Union, United Mine Workers v. Bagwell, 129 L. Ed. 2d 642, U.S. , 114 S. Ct. 2552, 2556-57.
Criminal contempt, however, "is a crime in the ordinary sense, and criminal penalties may not be imposed on someone who has not been afforded the protections the Constitution requires of such criminal proceedings." Id. For serious criminal contempts, i.e., involving imprisonment of more than six months, those protections include the right to trial by jury. Id.; Bloom v. Illinois, 391 U.S. 194, 199, 20 L. Ed. 2d 522, 88 S. Ct. 1477 (1968).
As noted by the Supreme Court, however, although the procedural contours of the two prongs of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear, and the stated purpose of a contempt sanction alone cannot be determinative of the label (and, consequently, the procedural safeguards) to be applied. Id.; Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 55 L. Ed. 797, 31 S. Ct. 492 (1911). Most contempt sanctions, like most criminal punishments, to some extent punish a prior offense as well as coerce an offender's future obedience. Clearly, however, when a contempt sanction involves the prior conduct of an isolated, prohibited act, the resulting sanction has no coercive effect. "The defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense." Gompers, 221 U.S. at 442.
Such is the case here. The alleged offenses, subornation of perjury and, perhaps, the submission of perjured testimony to the court are both crimes independent of a contempt proceedings, 18 U.S.C. §§ 1622, 1623, and if true, no sanction that the court could impose could change the fact that the acts have been committed. The court concludes, therefore, that the petition for a rule to show cause alleges criminal contempt, at least in part, and will treat the matter as such. Accordingly, based on the evidentiary hearing, the court must decide whether to refer the matter to the United States Attorney for prosecution, pursuant to Fed. R. Crim. P. 42(b).
Plaintiffs' counsel argues that the court should deny the petition for rule to show cause and decline to refer this matter for prosecution. Plaintiffs claim that Motill and Messina were motivated to lie by their dislike for Kocsak, and by Messina's racism. (There is conflicting testimony as to the latter.) Plaintiffs also claim that because of Messina's alleged violation of the terms of his probation, he may be seeking to curry favor with the Tinley Park police by providing useful testimony in this case discrediting Wilson and Kocsak.
Unfortunately for plaintiffs and their counsel, these arguments are not persuasive. First, while there is no doubt hostility between Motill and Messina, on one hand, and Kocsak on the other, due to Kocsak's alleged mistreatment of Motill and the "disgusting" video tape, Motill has apparently taken appropriate steps by filing a criminal complaint against Kocsak and essentially ejecting him from her and Messina's lives. With respect to any alleged motive by Messina to do a favor for the Tinley Park police, the court notes that although there does not seem to be any love lost between them, by coming forward at this time Messina exposed his move to Indiana (the alleged basis for the probation violation) to the Tinley Park police in a manner that would likely never have come to light had he not stepped forward. It should also be noted that according to Messina's probation officer (called by plaintiffs as a witness), Messina's probation was terminated satisfactorily, and that Vaccaro knew nothing about the move to Indiana until Messina came forward to give his testimony in the contempt proceedings. Finally, the court notes that it was plaintiffs and plaintiffs' counsel who tendered Mr. Kocsak, who Mr. Gordon admits is a non-credible perjurer, as a witness in this case; they cannot now totally disown him.
The court must conclude, particularly in light of its determination that Motill's testimony was generally credible, that there is a sufficient factual basis that demands further investigation. If nothing else is clear concerning this matter, there is one inescapable, disturbing, truth: someone is lying in the worst possible manner to the court, either in an affidavit, a deposition, in open court, or in all three.
Accordingly, it is hereby ordered:
1. Pursuant to Fed. R. Crim. P. 42(b), the court refers this matter to the United States Attorney for investigation and possible prosecution of criminal contempt.
2. The court strikes Kocsak's affidavit and deposition testimony with respect to any decision on the merits of this case.
3. The court will hold in abeyance any sanctions based upon Fed. R. Civ. P. 11, abuse of discovery or violations of the discovery rules until the investigation by the United States Attorney, including any potential criminal or civil proceedings, is complete.
4. The court will resume consideration of the objections to Magistrate Judge's Bobrick's report and recommendation, and will rule by mail.
ENTER: April 19, 1995
Robert W. Gettleman
United States District Judge