352 U.S. 385 (1957), 37, Nilva v. United States

Docket Nº:No. 37
Citation:352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415
Party Name:Nilva v. United States
Case Date:February 25, 1957
Court:United States Supreme Court

Page 385

352 U.S. 385 (1957)

77 S.Ct. 431, 1 L.Ed.2d 415



United States

No. 37

United States Supreme Court

Feb. 25, 1957

Argued November 8, 13, 1956




In connection with a trial for conspiracy to violate the Federal Slot Machine Act, the court issued subpoenas duces tecum directing a corporation owned by one of the defendants to produce certain records of purchases and sales of slot machines. Petitioner, who was a vice-president of the corporation and an attorney of record for its owner, appeared on behalf of the corporation, produced certain records, and stated that they were all of the subpoenaed records that he could find. Under court order, all records of the corporation were impounded by a Federal Marshal, and among them were found records of purchases and sales of slot machines which petitioner had not produced. On the day after conviction of the defendants, the court ordered petitioner to appear four days later and show cause why he should not be held in criminal contempt for obstructing the administration of justice on three specifications. After a hearing, petitioner was found guilty of criminal contempt on all three specifications, and was given a general sentence of imprisonment. On appeal, the Government abandoned two of the specifications, but contended that the sentence should be sustained on the third.


1. The conviction of criminal contempt on the third specification is sustained. Pp. 392-396.

(a) A criminal contempt is committed by one who, in response to a subpoena calling for corporate records, refuses to surrender them when they are in existence and within his control. P. 392.

(b) The evidence reasonably supports the conclusion that the records covered by the third specification were in existence and were within petitioner's control. Pp. 392-394.

(c) Although petitioner testified at his trial that he attempted in good faith to comply with the subpoenas, this testimony was subject to appraisal by the trial court, and the record contained sufficient basis to justify the court in concluding that petitioner's failure to comply with the subpoena was intentional, and without "adequate excuse" within the meaning of Rule 17(g) of the Federal Rules of Criminal Procedure. P. 395.

(d) In the circumstances of this case, and in view of the wide discretion on such matters vested in the trial court, petitioner's

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claim that he was not allowed adequate time to prepare his defense is unfounded. P. 395.

(e) Trial of petitioner before the trial judge who initiated the contempt proceeding was not improper, because Rule 42(b) of the Federal Rule of Criminal Procedure requires disqualification of the trial judge only when "the contempt charged involves disrespect to or criticism of a judge," the contempt here charged was not of that kind, and there is no showing in this case of an abuse of discretion in failing to assign another judge. Pp. 395-396.

2. Since petitioner's general sentence followed his conviction on three original specifications and the Government has abandoned two of them, the trial court should be given an opportunity to reconsider the sentence; and the sentence is vacated and the case is remanded to the trial court for that purpose. P. 396.

227 F.2d 74, 228 F.2d 1, judgment vacated and case remanded to the District Court.

BURTON, J., lead opinion

MR. JUSTICE BURTON delivered the opinion of the Court.

In this case, a Federal District Court convicted an attorney of criminal contempt on three specifications for disobeying subpoenas duces tecum, and imposed a general sentence of imprisonment for a year and a day. Since the Government has abandoned two of the specifications, the principal questions are whether there is sufficient evidence to sustain the conviction on the third specification standing alone, and, if so, whether the case should be remanded for resentencing. For the reasons hereafter stated, we answer each in the affirmative.

In 1953, in the District Court of the United States for the District of North Dakota, petitioner, Allen I. Nilva,

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was tried, with Elmo T. Christianson and [77 S.Ct. 433] Herman Paster, for conspiracy to violate the Federal Slot Machine Act, 64 Stat. 1134-1136, 15 U.S.C. §§ 1171-1177. Christianson was the Attorney General of North Dakota. Paster was the owner of several distributing companies located in St. Paul, Minnesota. Petitioner was an attorney in St. Paul, a brother-in-law of Paster, and an officer in several of Paster's distributing companies. The indictment charged that these three conspired, with others, to accumulate slot machines late in 1950 and transport them into North Dakota, where they were to be distributed and operated under the protection of Christianson, who was to take office as Attorney General of that State on January 2, 1951.

On the first trial, in 1953, a jury was unable to agree on the guilt of Christianson and Paster, but acquitted petitioner. In 1954, in preparation for a retrial of Christianson and Paster, the same court issued subpoenas duces tecum No. 78, returnable on March 22, and No. 160, returnable on March 29. Each was addressed to the Mayflower Distributing Company, a St. Paul slot machine distributing corporation wholly owned by Paster. Each called for the production of records, for certain periods in 1950 and 1951, relating to transactions in slot machines and other coin-operated devices.1 Each was served on Walter D. Johnson, secretary-treasurer of the company.

On the date set for trial, Paster, instead of producing the subpoenaed records, moved to quash the subpoenas

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on the ground that the company was wholly owned by him and that the subpoenas required him to furnish evidence against himself. The motion was denied and, in response to the Government's request, the court ordered the subpoenaed records to be produced "forthwith."2 Three days later, on April 1, petitioner, who was an attorney of record for Paster, appeared in court and stated that he was the company's vice-president appearing for it in answer to the subpoenas. He said that,

in response to this subpoena, I personally, with the aid of people in the office force, searched all of our records in an attempt to comply with your subpoena and have brought all of the evidence I could to comply therewith.

However, when the Government asked for the records of purchases and sales of slot machines called for by the subpoenas, he stated that he had been unable to locate them, and suggested that some of the company's records had been transferred to [77 S.Ct. 434] St. Louis in connection with a conspiracy case pending there on appeal.3

The trial court, being convinced, as it later stated, that petitioner was giving false and evasive testimony, issued

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an order reciting the failure of the officers of the company to produce the subpoenaed records and ordering all records of the company impounded by the United States Marshal. Many of the company's records in St. Paul were at once impounded, and accountants from the Federal Bureau of Investigation promptly examined them. Among them were records of the company's purchases and sales of slot machines in 1950 and 1951. At the conspiracy trial on April 12, an FBI agent named Peterson testified about those records from summaries he had compiled.

On April 15, the trial court found it apparent that petitioner's testimony "was evasive or false, or both," and ordered him not to leave its jurisdiction without permission. No further action was taken at that time

because it was the Court's desire that the jury [in the conspiracy case] should not learn of the affair during the trial, so that the defendants therein would not be prejudiced by it in any way.

On April 22, the jury found Christianson and Paster guilty of the conspiracy charged.4 On the following day, the court directed petitioner to appear on April 27 and show cause why he should not be held in criminal contempt for having obstructed the administration of justice.5 In three specifications, the court charged petitioner with --

1. Giving false and evasive testimony under oath on April 1, 1954, upon answering, as vice-president of the Mayflower Distributing Company, subpoenas duces tecum directed to [it] . . .

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2. Disobedience to subpoena duces tecum No. 78, directed to the Mayflower Distributing Company . . . in that the following articles were not produced, as required thereby:

(a) Original ledger sheet reflecting the account of Stanley Baeder, November 1, 1950 through August 30, 1951;

* * * *

3. Disobedience to subpoena duces tecum No. 160 directed to the Mayflower Distributing Company, and disobedience to the order of the Court, made on March 29, 1954, directing the Mayflower Distributing Company to produce records forthwith, in the case of United States of America v. Elmo T. Christianson and Herman Paster, Criminal No. [77 S.Ct. 435] 8158, in that the following articles were not produced, as required thereby:

(a) General ledger 1950;

(b) General ledger 1951;

(c) Journal 1950-1951;

(d) Check Register 1950-1951; . . .

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At 10 a.m. on April 27, petitioner appeared as directed. The court gave his counsel access to the impounded records and postponed the hearing until 3 p.m. At that time, the impounded books and records were present on the trial table, and petitioner took the stand in his own defense. He identified items (a), (b), (c) and (d) of the 22 listed in the third specification and introduced those records as his exhibits. Item (a) was the company's general ledger for 1950. It contained a record of sales of new slot machines during October, 1950-January...

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