United States v. Hall

198 F.2d 726, 34 A.L.R. 2d 1088, 1952 U.S. App. LEXIS 3233

• Court: Court of Appeals for the Second Circuit
• Decided: August 28, 1952
• Docket: 22315_1
• Status: Published

Opinions

CLARK, Circuit Judge.

Respondent-appellant was convicted in the court below of conspiring to teach and advocate the overthrow of the government by force and violence, 18 U.S.C.A. § 2385, and, pending appeal from his conviction, was ordered released on bail by this court on November 3, 1949. On June 4, 1951, the Supreme Court affirmed his conviction, Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; and a proposed order on mandate requiring his appearance for surrender to the United States Marshal on July 2 was served upon counsel on June 28. Respondent did not appear on July 2, and attempts thereafter to execute a bench warrant at his stated address failed. He was apprehended on October 10, 1951, in Laredo, Texas.

The present proceeding was then commenced against him by affidavit and order to show cause served November 1, 1951. The charges specified criminal contempt of court in his being without the jurisdictions permitted in orders of Judge Bondy, dated November 10, 1949, and Judge Ryan, dated April 2, 1951, and in failing to surrender on July 2, 1951, as ordered by Judge Ryan on that date. Respondent was arraigned and pleaded not guilty, and the issues were tried without jury pursuant to Fed.Rules Crim.Proc., rule 42, 18 U.S.C.A. The district court dismissed the second count, but held respondent guilty on the first and third counts and sentenced him to three years’ imprisonment on each count, the terms to run concurrently. D.C.S.D. N.Y., 101 F.Supp. 666.

The power of the district courts and the courts of appeals to punish for contempt is stated in 18 U.S.C.A. § 401. Specifically such power may be exercised, at the court’s discretion, to punish “such contempt of its authority” as “Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C.A. § 401(3). See also 18 U.S.C.A. §§ 402, 3691. Respondent seeks, however, by an able and industrious appeal to historical authority, to interpolate by tradition an exception for disobedience to orders to reappear for sentence directed to one convicted for a crime and enlarged on bail pending appeal.

We may agree that the common law did not consider an absconding defendant in contempt of court. It appears that such penalty as was imposed stemmed from the doctrine of outlawry which, on defendant’s failure to appear at the fifth proclamation ■ — quinto exactus — in successive county courts, 4 Bl.Comm. 283, effected a forfeiture of all goods and chattels. The process was equally available in both civil and criminal proceedings. 4 Bl.Comm. 319. Apparently outlawry was imported into our criminal law with some early vigor,¹ but during the nineteenth century was either abolished or fell into disuse.² It was unknown on the civil side of the court,³ and of course today has only an historical interest.

Whatever, then, may have been the common-law punishment for bail jumping, respondent here stands convicted of willful disobedience of certain specific orders made by the district court. We need not now enter into a discussion of the source of the federal contempt power ;⁴ it is sufficient that the statute defines the acts toward which it may be directed.⁵ And since the offense charged falls clearly within the prescribed classes the only question that can arise is whether or not an exception is to be carved out, by an appeal to historical practices, for orders relating to personal, surrender for sentence following enlargement on bail. We think not; the written provision itself contains no such exception and we know of no case qualifying its general description of offenses. See Fletcher v. United States, 4 Cir., 174 F.2d 373, 376, certiorari denied 338 U.S. 851, 70 S.Ct. 82, 94 L.Ed. 521. Not long ago we refused to hold that the possibility of accusation and prosecution under a statute defining a crime offered or suggested “any immunity for violating the direct mandate of a court,” for “two different powers are involved, though the acts and events may be the same or interwoven.” United States v. Field, 2 Cir., 193 F.2d 92, 95, 96, certiorari denied 342 U.S. 894, 72 S.Ct. 202. To similar effect are 18 U.S.C.A. §§ 402 and 3691. We think it would be equally hampering to the authority and dignity of a federal court, thus supported by congressional authority, to read into the broad statutory grant an unexpressed limitation of the form here suggested.

We turn then to the specific counts. The first alleges a violation of Judge Bondy’s order of November 10,1949. This court, on November 2, 1949, had ordered the respondent’s release from custody .pending appeal upon the posting of a bond in the amount of $20,000. The bond was filed the next day and, in addition to the usual provisions for appearance and surrender for execution of sentence when required, was specifically conditioned that Hall “shall not depart the jurisdiction of the District Court of the United States for the Southern District of New York without leave.” Shortly thereafter respondent applied to Judge Bondy for permission to depart the jurisdiction in order to “take care of his affairs” at his home in the Northern District of Ohio, which was granted in an order quoted in pertinent parts in the footnote.⁶ As will be noted, this order recites the just-quoted condition of the bond and then, after granting the requested permission, subject to specified conditions (including return when ordered), provides that for any violation of the conditions the respondent’s bond shall be forfeited.

The court below read the order as incorporating the promises of the bond, including those to surrender for execution and not to depart the jurisdictions. We think this error, for we find no plain violation, considering the purposes for which the former was drawn, Terminal Railroad Association of St. Louis v. United States, 266 U.S. 17, 29, 45 S.Ct. 5,69 L.Ed. 150; and of course no contempt attaches merely to a failure to satisfy the guaranties of reappearance in the bond. A fair reading of the order discloses that it was directed to the enlargement of the respondent. The subordinate clauses which follow this directive are to be interpreted merely as setting out the purposes for which this enlargement was permitted — such as Hall’s journey to Qeveland — and its subsequent conditions, including the required approval of his surety. Moreover, the order plainly specifies its own sanction, namely, forfeiture of the bond. In view of this, to construe it as a direct mandate to return on penalty of conviction for contempt requires some little adjustment of phraseology which, to support a conviction of contempt, we think improper.

But the order of Judge Ryan of July 2, 1951, is not so equivocal; it required “that the defendants personally surrender to the United States Marshal for the Southern District of New York,” and the only question can be as to the sufficiency of the evidence supporting a finding that the defendant knowingly disobeyed. Under 18 U.S.C.A. § 401(3), there must be proof of the contemnor’s knowledge of the order, Kelton v. United States, 3 Cir., 294 F. 491, certiorari denied 264 U.S. 590, 44 S.Ct. 403, 68 L.Ed. 864; and the burden on the Government is a high one. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797; United States v. Dachis, D.C.S.D.N.Y., 36 F.2d 601; United States v. Univis Lens Co., D.C.S.D.N.Y., 88 F.Supp. 809.

The evidence adduced showed the following: Upon the Supreme Court’s affirmance of the conviction, a proposed order on mandate requiring surrender on July 2, 1951, at a specific time was served on Mr. Sacher, an attorney in the case, on June 28, 1951. The next day Mr. Sacher appeared before Judge Ryan in support of applications for orders to show cause why the sentences should not be reduced or, as to one of the defendants, suspended because of illness. Judge Ryan agreed to hear the applications on July 2, and Mr. Sacher stated: “You have my word that all of these defendants will be here at that .time.” By July 3, however, four had failed to appear and, upon Judge Ryan’s inquiry as to where he last saw these four, Mr. Sacher stated that he had seen them on Friday (June 29) at 35 East 12th Street. The court inquired: “Did you tell them at that time that their presence was required in court yesterday morning?” Mr. Sacher replied: “Definitely. As a matter of fact I advised that because I think I saw them among other defendants after I had been here on Friday, your Honor, and had made these motions, and therefore advised that they all should be present, and I was assured that they would be.”

There was further evidence, given by a person present, of a banquet in respondent’s honor at Cleveland' on June 24, 1951, where the remarks of respondent, as well as other speakers, showed full awareness that he was about to be imprisoned to serve his federal sentence. So early in the morning of June 30 he was observed to leave his New York apartment, carrying two suit cases and some suits on a hanger to an automobile, and to drive away. He then had light hair and a mustache, and was heavier in weight than at his trial. When he was apprehended three months later on the Mexican border his hair was dyed dark brown, his mustache had been removed and he weighed twenty pounds less. He did not take the stand.

Hence from the uncontroverted evidence it appeared that there was a specific order for his appearance, that this was directly communicated to him, and that he willfully and intentionally absconded two days before his ordered appearance. The only possible gap in the proof is the lack of complete and direct showing of his awareness of the purpose for which his court attendance was required. In vigorous and able argument, his counsel makes much of this and suggests in fact that counsel’s own explanation to the court indicates that he was told to be present to hear the arguments on the motions. The statement quoted above —'“and therefore advised that they all should be present” — is at best equivocal, but we need not look to this alone. Respondent, with a considerable legal sophistication born of long involvement, could hardly have arrived at the bizarre conclusion (under the circumstances) that he was wanted then only to hear lawyers’ talk; and his actions in furtively absconding show rather decisively that he was under no illusions as to his situation.

On this record, therefore, we think the court was eminently justified in finding as a fact that respondent had complete notice of the order and willfully disobeyed it.⁷ The inference not only was well within the area permitted to a trier of facts, but was indeed one highly reasonable if not compelled. However heavy the evidential burden on the prosecution here, it can hardly be held more exacting than the “proof beyond a reasonable doubt” of an ordinary criminal case before a jury. We have been often pressed, but have consistently refused, to apply this formula to each link in the chain of alleged events in order that if as to any the proof is not thus overwhelming there must be a reversal of a verdict of guilt. Instead we have said that the process of drawing inferences is to be governed, as ordinarily, by human experience, that indeed no other rule of jury fact finding has a claim to reality, and that the strict te-quirement as to burden of proof constitutes an over-all admonition or warning, rather than a precise yardstick to be applied to each isolable segment of the proof. United States v. Valenti, 2 Cir., 134 F.2d 362, 364, certiorari denied Valenti v. United States, .319 U.S. 761, 63 S.Ct. 1317, 87 L.Ed. 1712; Gariepy v. United States, 6 Cir., 189 F.2d 459, 462; United States v. Sherman, 2 Cir., 171 F.2d 619, 621; United States v. Spagnuolo, 2 Cir., 168 F.2d 768 and cases cited 770, certiorari denied Spagnuolo v. United States, 335 U.S. 824, 69 S.Ct. 48, 93 L.Ed. 378. There can be little doubt but that a jury would have been permitted to make the rational inference made below. We think that a court must not be restricted beyond a jury or compelled to remain blind to so clearly intentional a flouting of its command as was here shown.

We therefore reverse the finding of contempt of Judge Bondy's order of November 10, 1949, and affirm the finding of contempt of Judge Ryan’s order of July 2, 1951. Though the conviction necessarily is affirmed, since the sentences are to run concurrently, we have examined both issues for error against the event that respondent might apply to the district court’s discretion for a reduction of sentence under F.R.Cr. P., rule 35. See United States v. Field, 2 Cir., 193 F.2d 92, 97, and cases cited therein, certiorari denied Hammett v. United States, 342 U.S. 894, 72 S.Ct. 202.

Reversed as to the first count; affirmed as to the second count.

1 . Respublica v. Doan, Pa.Sup.Ct.1784, 1 Dall. 86, 1 U.S. 88, 1 L.Ed. 47, and see also Additional Appendix, Proceedings o£ the Supreme Executive Council of Pennsylvania, 1 L.Ed. 240, which speaks of outlawry as “those vindictive supplements to a severe code of jurisprudence”; Respublica v. Steele, Pa.Sup.Ct.1785, 2 Dall. 92, 2 U.S. 92, 1 L.Ed. 803; Commonwealth v. Hale, 2 Va.Cas. 241, 4 Va. 241; Commonwealth v. Hagerman, 2 Va.Cas. 244, 4 Va. 244; Commonwealth v. Anderson, 2 Va.Cas. 245, 4 Va. 245; Dale County v. Gunter, 46 Ala. 118, 138-140.

2 . See N.Y.Rev.Stat., Pt. IV, c. II, Tit. 7, § 20, p. 745, abolishing outlawry in New York save on indictment or conviction for treason, N. Y. Code of Criminal Procedure, §§ 814-825.

3 . Hall v. Lanning, 91 U.S. 160, 166, 23 L.Ed. 271; Magruder and Foster, Jurisdiction over Partnerships, 37 Harv.L.Rev. 793, 799.

4 . Generally labeled “inherent,” see inter alia United States v. Hudson, 7 Cranch 32, 11 U.S. 32, 3 L.Ed. 259; Michaelson v. U. S., ex rel. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162; United States v. Landes, 2 Cir., 97 F.2d 378; Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569. The recent denomination of 18 U.S.C.A. § 401 as “the statute which confers power on a federal court to punish for contempt,” Sacher v. United States, 343 U.S. 1, 6, 72 S.Ct. 451, 453, is perhaps a new turn in interpretative theory.

5 . “The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this .power. But the power has been limited and defined by the act of Congress of March 2d, 1831. The act, in terms, applies to all courts; whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. Those courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the eases in which summary punishment for contempts may be inflicted.” Ex parte Robinson, 19 Wall. 505, 510, 86 U.S. 505, 22 L.Ed. 205. See also Morgan v. United States, 8 Cir., 95 F.2d 830; Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107, 122 A.L.R. 1341, certiorari dismissed 308 U.S. 629, 60 S.Ct. 297, 84 L.Ed. 525; In re Gottman, 2 Cir., 118 F.2d 425; Frankfurter and Landis, Power of Congress over Procedure in Criminal Contempts in “Inferior” Federal Courts — A Study in Separation of Powers, 37 Harv.L.Rev. 1010.

6 . “It appearing that Gus Hall, Carl Winter, Gilbert Green, Robert G. Thompson, and John Gates are defendants-appellants in the above entitled case and presently under bond in the sum of $20,000.00 each pending appeal from their convictions, which bond inter alia is conditioned upon each of said defendants-appellants remaining within the jurisdiction of the Southern District of New York, and it further appearing that each of said defendants-appellants resides outside the Southern District of New York and is desirous of returning to the Federal District in which his home is located * * * to be with his family and to take care of his affairs, it is hereby

“Ordered that each of said defendants-appellants, Gus Hall, Carl Winter, Gilbert Green, Robert G. Thompson and John Gates is hereby given permission to depart from the Southern District of New York upon the following express conditions and subject in all other respects to the conditions of the bonds aforesaid: That he may depart from the Southern District of New York and go to the Federal District in which his home is located to be with his family and attend to his affairs temporarily; that he will return to the Southern District of New York whenever ordered by this Court so to do; that in case he removes from his present home or changes his address, he shall forthwith inform the United States Attorney for the Southern District of New York to that effect; that Robert W. Dunn, who executed the bail bond for each of the defendants-appellants hereinabove named, shall give his written consent to the making-and entry of this order; and that Robert W. Dunn, Frederick V. Field, Dashiell Hammett, W. Alphaeus Hunton and Abner Green, Trustees of the Bail Fund of the Civil Rights Congress of New York, shall give their written consent to the making and entry of this order, and it is further “Ordered that for any violation of any of the conditions hereinabove named by any of said defendants-appellants the bond of such defendant-appellant shall be forfeited.”

7 . That this was a notice to appear for the order of commitment, rather than that order itself, raises no question; the notice, too, formed part of the court’s command. See Pettibone v. United States, 148 U.S. 197, 206,13 S.Ct. 542, 37 L.Ed. 419.