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United States v. Frumento

filed as amended march 18 1977.: March 7, 1977.

UNITED STATES OF AMERICA, APPELLEE,
v.
ROCCO FRUMENTO, ANDREW T. MILLHOUSE, GEORGE W. COLLITT, JOHN R. SILLS, VITO N. PISCIOTTA IN RE: SUBPOENA TO VITO N. PISCIOTTA, VITO N. PISCIOTTA, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. Criminal No. 75-322.

Seitz, Chief Judge, Rosenn, and Garth, Circuit Judges. Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Rosenn, Circuit Judge Adams, joins in this opinion. Hunter, Circuit Judge,

Author: Garth

GARTH, Circuit Judge

This appeal requires us to determine whether a defendant who has been tried and convicted but not yet sentenced, and whose post-trial motions were still pending at the time the government sought his testimony at the trial of his codefendants, may be compelled to testify under a grant of immunity. Upon his refusal to testify, the district court entered an order of contempt and confinement pursuant to 28 U.S.C. § 1826. Although the government contends that the termination of the trial at which he was to testify renders this appeal moot, we disagree. Nevertheless, we hold that Pisciotta's trial testimony could be compelled. We therefore affirm the order of contempt and confinement.

I.

Vito N. Pisciotta was one of five defendants indicted for violation 18 U.S.C. § 1962 (racketeering) and 26 U.S.C. § 7206(1) (submitting false income tax returns). Three separate jury trials were scheduled. Pisciotta's trial was severed from the trial of his codefendants, and he was tried to a jury and convicted on November 22, 1975.

Another defendant (Collitt) was tried separately and acquitted. The trial of the three remaining defendants, Frumento, Millhouse and Sills commenced March 1, 1976. Pisciotta, who at that time had not been sentenced and whose post-trial motions were still pending, was subpoenaed by the government to testify on March 3, 1976 at the trial of his three codefendants. After his motion to quash the subpoena was denied, Pisciotta invoked his Fifth Amendment privilege and refused to testify. The district court, on motion of the government, thereupon granted Pisciotta immunity under 18 U.S.C. § 6002*fn1 and directed him to answer. Pisciotta, after consulting with his attorney, still refused to answer the questions put to him. Upon his continued refusal, the district court found Pisciotta in contempt under 28 U.S.C. § 1826(a)*fn2 and ordered him confined in the custody of the United States Marshal until the proceedings terminated or until he purged himself of the contempt by complying with the court's order.

Pisciotta immediately applied for a stay of the March 3, 1976 order of confinement. His application was denied. He then filed a notice of appeal and sought a stay of custody pending the outcome of his appeal from the district court's order. A panel of this Court denied that motion for stay by an order dated March 3, 1976. Pisciotta sought review of that decision. The panel, treating his "Motion for Review" as a request for panel reconsideration, denied his motion on March 4, 1976. Finally, Pisciotta sought review by the court in banc.

While Pisciotta's motion for in banc consideration, along with his direct appeal of the district court's March 3, 1976 order, was before this Court, the trial of Pisciotta's former codefendants ended.*fn3 Therefore, on March 23, 1976, the Court, acting in banc, dismissed as moot the motion for a stay of custody. Thus only the direct appeal remained.

The end of the trial of Pisciotta's codefendants and Pisciotta's consequent release from custody (see 28 U.S.C. § 1826(a)(1) note 2 supra) prompted the panel hearing Pisciotta's direct appeal to require briefing on the issue of mootness. The direct appeal was argued to the panel on March 23, 1976. Subsequently, and before filing of the panel opinion, it was ordered pursuant to this Court's Internal Operating Procedure N. 4 that the case be listed for rehearing in banc.*fn4

II.

The government has contended that the appeal from the district court's order of March 3, 1976 which adjudicated Pisciotta to be in contempt and which ordered his confinement is now moot because the court proceeding at which he was to testify has terminated and he has been released from custody. We cannot agree.

In St. Pierre v. United States, 319 U.S. 41, 42, 87 L. Ed. 1199, 63 S. Ct. 910 (1943) the Court held moot an appeal from a conviction for criminal contempt stating that "the case is moot because, after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate." While superficially it would appear that this holding controls the present case, the exceptions to the St. Pierre mootness rule have, to a large extent, dissipated its vitality.

The Court in St. Pierre recognized that the petitioner there could have had his case reviewed before the expiration of his sentence, but no stay or supersedeas had been sought. The Court thereby implied an exception to the mootness rule - that an appeal is not moot even though the appellant has been released from custody or has served his sentence if he has taken all possible steps to have the order of confinement promptly reviewed prior to his release.

In commenting on this aspect of the St. Pierre holding, the Supreme Court in Sibron v. New York*fn5 said, "This was a plain recognition of the vital importance of keeping open avenues of judicial review of deprivations of constitutional right." In so stating, the Sibron Court recognized the importance of the principle that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.*fn6 In Sibron, the Court held that petitioner's appeal was not moot even though he had completed service of the six month sentence imposed upon him as a result of his conviction for possession of drugs. In emphasizing the exception to the St. Pierr rule, the Court noted that "there was no way for Sibron to bring his case here [the Supreme Court] before his six month sentence expired . . . despite the fact that he took all steps to perfect his appeal in a prompt, diligent and timely manner." 392 U.S. at 52.*fn7

Here as we have indicated, Pisciotta immediately sought a stay of the district court's order of March 3, 1976 which directed his confinement. After his district court application had been denied, on the same day he sought a stay from a panel of this Court. When this motion was denied, Pisciotta unsuccessfully sought a stay from the Court in banc. Simultaneously, he appealed from the March 3, 1976 order. These "prompt, diligent and timely" actions clearly bring Pisciotta within the reviewability exception to the mootness doctrine of St. Pierre.

We recognize that the most traditional of exceptions to the mootness doctrine has been characterized as "capable of repetition yet evading review," Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911); Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968); Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); DeFunis v. Odegaard, 416 U.S. 312, 318, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974); Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976); Super Tire Engineering Corp. v. McCorkle, 416 U.S. 115, 125, 40 L. Ed. 2d 1, 94 S. Ct. 1694 (1974); Scott v. Kentucky Parole Board, 429 U.S. 60, 97 S. Ct. 342, 50 L. Ed. 2d 218, 45 U.S.L.W. 4009, 4011-12 (1976) (Stevens, J., dissenting). This Court applied that standard, despite its seeming inapplicability, in United States v. Schiavo, 504 F.2d 1 (3d Cir.) (in banc) cert. denied, 419 U.S. 1096, 95 S. Ct. 690, 42 L. Ed. 2d 688 (1974), where we considered the merits of a press "silence order" although the trial to which the order pertained had been completed. This Court held that the appeal should not be dismissed as moot even though there no longer existed any restraints upon the newspapers and reporter. We said in Schiavo that the dispute was "capable of repetition yet evading review" because

If this case were deemed moot, it is unlikely that members of the press who are subject to a silence order would ever be able to obtain appellate review, since the underlying criminal proceeding would almost always terminate before the appellate court hears the case.

Id. at 5.

Schiavo reflects an application of the standards of Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), the Supreme Court's abortion decision, where the Court observed:

The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated. United States v. Munsingwear, Inc., 340 U.S. 36, 95 L. Ed. 36, 71 S. Ct. 104 (1950); Golden v. Zwickler, 394 U.S. 103, 22 L. Ed. 2d 113, 89 S. Ct. 956, supra; SEC v. Medical Committee for Human Rights, 404 U.S. 403, 30 L. Ed. 2d 560, 92 S. Ct. 577 (1972).

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911). See Moore v. Ogilvie, 394 U.S. 814, 816, 23 L. Ed. 2d ...


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