Appeal from an order of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, holding defendant Johnson in contempt for refusing to testify, after a grant of use immunity, as a witness at a pre-trial hearing concerning his status as an informant. The matter is moot and we dismiss the appeal.
Before: VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.
Wilfred Johnson, a defendant in the underlying criminal prosecution, appeal from Judge Nickerson's order holding him in contempt from his refusal to testify as a government witness at a preliminary hearing pursuant to a grant of use immunity. Johnson claims that his status as an indicted co-defendant in the action provides him with an absolute privilege to refuse to testify, and asks that the contempt order be vacated. Because Johnson is a defendant in the underlying proceeding and because the contempt sentence ended before this appeal was heard, issues regarding appellate jurisdiction and mootness must be addressed. We dismiss the appeal as moot.
This appeal arises out of a criminal prosecution brought against Johnson and nine others on two counts of racketeering, in violation of 18 U.S.C. § 1962(c) and (d) (1982), for their alleged participation in the affairs of the Gambino crime family. After the indictment, the government identified Johnson as an informant for the Federal Bureau of Investigation ("FBI") and moved to have him detained on the ground that he was likely to flee. At the detention hearing Johnson voluntarily testified, denying that he had ever been a government informant. The district court found to the contrary, however, and ordered him detained.
During pre-trial discovery, portions of Johnson's FBI informant file were disclosed to his co-defendants. They then filed joint pre-trial motions to exclude from evidence all hearsay statements made by Johnson that the government intended to offer as statements by a co-conspirator under Fed. R. Evid. 801(d)(2)(E). Co-defendants argued that because Johnson was an FBI informant during the period charged in the indictment, his declarations could not have been in furtherance of the alleged conspiracy and were therefore inadmissible under Rule 801(d)(2)(E). In response, the government argued that Johnson possessed the requisite criminal intent when he participated in the criminal activity charged in the indictment despite his status as an informant. Because of this intent, the government argued, Johnson continued to be a co-conspirator, and his statements were not automatically inadmissible.
Judge Nickerson ruled that the critical issue was Johnson's state of mind at pertinent times during the alleged conspiracy. To establish the state of mind, the government called Johsnon as its first witness at a pre-trial hearing held on February 21, 1986. Johnson refused to testify, however, invoking his fifth amendment privilege against self-incrimination. The government applied to the court for a grant of use immunity, under which Johnson's compelled testimony could not be used against him in any criminal case, including the present one. See 18 U.S.C. §§ 6002 et seq. (1982). Judge Nickerson granted the use immunity and directed Johnson to testify. Johnson again refused to testify, and Judge Nickerson held him in civil contempt. The court committed Johnson until the conclusion of the pre-trial hearing or until he purged his contempt, whichever occurred first. Johnson continued to refuse to testify, and the pre-trial hearing concluded on March 6, 1986. Judge Nickerson found that Johnson's statements were those of a co-conspirator and thus admissible upon a showing that they were in furtherance of the conspiracy. When the hearing concluded, Johnson's contempt sentence expired as well. We heard the appeal on April 8.
We raise the question of our jurisdiction sua sponte. See In Re Adirondack Railway Corp., 726 F.2d 60, 62 (2d Cir. 1984). It is well established that a party to a pending proceeding may not appeal from an order of civil contempt except as part of an appeal from a final judgment. Fox v. Capital Co., 299 U.S. 105, 107, 81 L. Ed. 67, 57 S. Ct. 57 (1936); see also Securities and Exchange Commission v. Sloan, 535 F.2d 679, 680 (2d Cir. 1976) (per curiam) ("An order of civil contempt against a party to litigation is not an appealable final order."), cert. denied, 430 U.S. 966, 97 S. Ct. 1646, 52 L. Ed. 2d 357 (1977). However, adjudications of criminal contempt are appealable prior to final judgment, Matter of Christensen Engineering Co., 194 U.S. 458, 24 S. Ct. 729, 48 L. Ed. 1072 (1904), and a non-party witness may immediately appeal an order of civil contempt. Lamb v. Cramer, 285 U.S. 217, 76 L. Ed. 715, 52 S. Ct. 315 (1932). See generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3917 (1976).
The general rule that orders of civil contempt against parties in pending litigation are not immediately appealable prevents interlocutory appeals that fragment the disposition of "what for practical purposes is a single controversy." Cobbledick v. United States, 309 U.S. 323, 325, 84 L. Ed. 783, 60 S. Ct. 540 (1940). The merits of the contempt order against a party can be challenged on appeal from a final judgment to the extent the order affects the judgment or carries with it collateral legal consequences.
The general rule prohibiting appeals from civil contempt citations by parties to litigation has been developed in civil cases. Although direct precedent appears to be lacking, we perceive no reason to refrain from applying this general rule to defendants in criminal proceedings. If such a defendant wishes to avoid the contempt sentence, he may testify with confidence that he will be able to attack the merits of the contempt order the the extent it affects a final judgment of conviction. For example, if Johnson had testified at the pre-trial hearing and were subsequently convicted, he could certainly raise as a ground for overturning his conviction any improper use of his compelled pre-trial testimony at the main trial. We recognize that this rule affords little protection to a party faced with a contempt order that is unlikely to affect the final judgment. However, this harsh result is not unique to criminal cases but inheres in the rule as applied in civil cases.
Appealability of the order against Johnson is not necessarily foreclosed, however. Johnson claims that as a criminal defendant he cannot be compelled to be a witness for any purpose or at any point in that proceeding, whether or not testifying tends to incriminate him or to affect the jury's decision regarding his guilt or innocence. His claim of a constitutional right not to testify is thus closely analogous to an assertion of an absolute immunity from taking the stand.
To the extent that the district court's order denied a claim of immunity, it is arguably appealable under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). The Supreme Court has held that "[a] major characteristic of the denial or granting of a claim appealable under Cohen's 'collateral order' doctrine is that 'unless it can be reviewed before [the proceedings terminate], it can never be reviewed at all.'" Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411 (1985) (quoting Stack v. Boyle, 342 U.S. 1, 12, 96 L. Ed. 3, 72 S. Ct. 1 (1951) (opinion of Jackson, J.)). In Mitchell, the Court noted that district court decisions are appealable when they have denied a "defendant's claim of right not to stand trial on double jeopardy grounds." Mitchell, 105 S. Ct. at 2815; see also Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977). Mitchell also noted that the "denial of a substantial claim of absolute immunity is an order appealable before final judgment" on analogous grounds. 105 S. Ct. at 2815. The rationale offered was that "the essence of ...