Matusow v. United States, 15527.

• Decision Date: 27 January 1956
• Docket Number: No. 15527.,15527.
• Citation: 229 F.2d 335
• Parties: Harvey M. MATUSOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

229 F.2d 335 (1956)

Harvey M. MATUSOW, Appellant, v. UNITED STATES of America, Appellee.

No. 15527.

United States Court of Appeals Fifth Circuit.

January 27, 1956.

Stanley Faulkner, New York City, Joseph A. Calamia, El Paso, Tex., for appellant.

Holvey Williams, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

CAMERON, Circuit Judge.

Based upon an affidavit executed by him for use in the Court below followed by his testimony given at a hearing before the District Court upon motion for a new trial in a criminal case, recanting his former testimony, appellant, Harvey Matusow, was adjudged to be in contempt of court and sentenced to imprisonment therefor. This appeal presents the question whether the actions of appellant which form the basis of the contempt charged were committed in the actual presence of the Court so as to justify its proceeding summarily under Paragraph (a) of Rule 42, Federal Rules of Criminal Procedure; or whether said actions required a plenary hearing as provided in Paragraph (b) of that rule, and if so, whether the proceedings as conducted by the Court squared with the requirements of Paragraph (b).¹

At the trial of Clinton Jencks on an indictment charging him with filing a false Non-Communist Affidavit with the National Labor Relations Board, Matusow gave testimony for the Government. Jencks was convicted and we affirmed his conviction.²

Thereafter Jencks moved for a new trial on the ground of newly discovered evidence based entirely on an affidavit by Matusow in which he recanted important portions of his testimony given at the trial. Matusow had written a book in which he stated that he had, on numerous occasions, given false testimony against various persons including Jencks concerning their communist affiliations. The Matusow affidavit was attached as the sole basis of the motion for a new trial and, upon the hearing of that motion, Matusow testified that his previous testimony against Jencks had been largely false. Being of the opinion that Matusow's former testimony had been true, the District Court denied Jencks' motion and we affirmed³ in an opinion in which we held that the District Court was justified in refusing to believe Matusow's affidavit and testimony of recantation. The evidence developed in that hearing with respect to the facts leading to Matusow's writing of the book and culminating in his affidavit and testimony of recantation are outlined in the latter opinion and no need would be served by reviewing them here. (See 226 F.2d 556 et seq.)

At the close of the hearing on Jencks' motion for a new trial on March 12, 1955 the Court called Matusow before the bench and said to him:

"Harvey Matusow, after listening attentively to your testimony and proceedings on this motion, I am thoroughly convinced that you are in contempt of this court in that you, alone or in conjunction with others, deliberately and maliciously and designedly schemed to obstruct justice in this Court, and in furtherance thereof have caused the filing of the affidavit in this cause and thereby obtained the hearing in this Court on the motion for a new trial which has just been concluded. By recanting your former testimony, given in this Court, which I believe in substance was true, you have, in my opinion, deliberately, designedly and maliciously attempted to obstruct the justice of this Court and have deliberately shown contempt for this Court by attempting to set aside the conviction heretofore had in this regard and obtain a new trial for Clinton E. Jencks. I am convinced from your actions, conduct and testimony, had and done in my presence during this hearing, that you have deliberately and maliciously obstructed the justice of this Court for the purpose of furthering your personal gain. * * *"⁴

Following the foregoing statement the Court below stated further: "Before sentencing you, however, I will give you a hearing in this regard and permit you to present evidence in your behalf if you desire to do so. Do you want a hearing in this regard, or are you ready for me to act?" After Matusow had stated that he would like a hearing the Court responded that, under the Federal Rules of Criminal Procedure, appellant was entitled to "the essential facts constituting the criminal contempt and described as such in the statement I have just made", and that he would have the Clerk give him a copy of the statement. Matusow and his attorney conferred and all agreed that the hearing referred to would be had four days later, March 16th. Thereafter and before the hearing, a transcript of the above statement and what transpired between the Court and counsel in connection with it was served upon appellant as the notice of the contempt hearing.

At the hearing the Government introduced no proof and Matusow testified briefly and without cross-examination that he had not lied at the hearing on Jencks' motion for new trial, that he had not conspired with anyone or agreed with anyone to change his testimony for money or any valuable consideration, and denied generally the charges made against him by the Court. At the conclusion of the hearing (at which the transcript of the evidence upon the hearing of Jencks' motion for new trial was introduced by stipulation) the Court reiterated what it had theretofore stated and added that it was of the opinion that Matusow had schemed with others to use and had actually used the court for the purpose of drawing public attention to his book, which actions the Court below concluded had been induced by the publisher of the book and by the attorney and officials of the International Union of Mine, Mill and Smelter Workers; and that Matusow had, "with full knowledge of the consequences, lent himself to this evil scheme for money and for notoriety". The facts will be set forth in more detail as the contentions of the parties are dealt with.

By appropriate objections and motions appellant challenged the proceeding on the ground that the Court below had not certified, as required by Paragraph (a) that the actions forming the basis of the contempt were committed in its presence; on the ground that the Court had already reached and announced its decision against appellant before the hearing was begun and that appellant was generally being denied the protection of the Bill of Rights; and on the ground that the contempt notice was not specific enough to apprise the appellant of the essential facts constituting the contempt charged or even to charge a criminal contempt. And appellant demanded that the Government be required to go forward with its evidence and assume the burden of proving his guilt beyond a reasonable doubt. Ruling against the appellant in each instance, the Court below adjudged Matusow guilty of contempt and sentenced him to three years' imprisonment.

Any consideration of a proceeding which brings a man's liberty into jeopardy begins with the assumption that he is entitled to the full protection of the Bill of Rights. Whoever would abridge those rights carries the burden of clear justification of such action, and each step in the process of abridgement will be yielded grudgingly.

The right to punish for contempt of court is a recognized exception which is as old as the Bill of Rights itself. It is born of necessity, and it has been recognized from the beginning of the Republic that, "`courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.'"<sup>5</sup> The right to punish summarily and without hearing is an ancient right. "`If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination.'"⁶

The Supreme Court⁷ recently expressed the rule in these words: "The pith of this rather extraordinary power to punish without the formalities required by the Bill of Rights for the prosecution of federal crimes generally, is that the necessities of the administration of justice require such summary dealing with obstructions to it. It is a mode of vindicating the majesty of law, in its active manifestation, against obstruction and outrage."

But this right to punish without observance of constitutional safeguards has never been permitted to exceed the absolute necessities of the situation, — "the least possible power adequate to the end proposed", — and the progressive tendency of Congress and the courts has been towards drawing closer the limitations upon that right. The power of courts to punish for contempt has been the subject of congressional definition since the Judiciary Act of 1789, which was in turn succeeded by the Act of March 2, 1831, 4 Stat. 487, becoming Section 268 of the Judicial Code and now codified as 18 U. S.C.A. §§ 401, 402.⁸ Each of these Acts has tended towards more stringent restrictions upon the power of the courts, and the Act in its present form is set out in the footnote.⁹

The Supreme Court has had the limits of this power before it in a dozen cases and, from the beginning, much of the controversy has raged around whether the contempt charged was committed "in the presence of the court, or so near thereto as to obstruct the administration of justice".¹⁰ On the decision of this point depended whether the court below could punish summarily or was required to have a plenary hearing. That controversy has been reduced to more definite terms by Rule 42, Federal Rules of Criminal Procedure,¹¹ which became effective March 21, 1946. Our decision here will turn largely upon a construction of that rule. We must decide whether the contempt punished occurred in the actual presence of the Court so that it "saw or heard the conduct constituting the contempt", in which event punishment could be inflicted without a hearing, under Paragraph (a) of that rule; or...