The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Cleveland Jackson's request
to quash the government's motion for a rule to show cause why he
should not be held in contempt of court. The government alleges
that a special agent of the FBI served Jackson with a subpoena
directing him to appear on July 25, 1979 at the trial of Deborah
Willis and Floyd Head. According to the government, Jackson
failed to attend a meeting scheduled with the Assistant United
States Attorney and failed to appear at any session of the trial
which lasted from July 26, 1979 through July 31, 1979. This Court
issued an arrest warrant on July 25, 1979. A special agent twice
attempted to locate Jackson at the residence where he had been
served with the subpoena. Eventually, Jackson was found at that
address and was arrested on October 30, 1979.
Fed.R.Crim.P. 17(g) provides that "[f]ailure by any person
without adequate cause to obey a subpoena served upon him may be
deemed a contempt of the court. . . ." On this motion, Jackson
does not attempt to offer an excuse for failing to appear;
rather, he contends that although two statutes, 18 U.S.C. § 401
and 28 U.S.C. § 1826, authorize
contempt proceedings, 28 U.S.C. § 1826, which enumerates
procedures to follow when a witness refuses to testify, more
specifically applies to Jackson's conduct and, therefore, should
govern. In addition, because that provision prohibits confinement
of the witness beyond the duration of the trial, and this trial
has terminated, Jackson argues that he should be released.*fn1
Even assuming Jackson's argument that the Court must apply the
statute that more specifically controls the type of activity that
occurred is correct, section 1826 is not applicable here. That
provision, which authorizes confinement of a person who refuses
to testify or produce materials pursuant to a court order,
presupposes the presence of the witness.
In this case, Jackson did not merely refuse to testify; he
failed to present himself when ordered to do so by this Court.
Such action is explicitly covered by 18 U.S.C. § 401(3) which
authorizes criminal sanctions for "[d]isobedience or resistance
to [the Court's] lawful writ, process, order, rule, decree, or
command." See United States v. Martin, 525 F.2d 703 (2d Cir.
1975), cert. denied, 423 U.S. 1035, 96 S.Ct. 570, 46 L.Ed.2d
410 (1976); United States v. Snyder, 413 F.2d 288 (9th Cir.)
cert. denied, 396 U.S. 907, 90 S.Ct. 223, 24 L.Ed.2d 183
(1969); Yates v. United States, 316 F.2d 718 (4th Cir. 1963).
Jackson suggests that no purpose would be served by holding him
in contempt because the trial resulted in the conviction of Floyd
Head on the more serious charge contained in the indictment and
that his failure to testify did not prejudice the government.
Jackson's argument assumes that the only purpose of the contempt
powers is to induce a witness to testify. The court, however,
also has an interest in protecting its dignity and authority.
See United States v. Greyhound Corp., 370 F. Supp. 881, 883
(N.D.Ill.), aff'd, 508 F.2d 529 (7th Cir. 1974). When a
witness, deliberately and without excuse, makes himself
unavailable after having been called before the court, criminal
contempt is an appropriate means of furthering that interest.
United States v. Snyder, 413 F.2d 288 (9th Cir.), cert.
denied, 396 U.S. 907, 90 S.Ct. 223, 24 L.Ed.2d 183 (1969).
Accordingly, Jackson's motion to quash the government's motion
for a rule to ...