241 F.2d 631 (2nd Cir. 1957), 45, United States v. Green

Docket Nº:45, 46, Dockets 24103, 24104.
Citation:241 F.2d 631
Party Name:The UNITED STATES of America, Petitioner-Appellee, v. Gilbert GREEN, Respondent-Appellant. The UNITED STATES of America, Petitioner-Appellee, v. Henry WINSTON, Respondent-Appellant.
Case Date:February 11, 1957
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 631

241 F.2d 631 (2nd Cir. 1957)

The UNITED STATES of America, Petitioner-Appellee,

v.

Gilbert GREEN, Respondent-Appellant.

The UNITED STATES of America, Petitioner-Appellee,

v.

Henry WINSTON, Respondent-Appellant.

Nos. 45, 46, Dockets 24103, 24104.

United States Court of Appeals, Second Circuit.

February 11, 1957

Argued Jan. 17, 1957.

Page 632

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

Thomas A. Bolan, New York City, Paul W. Williams, U.S. Atty. for Southern Dist. of New York, New York City, for appellee.

Before HAND, HINCKS and WATERMAN, Circuit Judges.

HAND, Circuit Judge.

The appellants, Green and Winston, appeal from sentences of three years imprisonment under the following circumstances. Each was one of a number of defendants convicted of a violation of § 2385 of Title 18 U.S.C., commonly known as the 'Smith Act, ' after a long trial which ended on October 14, 1949; we affirmed the judgment on August 1, 1950, United States v. Dennis, 2 Cir., 183 F.2d 201, and the Supreme Court did the same on June 4, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. On the mandate of the Supreme Court's affirmance an order issued out of the District Court, directing all the defendants to appear for surrender to the marshal on July 2, 1951, and on June 28 it was served upon the attorney for the appellants who had both been released on bail pending the appeals. They did not appear on the return day, and successfully evaded arrest until they eventually surrendered, Green in February 1956 and Winston in March. These proceedings to punish them for disobedience of the order of June 28, 1951, were begun against them before Judge Dawson, who after a hearing without a jury on March 26, 1956, sentenced each to a term of three years, cumulatively upon the original sentence of five years. Upon these appeals, which involve the same questions and may be decided together, three questions arise: (1) Whether the District Court has power to impose any sentence of more than one year for disobedience of its orders; (2) whether it had any power whatever to sentence these particular appellants for failure to surrender in response to the order of June 28, 1951; and (3) whether there was evidence enough to fix them with notice of that order before their surrender. Believing that our decisions in United States v. Hall, 2 Cir., 198 F.2d 726 and United States v. Thompson, 2 Cir., 214 F.2d 545, foreclose our consideration of the second and third questions, the appellants do not press them here, explicitly reserving, nevertheless, the right to do so should the cases come before the Supreme Court. Although in these two decisions we affirmed sentences of three and four years, we will assume, arguendo, that the first point, unlike the second and third, remains open.

The following is the first of the appellants' two arguments in support of the position that the sentences for more than one year were invalid. The Supreme Court definitively held in Ex parte Wilson, 114 U.S. 417, 429, 5 S.Ct. 935, 941, 29 L.Ed. 89, that 'a crime punishable by imprisonment for a term of years at hard labor is an infamous crime'; and it is no longer necessary that the feature of 'hard labor' be added, if the confinement may be in a penitentiary. Mackin v. United States, 117 U.S. 348, 352, 6 S.Ct. 777, 29 L.Ed. 909; In re Claasen, 140 U.S. 200, 205, 11 S.Ct. 735, 35 L.Ed. 409. The punishment for any crime punishable by a sentence of more than a year, may be by confinement in a penitentiary, § 4083, Title 18 U.S.C.; and it follows that a sentence for disobedience of a court order may not be for more than a year, for in that event it is an 'infamous

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crime, ' and must be prosecuted by indictment under the Fifth Amendment.

Concededly, this argument depends upon whether such disobedience is a 'crime' within the...

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