182 F.2d 416 (2nd Cir. 1950), 175, United States v. Sacher

Docket Nº:175, 21537.
Citation:182 F.2d 416
Party Name:UNITED STATES v. SACHER et al.
Case Date:April 05, 1950
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 416

182 F.2d 416 (2nd Cir. 1950)

UNITED STATES

v.

SACHER et al.

Nos. 175, 21537.

United States Court of Appeals, Second Circuit.

April 5, 1950

Argued Feb. 6, 1950.

Page 417

Wolf, Propper, Ross & Wolf, New York City; for defendants-appellants Paul L. Ross, New York City; Earl B. Dickerson, Chicago, Ill.; Charles J. Katz, Los Angeles, Cal.; Patrick H. O'Brien, Detroit, Mich., of counsel; Thomas D. McBride, Hiladelphia, Pa., of counsel for appellant McCabe. Robert W. Kenny, Los Angeles, Cal., Joseph Forer, Washington, D.C., and Bernard Jaffee, New York, N.Y., on the brief.

Irving H. Saypol, United States Attorney, New York City (Frank H. Gordon, Irving S. Shapiro, and Edward C. Wallace, Special Assistants to Attorney General, Lawrence K. Bailey, Attorney, Department of Justice, Washington, D.C., of counsel), for United States of America, Plaintiff-appellee.

Briefs were filed by the following as amici curiae in support of the appellants:

Robert J. Silberstein, Washington, D.C., for National Lawyers Guild.

Various attorneys on their own behalf.

William L. Standar, New York City (O. John Rogge, Washington, D.C., counsel), for various individuals.

Samuel A. Neuburger, New York City, for certain trade unions.

Witt & Cammer, New York City, for certain labor organizations.

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Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit judge.

Eugene Dennis, John B. Williamson, Jacob Stachel, Robert G. Thompson, Benjamin J. Davis, Jr., Henry Winston, John Gates, Irving Potash, Gilbert Green, Carl Winter, and Gus Hall, were indicted in the United States District Court for the Southern District of New York for conspiring (1) to organize as the Communist Party of the United States a society teaching and advocating the overthrow and destruction of the United States Government by force and violence, and (2) to teach and advocate the overthrow of the United States Government by force and violence, contrary to Sections 3 and 5 of the Act of June 28, 1940, commonly known as the Smith Act. (Now 18 U.S.C.A. § 2385.) A jury found the indicted defendants guilty of the offenses charged. The present appeal, however, is not from the judgment of conviction under the Smith Act but only from orders adjudging Sacher, Gladstein, Crockett, McCabe, Isserman, and Dennis, guilty of contemptuous conduct while acting as attorneys during the pendency of the main trial. The question before us here is not as to the merits of the convictions under the indictment but as to the impropriety of the conduct of Sacher, Gladstein, Crockett, McCabe, Isserman and Dennis, which resulted in the adjudication of contempt.

The trial began on January 17, 1949, but selection of the jury was delayed because of a challenge on behalf of the indicted defendants to the entire jury system as administered in the Southern District of New York. This challenge went on from January 17 to March 1, 1949. It finally terminated only when the court fixed a limit for its conclusion, and filed an opinion rejecting the challenge. 1 In that opinion it was held by the court that the system administered in the Southern District was fair and made without discrimination of individuals or groups. After certain motions by defense counsel, the process of selecting a jury commenced on March 8 and was completed on March 17, 1949. Various witnesses for the prosecution were called between March 23 and May 19, when the Government rested after having called thirteen witnesses. The case for the defense was begun on May 23 and concluded, after hearing thirty-five defense witnesses, on September 23. Upon summation by counsel, the court charged the jury on October 13, who rendered a verdict of guilty against all the indicted defendants.

Upon entry of the verdict on October 14, the court, announced: 'Now I turn to some unfinished business, ' and proceeded to read a portion of a contempt certificate and orders, made under Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., convicting the appellants of criminal contempts of court and imposing sentence. These orders imposed a sentence of four months imprisonment on Crockett, and Isserman, thirty days on McCabe, and six months on Sacher, Gladstein and Dennis. The certificate and orders were filed with the clerk immediately after the oral announcement. Each order recited that the named appellant was guilty of the contempts specified against him in the certificate, and sentence was imposed for each contempt with the direction that the sentences be 'served concurrently.' After the certificate and orders were made, each appellant addressed the court. Isserman objected to the findings in the certificate on the ground they were 'wholly unwarranted by anything which has occurred in the course of this trial'; and, in respect to himself, were 'but a reflection of the atmosphere of bias and prejudice which this court has shown and with which this entire trial was attended from the first day.' He also argued that this was 'an effort to intimidate members of the bar in their bounden duty to represent their clients to the best of their ability * * * .' He ended by making a motion to vacate the certificate, which was denied.

Sacher recognized that 'the power rests in the Court to act summarily, ' but added that the lawyers should be given 'an opportunity to be heard before they are found

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guilty and sentenced.' To this the court replied: 'Let me say this to you, Mr. Sacher: as to these contempt adjudications, let them be notice to you and to all who may be tempted to follow your example that there is power in the judicial system of the United States under the Constitution and the laws of the United States to protect and maintain the dignity of the court * * * '.

Thereupon, Gladstein stated that he had committed no contempt of court and had done no more than defend the rights of his clients. Crockett made a similar statement, as did McCabe. Finally, Dennis said that: 'This trial and the verdict, is an evil and an illegitimate product of a bipartisan conspiracy * * * of men who want to destroy the Bill of Rights and peace, and I think that the adjudgment of counsel * * * is in keeping with the sinister and police state character of this trial.'

A copy of the certificate which the judge filed under Rule 42(a) is set forth as an appendix to this opinion.

In preparing and filing the Contempt Certificate, and imposing the sentences, the court purported to act under summary powers conferred by 18 U.S.C.A. §§ 401 and 102. 2

Rule 42 of the Federal Rules of Criminal Procedure provides:

'Rule 42. Criminal Contempt

'(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

'(b) Disposition upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.'

In discussing the power to punish without notice of hearing contempts committed in the presence of the court, Justice Harlan said in Ex parte Terry, 128 U.S. 289, 306, 9 S.Ct. 77, 80, 32 L.Ed. 405: ' * * * upon the facts recited in the order of September 3d, showing a clear case of contempt committed in the face of the circuit

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court, which tended to destroy its authority, and, by violent methods, to embarrass and obstruct its business, the petitioner was not entitled, of absolute right, either to a regular trial of the question of contempt, or to notice by rule of the court's intention to proceed against him, or to opportunity to make formal answer to the charges contained in the order of commitment. It is undoubtedly a general rule in all actions, whether prosecuted by private parties or by the government, - that is, in civil and criminal cases, - that 'a sentence of a court pronounced against a party without hearing him or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.' Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914. But there is another rule of almost immemorial antiquity, and universally acknowledged, which is equally vital to personal liberty, and to the preservation of organized society, because upon its recognition and enforcement depend the existence and authority of the tribunals established to protect the rights of the citizen, whether of life, liberty, or property, and whether assailed by the illegal acts of the government or by the lawlessness or violence of individuals. It has relation to the class of contempts which, being committed in the face of a court, imply a purpose to destroy or impair its...

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