Green v. United States (356 U.S. 165)/Opinion of the Court
| Green v. United States (356 U.S. 165) by
Opinion of the Court
United States Supreme Court
GREEN v. UNITED STATES (356 U.S. 165)
Argued: Oct. 21, 1957. --- Decided: March 31, 1958
Petitioners are two of eleven defendants who were convicted in the Southern District of New York in 1949 of conspiring to teach and advocate the violent overthrow of the Government in violation of the Smith Act, 54 Stat. 670, 671, 18 U.S.C. §§ 371, 2385, 18 U.S.C.A. §§ 371, 2385. Their convictions, each carrying a $10,000 fine and five years' imprisonment, were affirmed by this Court on June 4, 1951, in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. After their convictions, petitioners had been enlarged on bail, and following the affirmance, the United States Attorney served counsel for the petitioners on June 28, 1951, with copies of a proposed order on mandate requiring petitioners to surrender to the United States Marshal on July 2 for the execution of their sentences, and with a notice that such order would be presented to the District Court for signature on the indicated day of surrender. Petitioners were thereupon informed by their counsel that their presence in court would be required on July 2. Both, however, disappeared from their homes, failed to appear in court when the surrender order was signed on July 2, and remained fugitives for more than four and a half years. Ultimately both voluntarily surrendered to the United States Marshal in New York, Green on February 27, 1956, and Winston on March 5, 1956.
Shortly thereafter, the United States instituted criminal contempt proceedings against the petitioners in the District Court for willful disobedience of the surrender order in violation of 18 U.S.C. § 401, 18 U.S.C.A. § 401 (see 78 S.Ct. at page 635, infra). Pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., these proceedings were tried to the court without a jury.  Following a hearing, the court found petitioners guilty of the contempts charged and sentenced each to three years' imprisonment to commence after service of the five-year sentences imposed in the conspiracy case. See 140 F.Supp. 117 (opinion as to Green). The Court of Appeals affirmed, 2 Cir., 241 F.2d 631, and we granted certiorari because the case presented important issues relating to the scope of the power of federal district courts to convict and sentence for criminal contempts. 353 U.S. 972, 77 S.Ct. 1057, 1 L.Ed.2d 1135.
The petitioners urge four grounds for reversal, namely: (1) the criminal contempt power of federal courts does not extend to surrender orders; (2) even if such power exists, the evidence was insufficient to support the judgments of contempt; (3) a prison sentence for criminal contempt cannot, as a matter of law, exceed one year; and (4) in any event the three-year sentences imposed were so excessive as to constitute an abuse of discretion on the part of the District Court. For the reasons given hereafter we think that none of these contentions can be sustained, and that the judgment of the Court of Appeals must be upheld.
'* * * shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-
'(3) Disobedience or resistance to its lawful * * * order * * *.' Since the order here issued was beyond dispute 'lawful,' § 401 plainly empowered the District Court to punish petitioners for disobeying it unless, as petitioners claim, this order is outside the scope of subdivision (3). This claim rests on the argument that the statute, viewed in its historical context, does not embrace an order requiring the surrender of a bailed defendant.
An evaluation of this argument requires an analysis of the course of development of federal statutes relating to criminal contempts. The first statute bearing on the contempt powers of federal courts was enacted as § 17 of the Judiciary Act of 1789, 1 Stat. 73, 83. It stated that federal courts 'shall have power to * * * punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same * * *.' The generality of this language suggests that § 17 was intended to do no more than expressly attribute to the federal judiciary those powers to punish for contempt possessed by English courts at common law. Indeed, this Court has itself stated that under § 17 the definition of contempts and the procedure for their trial were 'left to be determined according to such established rules and principles of the common law as were applicable to our situation.' Ex parte Savin, 131 U.S. 267, 275 276, 9 S.Ct. 699, 701, 33 L.Ed. 150.  At English common law disobedience of a writ under the King's seal was early treated as a contempt, 4 Blackstone Commentaries 284, 285; Beale, Contempt of Court, 21 Harv.L.Rev. 161, 164-167; Fox, The Summary Process to Punish Contempt, 25 L.Q.Rev. 238, 249, and over the centuries English courts came to use the King's seal as a matter of course as a means of making effective their own process. Beale, at 167. It follows that under the Judiciary Act of 1789 the contempt powers of the federal courts comprehended the power to punish violations of their own orders. 
So much the petitioners recognize. They point out, however, that, at early English law, courts dealt with absconding defendants not by way of contempt, but under the ancient doctrine of outlawry, a practice whereby the defendant was summoned by proclamation to five successive county courts and, for failure to appear, was declared forfeited of all his goods and chattels. 4 Blackstone Commentaries 283, 319. In view of this distinct method at English common law of punishing refusal to respond to this summons, which was the equivalent of the present surrender order, petitioners argue that § 17 of the Judiciary Act of 1789, incorporating English practice, did not reach to a surrender order, and that the unique status of such an order subsisted under all statutory successors to § 17, including § 401(3) of the existing contempt statute.
We find these arguments unconvincing. The reasons for the early English practice of proceeding against absconding defendants by way of outlawry rather than by contempt are obscure. It may have been that outlawry was resorted to because absconding was regarded so seriously as to require the drastic penalties of outlawry rather than fine or imprisonment. But whatever the reasons may have been, the fact that English courts adhered to the practice of dealing with such cases by outlawry should not obscure the general principle that they had power to treat willful disobedience of their orders as contempts of court. It is significant that, so far as we know, the severe remedy of outlawry, which fell into early disuse in the state courts, was never known to the federal law. See United States v. Hall, 2 Cir., 198 F.2d 726, 727-728. Its unavailability to federal courts, and the absence of any other sanctions for the disobedience of surrender orders, are in themselves factors which point away from the conclusion that the kind of power traditionally used to assure respect for a court's process should be found wanting in this one instance.
The subsequent development of the federal contempt power lends no support to the petitioners' position, for the significance of the Act of 1831, 4 Stat. 487, 488, lies quite in the opposite direction. Sentiment for passage of that Act arose out of the impeachment proceedings instituted against Judge James H. Peck because of his conviction and punishment for criminal contempt of a lawyer who had published an article critical of a decision of the judge then on appeal. Although it is true that the Act marks the first congressional step to curtail the contempt powers of the federal courts, the important thing to note is that the area of curtailment related not to punishment for disobedience of court orders but to punishment for conduct of the kind that had provoked Judge Peck's controversial action. As to such conduct, the 1831 Act confined the summary power of punishment to '* * * misbehaviour of any person * * * in the presence of the * * * courts, or so near thereto as to obstruct the administration of justice * * *.' The cases in this Court which have curbed the exercise of the contempt power by federal courts have concerned this clause, as found in statutory successors to the Act of 1831 including subdivision (1) of present 18 U.S.C. § 401, 18 U.S.C.A. § 401, or a further clause in the Act and its successors dealing with misbehavior of court 'officers,' now found in subdivision (2) of § 401. 
In contrast to the judicial restrictions imposed on the contempt power exercisable under the clauses now found in subdivisions (1) and (2) of § 401, we find no case suggesting that subdivision (3) of § 401, before us here, is open to any but its obvious meaning. This clause also finds its statutory source in the Act of 1831, which first made explicit the authority of federal courts to punish for conduct of the kind involved in this case by providing that the contempt power should extend to '* * * disobedience or resistance * * * to any lawful writ, process, order, rule, decree, or command * * *' of a federal court. Particularly in the basence of any showing that the old practice of outlawry was ever brought to the attention to Congress, there is no warrant for engrafting upon this unambiguous clause a dubious exception to the English contempt power stemming from this practice. Although the 1831 Act no doubt incorporated many of the concepts of the English common law, its legislative history indicates that Congress sought to define independently the contempt powers of federal courts rather than to have the Act simply reflect all the oddities of early English practice. The House Committee which reported the bill had been directed 'to inquire into the expediency of defining by statute all offences which may be punished as contempts of * * *' federal courts. 7 Cong.Deb., 21st Cong., 2d Sess. (Gale's & Seaton's Reg.), pp. 560 561. (Italics added.) See Frankfurter and Landis, Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1024-1028.
Entirely apart from the historical argument, there are no reasons of policy suggesting a need for limitation of the contempt power in this situation. As the present cases evidence, the issuance of a bench warrant and the forfeiture of bail following flight have generally proved inadequate to dissuade defendants from defying court orders. See Willoughby (1929), Principles of Judicial Administration, 561-566. At the time these contempts were committed bail-jumping itself was not a criminal offense, and considerations in past decisions limiting the scope of the contempt power where the conduct deemed to constitute a contempt was also punishable as a substantive crime are not here relevant. Cf. Ex parte Hudgings, 249 U.S. 378, 382, 39 S.Ct. 337, 339, 63 L.Ed. 656. There is small justification for permitting a defendant the assurance that his only risk in disobeying a surrender order is the forfeiture of a known sum of money, particularly when such forfeiture may result in injury only to a bail surety.
It may be true, as petitioners state, that this case and those of the other absconding Dennis defendants, United States v. Thompson, 2 Cir., 214 F.2d 545; United States v. Hall, 2 Cir., 198 F.2d 726, provide the first instances where a federal court has exercised the contempt power for disobedience of a surrender order. But the power to punish for willful disobedience of a court order, once found to exist, cannot be said to have atrophied by disuse in this particular instance. Indeed, when Congress in 1954 made bail-jumping a crime in 18 U.S.C. § 3146, 18 U.S.C.A. § 3146, it expressly preserved the contempt power in this very situation. We find support in neither history nor policy to carve out so singular an exception from the clear meaning of § 401(3).
Petitioners contend that the evidence was insufficient to support their contempt convictions, in that it failed to establish beyond a reasonable doubt their knowledge of the existence of the surrender order. The Court of Appeals did not address itself to this contention, considering the issue foreclosed by its prior decisions in the Thompson and Hall cases, supra, where the evidence as to those other two Dennis defendants who were convicted of similar criminal contempts was identical with that involved here, except as to the circumstances of their ultimate apprehension.
In this Court, petitioners interpret the District Court's opinion to rest the contempt convictions on alternative theories: (a) that the petitioners had actual knowledge of the issuance of the July 2 surrender order, or (b) that they at least had notice of its prospective issuance and hence were chargeable with knowledge that it was in fact issued. But we find no such dual aspect to the District Court's decision, which rested solely on findings that, beyond a reasonable doubt, Green 'knowingly disobeyed' the surrender order and Winston absented himself 'with knowledge' of the order. Since we are satisfied that the record supports these findings, we need not consider whether mere notice of the prospective issuance of the order, cf. Pettibone v. United States, 148 U.S. 197, 206-207, 13 S.Ct. 542, 546, 37 L.Ed. 419, would be sufficient to sustain these convictions on the theory that petitioners were chargeable as a matter of law with notice that it was later issued.
The evidence for the Government, there being none offered by the defense, related to three time intervals: (1) the period up to June 28, 1951; (2) the four-day interval between June 28, when the proposed surrender order was served on counsel with the notice of settlement, and July 2, when the surrender order was signed; and (3) the period ending with the surrender of the petitioners February 27, 1956, in the case of Green, and March 5, 1956, in the case of Winston.
1. The judgments of conviction upon the conspiracy indictment under the Smith Act were entered, and the petitioners were sentenced, on October 21, 1949. On November 2, 1949, the Court of Appeals admitted the petitioners to bail pending appeal upon separate recognizances, signed by each petitioner on November 3, by which each undertook, among other things, to
'surrender himself in execution of the judgment and sentence appealed from upon such day as the District Court of the United States for the Southern District of New York may direct, if the judgment and sentence appealed from shall be affirmed * * *.' (Italics added.)
Following the Court of Appeals' affirmance of the conspiracy convictions on August 1, 1950, United States v. Dennis, 2 Cir., 183 F.2d 201, Mr. Justice Jackson, as Circuit Justice, continued petitioners' bail on September 25, 1950, pending review of the convictions by this Court. Williamson v. United States, 2 Cir., 184 F.2d 280. This Court, as noted above, affirmed the conspiracy convictions on June 4, 1951, and on June 22, 1951, Mr. Justice Jackson denied a stay of the Court's mandate.
2. On Thursday, June 28, 1951, one of the counsel in the Dennis case accepted service on behalf of all the defendants, including petitioners, of a proposed order on mandate requiring the defendants to 'personally surrender to the United States Marshal for the Southern District of New York * * * on the 2nd day of July, 1951, at 11:05' a.m., together with a notice stating that the proposed order would be presented to the District Court 'for settlement and signature' at 10 a.m. on that day.  It appears from the testimony of this same counsel and another Dennis counsel that on the following day, Friday, June 29, an unsuccessful request was made to the United States Attorney and the District Court to postpone the defendants' surrender until after the July 4 holiday; that on the same day these lawyers told the petitioners and the other Dennis defendants that they must be in court on Monday, July 2; and that petitioners assured counsel of their appearance on that day.  On July 2 all of the Dennis defendants surrendered, except the two petitioners, and Hall and Thompson. The surrender order was signed, bench warrants were issued for the arrest of these four, and the proceedings were adjourned to the following day, July 3.
3. On July 3 the names of the petitioners were called again in open court, and after interrogating counsel as to their disappearance (see note 6, supra), the court declared their bail forfeited. The petitioners remained in hiding until their eventual surrender, some four and a half years later. Prior to their respective surrenders in February and March, 1956, Green and Winston issued press releases announcing their intention to surrender and 'enter prison.'  When he turned up on the steps of the courthouse, Green also responded to certain questions put by reporters and stated, among other things, that he intended 'to go to the United States Marshal's office,' this being a requirement found only in the surrender order itself. Winston made a similar statement in his press release.
In summary, one day after counsel was served on June 28 with the proposed order calling for petitioners' surrender on July 2, together with the notice stating that the order would also be presented for the court's signature on that day, petitioners were unequivocally notified by counsel that their presence in court was required on July 2. From these undisputed facts, coupled with petitioners' disappearance, it was certainly permissible for the District Court to infer that petitioners knew of the proposed surrender order, of the failure of counsel's efforts on June 29 to postpone the surrender date, and of the court's intention to sign the order on July 2. We need not decide whether these facts alone would sustain the finding that petitioners knew of the issuance of the surrender order on July 2 as planned, for unquestionably as background they furnished significant support for the District Court's ultimate finding that petitioners' statements to the press at the time of their eventual surrender in 1956 (see note 7, supra) indicated their knowledge of the issuance of the order, a finding strengthened by the fact that the recognizance admitting the petitioners to bail obligated petitioners to surrender for service of sentence only when so directed by the District Court.
No doubt some of this evidence lent itself to conflicting inferences, but those favorable to the petitioners were, in our view, not of such strength as to compel the trier of the facts to reject alternative unfavorable inferences. Our duty as an appellate court is to assess the evidence as a whole under the rigorous standards governing criminal trials, rather than to test by those standards each item of evidence relied on by the District Court. 9 Wigmore, Evidence (3d ed. 1940), § 2497; 1 Wharton, Criminal Evidence (12th ed. 1955), § 16. So viewing the entire record, we think the District Court was justified in finding that the evidence established, beyond a reasonable doubt, petitioners' knowing violations of the surrender order.
We deal here with petitioners' claim that the District Court was without power to sentence them to imprisonment for more than one year.
Section 17 of the Judiciary Act of 1789 confirmed the power of federal courts '* * * to punish by fine or imprisonment, at the discretion of said courts * * *' certain contempts. The Act of 1831 simply referred to the power to 'inflict summary punishments,' and present § 401 contains substantially the above language of the Act of 1789. Petitioners contend that despite the provision for 'discretion,' the power to punish under § 401 is limited to one year by certain sections of the Clayton Act of 1914, 38 Stat. 730, 738-740, 15 U.S.C.A. § 12 et seq. In any event, we are urged to read such a limitation into § 401 in order to avoid constitutional difficulties which, it is said, would otherwise confront us.
We turn first to the argument based on the Clayton Act. Sections 21 and 22 of that Act provided that certain rights not traditionally accorded persons charged with contempt, notably the right to trial by jury, should be granted in certain classes of criminal contempts, and that persons tried under these procedures were not subject to a fine of more than $1,000 or imprisonment for longer than six months.  Section 24 of the Act made these provisions inapplicable to other categories of contempts, including the contempt for which the petitioners here have been convicted,  and provided that such excluded categories of contempts were to be punished 'in conformity to the usages at law and in equity now prevailing.' (Italics added.) In the re-codification of 1948 the foregoing provisions of the Clayton Act were substantially re-enacted in § 402  of the present contempt statute, and the above-quoted clause now reads: 'in conformity to the prevailing usages at law.'
Petitioners' argument is that the purpose and effect of the 'usages * * * now prevailing' language of § 24 of the Clayton Act was to freeze into federal contempt law the sentencing practices of federal courts, which up to that time appear never to have imposed a contempt sentence of more than one year.  These practices, suggest petitioners, reflect the unarticulated belief of federal courts that criminal contempts are not infamous crimes and hence not subject to punishment by imprisonment for over one year;  this belief is said to derive from the constitutional considerations to which we shortly turn. In view of this suggested effect of § 24, petitioners would have us read the 'discretion' vested in federal courts by § 401 as referring exclusively to the choice between sentencing to fine or imprisonment, or in any event as subject to the unexpressed limitation of one year's imprisonment.
Particularly in the context of the rest of the Clayton Act of 1914 we cannot read the 'usages * * * now prevailing' clause of § 24 as incorporating into the statute the sentencing practices up to that date. In § 22 the statute specifically restricts to six months the maximum term of imprisonment which may be imposed for commission of any of the contempts described in § 21. Had Congress also intended to restrict the term of imprisonment for contempts excluded from the operation of the Act by § 24, it is difficult to understand why it did not make explicit its intention, as it did in § 22, rather than so subtly express its purpose by proceeding in the devious manner attributed to it by the petitioners. Further, there is no evidence that the past sentencing practices of the courts were ever brought to the attention of Congress. That the federal courts themselves have not considered their sentencing power to be restricted by § 24 of the Clayton Act or by § 402 of the present contempt statute is indicated by the fact that in at least nine cases subsequent to 1914, contempt convictions carrying sentences of more than one year have been affirmed by four different Courts of Appeals and on one occasion by this Court. 
Such of the legislative history as is germane here argues against the petitioners and strengthens our conclusions that the 'usages * * * now prevailing' clause of § 24 of the Clayton Act did no more than emphasize that contempts other than those specified in § 21 were to be tried under familiar contempt procedures, that is, among other things, by the court rather than a jury. The House Report accompanying the bill which was substantially enacted as §§ 21, 22 and 24 of the Clayton Act referred to the provisions later forming these sections as dealing '* * * entirely with questions of Federal procedure relating to injunctions and contempts committed without the presence of the court.' H.R.Rep.No. 627, 63d Cong., 2d Sess. 21. There is no evidence of a broader purpose to enact so substantial a rule of substantive law encompassing all criminal contempts.
We are nevertheless urged to read into § 401 a one-year limitation on the sentencing power in order to avoid constitutional issues which the petitioners deem present in the absence of such a restriction. But in view of what we have shown, the section's provision that a federal court may punish 'at its discretion' the enumerated classes of contempts cannot reasonably be read to allow a court merely the choice between fines and imprisonment. We think the Court of Appeals correctly said: 'The phrase 'at its discretion,' does not mean that the court must choose between fine and imprisonment; the word 'or,' itself provides as much and the words, if so construed, would have been redundant. The term of imprisonment is to be as much in the court's discretion as the fine.' 241 F.2d at page 634.
We therefore turn to petitioners' constitutional arguments. The claim is that proceedings for criminal contempts, if contempts are subject to prison terms of more than one year, must be based on grand jury indictments under the clause of the Fifth Amendment providing: 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *.' (Italics added.) Since an 'infamous crime' within the meaning of the Amendment is one punishable by imprisonment in a penitentiary, Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909, and since imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year, 18 U.S.C. § 4083, 18 U.S.C.A. § 4083, petitioners assert that criminal contempts if subject to such punishment are infamous crimes under the Amendment.
But this assertion cannot be considered in isolation from the general status of contempts under the Constitution, whether subject to 'infamous' punishment or not. The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right.  Although appearing to recognize this, petitioners nevertheless point out that punishment for criminal contempts cannot in any practical sense be distinguished from punishment for substantive crimes, see Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115, and that contempt proceedings have traditionally been surrounded with many of the protections available in a criminal trial.  But this Court has never suggested that such protections included the right to grand jury indictment. Cf. Ex parte Savin, 131 U.S. 267, 278, 9 S.Ct. 699, 702, 33 L.Ed. 150; Gompers v. United States, supra, 233 U.S. at page 612, 34 S.Ct. at page 696. And of course the summary procedures followed by English courts prior to adoption of the Constitution in dealing with many contempts of court did not embrace the use of either grand or petit jury. See 4 Blackstone Commentaries 283-287. It would indeed be anomalous to conclude that contempts subject to sentences of imprisonment for over one year are 'infamous crimes' under the Fifth Amendment although they are neither 'crimes' nor 'criminal prosecutions' for the purpose of jury trial within the meaning of Art. III, § 2,  and the Sixth Amendment. 
We are told however that the decision of this Court denying the right to jury trial in criminal contempt proceedings are based upon an 'historical error' reflecting a misunderstanding as to the scope of the power of English courts at the early common law to try summarily for contempts, and that this error should not here to extended to a denial of the right to grand jury. But the more recent historical research into English contempt practices predating the adoption of our Constitution reveals no such clear error and indicates if anything that the precise nature of those practices is shrouded in much obscurity. And whatever the breadth of the historical error said by contemporary scholarship to have been committed by English courts of the late Seventeenth and Eighteenth Centuries in their interpretation of English precedents involving the trials of contempts of court, it at least seems clear that English practice by the early Eighteenth Century comprehended the use of summary powers of conviction by courts to punish for a variety of contempts committed within and outside court.  Such indeed is the statement of English law of 356 U.S. 184, 78 S.Ct. 643, who explicitly recognized use of a summary power by English courts to deal with disobedience of court process. It is noteworthy that the Judiciary Act of 1789, first attempting a definition of the contempt power, was enacted by a Congress with a Judiciary Committee including members of the recent Constitutional Convention, who no doubt shared the prevailing views in the American Colonies of English law as expressed in Blackstone. See Ex parte Burr, 4 Fed.Cas. pages 791, 797, No. 2,186. Against this historical background, this Court has never deviated from the view that the constitutional guarantee of trial by jury for 'crimes' and 'criminal prosecutions' was not intended to reach to criminal contempts. And indeed beginning with the Judiciary Act of 1789, Congress has consistently preserved the summary nature of the contempt power in the Act of 1831 and its statutory successors, departing from this traditional notion only in specific instances where it has provided for jury trial for certain categories of contempt. 
We do not write upon a clean slate. The principle that criminal contempts of court are not required to be tried by a jury under Article III or the Sixth Amendment is firmly rooted in our traditions. Indeed, the petitioners themselves have not contended that they were entitled to a jury trial. By the same token it is clear that criminal contempts, although subject, as we have held, to sentences of imprisonment exceeding one year, need not be prosecuted by indictment under the Fifth Amendment. In various respects, such as the absence of a statutory limitation of the amount of a fine or the length of a prison sentence which may be imposed for their commission, criminal contempts have always differed from the usual statutory crime under federal law. As to trial by jury and indictment by grand jury, they possess a unique character under the Constitution. 
Petitioners contend that the three-year sentences imposed upon them constituted an abuse of discretion on the part of the District Court.
We take this occasion to reiterate our view that in the areas where Congress has not seen fit to impose limitations on the sentencing power for contempts the district courts have a special duty to exercise such an extraordinary power with the utmost sense of responsibility and circumspection. The 'discretion' to punish vested in the District Courts by § 401 is not an unbridled discretion. Appellate courts have here a special responsibility for determining that the power is not abused, to be exercised if necessary by revising themselves the sentences imposed. This Court has in past cases taken pains to emphasize its concern with the use to which the sentencing power has occasionally been put, both by remanding for reconsideration of contempt sentences in light of factors it deemed important, see Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415, and by itself modifying such sentences. See United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884. The answer to those who see in the contempt power a potential instrument of oppression lies in assurance of its careful use and supervision, not in imposition of artificial limitations on the power.
It is in this light that we have considered the claim that the sentences here were so excessive as to amount to an abuse of discretion. We are led to reject the claim under the facts of this case for three reasons. First, the contempt here was by any standards a most egregious one. Petitioners had been accorded a fair trial on the conspiracy charges against them and had been granted bail pending review of their convictions by the Court of Appeals and this Court. Nevertheless they absconded, and over four and a half years of hiding culminated not in a belated recognition of the authority of the court, but in petitioners' reassertion of justification for disobeying the surrender order. Second, comparing these sentences with those imposed on the other fugitives in the Dennis case, the sentences here are shorter by a year than that upheld in the Thompson case, and no longer than that inflicted in the Hall case. It is true that Hall and Thompson were apprehended, but the record shows that the District Court took into account the fact that the surrender of these petitioners was voluntary; there is the further factor that the period during which petitioners remained fugitives was longer than that in either the Hall or Thompson case. Third, the sentences were well within the maximum fiveyear imprisonment for bail-jumping provided now by 18 U.S.C. § 3146, 18 U.S.C.A. § 3146, a statute in which Congress saw fit expressly to preserve the contempt power without enacting any limitation on contempt sentences.
In these circumstances we cannot say that the sentences imposed were beyond the bounds of the reasonable exercise of the District Court's discretion.
^1 This Rule provides that criminal contempts other than those committed in the actual presence of the court and seen or heard by the court shall be prosecuted on notice. Notice may be given, as in the present case, by an order to show cause. The Rule states that a defendant is entitled to trial by jury if an Act of Congress so provides. See note 19, infra.
^2 The debates conducted in 1830-1831 by leading counsel of that period during the impeachment proceedings against Judge James H. Peck, see 356 U.S. 171, 78 S.Ct. at page 636, infra, contained discussions of the Act of 1789, and the limitations to be imposed upon it, which were cast largely in terms of the English common law preceding its enactment. See Stansbury, Report of the Trial of James H. Peck (1833).
^3 During the debates in 1830-1831 referred to in note 2, supra, several of the managers who argued that Judge Peck had exceeded the historical boundaries of the contempt power by the conduct which had provoked the impeachment proceedings (see 356 U.S. 171, 78 S.Ct. at page 636, infra) appear to have assumed that courts were historically justified in employing the contempt power to deal with disobedience to court process. See Stansbury, supra, note 2, at 313, 395-396, 436, 444.
^4 See, e.g., In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, and Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, all concerning the predecessor statutes to present § 401(1), which relates to misbehavior in court or so near thereto as to obstruct the administration of justice, and Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474, arising under § 401(2), which deals with misbehavior of court officers in their official transactions.
^5 This order can hardly be interpreted otherwise than as imposing on the Dennis defendants from the time that the order became effective on July 2 a continuing obligation to surrender promptly upon becoming aware of its effectiveness. The printed record before us indicates that the proposed order given counsel on June 28 read precisely in the form quoted in the text above, but the original copy of the order reveals that the time for surrender was first written as '10:30' a.m., and at some later time prior to the time the order was signed was changed to read '11.05.' Petitioners make no issue of this discrepancy, and we attach no significance to it.
^6 The events of June 29, 1951, were testified to in court on July 3, 1951, by petitioners' counsel, Messrs. Sacher and Isserman. By stipulation, a transcript of this testimony was introduced into evidence during the contempt proceedings in the District Court, and excerpts from the testimony follow:
The Court: 'Now, you did make a statement last week that you will have the four defendants (Green, Winston, Hall and Thompson) in court, as I recall, on Monday (July 2).
'Mr. Sacher: I said that all of them would be here.
'The Court: And as you know, four of them were not here on Monday. Of course, you may be bound by some obligation of attorney and client, but are you able to give the Court any information as to their present whereabouts?
'Mr. Sacher: Your Honor, I should consider myself not bound by any obligation to withhold any information that I might have, and I give your Honor my assurance that I have no knowledge, I have no basis of knowledge as to their present whereabouts or where they might have gone.
'The Court: Where did you last see these four defendants?
'Mr. Sacher: * * * I am not certain about Thompson, but I am fairly certain that I saw the three I mentioned sometime on Friday (June 29) at 35 East Twelfth Street.
'The Court: Did you tell them at that time that their presence was required in court yesterday morning?
'Mr. Sacher: 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 (appearently referring to counsel's efforts to postpone the surrender date until after July 4), and therefore I advised that they all should be present and I was assured they would be.
'The Court: Mr. Isserman, do you know where any of these defendants are?
'Mr. Isserman: I might say to the Court that I would not rest on privilege in this situation at all. I have no knowledge of the present whereabouts of any of these defendants. * * * I remember, Green being my client, I remember distinctly that I saw him on that day (June 29) and received from him the assurance that he would be here Monday morning (July 2).'
^7 Excerpts from Green's press release:
'On Monday, February 27th at 12 noon I shall cease being a fugitive from injustice and instead become its prisoner. At that time, I shall appear at Foley Square. * * * The course I chose five years ago was not dictated by personal considerations. In many ways it was harsher than that of imprisonment * * *. (I)t seemed incumbent upon me to resist that trend (i.e. to 'an American brand of fascism') with every ounce of strength I possessed. Some could do so by going to jail; others by not. * * * I enter prison with head high and conscience clear.' (Italics added.)
Excerpts from Winston's press release:
'Reiterating my innocence, and protesting the flagrant miscarriage of justice in my case, I now enter prison * * *. I shall appear this coming Monday, March 5th 12:30 p.m., at the U.S. Marshal's Office in Foley Square.' (Italics added.)
^8 The substance of §§ 21 and 22 was that one charged with the commission of acts constituting willful disobedience to a lawful court order could demand a trial by jury if (§ 21) '* * * the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed * * *.' Section 22 provided that the jury trial '* * * shall conform, as near as may be, to the practice in criminal cases prosecuted by indictment or upon information.'
^9 This section excluded from the Act, inter alia, contempts committed by disobedience to any court order entered in any suit or action '* * * brought or prosecuted in the name of, or on behalf of, the United States * * *.'
^10 At the present time, 18 U.S.C. § 402, 18 U.S.C.A. § 402, contains the definitional provision formerly in § 21 of the Clayton Act and expressly refers to 18 U.S.C. § 3691, 18 U.S.C.A. § 3691, which provides that contempts falling within this definition are subject to trial by jury.
^11 Petitioners have shown us no federal decision which intimates any constitutional or common-law restriction on the power of federal courts to sentence for over one year. As stated by the Court of Appeals in the present case, 241 F.2d at page 634, '* * * there is not in the books a syllable of recognition of any such supposed limitation.' Under English law contempt sentences were not subject to any statutory limit. See Fox, Eccentricities of the Law of Contempt of Court, 36 L.Q.Rev. 394, 398.
^13 Hill v. United States ex rel. Weiner, 300 U.S. 105, 57 S.Ct. 347, 81 L.Ed. 537; United States v. Brown, 2 Cir., 247 F.2d 332; Lopiparo v. United States, 8 Cir., 216 F.2d 87; United States v. Thompson, 2 Cir., 214 F.2d 545; United States v. Hall, 2 Cir., 198 F.2d 726; United States ex rel. Brown v. Lederer, 7 Cir., 140 F.2d 136; Warring v. Huff, 74 App.D.C. 302, 122 F.2d 641; Conley v. United States, 8 Cir., 59 F.2d 929; Creekmore v. United States, 8 Cir., 237 F. 743, L.R.A.1917C, 845.
^14 The following are the major opinions of this Court which have discussed the relationship between criminal contempts and jury trial and have concluded or assumed that criminal contempts are not subject to jury trial under Art. III, § 2, or the Sixth Amendment: Ex parte Savin, 131 U.S. 267, 278, 9 S.Ct. 699, 702, 33 L.Ed. 150; Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 36-39, 10 S.Ct. 424, 426-427, 33 L.Ed. 801; Interstate Commerce Commission v. Brimson, 154 U.S. 447, 489, 14 S.Ct. 1125, 1137, 38 L.Ed. 1047; In re Debs, 158 U.S. 564, 594-596, 15 S.Ct. 900, 910-911, 39 L.Ed. 1092; Bessette v. W. B. Conkey Co., 194 U.S. 324, 336-337, 24 S.Ct. 665, 670, 48 L.Ed. 997; Gompers v. United States, 233 U.S. 604, 610-611, 34 S.Ct. 693, 695, 58 L.Ed. 1115; Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656; Michaelson v. United States, 266 U.S. 42, 67, 45 S.Ct. 18, 20, 69 L.Ed. 162; United States v. United Mine Workers, 330 U.S. 258, 298, 67 S.Ct. 677, 698, 91 L.Ed. 884. Although the statements contained in these cases, with few exceptions, are broadly phrased and do not refer to particular categories of criminal contempts, several of the cases involved review of contempt convictions arising out of disobedience to court orders. See in particular In re Debs, Gompers v. United States, and United States v. United Mine Workers.
For more general statements of the nature of the contempt power and its indispensability to federal courts, see United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259; Ex parte Robinson, 19 Wall. 505, 510, 22 L.Ed. 205; Ex parte Terry, 128 U.S. 289, 302 304, 9 S.Ct. 77, 78-79, 32 L.Ed. 405; Bessette v. W. B. Conkey Co., supra, 194 U.S. at page 326, 24 S.Ct. at page 666; Myers v. United States, 264 U.S. 95, 103, 44 S.Ct. 272, 273, 68 L.Ed. 577; Michaelson v. United States, supra, 266 U.S. at pages 65-66, 45 S.Ct. at pages 19-20.
^15 See, e.g., Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (compulsory process and assistance of counsel); Gompers v. United States, 233 U.S. 604, 611-612, 34 S.Ct. 693, 695-696, 58 L.Ed. 1115 (benefit of a statute of limitations generally governing crimes); Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797 (proof of guilt beyond a reasonable doubt and freedom from compulsion to testify).
^16 'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury * * *.'
^17 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *.'
^18 Petitioners derive their argument as to historical error from the writings of Sir John Charles Fox. However, Fox's major effort was to show that a statement in an unpublished opinion by Wilmot, J., in The King v. Almon (1765), to the effect that summary punishment for contempts committed out of court stood upon 'immemorial usage,' was based on an erroneous interpretation of earlier law as applied to the case before him, namely, contempt by libel on the
court by a stranger to court proceedings. See Fox, The King v. Almon (Parts I and II), 24 L.Q.Rev. 184, 266; Fox, The History of Contempt of Court (1927), 5-43. That contempts committed in the view of the court were at an early date dealt with summarily is not disputed by Fox. The History of Contempt of Court, supra, at 50. Insofar as Fox discusses contempts out of court by disobedience to court orders, it is not clear whether the author contends that such contempts were tried at early English law under summary procedures only for civil coercive purposes, or for criminal, punitive purposes as well. Cf. The King v. Almon, supra, at 188, 277-278; and Fox, The Summary Process to Punish Contempt (Parts I and II), 25 L.Q.Rev. 238, 354, with The King v. Almon, at 195, 276; The Summary Process to Punish Contempt, at 249; and The History of Contempt of Court, supra, at 108-110. See also Beale, Contempt of Court, 21 Harv.L.Rev. 161, 164, 169-171. Fox concludes that by the mid-Seventeenth or early Eighteenth Century, a variety of contempts committed outside of court were subject to punishment by the exercise of a court's summary jurisdiction. The Summary Process to Punish Contempts, supra, at 252, 366, 370-371. It appears that under present English law disobedience to court process is but one of the many categories of contempts of court which are dealt with summarily. 8 Halsbury, Laws of England (3d ed. 1954), 3-4, 25-26; 1 Russell, Crime (10th ed. 1950), 329-330.
^19 See 18 U.S.C. § 402, 18 U.S.C.A. § 402, supra, note 10; 18 U.S.C. § 3692, 18 U.S.C.A. § 3692 (jury trial for contempts based on violation of injunctions in cases involving labor disputes); § 151, 71 Stat. 638, 42 U.S.C. § 1995, 42 U.S.C.A. § 1995 (right to jury trial under provisions of the Civil Rights Act of 1957 in limited circumstances in cases of criminal contempts).
^20 This holding makes unnecessary consideration of petitioners' argument based on Rule 7 of the Federal Rules of Criminal Procedure, which falls with their constitutional argument. Rule 7 refers to criminal offenses, that is 'crimes' in the constitutional sense. Criminal contempts are governed by Rule 42.
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