140 F.Supp. 117 (S.D.N.Y. 1956), United States v. Green

Citation:140 F.Supp. 117
Party Name:UNITED STATES of America, Petitioner, v. Gilbert GREEN, Respondent.
Case Date:April 16, 1956
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 117

140 F.Supp. 117 (S.D.N.Y. 1956)

UNITED STATES of America, Petitioner,


Gilbert GREEN, Respondent.

United States District Court, S.D. New York

April 16, 1956

Page 118

Paul W. Williams, U.S. Atty., for the S.D. of New York, New York City, for petitioner. Thomas A. Bolan, Asst. U.S. Atty., New York City, of counsel.

John J. Abt, New York City, for respondent.

DAWSON, District Judge.

This proceeding was brought on by an order to show cause duly served upon the respondent directing him to show cause why he should not be adjudged and held in criminal contempt of this Court by reason of the fact that he knowingly and deliberately disobeyed and resisted a lawful order and command of this Court directing him to appear before it on July 2, 1951 and July 3, 1951 for surrender in execution of the judgment and sentence imposed under indictment C 128-87.

Respondent was convicted in this Court, after a long trial before Judge Medina, 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. The conviction was sustained by the Court of Appeals, 2 Cir., 183 F.2d 201, and 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. A proposed order on mandate requiring his appearance for surrender to the United States Marshal on July 2, 1951 was served upon his counsel on June 28, 1951. Respondent did not appear on July 2, 1951, and attempts thereafter to execute a bench warrant at his stated address failed.

Page 119

Respondent was arraigned and pleaded not guilty to the charge of contempt, and the issues were tried by the Court without a jury pursuant to Federal Rules of Criminal Procedure, Rule 42, 18 U.S.C.A.

The evidence showed that the order of Judge Ryan of July 2, 1951 required the respondent to surrender personally to the United States Marshal for the Southern District of New York. There is no doubt that respondent did not surrender for over four years, or not until February 27, 1956 when he surrendered himself for commitment at the United States Courthouse in New York, N.Y.

The evidence was sufficient to establish, beyond a reasonable doubt, that the respondent knowingly disobeyed the order of Judge Ryan. The evidence showed that Mr. Sacher, an attorney in the case, personally advised the respondent on June 29th that he had to be in Court on July 2, 1951. There was other evidence that thereafter, but before July 2, respondent left his New York City address and was not seen there again. There was further evidence that several days before respondent surrendered, he issued a written statement to the press admittedly signed by him which conclusively established that he had remained in hiding in order to avoid serving the sentence to which he had been committed. Furthermore, on the day on which he surrendered, respondent made statements to the reporters who were present on the Courthouse steps which also conclusively established that he had knowingly and willfully absented himself so as to avoid serving a sentence which...

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