In Re Grand Jury Investigation. Appeal of David Oreski

SEITZ, Circuit Judge,

dissenting.

I differ from my colleagues because I believe they have construed 28 U.S.C. § 1826 (contempt power) to authorize a significant federal encroachment on an area of state interest without a clear expression of such congressional intention.

There is no question raised on this appeal as to the authority of a district court, under its contempt power, to do as the district court did here: commit a disobedient witness — even one serving a state sentence— to federal custody for the time permitted by federal law. The problem arises here because, in the contempt order, the district court “Further Ordered that this confinement for Contempt of Court shall stay the service of sentence imposed * * * in the Court of Common Pleas of Allegheny County Criminal Division, which sentence shall not continue to run or be concurrent herewith.” More concretely understood, the quoted provision of the order was a direction to the state authorities, although not named parties to the proceedings, 1 to suspend for a stipulated period the further implementation of a lawfully imposed state sentence.

The majority interprets section 1826 to authorize the quoted provision of the order. 2 It concedes that no explicit language in 28 U.S.C. § 1826 (a) or in the congressional history supports its position. It argues, however, that the coercive effect of the statutory contempt scheme will be frustrated as to state prisoners unless such authority is determined to be implicit in the statute. It avoids such frustration by concluding that the federal intrusion here is not significant. Because of its conclusion it is able to avoid the rule of interpretation found in McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875, 2881 , 97 L.Ed.2d 292 (1987), and United States v. Bass, 404 U.S. 336, 349-50 , 92 S.Ct. 515, 523-24 , 30 L.Ed.2d 488 (1971) that where there is significant federal interference with lawful state functions, the congressional intention to do so must appear in clear and definite language.

I do not agree that the federal intrusion countenanced by the majority is insignificant. One need only mention some of the important state interests in the administration of its criminal law that may well be affected. Certainly the application of a state’s parole and “good time” statutes could be altered. Additionally, at least where there is a change of physical custody, an interruption may interfere with ongoing rehabilitation programs administered by the state. Other interests may come to mind.

I have identified substantial state interests not to imply that their existence precludes Congress from adopting legislation clearly designed to subordinate such interests where, as here, it furthers the objectives of the federal court system. Rather, where important state interests are possibly compromised, application of the clear and definite language test affords reasonable assurance that such state concerns have been weighed by Congress. See Bass, 404 U.S. at 349 , 92 S.Ct. at 523 .

*584 I find the intrusion on state power 3 to be. sufficiently substantial to require that section 1826 be interpreted under the rule of construction demanding a clear and definite statement of congressional purpose. The basic thrust of In Re Liberatore, 574 F.2d 78 (2d Cir.1978), lends support to my conclusion. I would, therefore, reverse so much of the district court's order as directed the “state” to suspend the running of appellant’s state term of imprisonment.

. I need not address the propriety of the district court’s order because there has been no formal state participation in this case.

. I do not quarrel with the majority’s determination that appellant had standing to attack the quoted portion of the order.

. I recognize that many courts, including our own, In re Grand Jury Investigation, 542 F.2d 166 (3d Cir.1976), cert. denied, 429 U.S. 1047 , 97 S.Ct. 755 , 50 L.Ed.2d 762 (1977), have interpreted section 1826 to authorize sentence tolling where a federal prisoner is found in civil contempt of a federal court. Here we are dealing with a federal-state relationship with the sensitivity implicit therein. Consequently, I do not find cases permitting interference with pre-ex-isting sentences of federal prisoners compelling here.