289 U.S. 1 (1933), 531, Clark v. United States

Docket NºNo. 531
Citation289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993
Party NameClark v. United States
Case DateMarch 13, 1933
CourtUnited States Supreme Court

Page 1

289 U.S. 1 (1933)

53 S.Ct. 465, 77 L.Ed. 993

Clark

v.

United States

No. 531

United States Supreme Court

March 13, 1933

Argued February 6, 7, 1933

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus

1. Concealment or misstatement by a juror upon a voir dire examination is punishable as a contempt if its tendency and design are to obstruct the processes of justice. So held where the juror, on being asked to state her past employments, mentioned several, but deliberately concealed an employment by the defendant, and, on being questioned as to bias, replied falsely that she had none, all with intent to gain a place in the box and thwart the prosecution. P. 10.

2. The gist of the offense is neither the concealment nor the false swearing, but their use to gain acceptance as a juror in the case and, under cover of that relation, to obstruct the course of justice. P. 11.

3. As respects punishment for contempt, deceit practiced by a talesman in order that he may become a juror -- part of the court -- and influence or prevent a verdict, is to be distinguished from deceit practiced by a witness in testifying. P. 11.

4. A contemptuous obstruction to judicial power is nonetheless contempt when aggravated by perjury. P. 11.

5. The privilege from exposure of his votes and arguments in the jury room does not belong to a juror who became such by a fraud on the court. P. 12.

6. A statement by a juror of how she voted, made in her answer to an information for contempt, held a waiver to that extent of the privilege against disclosure. P. 18.

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7. Evidence of a juror's intentional concealment on voir dire of her disqualification by previous employment by defendant, and evidence of her arguments with other jurors while the trial was going on, and of her vote, revealed by her own answer in the contempt proceedings, held sufficient to overcome the claim of privilege and let in evidence of her conduct in the jury room after the case had been submitted. P. 18.

8. The rule that the testimony of a juror is not admissible for the impeachment of his verdict bears no relation to the privilege of jurors against exposure of their arguments and votes in the jury room. P. 18.

9. The doctrine allowing purgation by the oath of the contemnor as a bar to prosecution for contempt is obsolete. P. 19.

10. There was no denial to the petitioner of a fair notice of hearing, nor any variance of substance between the information and the findings, in this case. P. 19.

61 F.2d 695 affirmed.

Certiorari, 287 U.S. 595, to review the affirmance of a conviction of criminal contempt. See 1 F.Supp. 747.

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CARDOZO, J., lead opinion

MR. JUSTICE CARDOZO delivered the opinion of the Court.

The petitioner, Genevieve A. Clark, has been adjudged guilty of a criminal contempt in that, with intent to obstruct justice, she gave answers knowingly misleading and others knowingly false in response to questions affecting her qualifications as a juror. 1 F.Supp. 747.

The conviction by the District Court was affirmed by the Circuit Court of Appeals for the Eighth Circuit, the proceeding being remanded, however, to correct an error in the sentence. 61 F.2d 695. A writ of certiorari brings the case here.

In September, 1931, there came on for trial in the United States District Court for the District of Minnesota an indictment which had been returned against William B. Foshay and others charging them with the use of the mails in furtherance of a scheme to defraud. The petitioner was one of the panel of jurors summoned to attend. She did not know, when the summons came to her, for what case she had been called, and telephoned

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a sister, Mrs. Brown, that she would like to be excused. She was advised by her sister, who had made inquiry of the clerk of the court, that excuses, if there were any, would have to be presented to the judge. At the same time, she was informed that the trial for which she had been summoned was the Foshay trial, and that she would probably not be accepted as a juror, since she had been employed by the Foshay Company, a corporation with which the indicted men had been connected as officers.

On the day appointed for the trial, the petitioner, in company with her husband, reported at the courtroom. The District Judge examined the members of the panel as to their qualifications for service. While the examination was going on, the petitioner stated to several women on the panel that she wished to serve on the jury, that for this she had a special reason, and that she was afraid her former employment by the Foshay Company would disqualify her; that she had worked for the company as a stenographer and typist for about two weeks in the summer of 1929, but did not know or come in contact with any of the defendants personally.

Her service as stenographer and typist was not the only tie of friendliness that linked her to the Foshay firm. There were other contacts or relations that are not without [53 S.Ct. 467] significance, though less direct and personal. Until her marriage in 1922, she had been employed with the title of assistant cashier in a bank at St. Paul, of which Mr. Clark was then the president. Foshay in those years was a customer of the bank as depositor and borrower. Mr. Clark resigned as president in 1925, but his business relations with Foshay continued in the years that followed. Letters that passed between them are printed in the record. The tone is cordial, and almost intimate. True, there is nothing to show that the friendly relations had spread to the petitioner. She denies that she had any

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acquaintance with Foshay or his associates, and the District Court, by its findings, has accepted her denial. It is next to impossible, however, that her husband, who was with her in the courtroom, had refrained from telling her of his own friendship for one of the prisoners at the bar.

The petitioner, upon being called to the jury box, was questioned under oath by the judge presiding at the trial. She was asked whether she had ever been in any business of any kind. She answered, "I have been a stenographer before my marriage, yes." She was asked in what kind of business she had worked. She answered, "Well, I did some banking and some real estate and insurance, and I was with an automobile concern, with a Nash agency." Finally, she was asked whether she felt that her mind was free from bias, and whether, if accepted as a juror, she would be able and willing to base her verdict on the evidence and the law as given to her by the court. To those inquiries she answered that her mind was clear of bias, and that the law and the evidence would govern her in arriving at a verdict.

The petitioner, after thus testifying, became a member of the jury, which was thereupon complete. The trial which followed lasted eight weeks. Two officers, a man and a woman, were in charge of the jury from the beginning to the end. During the first week of the trial, the petitioner made the remark to several of her fellow jurors that she regarded Mr. Foshay as a victim of circumstances, that he had gone to New York in the fall of 1929 to borrow $18,000,000, but that, because of the stock market crash, had come back without a dollar. When asked by a juror where she had procured that information, which was not supported by the evidence, she said that it was from a newspaper which she had read before the trial. Later on, she gave expression to dissatisfaction with the government because of the way the soldiers were treated after the war.

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During the deliberations of the jury after the case was finally submitted, she announced that, since the prosecuting attorney had been unable to convince her of the guilt of the accused, the other jurors could hardly be expected to do so. At times, she placed her hands over her ears when other jurors tried to reason with her, and argument became useless because she was unwilling to reply. She said of a witness for the government that he had given perjured evidence in the South in an attempt to convict an innocent man. This information had come to her in the course of a conversation with her husband, who had seen her at her hotel, in the presence of a bailiff, while the trial was under way. After being kept together for a week, the jury was discharged because unable to agree. The votes of eleven were for conviction. The single vote for acquittal was cast by the petitioner.

On November 4, 1931, the government filed an information in support of a rule to show cause why the petitioner should not be punished for a criminal contempt. The information charges that her answers upon the voir dire examination were willfully and corruptly false, and that the effect of her misconduct had been to hinder and obstruct the trial. In response to the rule to show cause, the defendant filed an answer denying the misconduct, and alleging that her vote for acquittal had been dictated by her conscience. There was a full and patient hearing by a District Court of two judges. The court found the facts as they have been stated in this opinion. It drew from them the conclusion that the juror had obstructed the administration of justice, when examined on her voir dire, by "deliberately and intentionally" concealing the fact that she had been employed during the summer of 1929 by the Foshay Company. It drew the conclusion also that she had obstructed the administration of justice by stating falsely that she was free from bias and that her verdict would be based only upon the evidence as

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introduced, and the law as given by the court. For the contempt thus adjudged, there was a sentence of imprisonment and fine.

1. Concealment or misstatement by a juror upon a voir dire examination is punishable as a contempt if its tendency and design are to obstruct the processes of justice.

There was concealment by the petitioner, and that willful and...

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665 practice notes
  • 10 B.R. 993 (Bkrtcy.D.Me. 1981), 80-19, In re Blier Cedar Co., Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts First Circuit
    • May 14, 1981
    ...Rev. 1961). More than a mere allegation of the commission of an unlawful act is required to vitiate the privilege, Clark v. United States, 289 U.S. 1, 14, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); Union Camp Corporation v. Lewis, 385 F.2d 143, 144 (4th Cir. 1967), but establishment of a prima......
  • 153 B.R. 445 (Bkrtcy.N.D.Tex. 1992), 388-35726-HCA-11, In re Hunt
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • November 5, 1992
    ...an attorney for advice that will serve him in the commission of a fraud will have no help from the law." Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1932), quoted in Ballard, 779 F.2d at This Court expects that, because of the nature of the claims the Indep......
  • 244 F.R.D. 374 (W.D.Ky. 2007), C. A. 3:07-CV-175-R, Invesco Institutional (N.A.), Inc. v. Paas
    • United States
    • Federal Cases United States District Courts 6th Circuit Western District of Kentucky
    • June 7, 2007
    ...prior wrongdoing, but to plan or facilitate future wrongdoing. Zolin, 491 U.S. at 563-64, 109 S.Ct. 2619 (citing Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933)). Hence, the crime-fraud exception to the attorney-client privilege arises to assure that the " sea......
  • 293 F.R.D. 420 (S.D.N.Y. 2013), 07 Civ. 11586 (LAK) (GWG), Amusement Industry, Inc. v. Stern
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • February 11, 2013
    ...an attorney for advice that will serve him in the commission of a fraud will have no help from the law." Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933); accord People ex rel. Vogelstein v. Warden, 150 Misc. 714, 721, 270 N.Y.S. 362 (N.Y. Sup.Ct.), aff'd, 242 ......
  • Request a trial to view additional results
630 cases
  • 10 B.R. 993 (Bkrtcy.D.Me. 1981), 80-19, In re Blier Cedar Co., Inc.
    • United States
    • Federal Cases United States Bankruptcy Courts First Circuit
    • May 14, 1981
    ...Rev. 1961). More than a mere allegation of the commission of an unlawful act is required to vitiate the privilege, Clark v. United States, 289 U.S. 1, 14, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1933); Union Camp Corporation v. Lewis, 385 F.2d 143, 144 (4th Cir. 1967), but establishment of a prima......
  • 153 B.R. 445 (Bkrtcy.N.D.Tex. 1992), 388-35726-HCA-11, In re Hunt
    • United States
    • Federal Cases United States Bankruptcy Courts Fifth Circuit
    • November 5, 1992
    ...an attorney for advice that will serve him in the commission of a fraud will have no help from the law." Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 469, 77 L.Ed. 993 (1932), quoted in Ballard, 779 F.2d at This Court expects that, because of the nature of the claims the Indep......
  • 244 F.R.D. 374 (W.D.Ky. 2007), C. A. 3:07-CV-175-R, Invesco Institutional (N.A.), Inc. v. Paas
    • United States
    • Federal Cases United States District Courts 6th Circuit Western District of Kentucky
    • June 7, 2007
    ...prior wrongdoing, but to plan or facilitate future wrongdoing. Zolin, 491 U.S. at 563-64, 109 S.Ct. 2619 (citing Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933)). Hence, the crime-fraud exception to the attorney-client privilege arises to assure that the " sea......
  • 293 F.R.D. 420 (S.D.N.Y. 2013), 07 Civ. 11586 (LAK) (GWG), Amusement Industry, Inc. v. Stern
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • February 11, 2013
    ...an attorney for advice that will serve him in the commission of a fraud will have no help from the law." Clark v. United States, 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933); accord People ex rel. Vogelstein v. Warden, 150 Misc. 714, 721, 270 N.Y.S. 362 (N.Y. Sup.Ct.), aff'd, 242 ......
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29 books & journal articles
  • Summary Contempt Power in the Military: A Proposal to Amend Article 48, UCMJ
    • United States
    • Military Law Review Nbr. 160, June 1999
    • June 1, 1999
    ...is punished is . . . the abuse of an official relation. . . . This is contempt, whatever it may be besides." Clark v. United States, 289 U.S. 1, 12 327. Burnett, 27 M.J. at 106-107. 328. See generally id. at 106-108. 329. Id. at 107. 330. Exec. Order No. 13,086, 63 Fed. Reg. 30,065, 30......
  • Dead men's lawyers tell no tales: the attorney-client privilege survives death.
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 Nbr. 3, March 1999
    • March 22, 1999
    ...misconduct, but for legal assistance in carrying out a contemplated or ongoing crime or fraud."). See also Clark v. United States, 289 U.S. 1, 15 (1933) ("The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the ......
  • Jury secrecy during deliberations.
    • United States
    • Yale Law Journal Vol. 110 Nbr. 8, June 2001
    • June 1, 2001
    ...supra note 48, at 889 (quoting Justice Cardozo and noting that this sentence is a "passage echoed by numerous courts"). (91.) 289 U.S. 1 (1933). (92.) Id. at 13. (93.) 116 F.3d at 619. (94.) 195 F.3d at 1086. (95.) John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. ......
  • Illegal secrets.
    • United States
    • Washington University Law Review Vol. 91 Nbr. 5, July - July 2014
    • July 1, 2014
    ...(340.) 8 U.S.C. [section] 552A(1)(B) (2012). (341.) See United States v. Zolin, 491 U.S. 554 (1989). (342.) Clark v. United States, 289 U.S. 1, 15 (1933). But see Auburn K. Daily & S. Britta Thornquist, Has the Exception Outgrown the Privilege?: Exploring the Application of the Crime-Fr......
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2 provisions
  • Justice Department, Prisons Bureau,
    • United States
    • Federal Register October 31, 2001
    • October 26, 2001
    ...is no protection for communications that are in furtherance of the client's ongoing or contemplated illegal acts. Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will have no help from the law''); United States v. Gordon-Nikkar, 518 F. 2d 972, 975 (5th Cir. 1975) (``it is bey......
  • Inmate control, custody, care, etc.: National security; prevention of acts of violence and terrorism,
    • United States
    • Federal Register April 04, 2007
    • March 29, 2007
    ...for communications that further ongoing or contemplated illegal acts, including acts of terrorism. See, e.g., Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will have no help from the law''). The crime-fraud exception applies even if the attorney is unaware that his professi......