MacInnis v. United States, 12599.

• Decision Date: 30 July 1951
• Docket Number: No. 12599.,12599.
• Citation: 191 F.2d 157
• Parties: MacINNIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

191 F.2d 157 (1951)

MacINNIS v. UNITED STATES.

No. 12599.

United States Court of Appeals Ninth Circuit.

July 30, 1951.

William F. Cleary, San Francisco, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., San Francisco, Cal., James M. McInerney, Asst. Atty., J. Frank Cunningham, Atty., Dept. of Justice, Washington, D. C., Robert B. McMillan and Joseph Karesh, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before STEPHENS, ORR and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

Appeal from a summary judgment and sentence for criminal contempt imposed pursuant to Title 18 U.S.C.A. § 401(1)¹ and Rule 42(a), Federal Rules of Criminal Procedure, Title 18 U.S.C.A.²

Appellant MacInnis was one of counsel for the defense in the case of United States v. Bridges, D.C.Cal.1949, 87 F.Supp. 14. The following colloquy occurred on Wednesday, February 1, 1950, during the examination of the witness Father Paul Meinecke, a priest of the Roman Catholic Church:

"The Court: Have you been recently subjected to medical treatment, Father?

"Mr. Hallinan: If the Court please, I am going to object to these questions.

"Mr. MacInnis: Let me in.

"Mr. Hallinan: I want to enter a legal objection. Your Honor has seen the Manning Johnsons, the Crouches, the Rosses and everybody get on that stand and we asked whether they were insane or not. I object to Your Honor's question. I object to that last question and assign that as misconduct, and I ask that the jury be instructed to ignore the implication of the question.

"The Court: There is no occasion for any admonition to the jury. Mr. MacInnis invited it.

"Mr. MacInnis: I never heard of such a question.

"The Court: Mr. MacInnis invited me to ask the question.

"Mr. MacInnis: Your Honor refused to do that and I asked a question.

"The Court: I have the greatest respect for men of the cloth, as we all have.

"Mr. MacInnis: You are demonstrating it.

"The Court: There is no impropriety in my questioning.

"Mr. MacInnis: I say there is.

"The Court: He asserted his present memory is not good. I asked him whether or not his recollection was good while he was here years ago. He said yes, it was good years ago. I don't see any reason for the criticism.

"Mr. MacInnis: When one of the prosecution witnesses was on the stand we asked him if he had received medical treatment, and now you ask a priest who comes here and gives testimony the same question.

"The Court: Ladies and gentlemen —

"Mr. MacInnis: I think you should cite yourself for misconduct.

"The Court: Ladies and gentlemen —

"Mr. MacInnis: I have never heard anything like that. You ought to be ashamed of yourself."

The following day, Thursday, February 2, 1950, the court announced that the conduct of MacInnis in the court's presence on the previous day constituted contempt, and that the certificate and order pursuant to Rule 42 of the Rules of Criminal Procedure, and the fixing of the punishment would be deferred to the end of the trial.

An order on contempt and accompanying certificate, dated February 28, 1950, were filed March 1, 1950, and MacInnis was ordered to appear before the court for sentence upon the termination of the Bridges trial.

On April 4, 1950, immediately after the verdict had been returned, MacInnis appeared and was sentenced to three months imprisonment.

Appellant's first specification of error is that none of the matters set forth in the certificate of contempt, taken either singly or collectively, constitute contempt.

Where counsel is of the opinion that prejudicial error has been committed during the course of a trial by counsel or by the court, it is his duty to seek to have it cured and to preserve his objection in the record if, in his opinion, the matter continues to be prejudicial. He never has the right to let his temper, his zeal, or his intention lead him into disrespectful, accusative language to the court. The trial court must of necessity maintain order and decorum in its presence. To sanction conduct such as is here involved in open court, before a jury, would be to demoralize the authority of the court before the jury and the public. See In re Oliver, 1948, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682.

True, a rule of caution must prevail where the contempt charged has in it the element of personal criticism or attack upon the judge. Cooke v. United States, 1925, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767. However, as we held in Hallinan v. United States, 9 Cir., 1950, 182 F.2d 880, certiorari denied, 341 U.S. 952, 71 S. Ct. 1010, the fact that court and counsel disagree as to a ruling is no occasion for flagrant and open defiance of the court's authority. A sufficient record of counsel's objection to the court's statements had been made prior to counsel's statements to which the court took exception. There never could be occasion for disrupting the trial, thereby defeating the prompt administration of justice. See United States v. Green, 2 Cir., 1949, 176 F.2d 169, certiorari denied, 338 U.S. 851, 70 S.Ct. 91, 94 L.Ed. 521.

The act of addressing the court in open session with the statements "You should cite yourself for misconduct" and "You ought to be ashamed of yourself", unmodified, are, per se, contemptuous. And, in addition to the statements, the judge had full opportunity to observe the expression, manner of speaking, bearing and attitude of appellant. In these circumstances we cannot hold that no contempt had been committed. Fisher v. Pace, 1949, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569, rehearing denied 336 U.S. 928, 69 S.Ct. 653, 93 L.Ed. 1089; United States v. Bollenbach, 2 Cir., 1942, 125 F.2d 458.

Appellant contends that since the conduct involved occurred on February 1, 1950, and the Order and Certificate of contempt were not signed until February 28, 1950, and the judgment was not pronounced until April 4, 1950, the postponement deprived the trial court of jurisdiction to proceed summarily under Rule 42(a).

On February 2, 1950, the day following the occurrence, the trial judge announced that after reading the transcript, he had concluded that appellant had on the previous day committed conduct in the actual presence of the court constituting contempt, and that a certificate and order would be filed pursuant to Rule 42, and that punishment would be deferred to a later date.

The power of the courts to punish contempts in the face of the court without further proof of facts and without aid of a jury is in accord with due process of law. Fisher v. Pace, supra. In Hallinan v. United States, supra, we held that by waiting from the adjournment of court on the evening of November 21, 1949, until 9:30 A.M. of November 22, 1949, before pronouncing a judgment of contempt, was in accord with In re Maury, 9 Cir., 1913, 205 F. 626. The court did not lose jurisdiction to proceed under Rule 42(a). In the last cited case we held that jurisdiction to proceed summarily attached instantly upon a contempt being committed in the presence of the court and was not surrendered by the court by waiting until the next day before imposing judgment.

In United States v. Hall, 1949, 2 Cir., 176 F.2d 163, at page 168, certiorari denied, 338 U.S. 851, 70 S.Ct. 90, 94 L.Ed. 521, the court stated: "In the situation of disorder and confusion which the trial judge faced in his courtroom on June 3, 1949, there was neither the time nor the need for him to prepare and file any certificate under Rule 42(a), F.R.Cr.P., before taking such prompt and effective action as he could to quell the disturbance. * * * He could probably have formally adjudged the appellants in contempt sooner than he did and filed the formal orders and certificates sooner, but that is quite beside the point because the few days delay did not legally prejudice them. * * *" See In re Presentment by Grand Jury of Ellison, D.C.Del.1942, 44 F.Supp. 375.

United States v. Sacher, 2 Cir., 1950, 182 F.2d 416, 428, 429, certiorari denied 341 U.S. 952, 71 S.Ct. 1010, clearly distinguishes the cases relied upon by appellant. In addition, the court states: "It is evident from the specifications in the certificate that the judge was confronted with many contemptuous remarks by the appellants and many obstructive refusals to obey his orders. However, he took no immediate action to punish them for contempt. If he had done so, the result would have been to leave the indicted defendants without effective counsel or with the necessity of choosing new counsel — a procedure involving interminable delay. * * *"

We are in agreement with the conclusion reached in the Sacher case that "* * * immediate penal vindication of the dignity of the court * * *", as used in Cooke v. United States, 1925, 267 U.S. 517, 536, 45 S.Ct. 390, 69 L.Ed. 767, means as speedy vindication as is practicable in the circumstances, and does not require steps which would break up a trial or frustrate the powers of the judge.

We are of the opinion that while punishment should follow acts of contempt with reasonable promptness, the punishment need not follow instanter if, as in the case...