United States v. Galante, 75
Decision Date | 08 January 1962 |
Docket Number | No. 75,Docket 27048.,75 |
Parties | UNITED STATES of America, Appellee, v. Carmine GALANTE and Anthony Mirra, Appellants. |
Court | U.S. Court of Appeals — Second Circuit |
Albert J. Krieger, New York City, for appellant Galante.
Leo B. Mittelman, New York City, for appellant Mirra.
William M. Tendy, Asst. U. S. Atty., for the Southern District of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Arthur I. Rosett, Asst. U. S. Atty., So. Dist. of New York, New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
During the course of a long (5½ month) narcotics conspiracy trial, eventually ending in a mistrial by reason of injury to a juror, leaving less than 12 available to serve, appellants were advised by the judgment that their courtroom misconduct was being noted. When the mistrial was declared appellants were called before the bench, held in contempt for the earlier actions, and each sentenced to imprisonment for 20 days. The sentence in the case of Mirra was to follow an earlier sentence then being served. Appeals were taken. Galante applied for bail pending appeal, which was denied. Galante's sentence was fully served June 3, 1961 and he was then discharged.
The United States moves to dismiss Galante's appeal as moot. The motion must be granted. In the absence of any showing of collateral effects of a judgment of conviction, such as loss of civil rights or potential enhanced punishment under multiple offender statutes, completion of service of a sentence of imprisonment makes an appeal from the judgment moot. "The moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review." St. Pierre v. United States, 319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199, Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393.
A judgment of guilt of criminal contempt is not a felony conviction. United States v. DeSimone, 2 Cir., 267 F.2d 741, cert. denied 361 U.S. 827, 80 S.Ct. 74, 4 L.Ed.2d 70. So far as civil rights are concerned, Galante had at least one prior felony conviction in New York State. Any loss of civil rights had already been suffered. He does not therefore come within the rule of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L. Ed. 196, or Pollard v. United States, supra. Galante's appeal is dismissed as moot.
The certificate filed by Judge Levet in Mirra's case sets forth, as a basis for the finding of contempt, the following transcript of a portion of the trial:
The government contends that the incident is to be viewed in the light of the entire record of the trial, appellant that we are confined to the certificate under Federal Rules of Criminal Procedure, Rule 42(a), 18 U.S.C.A Rule 42 provides:
We do not find it necessary here to determine to what extent a prior course of conduct relied on by a judge in holding a particular act contumacious must be spelled out in the certificate, since the particular act here certified and relied on was in itself a contempt.1 The refusal of Mirra here to stop talking and sit down, portrayed in the certificate, required the judge to interrupt the trial, declare a recess and excuse the jury. This was an actual obstruction of the judicial process, punishable as a contempt, without regard to what had gone before. Taken as an isolated incident, the punishment by imprisonment for 20 days is severe. It interrupted a trial, however, which the record shows had been under way for many weeks, involving a large number of defendants. The judge was entitled to consider that fact in determining the punishment. MacInnis v. United States, 191 F.2d 157, 161, 9 Cir. 1951, cert. denied 342 U.S. 953, 72 S.Ct. 628, 96 L.Ed. 708.
The power to punish for contempt committed in the presence of the court is an unusual and summary sanction, arising from the necessity of control of judicial proceedings and their protection from disruption and delay, whether by litigants or others. Because of the possibility of its arbitrary use, and the absence of the usual safeguards of a criminal trial, the power must be sparingly and carefully used "with the utmost sense of responsibility and circumspection." Brown v. United States, 359 U.S. 41, 52, 79 S.Ct. 539, 547, 3 L.Ed. 2d 609. When a trial judge makes the determination on sufficient grounds that action is necessary, the sentence is within the discretion of the court, and is open to review only for arbitrary use of the power in abuse of discretion. United States v. Levine, 2 Cir. 1961, 288 F.2d 272, Shibley v. United States, 9 Cir. 1956, 236 F.2d 238, cert. denied 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77 (1956), Robles v. United States, 9 Cir. 1960, 279 F.2d 401, 406. There is here no hint of interjection of personal conflict on the part of the judge. Therefore we will not lightly set aside his determination that the concededly improper conduct of Mirra required recessing the trial to bring obedience to the lawful order of the court to desist from his conduct, nor that this interruption of trial was an offense deserving of so severe a punishment as 20 days imprisonment.
It is contended that even if the power existed summarily to punish Mirra for his acts, the power was lost by the six week delay in exercising it, and that at the very least any finding of contempt after such a delay required notice and hearing under 42(b). We think this contention answered by the decisions...
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