Opinion
Case No. 3:07cv154/RV/EMT.
October 22, 2007
Brief of Petitioner-Appellant Michael LaPorta, Pro se, Fci-McKean, No. 05875-055, Bradford, PA.
ORDER
This cause is before the undersigned upon referral from the District Judge (Doc. 24). Upon review of the order of referral, the court finds that review of several portions of the record inFTC v. Think Achievement Corp., Case No. 2:98cv12-TLS (N.D. Ind) and United States v. Tankersley, Case No. 2:99cv181-RL (N.D. Ind) is necessary for resolution of this matter. Therefore, Respondent shall supplement the record with the following portions of the record in FTC v. Think Achievement Corp., Case No. 2:98cv12-TLS (N.D. Ind):
1. Order issued by Judge Springmann on October 18, 2000 (Doc. 524);
2. Motion to show cause filed by Receiver J. Brian Hittinger on January 4, 2001 (Doc. 555);
3. Transcript of hearing held on January 30, 2001 ( see Doc. 567);
4. Stipulated protective order issued by Judge Springmann on February 5, 2001 (Doc. 570);
5. Ex parte motion and affidavit filed by Receiver Hittinger on February 9, 2001 (Doc. 572);
6. Ex parte petition filed by Receiver Hittinger on February 9, 2001 (Doc. 573);
7. Transcript of hearing held on February 9, 2001 ( see Doc. 577);
8. Order issued by Judge Springmann on February 9, 2001 (Doc. 578);
9. Motion to reconsider or stay filed by William Tankersley on February 28, 2001 (Doc. 582);
10. Motion for hearing on contempt citation filed by William Tankersley on March 2, 2001 (Doc. 583);
11. Opposition/Response to motion to stay filed by FTC on March 6, 2001 (Doc. 584);
12. Transcript of hearing held on April 17, 2001 ( see Doc. 606);
13. Transcript of hearing held on April 18, 2001 ( see Doc. 609);
14. Transcript of hearing held on June 20, 2001 ( see Doc. 617);
15. Transcript of hearing held on November 14, 2001 ( see Doc. 646);
16. Stipulation and Order issued by Judge Springmann on January 18, 2002 (Doc. 657);
17. Motion to vacate contempt order filed by William Tankersley on July 3, 2003 (Doc. 730);
18. Opposition/Response to motion to vacate filed by FTC (Doc. 734);
19. Transcript of hearing held August 25, 2003 ( see Doc. 739);
20. Supplemental brief filed by William Tankersley (Doc. 740);
21. Supplemental brief filed by FTC (Doc. 741);
22. Memorandum and Order issued by Judge Springmann on October 8, 2003 (Doc. 743).
Respondent shall also supplement the record with the following portions of the record in United States v. Tankersley, Case No. 2:99cr181-RL (N.D. Ind):
1. Indictment filed December 7, 1999 (Doc. 1);
2. Transcript of hearing held December 18, 2000 ( see Doc. 57);
3. Transcript of hearing held April 17-18, 2001 ( see Docs. 72, 73);
4. Transcript of sentencing hearing held July 13, 2001 ( see Doc. 80);
5. Briefs of parties regarding claim of privilege (Docs. 81, 82);
6. Transcript of sentencing hearing held August 30, 2001 ( see Doc. 83);
7. Judgment and Commitment order issued September 11, 2001 (Doc. 87);
8. Transcript of re-sentencing hearing held on September 11, 2002 ( see Doc. 98);
9. Amended Judgment and Commitment order issued September 11, 2002 (Doc. 99);
10. Amended Judgment and Commitment order issued July 7, 2007 (Doc. 102).
Additionally, pursuant to the order of the District Judge, the parties shall file supplemental briefs addressing the following issues:
1. Did Petitioner assert his Fifth Amendment privilege regarding any matters included in the October 18, 2000 order and January 4, 2001 motion to show cause filed in FTC v. Think Achievement Corp., Case No. 2:98cv12-TLS?
2. If Petitioner asserted his Fifth Amendment privilege, did he have a reasonable and legitimate basis for doing so, that is, did the civil contempt order issued on February 9, 2001, run afoul of the Fifth Amendment?
3. Did the court in the civil case err by imposing the contempt under 18 U.S.C. § 401 instead of 28 U.S.C. § 1826?
4. Did Petitioner properly challenge the civil contempt order issued February 9, 2001?
5. If Petitioner did not properly challenge the order issued February 9, 2001, did he waive the argument that the order violated his Fifth Amendment rights?
6. To what extent do United States v. Slaughter, 900 F.2d 1119 (7th Cir. 1990) and Laporta v. Meko, 103 F.3d 113 (3d Cir. 1996) (briefs at 1996 WL 33648895, 33648896) bear on the instant case?
A copy of the briefs are attached to this order, since Petitioner may not have access to them from his institution.
Finally, the District Judge directed the undersigned to reconsider Petitioner's Motion for Enlargement on Recognizance ( see Docs. 15, 23, 24 at 17), and Petitioner has now filed a Renewed Motion for Enlargement on Recognizance (Doc. 28). Before the court rules on Petitioner's request, Respondent shall have an opportunity to respond.
Accordingly, it is ORDERED:
1. Respondent shall respond to Petitioner's Motion for Enlargement on Recognizance and Renewed Motion (Docs. 15, 28) on or before NOVEMBER 1, 2007.
2. Respondent shall file the documents identified in the body of this order on or before NOVEMBER 19, 2007.
3. On or before DECEMBER 19, 2007, the parties shall submit supplemental briefs addressing the six issues identified in the body of this order.
DONE AND ORDERED.
United States Court of Appeals, Third Circuit Michael LAPORTA, Petitioner-Appellant, v. James MEKO, Warden, Respondent-Appellee. No. 96-3509. September 30, 2996. ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
*i TABLE OF CONTENTS
Table of Cases . . . i
Statement of Jurisdiction . . . ii
Statement of Issues . . . ii
Statement of the Case . . . ii
Statement of Facts . . . iii
Statement of Related Cases and Proceedings . . . iii
Standard of Review . . . 1
Summary of Argument . . . 1
Argument . . . 1
The Petitioner is Entitled to Post-Sentencing Credit for the Intervening Time Served on a Civil Contempt when that Civil Contempt was Ordered Vacated. . . . 1
If the Vacate Order is Deemed Ambiguous Then All Doubt Must be Resolved in Petitioner's Favor Pursuant to the Rule of Lenity. . . . 4
Conclusion . . . 5
Certificate of Service . . . 5
Decisions of the Court Below . . . 6
TABLE OF CASES
Bifulco v. United States, 447 U.S. 381 (1980) . . . 5
Duro v. Reina, 851 F.2d 1136 (9th Cir. 1987) . . . 1
In Re Grand Jury Investigation, 865 F.2d 578 (3rd Cir. 1989) . . . 3
Jordan v. Ducharme, 983 F.2d 933 (9th Cir. 1993) . . . 1
Reno v. Koray, 115 S.Ct. 2021 (1995) . . . 4
Reno v. Koray, 21 F.3d 558 (3rd Cir. 1994) . . . 4
Whalen v. United States, 445 U.S. 684 (1980) . . . 5
*ii STATEMENT OF JURISDICTION
The District Court has jurisdiction under 28 U.S.C. 2241 to hear claims that the Bureau of Prisons has failed to properly grant post-sentencing credit.
The Court of Appeals has jurisdiction under 28 U.S.C. 1291 and 28 U.S.C. 2253(c) to hear appeals from final judgments of the District Courts in habeas corpus matters.
The decision of the District Court is dated August 16, 1996 and the Notice of Appeal is dated August 21, 1996.
STATEMENT OF ISSUES
I. WHETHER THE PETITIONER IS ENTITLED TO POST-SENTENCING CREDIT FOR INTERVENING TIME SERVED ON A CIVIL CONTEMPT SENTENCE WHEN THAT CIVIL CONTEMPT SENTENCE WAS ORDERED VACATED?
II. IF THE CIVIL CONTEMPT VACATE ORDER IS DEEMED AMBIGUOUS IS THE DOUBT RESOLVED IN PETITIONER'S FAVOR PURSUANT TO THE RULE OF LENITY?
STATEMENT OF THE CASE
After exhausting administrative remedies with the Bureau of Prisons the petitioner brought a Petition for Writ of Habeas Corpus in the United States District Court for the Western District of Pennsylvania seeking to have credited to his criminal prison term those days served during an intervening civil contempt sentence that was later vacated.
The Government filed a Response on or about April 25, 1996.
*iii The Magistrate issued a Report and Recommendation on July 31, 1996.
Petitioner filed objections to the Magistrate's Report and Recommendation on August 14, 1996.
The District Court adopted the Magistrate's Report and Recommendation and denied the petition on August 16, 1996.
This appeal follows.
STATEMENT OF FACTS
On November 19, 1993 petitioner was sentenced to and commenced serving a 72-month prison sentence for violations of 18 U.S.C. 2, 844(h), 1341, and 1361.
On December 9, 1993 petitioner was subjected to a civil contempt order for refusal to testify before the Grand Jury. This contempt order interrupted the running of the 72-month criminal sentence.
On June 12, 1995 the civil contempt sentence was vacated by the court that issued it.
Thereafter petitioner sought to have his criminal sentence credited by the time during which the now vacated civil contempt sentence had run.
STATEMENT OF RELATED CASES OR PROCEEDINGS
The criminal case is United States v. Michael LaPorta, 91 CR 00291 003 C, United States Distrilct Court for the Western District of New York.
*1 The civil contempt case is In the Matter of the June 1993 Grand Jury Empanelled June 4, 1993, Investigation of Louis Sicurella, et al., United States District Court for the Western District of New York, Misc. Cr. No. 93-243.
The habeas corpus case is Michael LaPorta v. James Meko, Warden, Civil No. 96-59 Erie, United States District Court for the Western District of Pennsylvania.
STANDARD OF REVIEW
A District Court's decision on a Petition for Writ of Habeas Corpus is reviewed de novo by the Court of Appeals. Duro v. Reina, 851 F.2d 1136 (9th Cir. 1987); Jordan v. Ducharme, 983 F.2d 933 (9th Cir. 1993).
SUMMARY OF ARGUMENT
Petitioner contends that the vacating of the civil contempt sentence entitles him to post-sentencing credit for all time served on the now vacated contempt.
He further contends that in the event that the vacate order is deemed ambiguous, he is entitled to be given the benefit of the doubt under the Rule of Lenity.
ARGUMENT I THE PETITIONER IS ENTITLED TO POST-SENTENCING CREDIT FOR THE INTERVENING TIME SERVED ON A CIVIL CONTEMPT WHEN THAT CIVIL CONTEMPT WAS ORDERED VACATED.*2 The habeas corpus court below completely ignored and did not even address petitioner's claim that the vacate order totally nullifies the contempt sentence. To vacate a contempt sentence (or any other sentence) is to eliminate it or render it void. Petitioner once again sets out the definitions of "vacate":
Vacate: To annul or set aside.
Ballantine's Law Dictionary Vacate: To annul; to set aside; to cancel or rescind. To render an act void; as to vacate an entry of record, or a judgment.
Black's Law Dictionary
Vacate: to make of no authority or validity; make void, annul.
Webster's Third New International Dictionary
Thus the contempt sentence never existed and accordingly the time served by the petitioner has to be credited to his criminal sentence.
The Government's opinions at Appendix 59 and 62 are self serving and should be discredited. As to the Bureau of Prisons Memorandum by Teresa Y. Butt (Appendix 59) that: "It was not the Court's intent to vacate the civil contempt," how may we ask, does a Bureau of Prisons clerk determine that a U.S. Judge's Order really doesn't mean what it says? Ms. Butt was not there when the order was entered. As for Assistant United States *3 Attorney Anthony Bruce's statement at Appendix 62 that: "That Order did not nullify the December 10, 1993 Contempt Order . . .," he's in no better position than Ms. Butt. Both of them are trying to use words and interpretaions to turn the vacate order into something else.
But the order means what it says and the government has not come up with any dictionary or other authority on "vacate" that contradicts petitioner's.
While it is true that under the Third Circuit's decision in In Re Grand Jury Investigation, 865 F.2d 578, 583 (3rd Cir. 1989) that a court is authorized to interrupt a criminal sentence to subject one to a civil contempt sentence, it is equally true that the same court can also vacate the contempt sentence just like it can vacate a criminal sentence or a death sentence under 28 U.S.C. 2255.
And the Government's cite to Bureau of Prisons Program Statement 5880.28 (Sentence Computation Manual) (Appendix at 53) is of no consequence and in fact is erroneous. That says there are only four ways in which a civil contempt sentence can be ended and it lists the four ways as (1) the prisoner purges, (2) the court proceedings terminate, (3) the term imposed expires, and (4) the Grand Jury expires. But here we have a fifth way-by vacating of the contempt order. The Bureau of Prisons should rewrite their policy.
Furthermore Bureau of Prisons program statements do not have the weight of a regulation. According to the United States *4 Supreme Court, Bureau of Prisons program statements are entitled to "some deference" so long as they constitute a" permissible construction of the statute." Reno v. Koray, 115 S.Ct. 2021, 2'027 (1995). The Supreme Court did note in Reno that the Bureau of Prisons program statements are only internal agency guidelines and not "published regulations subject to the rigors of the Administrative Procedures Act, including public notice and comment." Id., citing Reno v. Koray, 21 F.2d 558, 562 (3rd Cir. 1994).
In the present case no deference is due the Bureau of Prison's program statement because it is not a permissible construction of 28 U.S.C. 1826 to ignore or disobey a court's vacate order.
II. IF THE VACATE ORDER IS DEEMED AMBIGUOUS THEN ALL DOUBT MUST BE RESOLVED IN PETITIONER'S FAVOR PURSUANT TO THE RULE OF LENITY.
The petitioner does not concede that the vacate order is ambiguous and he maintains that "vacate" means exactly what it says according to the dictionary definitions.
The Government hints that the vacate order is ambiguous, doesn't mean what it says, and really means something else.
The Rule of Lenity applies. Ambiguity in criminal matters must be resolved in favor of the accused. Bifulco v. United States, 447 U.S. 381, 387; 65 L.Ed.2d 205, 211 (1980); Whalen v. United States, 445 U.S. 684, 696, n. 10, 63 L.Ed. 2d 726 (1980).
*5 Accordingly if the vacate order can be interpreted two different ways, then under the Rule of Lenity the most favorable one to petitioner must be applied.
CONCLUSION
For the foregoing reasons petitioner requests that this court reverse and remand this case back to the District Court with instructions to issue the Writ of Habeas Corpus.
Michael LAPORTA, Petitioner-Appellant, v. James MEKO, Warden, Respondent-Appellee. 1996 WL 33648896 (C.A.3)
END OF DOCUMENT
United States Court of Appeals, Third Circuit Michael LAPORTA, Petitioner-Appellant, v. James MEKO, Warden, No. 96-3509. 1996. Appeal From the Denial of Petition for Habeas Corpus Entered by the United States District Court for the Western District of Pennsylvania (McLaughlin, J.) at Civil No. 96-59EBrief for the Appellee
633 U.S. Post Office and Courthouse, Pittsburgh, Pennsylvania 15219, (412)-644-5891, Frederick W. Thieman, United States Attorney, Robert L. Ederhardt, Assistant U.S. Attorney
*i TABLE OF CONTENTS
JURISDICTION . . . 1
QUESTION PRESENTED . . . 2
STANDARD OF REVIEW . . . 2
STATEMENT OF THE CASE . . . 3
STATEMENT OF RELATED PROCEEDINGS . . . 4
STATEMENT OF FACTS . . . 5
SUMMARY OF ARGUMENT . . . 7
ARGUMENT
THE BUREAU OF PRISONS PROPERLY DENIED CREDIT FOR TIME SERVED PURSUANT TO A CIVIL CONTEMPT ORDER . . . 8
CONCLUSION . . . 15
ADDENDUM
*ii TABLE OF CITATIONS
Cases:
Bruno v. Greenlee, 569 F.2d 775 (3d Cir. 1978) . . . 11, 13
Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837 (1984) . . . 10
Facchiano Construction Company, Inc. v. United States Department of Labor, 987 F.2d 206 (3d Cir. 1993) . . . 10
Harris v. City of Philadelphia, 47 F.3d 1311 (3d Cir. 1995) . . . 12
Howe v. Smith, 452 U.S. 473 (1981) . . . 10
In re Grand Jury Investigation, 542 F.2d 166 (3d Cir. 1976) . . . 13
In Re Grand Jury Investigation, 865 F.2d 578 (3d Cir. 1989) . . . 11
International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552 (1994) . . . 12
Jordan v. Arnold, 472 F.Supp. 265 (M.D.Pa. 1979) . . . 11
Martin v. United States, 517 F.2d 906 (8th Cir. 1975) . . . 13
Reno v. Koray, 115 S.Ct. 2021 (1995) . . . 9, 10
Stinson v. United States, 508 U.S. 36 (1993) . . . 10
Udall v. Tallman, 380 U.S. 1 (1965) . . . 10
United States ex rel. Schiano v. Luther, 954 F.2d 910 (3d Cir. 1992) . . . 2
United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992) . . . 10
United States v. Brann, 990 F.2d 98 (3d Cir. 1993) . . . 9, 10
United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993) . . . 12
United States v. Wilson, 503 U.S. 329 (1992) . . . 9, 10
*iii Weeks v. Quinlan, 838 F.2d 41 (2d Cir. 1988) . . . 10
Wilson v. United States, 959 F.2d 12 (2d Cir. 1992) . . . 10Statutes:
Title 18, United States Code, Section 371 . . . 5
Title 18, United States Code, Section 844(h) . . . 5
Title 18, United States Code, Section 1341 . . . 5
Title 18, United States Code, Section 3585 . . . 3, 7
Title 18, United States Code, Section 3585(b) . . . 6, 7, 8, 9
Title 28, United States Code, Section 1291 . . . 1
Title 28, United States Code, Section 1331 . . . 1
Title 28, United States Code, Section 1826 . . . passim
Title 28, United States Code, Section 1826(a) . . . 13
Title 28, United States Code, Section 2241 . . . 1
*1 JURISDICTION
This is an appeal from a judgment denying a petition for habeas corpus. The district court had jurisdiction by virtue of Title 28, United States Code, Sections 1331 and 2241.
The judgment was signed on August 16, 1996, and entered on the docket on August 19, 1996 (Docket #9). LaPorta filed a timely notice of appeal on August 28, 1996 (Docket #10).
This court has jurisdiction by virtue of Title 28, United States Code, Section 1291, because this is an appeal of a final order.
*2 QUESTION PRESENTED and STANDARD OF REVIEW
Whether the Bureau of Prisons properly denied credit for time spent pursuant to a civil contempt order which specifically ordered that the criminal sentence be held in abeyance.
(a) The issue was raised in the Appellant's petition below and was preserved in his objections to the Magistrate Judge's Report and Recommendation.
(b) On review of the district court's denial of petition for habeas corpus, review by the Court of Appeals is plenary. United States ex rel. Schiano v. Luther. 954 F.2d 910 (3d Cir. 1992).
*3 STATEMENT OF THE CASE
On March 5, 1996, LaPorta filed a petition for writ of habeas corpus claiming he was entitled to credit towards his federal criminal sentence under 18 U.S.C. § 3585 for time spent in custody pursuant to a civil contempt order (Docket #3, App. 1-7). A response was filed on April 25, 1996 (Docket #6, App. 28-64).
On July 31, 1996, Magistrate Judge Caiazza filed a report recommending that the petition be denied (Docket #7, App. 65-68). LaPorta filed objections to the Report and Recommendation on August 14, 1996 (Docket #8, App. 69-71). On August 16, 1996, the district court dismissed the petition and adopted the Report and Recommendation (Docket #9, App. 72-73).
LaPorta filed a timely notice of appeal on August 28, 1996 (Docket #10, App. 74).
*4 STATEMENT OF RELATED PROCEEDINGS
There are no cases or proceedings related to the appeal now pending before this court.
*5 STATEMENT OF FACTS
Appellant Michael LaPorta was sentenced in the Western District of New York on November 19, 1993, to a total term of seventy-two months for violations of 18 U.S.C. §§ 371, 1341 and 844(h), Conspiracy to Commit Mail Fraud, Mail Fraud, and Use of Fire to Commit a Felony (App. 9-10, 44-45). The term of imprisonment is to be followed by two years of supervised release.
Upon a motion to compel LaPorta to testify before a Grand Jury filed by Assistant U.S. Attorney Anthony M. Bruce, Western District of New York, an Order was signed on October 29, 1993, by the Honorable Richard J. Arcara, United States District Judge (App. 36-38). On December 9, 1993, after his sentencing date, an order of civil contempt was issued by Judge Arcara against LaPorta because of his refusal to testify and provide other information to the Grand Jury (App. 11-13, 47-49). The contempt order specifically stated that the seventy-two month criminal sentence imposed by United States District Judge John T. curtain on November 19, 1993, was to be suspended and held in abeyance. The order further stated that any time LaPorta remained confined pursuant to the contempt order was not to be credited toward the service of his criminal sentence, until such time as he testified before the grand jury, thereby purging contempt, or until the expiration of the grand jury term. LaPorta continued to refuse to testify before the grand jury and eventually *6 succeeded in persuading the court that he would never testify (App. 61-62). On June 12, 1995, United States District Judge Richard J. Arcara, vacated the civil contempt order, effective March 29, 1995 (App. 14, 51). The contempt order held LaPorta's sentence in abeyance from December 10, 1993, through March 28, 1995.
Appellant filed a petition for writ of habeas corpus seeking credit under 18 U.S.C. § 3585(b) for the time in custody from December 10, 1993, through March 28, 1995.
*7 SUMMARY OF ARGUMENT
The Bureau of Prisons properly denied credit on LaPorta's sentence for time served pursuant to the civil contempt order. The civil contempt order specifically ordered that his criminal sentence imposed on November 19, 1993, be suspended and held in abeyance, and that any time he was confined pursuant to the civil contempt order was not to be credited toward the service of his criminal sentence. The Third Circuit has held that 28 U.S.C. § 1826 authorizes interruption of a preexisting sentence during the life of a contempt order.
LaPorta seeks credit under Title 18 U.S.C. § 3585(b), which governs credit for prior custody. However, Section 3585 is not applicable because the time for which LaPorta seeks credit was after, not prior to, the commencement of his criminal sentence.
*8 ARGUMENT THE BUREAU OF PRISONS PROPERLY DENIED CREDIT FOR TIME SERVED PURSUANT TO A CIVIL CONTEMPT ORDER 18 U.S.C. 3585(b)
LaPorta sought credit in his habeas petition under Title 18, U.S.C. § 3585(b) for time spent in custody pursuant to a civil contempt order. Title 18, U.S.C. § 3585(b) is not applicable because the time sought does not involve prior custody credit. Title 18, U.S.C. § 3585(b) reads as follows:
(b) credit for prior custody. — A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences —
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charges for which the defendant was arrested after the commission of the offense for which the sentence was imposed; that has not been credited against another sentence.
Prior custody credits are given toward the term of imprisonment for any time spent in official detention prior to the date the sentence commences. LaPorta's sentence commenced on November 19, 1993, and the contempt order was issued on December 9, 1993. Therefore, because the contempt order was issued after the commencement of the sentence, LaPorta may not be given prior custody credit under the provisions of *9 3585(b). [FN1] As the agency responsible for administering the statute, the Bureau of Prisons is entitled to deference by the court when interpreting 18 U.S.C. § 3585(b). Reno v. Korav. 115 S.Ct. 2021 (1995).
FN1. In United States v. Wilson. 503 U.S. 329 (1992), the Supreme Court held that the Attorney General (delegated to the Federal Bureau of Prisons) is responsible for sentence computation decisions under 18 U.S.C. § 3585. See also. United States v. Brann. 990 F.2d 98, 103 (3d Cir. 1993).
28 U.S.C.S 1826
LaPorta sought credit for the time he was incarcerated pursuant to a civil contempt order arguing that his contempt order was vacated. Title 28, U.S.C. § 1826, which relates to recalcitrant witnesses, provides:(a) 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 . . . 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 confinement exceed eighteen months.
The Bureau of Prisons has interpreted 28 U.S.C. § 1826 in Program Statement 5880.28, entitled Sentence Computation Manual (CCCA). Page 1-24C of that Program Statement states (Addendum):
*10 Unless the court orders otherwise, a civil contempt sentence shall interrupt the service of a criminal sentence for the duration of the civil contempt sentence. As a result, in the case of a civil contempt sentence that is ordered to commence on the day it is imposed, the sentence will become inoperative on the day after the civil contempt sentence begins and shall resume running on the day the contempt sentence ends, providing that the federal prisoner is in federal custody for service of the criminal sentence. (Emphasis added).
The interpretation of a statute by the agency responsible for its administration is entitled to deference by the court. Reno v. Koray, 115 S.Ct. 2021 (1995); Stinson v. United States, 508 U.s. 36 (1993); Chevron U.S.A., Inc. v. National Resources Defense Council. Inc., 467 U.S. 837 (1984); Howe v. Smith, 452 U.S. 473 (1981); Udall v. Tallman, 380 U.S. 1 (1965); Facchiano Construction Company. Inc. v. United States Department of Labor, 987 F.2d 206 (3d Cir.), cert. denied, 510 U.S. 822 (1993); United States v. Alcan Aluminum Corn., 964 F.2d 252, 263 (3d Cir. 1992); Wilson v. United States. 959 F.2d 12, 15 (2d Cir. 1992); Weeks v. Ouinlan, 838 F.2d 41, 43 (2d Cir. 1988).
LaPorta was convicted prior to the issuance of the contempt order, thus placing petitioner in the custody of the Bureau of Prisons. Therefore, the computation of his sentence is the Bureau's responsibility. See generally, United States v. Wilson, 503 U.S. 329 (1992); United States v. Brann. 990 F.2d 98 (3d Cir. 1993). The Bureau's interpretation of the statute should prevail, and LaPorta should not be awarded *11 credit towards the service of his sentence. The court should defer to this interpretation unless clearly erroneous, or inconsistent with the statute.
This Court has held that federal judges may interrupt an existing state sentence with a federal civil contempt order. Furthermore, in that same opinion, this Circuit held that 28 U.S.C. § 1826 is most reasonably construed as authorizing a federal court to interrupt the running of a preexisting sentence during the life of a contempt order. In Re Grand Jury Investigation. 865 F.2d 578 (3d Cir.), cert. denied. 493 U.S. 905 (1989). Absent express direction as to whether the sentence for civil contempt interrupts or is concurrent with a prior criminal sentence, the prior criminal sentence shall be interrupted. Bruno v. Greenlee, 569 F.2d 775 (3d Cir. 1978).
LaPorta's contempt order expressly directed that the sentence be held in abeyance (interrupted). The Bureau of Prisons was following the court's direction in this matter. Jordan v. Arnold. 472 F.Supp. 265 (M.D.Pa. 1979), appeal dismissed. 631 F.2d 725 (3d Cir. 1980). (Wardens must do all that can reasonably be done to see that court orders are obeyed). Thus, the Bureau of Prisons' decision not to grant credit for time spent pursuant to a civil contempt order, which ordered that the criminal sentence be held in abeyance, conforms with this Circuit's holding and should be upheld.
*12 LaPorta could have purged the contempt by complying with the contempt order. "Civil contempt is remedial in nature, serving to coerce compliance with a court order . . . By complying with the order, a civil contemnor can purge the contempt." United States v. Pozsgai, 999 F.2d 719, 735 (3d Cir. 1993), cert. denied. 510 U.S. 1110 (1994). "The [Supreme] Court cited as the paradigmatic civil contempt order one that allows the contemnor to purge the contempt by committing an affirmative act. . . ." Harris v. City of Philadelphia, 47 F.3d 1311 (3d Cir. 1995), quoting, International Union. United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. at 2558 (1994).
With respect to LaPorta's argument that the district court vacated the contempt order and therefore the time served on the contempt order should now be credited toward his criminal sentence, the June 12, 1995 order vacating the sentence for contempt does not grant credit for time served on the contempt order (App. 14). Instead, it merely advises the Bureau of Prisons of the effective date to recommence the running of LaPorta's original sentence.
Title 28, United States Code, Section 1826 provides, with respect to recalcitrant witnesses, that "No period of 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 *13 eighteen months." Thus, civil contempt orders are vacated upon the occurrence of particular events — the witness purging himself, the end of the court proceeding, the end of the grand jury's term, or the passage of eighteen months. Accordingly, so that the Bureau of Prisons may properly calculate the time for re-commencing an interrupted sentence, the court must vacate the contempt order and indicate the date when the criminal sentence is no longer being held in abeyance.
The district court's contempt order in this case specifically stated that LaPorta's criminal sentence was to be held in abeyance until he either complied with the contempt order by testifying before the grand jury or until the term of the grand jury expired (App. 11-13). On June 12, 1995, the district court vacated its contempt order, and the order that the criminal sentence be held in abeyance, effective March 28, 1995. Thus, there is no ambiguity as to what the district court intended — the order remained in full force from December 10, 1993, through March 28, 1995.
Section 1826(a) authorizes the civil confinement of recalcitrant witnesses and its purpose is to ". . . secure the testimony through a sanction. . . ." Bruno v. Greenlee, 569 F.2d 775, 777 (3d Cir. 1978), quoting, 1970 U.S. Code Congressional and Administrative News, p. 4022. The incentive to testify is the release from confinement by compliance. To create an incentive for an individual already incarcerated, *14 the criminal sentence must be interrupted. This gives the individual the option to comply and thereby shorten their total sentence by testifying and terminating the civil sanction. If the criminal sentence is not interrupted, it would negate the benefits derived from testifying and thus immunize an incarcerated individual from the coercive sanctions of Section 1826(a), a result contrary to Congressional intent. Bruno at 777, guoting Martin v. United States, 517 F.2d 906, 908 (8th Cir.), cert. denied. 423 U.S. 856 (1975). "(T)he coercion of a Section 1826 would be meaningless against prisoners if credit against the original sentence must be given for time spent in confinement for civil contempt. Certainly the law-and-order spirit which motivated Congress to enact Section 1826 would be inconsistent with an intention that it provide a remedy useless against prisoners. In re Grand Jury Investigation (Hartzell), supra at 169.
Bruno at 777, guoting, In re Grand Jury Investigation. 542 F.2d 166 (3d Cir. 1976), cert. denied, 429 U.S. 1047 (1977).
LaPorta's contempt order specified that his criminal sentence be interrupted and held in abeyance during the term of the contempt order and is in conformance with this circuit's holdings on this issue. The order vacating the contempt order did not order that the time spent under the contempt order be credited to the criminal sentence. Neither did it nullify the contempt; it merely ended the contempt sentence and allowed the criminal sentence to begin running again.
*15 CONCLUSION
For the foregoing reasons, the judgment of the district court should be affirmed.