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In a memorandum accompanying the application, the Senate Legal Counsel emphasized that the requisites of the Act had been met since the information sought-on organized crime-was in an area where the authority of the Senate to inquire had “long been established"; the Senate had authorized the Committee and the Subcommittee to investigate crime; and the Senate had authorized the enforcement of the Committee subpoena in court. Because these triple requirements of authorization had been satisfied, the memorandum argued, enforcement of the subpoena was mandatory absent a valid claim of constitutional privilege. The memorandum went on to dismiss as without merit the objections to testifying raised by Mr. Cammisano at the hearing (where he invoked his plea bargain agreement as well as his rights against self-incrimination, and to privacy, due process, and equal protection).

On September 22, 1980, District Judge Hart issued an order requiring Mr. Cammisano to file a response to the Subcommittee's application for an enforcement order to show cause why the court should not direct him to appear before the Subcommittee and answer questions. The order scheduled argument on the application for October 24, 1980.

On October 14, 1980, Mr. Cammisano filed his reply to the Senate's application, asserting that the “alleged” grant of immunity was "improvidently granted, void and invalid" and that therefore he was entitled to rely on his right against self-incriminaton. In support of this proposition he advanced several arguments. First, he maintained, a prospective grant of immunity was not authorized by the relevant statute; the Subcommittee could move to immunize only after he refused to testify. Second, he claimed, the waiver of the ten-day notice to the Attorney General was invalid. Third, he contended, the immunity grant was barred by his original plea barzain agreement because the matters inquired into by the Subcommittee were directly related to those involved in the original indictnent. Finally, Mr. Cammisano argued, the hearings at issue were not properly authorized.

Oral argument on the application was held, as scheduled, on Ocober 24. On the same day, Judge Hart issued an order directing

udgment, concerning the validity of, or to prevent a threatened refusal or failure to comply rith, any subpoena or order issued by the Senate or committee or subcommittee of the Senate 6 any entity acting or purporting to act under color or authority of State law or to any natural verson to secure the production of documents or other materials of any kind or the answering of ny deposition or interrogatory or to secure testimony or any combination thereof. i Upon application by the Senate or any authorized committee or subcommittee of the Senate, the district court shall issue an order to an entity or person refusing, or failing to omply with, or threatening to refuse or not to comply with, a subpoena, or order of the Senate I committee or subcommittee of the Senate requiring such entity or person to comply forthrith

. Any refusal or failure to obey a lawful order of the district court issued pursuant to this ection may be held by such court to be a contempt thereof. A contempt proceeding shall be omenced by an order to show cause before the court why the entity or person refusing or ailing to obey the court order, should not be held in contempt of court. Such contempt proceedng shall be tried by the court and shall be summary in manner. The purpose of sanctions imused as a result of such contempt proceeding shall be to compel obedience to the order of the ourt. Process in any such action or contempt proceeding may be served in any judicial district sherein the entity or party refusing, or failing to comply, or threatening to refuse or not to omply, resides, transacts business, or may be found, and subpoenas for witnesses who are refuired to attend such proceeding may be found, and subpoenas for witnesses who are required to ittend such proceeding may run into any other district. Nothing in this section shall confer ipon such court jurisdiction to affect by injunction or otherwise the issuance or effect of any zubpoena or order of the Senate or any committee or subcommittee of the Senate or to review, nodify, suspend, terminate, or set aside any such subpoena or order.

Mr. Cammisano to appear and answer the Subcommittee's questions. On November 12, 1980, Mr. Cammisano filed a notice of appeal of this order to the U.S. Court of Appeals for the District of Columbia Circuit. (No. 80-2382]

In early December, 1980, the Subcommittee notified Mr. Cammisano that on the 15th of the month he would again be called to testify about organized crime. Shortly thereafter, Mr. Cammisano signed a stipulation with the Subcommittee declaring that if he appeared he would refuse to "answer . . . questions giving the same objections he gave on May 1 and those objections raised in respondent's reply and memorandum filed October 14, 1980." (Stipulation Concerning Appearance Before Subcommittee, Stays and Sanctions Pending Appeal, December 12, 1980, at 2] At that point, the Senate Legal Counsel, acting on behalf of the Subcommittee pursuant to section 705(f)(1) of the Ethics in Government Act of 1978 (see footnote 2, supra, page 402), moved in district court for an order holding Mr. Cammisano in civil contempt. This motion was opposed by Mr. Cammisano on December 22, 1980 essentially for the reasons he raised previously. His response emphasized as well his contention that the adjournment of the Senate vitiated the proceeding since, in his view, the Subcommittee had not certified to the court that it maintained its interest in the information sought, as the statute required. Mr. Cammisano requested an evidentiary hearing on whether the Subcommittee had in fact made such a certification. Additionally, Mr. Cammisano argued that section 705 was unconstitutional in that it violated his rights to equal protection and due process and the right to be free from cruel and unusual punishment. These points, and the defendant's other assertions, were disputed by the Senate Legal Counsel who argued that the contempt motion itself reflected the necessary certification and that the stipulation foreclosed the remaining issues.

On December 29, 1980, the civil contempt motion was argued before Judge John Garrett Penn and granted. Mr. Cammisano was held in contempt and ordered to be incarcerated until he answered the Subcommittee's questions. The order stated that the period of confinement ... shall not exceed the period in which the Subcommittee continues to certify an interest in the testimony of Cammisano, and shall end at the adjournment of the 97th Congress. [Order, December 29, 1980, at 1] The confinement was stayed until 20 days after a ruling from the Court of Appeals on the appeal of the October 24, 1980 order and the contempt order.

On January 7, 1981, Mr. Cammisano filed a notice of appeal of the contempt order to the U.S. Court of Appeals for the District of Columbia Circuit [No. 81-1037]. The court consolidated this appeal with the earlier appeal (No. 80-2382] on January 16.

In his brief, filed on January 26, 1981, Mr. Cammisano put forth the identical arguments raised in the district court. He contended that the original grant of immunity was invalid because the tenday statutory waiting period prior to the Subcommittee's application for the grant had not elapsed and asserted as well that a prospective grant of immunity was not authorized by the statute. Further, he maintained that the contempt order was invalid because the controlling statute was unconstitutional and that incarceration for civil contempt violated the plea bargain agreement in his criminal case. Finally, he claimed that the interruption of the previously imposed criminal sentence (by the contempt sentence) "exceeds the jurisdiction of the court, constitutes a violation of g 3568, Title 18, United States Code, violates the Double Jeopardy Clause of the Fifth Amendment and constitutes an abuse of discretion." (Brief of Appellant, January 26, 1981, at 22]

The brief for the Subcommittee, filed by the Senate Legal Counsel on February 10, 1981, reiterated its contentions in the court below. The Subcommittee summarized its arguments as follows:

In issuing its immunity order on April 18, 1980, the District Court followed the correct procedure. The Subcommittee had complied with the only requirements of 18 U.S.C. $ 6005(a), approval of immunization by the full Committee and notice to the Attorney General. Application for the order on the eighth day after notice to the Department of Justice, rather than the tenth day, was proper since the department waived further delay. Issuance of a prospective immunity order prior to Cammisano's appearance before the Subcommittee was a legitimate preparatory step for the hearing. The Court's order only became effective after Cammisano appeared and refused to testify. 18 U.S.C. $ 6005(a) provides for orders for an individual who “may be called to testify," and thus the statute's wording, as well as its legislative history and policy, support prospective immunization.

In holding Cammisano in civil contempt on December 29, 1980, the District Court correctly overruled Cammisano's objections. Cammisano's plea bargain agreement of 1978 had not included any provision barring further inquiry into his knowledge of organized crime. It was necessary that the civil contempt incarceration interrupt Cammisano's criminal sentence if that incarceration was to coerce his compliance with the Court's order to testify. Cammisano faces no unending incarceration or indeterminate sentence, since the Court's contempt order limits his incarceration to the adjournment of the 97th Congress, no later than January 3, 1983. [Brief of Appellees, February

10, 1981, at 9-10) On March 27, 1981, the validity of the contempt order was urgued before a panel of the court of appeals, and on May 13, 1981, Circuit Judge J. Skelly Wright handed down the opinion of the ourt finding both the grant of immunity and the sentence for civil ontempt to be proper and affirming the judgment of the district ourt. (In the Matter of the Application of the United States Senate Permanent Subcommittee on Investigations, William Cammisano, Ippellant, 655 F. 2d 1232 (D.C. Cir. 1981)] Turning first to the immunity order, Judge Wright held that the Department of Justice had the power to waive the 10-day notice requirement. Arguing that Congressional intent and common sense supported this holding, Judge Wright reasoned:

The legislative history of Section 6005(b)(3) reflects two purposes behind the 10-day notice requirement. First, a 10

day notice period provides the Department of Justice with
"time to lobby' for a change of mind” on the part of the
congressional committee should the Attorney General
object to the grant of immunity. Second, the notice period
gives the Attorney General "an opportunity to insulate
from the immunity grant any incriminating data already
in his files prior to the witness' testimony." As is evident
from these twin aims, the 10-day notice requirement was
plainly intended to benefit solely the Department of Jus-
tice. And in view of that intent, it would be anomalous to
hold that the notice cannot be waived by the Department,
its sole intended beneficiary, but must instead be adminis-
tered in a manner antithetical to the interests of the De
partment. We decline to adopt such a bizarre rendering of

Section 6005(b)(3). [655 F.2d at 1236 (footnotes omitted)) With respect to Mr. Cammisano's second challenge to the immunity order—that it was improper because it could be issued only after a witness refused to testify–Judge Wright held that by its very terms section 6005 permitted district courts to issue immunity orders before a witness had appeared before a Congressional body He noted that the section specifically applied to "any individual who has been or may be called to testify.Again, Judge Wright maintained, the legislative history of the section buttressed this conclusion.

Turning next to the civil contempt sentence, Judge Wright dismissed Mr. Cammisano's contention that the sentence violated his 1978 plea bargain agreement, finding that the terms of the agree ment "plainly" did not preclude the Senate from seeking to secure his testimony. Moreover, the Judge pointed out, “since the plea agreement only precludes criminal indictments of Cammisano based on facts then known to the Government, a proceeding and sentence for civil contempt would be outside the scope of the agreement." (Id. at 1239)

Judge Wright also rejected the argument that interrupting Mr. Cammisano's criminal sentence by incarcerating him for contempt constituted an abuse of the district court's discretion and violated various statutory and constitutional provisions. According to the Judge, this argument was foreclosed by the court's en banc decision in United States v. Liddy, 510 F.2d 669 (D.C. Cir. 1974), cert. denied. 520 U.S. 980 (1975), and had been rejected as well in seven other circuits.

Finally, Judge Wright dismissed Mr. Cammisano's contention that the civil enforcement mechanism violated the constitutional guarantees of due process and equal protection and permitted cruel and unusual punishment by allowing indefinite incarceration as long as the Senate, its committee or subcommittee certified a continuing interest in the information sought. Judge Wright first held that the argument was not properly presented because Mr. Cammisano did not face unending imprisonment in this case, since the district court order specifically stated that his incarceration was to end no later than the adjournment of the 97th Congress. Even if Mr. Cammisano's argument had been properly presented, Judge Wright held that it would have been rejected:

In Shillitani v. United States, 384 U.S. 364 . . . (1966), the Supreme Court recognized that recalcitrant grand jury witnesses may be incarcerated for civil contempt until the end of a grand jury inquiry, and that “the sentences of imprisonment may be continued or reimposed if the witnesses adhere to their refusal to testify before a successor grand jury.Id. at 371 n. 8 . . We can see no distinction

between that situation and the situation hypothesized by to the appellant, where successive civil contempt sentences

are imposed on a Senate witness who continues to refuse to answer legitimate questions and where the Senate, or committee or subcommittee thereof, continues to express interest in the witness' testimony (Id. at 1240 (footnote omitted)] On May 27, 1981, Mr. Cammisano filed petitions for a rehearing en banc and for a stay of the appeals court's mandate. On June 5, 1981, the Senate Legal Counsel filed a response to the petition for a stay of the issuance of the mandate, asserting that a stay would derive the Subcommittee of its statutory right to expedited subpoena enforcement. Furthermore, the response argued, by reducing the deriod of Mr. Cammisano's contempt incarceration, a stay would liminish the district court's ability to compel obedience to its

order.

On June 9, 1981, the appeals court panel, in a per curiam order, lenied the motion for a stay of its mandate. Three days later, the ull appeals court issued a per curiam order denying the suggestion or a rehearing en banc. On July 14, 1981, the appeals court formaly issued its mandate. Meanwhile, in the district court, on July 1, 1981, Mr. Cammisano iled a motion asking that he be discharged from the court's Deember 29, 1980 order of contempt. He based his motion on his assertion that "the authority of the Subcommittee [to conduct its inestigations and to make its inquiries of the respondent) expired on "ebruary 28, 1981, and ... the current Senate resolution authorring investigations by the Subcommittee was not approved prior to hat date." (Motion to Discharge From Finding of Contempt, July 1981, at ij According to Mr. Cammisano, the purported gap in he authorization of the Subcommittee's inquiry after the end of he 96th Congress rendered the continuation of the investigation

On July 16, 1981, the Senate Legal Counsel, on behalf of the Subommittee, cross-moved for implementation of the court's DecemHer 1980 contempt order and opposed Mr. Cammisano's discharge ino be afforded an opportunity to purge himself of contempt within notion. Since the December 1980 order required that Mr. Cammis0 days of the issuance of the appeals court mandate (i.e., by lugust 3, 1981), the Senate counsel asked the district court to chedule a hearing before August 3 to which Cammisano would be rought under a brit of habeas corpus ad testificandum and asked o testify. If he again refused, the Senate requested that the court Yrder his incarceration for contempt to begin on August 3 to coninue through the end of the 97th Congress.

mproper.

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