Nilva v. United States/Opinion of the Court

by Harold Hitz Burton

United States Supreme Court

352 U.S. 385

Nilva  v.  United States

 Argued: Nov. 8 and 13, 1956. --- Decided: Feb 25, 1957

In this case, a Federal District Court convicted an attorney of criminal contempt on three specifications for disobeying subpoenas duces tecum, and imposed a general sentence of imprisonment for a year and a day. Since the Government has abandoned two of the specifications, the principal questions are whether there is sufficient evidence to sustain the conviction on the third specification standing alone, and, if so, whether the case should be remanded for resentencing. For the reasons hereafter stated, we answer each in the affirmative.

In 1953, in the District Court of the United States for the District of North Dakota, petitioner, Allen I. Nilva, was tried, with Elmo T. Christianson and Herman Paster, for conspiracy to violate the Federal Slot Machine Act, 64 Stat. 1134 1136, 15 U.S.C. §§ 1171-1177, 15 U.S.C.A. §§ 1171-1177. Christianson was the Attorney General of North Dakota. Paster was the owner of several distributing companies located in St. Paul, Minnesota. Petitioner was an attorney in St. Paul, a brother-in-law of Paster, and an officer in several of Paster's distributing companies. The indictment charged that these three conspired, with others, to accumulate slot machines late in 1950 and transport them into North Dakota, where they were to be distributed and operated under the protection of Christianson, who was to take office as Attorney General of that State on January 2, 1951.

On the first trial, in 1953, a jury was unable to agree on the guilt of Christianson and Paster but acquitted petitioner. In 1954, in preparation for a retrial of Christianson and Paster, the same court issued subpoenas duces tecum No. 78, returnable on March 22, and No. 160, returnable on March 29. Each was addressed to the Mayflower Distributing Company, a St. Paul slot machine distributing corporation wholly owned by Paster. Each called for the production of records, for certain periods in 1950 and 1951, relating to transactions in slot machines and other coinoperated devices. ^[1] Each was served on Walter D. Johnson, secretary-treasurer of the company.

On the date set for trial, Paster, instead of producing the subpoenaed records, moved to quash the subpoenas on the ground that the company was wholly owned by him and that the subpoenas required him to furnish evidence against himself. The motion was denied and, in response to the Government's request, the court ordered the subpoenaed records to be produced 'forthwith.' ^[2] Three days later, on April 1, petitioner, who was an attorney of record for Paster, appeared in court and stated that he was the company's vice-president appearing for it in answer to the subpoenas. He said that 'in response to this subpoena I personally, with the aid of people in the office force, searched all of our records in an attempt to comply with your subpoena and have brought all of the evidence I could to comply therewith.' However, when the Government asked for the records of purchases and sales of slot machines called for by the subpoenas, he stated that he had been unable to locate them and suggested that some of the company's records had been transferred to St. Louis in connection with a conspiracy case pending there on appeal. ^[3]

The trial court, being convinced, as it later stated, that petitioner was giving false and evasive testimony, issued an order reciting the failure of the officers of the company to produce the subpoenaed records and ordering all records of the company impounded by the United States Marshal. Many of the company's records in St. Paul were at once impounded and accountants from the Federal Bureau of Investigation promptly examined them. Among them were records of the company's purchases and sales of slot machines in 1950 and 1951. At the conspiracy trial on April 12, an F.B.I. agent named Peterson testified about those records from summaries he had compiled.

On April 15, the trial court found it apparent that petitioner's testimony 'was evasive or false, or both,' and ordered him not to leave its jurisdiction without permission. No further action was taken at that time 'because it was the Court's desire that the jury (in the conspiracy case) should not learn of the affair during the trial, so that the defendants therein would not be prejudiced by it in any way.'

On April 22, the jury found Christianson and Paster guilty of the conspiracy charged. ^[4] On the following day, the court directed petitioner to appear on April 27 and show cause why he should not be held in criminal contempt for having obstructed the administration of justice. ^[5] In three specifications, the court charged petitioner with-

'1. Giving false and evasive testimony under oath on April 1, 1954, upon answering, as vice-president of the Mayflower Distributing Company, subpoenaes duces tecum directed to (it) * * * '2. Disobedience to subpoena duces tecum No. 78, directed to the Mayflower Distributing Company * * * in that the following articles were not produced, as required thereby:

'(a) Original ledger sheet reflecting the account of Stanley Baeder, November 1, 1950 through August 30, 1951;

'3. Disobedience to subpoena duces tecum No. 160 directed to the Mayflower Distributing Company, and disobedience to the order of the Court, made on March 29, 1954, directing the Mayflower Distributing Company to produce records forthwith, in the case of United States of America v. Elmo T. Christianson and Herman Paster, Criminal No. 8158, in that the following articles were not produced, as required thereby:

'(a) General ledger 1950;

'(b) General ledger 1951;

'(c) Journal 1950-1951;

'(d) Check Register 1950-1951; * * *.' At 10 a.m., on April 27, petitioner appeared as directed. The court gave his counsel access to the impounded records and postponed the hearing until 3 p.m. At that time, the impounded books and records were present on the trial table and petitioner took the stand in his own defense. He identified items (a), (b), (c) and (d) of the 22 listed in the third specification and introduced those records as his exhibits. Item (a) was the company's general ledger for 1950. It contained a record of sales of new slot machines during October 1950-January 1951; sales of used slot machines during July 1950-January 1951; and purchases of used slot machines during August 1950-January 1951. Petitioner admitted having previously examined the company's 1950 and 1951 general ledgers but said that he had not found evidence of slot machine purchases and sales. He also admitted that he had not examined 19 of the 22 items listed in specification No. 3. At the close of the hearing, over petitioner's objection, a transcript of the testimony of F.B.I. Agent Peterson, given at the conspiracy trial, was admitted in evidence in the contempt proceeding without opportunity for petitioner to confront him or cross-examine him in that proceeding.

After finding petitioner guilty of criminal contempt on each of the three specifications, the court gave him a general sentence of imprisonment for a year and a day. On June 3, it released him on bail but denied his motion to suspend his sentence and grant him probation.

The Court of Appeals affirmed the judgment, 227 F.2d 74, and denied rehearing, 228 F.2d 134. We granted certiorari. 350 U.S. 1005, 76 S.Ct. 650, 100 L.Ed. 867.

Although the District Court found petitioner guilty of contempt on each of the three specifications, the Government now concedes that the convictions on the first two are of doubtful validity and does not undertake to sustain them. Consequently, we do not consider them here. ^[6]

This reduces the case to the charge that petitioner wilfully disobeyed the court's order to produce certain corporate records required by subpoena No. 160. On that issue, it is settled that a criminal contempt is committed by one who, in response to a subpoena calling for corporation or association records, refuses to surrender them when they are in existence and within his control. United States v. Fleischman, 339 U.S. 349, 70 S.Ct. 739, 94 L.Ed. 906; United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; and see United States v. Patterson, 2 Cir., 219 F.2d 659.

The Government rests its case on petitioner's failure to produce the records listed in the first four items set forth in specification No. 3, i.g., the general ledger for 1950, the general ledger for 1951, the journal for 1950-1951, and the check register for 1950-1951. These are impounded records which petitioner introduced in evidence as his exhibits. ^[7] The first is the general ledger for 1950, shown by the list of petitioner's exhibits to include records of purchases and sales made during part of the period called for by subpoena No. 160. ^[8] Petitioner admits having previously examined the first two items.

Petitioner was a 'nominal' vice-president of the corporation; he rendered it legal and administrative services of many kinds; he was a brother-in-law of its sole owner and president; he appeared in court as its official representative in answer to the subpoenas and represented that he had brought with him all of the subpoenaed records that he and the office force could find.

The subpoenas had been served on the secretary-treasurer of the corporation, who, in turn, had entrusted to petitioner the duty of satisfying them. When petitioner appeared in court in response to the subpoenas, he did not claim either want of actual possession of the required records or lack of opportunity or authority to produce them. See United States v. Bryan, 339 U.S. 323, 333, 70 S.Ct. 724, 731, 94 L.Ed. 884; Wilson v. United States, supra, 221 U.S. at page 376, 31 S.Ct. at page 542. Yet he failed to produce the vital corporate records which the Government promptly impounded. In our opinion, the evidence reasonably supports the conclusion that those records were in existence and were within petitioner's control.

Petitioner contends that his testimony that he attempted, in good faith, to comply with the subpoenas disproves the existence of any wilful default, and presents an 'adequate excuse' for his failure to comply under Rule 17(g), Federal Rules of Criminal Procedure. However, his protestations of good faith were subject to appraisal by the court that heard them. It was the judge of his credibility and of the weight to be given to his testimony. Lopiparo v. United States, 8 Cir., 216 F.2d 87, 91. In our view, the trial court had a sufficient basis for concluding that petitioner intentionally, and without 'adequate excuse,' defied the court. ^[9] We, therefore, agree that the record sustains petitioner's conviction for criminal contempt under specification No. 3.

Petitioner claims that he was not allowed adequate time to prepare his defense. Under the circumstances of this case and in view of the wide discretion on such matters properly vested in the trial court, we think this claim is unfounded. ^[10]

Petitioner also contends that, as a matter of law, this contempt proceeding should have been heard by a judge other than the one who initiated the proceeding. Rule 42(b), Federal Rules of Criminal Procedure, does not require disqualification of the trial judge except where 'the contempt charged involves disrespect to or criticism of a judge * * *.' ^[11] Concededly, the contempt here charged was not of that kind. And while there may be other cases, brought under Rule 42(b), in which it is the better practice to assign a judge who did not preside over the case in which the alleged contumacy occurred to hear the contempt proceeding, such an assignment is discretionary. In the absence of a showing of an abuse of that discretion, petitioner's conviction on specification No. 3 should be sustained.

There remains a question as to petitioner's general sentence. It was imposed following his conviction on each of the three original specifications. Although the Government now undertakes to sustain but one of the convictions, it contends that petitioner's sentence should be left as it is because it was within the trial court's allowable discretion. We believe, however, that the court should be given an opportunity to reconsider petitioner's sentence in view of the fact that his conviction now rests solely on the third specification. ^[12]

Accordingly, petitioner's conviction for criminal contempt on specification No. 3 is affirmed but his sentence is vacated and the case is remanded to the District Court for reconsideration of his sentence.

It is so ordered.

Conviction affirmed, but sentence vacated, and case remanded for reconsideration of sentence.

Mr. Justice BLACK, with whom The CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN, join, dissenting.

Notes

1. Subpoena No. 160 commanded the corporation to-
2. This was pursuant to Rule 17(c), Federal Rules of Criminal Procedure, 18 U.S.C.A.:
3. See Nilva v. United States, 8 Cir., 212 F.2d 115, decided April 19, 1954. This related to Samuel George Nilva, not the petitioner herein.
4. See Christianson v. United States, 8 Cir., 226 F.2d 646.
5. 'Rule 42. Criminal Contempt.
6. The Government concedes also that the transcript of Agent Peterson's testimony at the conspiracy trial should not have been admitted in evidence in the contempt proceeding and does not rely on it here. This concession does not materially affect the Government's case under specification No. 3, because the books and records named in that specification were properly introduced by petitioner as exhibits in the contempt proceeding and speak for themselves.
7. The parties stipulated that these exhibits would be a part of the record on appeal. Their contents are summarized in a list of exhibits which is included in a supplemental record, first introduced before the Court of Appeals. Although petitioner moved to strike out most of that supplemental record, he omitted from his motion all references to the pages containing this list and he has not objected to its presence in the record before us.
8. Among the records called for by subpoena No. 160 are 'ledger sheets' reflecting purchases and sales of slot machines between July 1, 1950, and April 30, 1951. See note 1, supra. The list of exhibits shows that exhibit No. 1 includes Mayflower's general ledger for 1950 in which the-
9. Whether proof of a lesser species of intent will satisfy the requirements for a conviction of criminal contempt need not be decided here. See, generally, Moskovitz, Contempt of Injunctions, Civil and Criminal, 43 Col.L.Rev. 780, 793-796 (1943); Note, The Intent Element in Contempt of Injunctions, Decrees and Court Orders, 48 Mich.L.Rev. 860, 864-869 (1950).
10. Petitioner was an attorney familiar with the case. He appeared in answer to the subpoenas on April 1; after the impounded records were produced, he was, on April 15, warned not to leave the jurisdiction of the court; the order for him to show cause why he should not be held in criminal contempt was issued on April 23, returnable on April 27; and on April 27 his hearing was postponed five hours to give his counsel extra time to examine the impounded records.
11. See note 5, supra.
12. Cf. Minoru Yasui v. United States, 320 U.S. 115, 117, 63 S.Ct. 1392, 1393, 87 L.Ed. 1793; Husty v. United States, 282 U.S. 694, 703, 51 S.Ct. 240, 242, 75 L.Ed. 629.