, Circuit Judge, dissenting:

I dissent. I find the arguments set forth in appellant's brief to be persuasive.