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In Re July 1979 Term Special Grand Jury. in The Matter of James J. DONOHUE. UNITED STATES of America, Appellee, v. James J. DONOHUE, Appellant
In Re July 1979 Term Special Grand Jury. in The Matter of James J. DONOHUE. UNITED STATES of America, Appellee, v. James J. DONOHUE, Appellant
2d 64
James J. Donohue, under order of the United States District Court for the
District of Maryland, currently is confined for civil contempt in the
Metropolitan Correctional Center in New York City pursuant to 28 U.S.C.
1826(a), because he has failed to produce a document relevant to a grand jury
investigation. Donohue has filed a motion for release on bail pursuant to
1826(b) pending review of a petition for writ of certiorari filed July 22, 1981
with the Supreme Court.
Donohue argues that the section contemplates that bail ordinarily should be
granted, unless the appeal is frivolous or taken for delay. Donohue further
contends that the issue in his petition for writ of certiorari is substantial,
because it presents a question regarding the scope of the Fifth Amendment
privilege against self-incrimination left unresolved in Fisher v. United States,
425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), and in conflict among the
circuits. See, e. g., United States v. Davis, 636 F.2d 1028 (5th Cir. 1981); In re
Grand Jury Proceedings, 626 F.2d 1051 (1st Cir. 1980).
Second, 1826(b) specifically concerns bail pending appeal, and directs the
appellate court to dispose of the appeal within 30 days of filing. If 1826(b)
contemplates a liberal standard for granting bail, it also attempts to minimize
the disruptive effect that bail pending appeal has on the district court's
contempt power and on the objectives that 1826 is designed to foster.
Several courts have held that, when the court cannot decide the appeal within
Several courts have held that, when the court cannot decide the appeal within
30 days, the court should order release of the contemnor until the appeal is
decided. See, e. g., United States v. Gravel, 605 F.2d 750 (5th Cir. 1979);
General Counsel v. United States, 599 F.2d 504 (2d Cir. 1979); Melickian v.
United States, 547 F.2d 416 (8th Cir. 1977), cert. denied, 430 U.S. 986, 97
S.Ct. 1684, 52 L.Ed.2d 381 (1977). Donohue argues that the same procedure
should be followed here, but the procedure is inappropriate at this time.3 If and
when certiorari is granted, the outcome may be different.
In Tierney v. United States, 409 U.S. 1232, 93 S.Ct. 17, 34 L.Ed.2d 37 (1972),
Justice Douglas, sitting as a single justice, granted bail pending review of a writ
of certiorari. Justice Douglas applied the standard in 1826(b), which he
characterized as "bail shall be granted if the issues are not frivolous and if the
appeal is not taken for delay." 409 U.S. at 1232-33, 93 S.Ct. at 17-18. In a
related case, the Fifth Circuit subsequently questioned this standard, stating that
"(s)urely this language (in 1826(b)) was not intended to set absolute
parameters for civil proceedings. Even in appeals from refusal of bail following
criminal convictions courts have the right to consider other circumstances."
Beverly v. United States, 468 F.2d 732, 741 n.13 (5th Cir. 1972). The Fifth
Circuit concluded that the proper test was whether the district judge, in denying
bail, had committed an abuse of discretion
In Melickian, the court said this solution "best reconciles the various interests
bound up in the bail issue": the potentially meritorious contemnor is released
until the validity of the contempt citation is affirmed on appeal; the appellate
court retains flexibility to consider the appeal fairly and completely; and the
contempt order retains some of its coercive force, because the threat and
actuality of re-incarceration loom on the horizon. 547 F.2d at 419-20
The differences between an appeal and a writ of certiorari, however, require a
different reconciliation of the interests here. The contemnor's interest is
lessened, because the validity of the contempt citation has been affirmed on
appeal. Donohue was granted by the district court a stay pending determination
of the appeal by the Fourth Circuit, and was not required to surrender to begin
the incarceration for civil contempt until June 1, 1981.
The government's interest is significantly heightened as the duration of the
delay increases. If a contemnor remains free on bail pending both an appeal and