35 F.Supp. 593 (W.D.Mo. 1940), 5040, United States v. Pendergast

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Citation35 F.Supp. 593
Docket Number5040.
Date14 November 1940

Page 593

35 F.Supp. 593 (W.D.Mo. 1940)




No. 5040.

United States District Court, W.D. Missouri

Nov. 14, 1940

Page 594

Richard K. Phelps, Asst. U.S. Atty., of Kansas City, Mo., for plaintiff.

R. R. Brewster and John G. Madden, both of Kansas City, Mo., for Thos. J. Pendergast.

James P. Aylward, Jerome Walsh, and Terrence O'Brien, all of Kansas City, Mo., for Robert Emmett O'Malley.

Forest W. Hanna, of Kansas City, Mo., for A. L. McCormack.

Before STONE, Circuit Judge, and REEVES and OTIS, District Judges.

OTIS, District Judge.

An information charging Thomas J. Pendergast, Robert Emmett O'Malley and A.

Page 595

L. McCormack with contempt of this statutory court was filed by the United States Attorney July 13, 1940. A full synopsis of the information is set out in the margin. 1 It is alleged in the information that the three individuals named had procured from this court a decree in a number of cases involving insurance rates in Missouri and involving the disposition of a huge fund impounded by the court; that they had obtained the decree by the bribery of the superintendent of insurance, one of the litigants, and by representations to the court that a settlement had been honestly arrived at by the parties. It was further of the essence of the information that the named individuals not only deceived and committed a fraud on the court, but that they continued the original deception and fraud by affirmative acts designed to prevent discovery by the court of the truth concerning the settlement

On August 31, 1940, Pendergast and O'Malley separately filed substantially identical motions to abate and quash the information. On September 3, 1940, McCormack filed a like motion. These motions have been submitted on oral arguments and written briefs and are now to be ruled.

Of the several grounds set out in the motions, three only have been presented in the argument. We discuss them.


1. It is contended that this court 'is a statutory tribunal of limited jurisdiction and that it is without jurisdiction in this proceeding. ' The reasoning of counsel is this:

This three-judge court is a three-judge court of the Central Division of the Western District of Missouri and is 'a separate and distinct tribunal' of that division. Steers v. United States, 8 Cir., 297 F. 116, 118. By rule of court made pursuant to statute, 28 U.S.C.A. § 27, Judge Collet now is the federal district judge assigned to the Central Division. Judge Collet, therefore, and he alone, has jurisdiction of offenses committed against any federal district court (three-judge court or otherwise) sitting in and for the Central Division, provided the offense is an independent proceeding and not incidental to the original litigation pending before the three-judge court. This contempt proceeding is not incidental to the original litigation pending before the three-judge court.

The reasoning is sound. The last mentioned hypothesis is error. The misbehavior

Page 596

charged against defendants may not constitute contempt (that is the next question to be considered), but accepting as true the allegations in the information, it was certainly misbehavior obstructing the administration of justice in cases pending before this three-judge court. Its punishment, if the allegations are proved and if contempt is shown, clearly is as incidental to the cases pending as interference with the administration of justice in any case is incidental to that case. Any contempt, not committed in the face of the court, must be incidental to some case. If the alleged misbehavior was not incidental to the case pending before the three-judge court, to what case was it incidental? The fact that misbehavior may be an independent crime under the laws does not mean, of course, that it may not be, as contempt, incidental to some principal case. In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150.

We resolve contention No. 1 against the movants.

Is Contempt Charged? The 'Order and Decorum' Argument.

2. The information in effect charges that the insurance companies, through McCormack, furnished Pendergast with money, which Pendergast used to bribe O'Malley to deceive this court so as to obtain a decree giving money held by the court to the companies. The conspiracy to act and the acts committed (except the final act through counsel) all were beyond the physical presence of the court. The second contention is that no act charged against any of defendants was of such a nature as to disturb the 'order and decorum' of the court and that only acts of that character (and certain other acts which the alleged misbehavior obviously is not) can constitute contempt.

The whole argument in support of this contention is rooted in a dictum used by the Supreme Court in Ex parte Robinson, 19 Wall. 505, 511, 22 L.Ed. 205. In that case there was a judgment against Robinson, that he had been guilty of contempt, bottomed on 'the tone and manner' in which he made certain statements in open court, the statements themselves being not in substance contemptuous. The district judge sought to punish the contemnor by disbarment. The only question determined in the case was that disbarment was not such a punishment as could be imposed for contempt. In an incidental discussion of the statute (now Section 385, Title 28 U.S.C.A.), the court said (the italics are ours): 'It limits the power of these courts in this respect to three classes of cases: 1st, where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; 2d, where there has been misbehavior of any officer of the courts in his official transactions; and, 3d, where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen the power of these courts in the punishments of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes.'

The phrase 'to insure order and decorum in their presence' in the dictum quoted is seized upon. It is perfectly obvious, however, to one who gives any thought to the matter, that the Supreme Court did not mean to say that the only 'misbehavior' referred to in the statute was such as constituted an interference 'with order and decorum.' Here was intended only an illustration of the misbehavior which might be punished as contempt. The reference is to order and decorum 'in their presence,' but the very words of the statute make punishable as contempt misbehavior not in the presence of the court, provided it is 'so near thereto as to obstruct the administration of justice.'

If any doubt at all could arise from the language of the Supreme Court in Ex parte Robinson, supra, it certainly was entirely dissipated in the later opinion in Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186. It was made perfectly clear by the opinion in that case that contempt was not restricted to interference with 'order and decorum.' When the opinion is read in connection with the opinion of the district court in the same case (220 F. 458) it is clear that it is the effect on the administration of justice which is the test of whether misbehavior is contempt. If the tendency of the misbehavior is to affect the administration of justice, it is contempt, whether it is in the presence of the court or at some point away from the presence of the court, whether it affects the order and decorum of the courtroom or does not affect them.

Page 597

The Court of Appeals for this circuit in Froelich v. United States, 33 F.2d 660, 663, by its reasoning, entirely disposed of this second contention of defendants. Froelich had written a letter to an attorney in a case in which he reflected upon the integrity of Judge Sanborn, then district judge. The effect of the letter was to induce an affidavit of prejudice. The affidavit of prejudice affected the administration of justice. The act of writing the letter was held to be punishable contempt. The Court of Appeals said: ' * * * undoubtedly one who seeks to induce an attorney in a case to file such an affidavit (i.e., an affidavit of prejudice), by laying before him false and malicious statements as to the uprightness and honor of a trial judge, if the result is the filing of an affidavit of bias and prejudice, does obstruct the administration of justice. That...

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