United States v. Di Mauro
In United States v. Di Mauro, 441 F.2d 428 (8th Cir.1971), the government requested that the trial court find the defendants in civil contempt, or alternatively, cite them for criminal contempt after defendants refused to testify before the grand jury.
The court specifically rejected the civil contempt alternative because of the severity of the defendants' conduct.
Consequently, the court directed the government to file an information against the defendants
Defendants were subsequently convicted of criminal contempt by a jury.
On appeal, the Eighth Circuit considered their Shillitani argument (Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966)), and concluded that Shillitani "merely requires that the trial court expressly consider the imposition of civil contempt before resorting to criminal contempt and that the record reveal that the civil alternative was considered and rejected. 441 F.2d at 435.
In DiMauro, contrary to the case before us, the trial court, and not the grand jury, initiated the criminal contempt charges. Thus, Shillitani required consideration of civil contempt although the court concluded that criminal sanctions could first be imposed so long as "those sanctions are surrounded by the safeguards of an ordinary criminal proceeding." Id. at 433.