Opinion
3:04-CV-0582-R
April 8, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for habeas corpus relief brought by an individual imprisoned for civil contempt pursuant to 28 U.S.C. § 2241, et seq.
Parties: Petitioner is presently incarcerated at the Federal Detention Center in Seagoville, Texas. Respondent is Warden K. J. Wendt. The magistrate judge has not issued process in this case.
Statement of the Case: On April 11, 2002, U.S. District Judge Jerry Buchmeyer held Petitioner in civil contempt under its general contempt power in SEC v. Resource Development Intl., 3:02-cv-605-R (N.D. Tex., Dallas Div.). The District Court ordered that Petitioner be confined "until such time as he complies with the orders of this Court and delivers all Receivership Assets in his possession, custody or control to the Receiver." (See Exh. A attached to Petition, and Supplement to Contempt Order filed on October 14, 2003, in No. 3:02-cv-605-R).
On August 15, 2002, Petitioner, along with three other contemnors, sought habeas corpus relief pursuant to 28 U.S.C. § 2241. The District Court summarily denied relief in all four cases on August 23, 2002.Harris v. Wendt, 3:02-cv-1746-R (N.D. Tex., Dallas Div.); see also Nos. 3:02-cv1743-R; 3:02-cv-1744-R; and 3:02-cv-1745-R. On December 23, 2003, the Fifth Circuit affirmed the denial of habeas relief in all four cases. SEC v. Resource Development Intl., No. 02-11397 (5th Cir. Dec. 23, 2003) (per curiam) (unpublished).
In the interim, Petitioner filed a Petition to Purge Civil Contempt.See SEC v. Resource Development Intl., et al., 3:02cv605-R (Document # 338, filed on August 20, 2003). The District Court denied relief following a hearing on October 30, 2003. The Court reiterated that Petitioner was incarcerated pursuant to the Court's general contempt power to coerce court-ordered equitable relief, and that the contempt order was not issued pursuant to 28 U.S.C. § 1826. ( See Order Denying Petition to Purge Civil Contempt filed on October 30, 2003, in 3:02cv605-R). Accordingly, the 18-month maximum limit for incarceration of "recalcitrant witnesses" delineated in § 1826 was not applied to Petitioner's present incarceration. (Id.). The Court further found that Petitioner had failed to demonstrate that he had complied with the Court's prior orders or that it was impossible for him to do so. (Id.). Petitioner did not appeal.
In this habeas petition, filed on March 19, 2004, Petitioner again challenges the District Court's authority to hold him in civil contempt.
Findings and Conclusions: Incarceration upon a finding of civil contempt is a remedial measure designed to enforce compliance with a court order. See Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534 (1966). A contemnor may purge himself of a contempt order, and obtain release from jail at any time, by complying with the contempt order or by adducing evidence of his present inability to comply with the contempt order. See United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 1552 (1983). The Supreme Court in Rylander stated as follows:
In a civil contempt proceeding . . . a defendant may assert a present inability to comply with the order in question. . . . While the court is bound by the enforcement order, it will not be blind to evidence that compliance is factually impossible. Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.Id. at 757. Accord Wronke v. Madigan, 26 F. Supp.2d 1102, 1106 (C.D. Ill. 1998) (incarceration for civil contempt may continue indefinitely because a contemnor has the ability to secure his release by complying with a court's order or adducing evidence as to his present inability to comply with that order); and Ex parte Rojo, 925 S.W.2d 654, 655 (Tex. 1996) (recognizing that "[a] person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release.").
Rylander involved a contempt proceeding after Rylander failed to comply with a court order enforcing an IRS summons. However, the same principle applies when a person previously held in civil contempt, seeks release upon a claim that compliance with the order is impossible. See, e.g., Morgan v. Foretich, 564 A.2d 1, 4-5 (D.C. 1989) (collecting cases).
A contemnor has both the burden of production with respect to his present ability to comply, Rylander, 460 U.S. 752, 757, as well as the burden of persuasion, Maggio v. Zeitz, 333 U.S. 56, 75-76, 68 S.Ct. 401, 411-12 (1948).
The federal petition, even when liberally construed in accordance with Petitioner's pro se status, does not allege a present inability to comply with the contempt order by delivering all Receivership Assets in Petitioner's possession, custody or control to the Receiver. See Rylander, 460 U.S. at 757 (inability to comply with contempt order is a necessary requirement to purge a civil contempt). Petitioner's sole contention is that the District Court lacked jurisdiction to hold him in civil contempt. (Petition at 2). The Fifth Circuit rejected this contention in the appeal from Petitioner's first habeas petition. The only remaining issue is his claim that he cannot be held in custody beyond eighteen months. (Petition at 3). On two previous occasions, Judge Buchmeyer stated that Petitioner is incarcerated pursuant to the District Court's general contempt power not 28 U.S.C. § 1826. (See Supplement to Contempt Order filed on October 14, 2003, and Order Denying Petition to Purge Civil Contempt filed on October 30, 2003, in No. 3:02cv605-R). As such the 18-month limit for incarceration of "recalcitrant witnesses" set out in § 1826 is inapplicable to him. (Id.). Nor is Petitioner incarcerated for criminal contempt pursuant to 18 U.S.C. § 402, which limits incarceration to six months. (See Petition at 3).
It is important to note that Petitioner does not challenge in this proceeding the District Court's finding from April 2002 that he was able to comply with the contempt order. Accordingly, he must meet his burden of proving a present inability to comply before the District Court will consider his claim further. See U.S. ex rel. Thorn v. Jenkins, 760 F.2d 736, 739-740 (7th Cir. 1985) ("It is well-settled that if a court finds that a defendant could at some time in the past have complied with a court order, the court should presume a present ability to comply and impose on the alleged contemnor the burden of producing evidence to establish present inability."). RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny and dismiss the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
A copy of this recommendation will be mailed to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.