## Facts

- Morris Simkin pled guilty to possessing with intent to distribute cocaine under 21 U.S.C. § 841(a)(1) and, despite prosecutorial assurances that cooperation could reduce sentencing exposure, refused to identify suppliers and customers, citing fear of retaliation and opposition to informing.
- Simkin was sentenced to three years’ imprisonment (suspended after six months), five years’ probation, and a three-year special parole term; he began serving the committed portion in July 1982.
- Shortly before his scheduled release, Simkin was subpoenaed before a federal grand jury investigating narcotics activity, granted use immunity under 18 U.S.C. § 6002, and again refused to testify on the same grounds.
- The district court held Simkin in civil contempt under 28 U.S.C. § 1826 and ordered confinement until he testified or until the grand jury term ended, subject to the statutory 18-month maximum.
- Simkin filed four motions seeking termination of the contempt confinement, arguing his refusal was irrevocable and that continued confinement was no longer coercive; the district court denied each motion.
- Simkin appealed from the order denying his fourth motion, contending the court effectively treated the 18-month period as a default term rather than applying an individualized assessment.

## Issues

1. Under 28 U.S.C. § 1826, when must a court terminate civil-contempt confinement of a recalcitrant grand-jury witness before the 18-month maximum because continued confinement has lost coercive effect and become punitive?
2. What standard must a district court apply in deciding whether continued confinement retains a realistic possibility of coercing testimony?

## Decision

- The Second Circuit held that termination of § 1826 confinement requires an individualized, predictive, discretionary determination of whether continued incarceration has a realistic coercive potential as to the particular witness.
- The court rejected treating the statutory 18-month cap as an automatic or presumptive confinement term.
- Because the record reflected ambiguity as to whether the district court applied the correct individualized standard, the court remanded for further consideration rather than ordering release or affirming.

## Legal Principles

- Civil-contempt confinement under 28 U.S.C. § 1826 is lawful only while it serves a coercive purpose; once it becomes purely punitive, continued confinement is improper.
- The 18-month period in § 1826 is a maximum limit, not a default term; courts may order earlier release if coercion is no longer realistic.
- Determining whether confinement remains coercive requires an individualized assessment of the contemnor’s circumstances and motivations (including credible fear of reprisal or conscience-based objections) and a realistic prediction whether additional confinement is likely to induce testimony.
- A district court must exercise discretion on periodic release motions and may not rely on a rigid practice of keeping contemnors confined until near the statutory maximum.

## Conclusion

The Second Circuit required district courts to make a witness-specific, forward-looking judgment about whether continued civil-contempt confinement is still likely to coerce testimony, and remanded because it was unclear the district court applied that standard rather than treating the 18-month cap as the usual term.


Simkin v. United States, 715 F.2d 34 (2d Cir. 1983)