49 F.2d 523 (D.D.C. 1931), 5131, Blackmer v. United States

Docket Nº:5131, 5132.
Citation:49 F.2d 523
Party Name:BLACKMER v. UNITED STATES.
Case Date:April 06, 1931
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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49 F.2d 523 (D.D.C. 1931)

BLACKMER

v.

UNITED STATES.

Nos. 5131, 5132.

Court of Appeals of District of Columbia.

April 6, 1931

Argued February 4, 1931.

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Frederick DeC. Faust and Charles F. Wilson, both of Washington, D.C., Eugene D. Millikin and Karl C. Schuyler, both of Denver, Colo., and George G. Battle, of New York City, for appellant.

Leo A. Rover, U.S. Atty., of Washington, D.C., and Atlee Pomerene, of Cleveland, Ohio (Frank Harrison, of Cleveland, Ohio, of counsel), for the United States.

Before ROBB and VAN ORSDEL, Associate Justices, and COX, Associate Justice of the Supreme Court of the District of Columbia.

ROBB, Associate Justice.

In No. 5131, appellant, Harry M. Blackmer, was adjudged guilty of contempt of the Supreme Court of the District in failing to respond to a subpoena to appear on October 17, 1927, as a witness on behalf of the United States at the trial of Harry F. Sinclair and Albert B. Fall in that court on a criminal charge of having conspired to defraud the United States in violation of section 37 of the Criminal Code (18 USCA § 88).

In No. 5132, a mistrial of the Sinclair-Fall conspiracy case having been declared on November 2, 1927, appellant was again subpoenaed to appear on Monday, April 2, 1928, as a witness on behalf of the United States at the retrial of the case. Again he failed to appear. He was also found guilty of contempt of the Supreme Court of the District because of that failure.

The issuance and service of the subpoenas and the proceedings in each contempt case were under the provisions of the Act of July 3, 1926 (c. 762, 44 Stat. 835, U.S.C. Sup. IV, tit. 28, Secs. 711-718 (28 USCA §§ 711-718).

Section 1 of that act provides that whenever letters rogatory shall issue out of any court of the United States, addressed to any court of any foreign country, to take the testimony of any witness, he being a citizen of the United States or domiciled therein, and such witness, having been personally notified, neglects to appear, the court out of which such letters issued may authorize the issuance

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of a subpoena addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the court at a time and place therein designated.

The remaining sections read as follows:

'Sec. 2. Whenever the attendance at the trial of any criminal action of a witness, being a citizen of the United States or domiciled therein, who is beyond the jurisdiction of the United States, is desired by the Attorney General or any assistant or district attorney acting under him, the judge of the court before which such action is pending, or who is to sit in the trial of the same, may, upon proper showing, order that a subpoena issue, addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the said court at a time and place therein designated.

'Sec. 3. It shall be the duty of any consul of the United States within any country in which such witness may be at the request of the clerk of the court issuing any subpoena under this Act or at the request of the officer causing such subpoena to be issued, to serve the same personally upon such witness and also to serve any orders to show cause, rules, judgments, or decrees when requested by the court or United States Marshal, and to make a return thereof to the court out of which the same issued, first tendering to the witness the amount of his necessary expenses in traveling to and from the place at which the court sits and his attendance thereon, which amount shall be determined by the judge on issuing the order for the subpoena and supplied to the consul making the service.

'Sec. 4. If the witness so served shall neglect or refuse to appear as in such subpoena directed, the court out of which it was issued shall, upon proof being made of the service and default, issue an order directing the witness to appear before the court at a time in such order designated to show cause why he should not be adjudged guilty of contempt and be punished accordingly.

'Sec. 5. Upon issuing such order the court may, upon the giving of security for any damages which the recusing witness may have suffered, should the charge be dismissed (except that no security shall be required of the United States), direct as a part of such order that the property of the recusing witness, at any place within the United States, or so much thereof in value as the court may direct shall be levied upon and seized by the marshal of said court in the manner provided by law or the rule of the court for a levy or seizure under execution, to be held to satisfy any judgment that may be rendered against such witness in the proceeding so instituted.

'Sec. 6. The marshal, having made such levy, shall thereupon forward to the consul of any country where the recusing witness may be a copy of the order to show cause why such witness should not be adjudged guilty of contempt with the request that said consul make service of the same personally upon the recusing witness, and shall cause to be published such order to show cause and for the sequestration of the property of such witness, in some newspaper of general circulation in the district within which the court issuing such order sits, once each week for six consecutive weeks.

'Sec. 7. On the return day of such order or any later day to which the hearing may by the court be continued, proof shall be taken; and if the charge of recusancy against the witness shall be sustained, the court shall adjudge him guilty of contempt and, notwithstanding any limitation upon the power of the court generally to punish for contempt, impose upon him a fine not exceeding $100,000 and direct that the amount thereof, with the costs of the proceeding, be satisfied, unless paid, by a sale of the property of the witness so seized or levied upon, such sale to be conducted upon the notice required and in the manner provided for sales upon execution.

'Sec. 8. Any judgment rendered pursuant to this Act upon service by publication only may be opened for answer within the time and in the manner provided in section 57 of the Judicial Code.'

On May 13, 1925, in the court below, Sinclair and Fall were indicted for conspiracy to defraud the United States. On May 13, 1927, counsel for the United States filed in that court a petition stating that at the trial of the case they desired the attendance of appellant and another; that appellant was a citizen of and then beyond the jurisdiction of the United States; 'that your petitioners believe and therefore aver that the attendance of the said persons at the trial of the said cause is vital and important to the United States, because as your petitioners aver, they believe that the said witnesses have knowledge and information with regard to certain important facts which the United States desires to prove in the said cause, and that their testimony as to said facts will be material in connection with the establishment not only of the conspiracy

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charged between the defendants in the above captioned cause, but in connection with the proof of overt acts done by the defendants pursuant to said conspiracy. More particularly your petitioners believe and therefore aver that the said * * * and H. M. Blackmer can testify to facts concerning the persons who were in the latter part of the year 1921 and during the year 1922 stockholders of the Continental Trading Company, Ltd., a corporation, and with regard to the distribution by that corporation to its stockholders of certain United States 3 1/2 Liberty Loan bonds as dividends, certain of which bonds, as your petitioners believe and therefore aver, were subsequently delivered by or on behalf of one of the defendants, Harry F. Sinclair, to the other defendant, Albert B. Fall.'

The petition further prayed the issuance of a subpoena addressed to any consul general or consul of the United States within the republic of France, or within any country in which either of the witnesses might be, 'commanding such witness to appear before this Court in Criminal Court No. 2, at the City of Washington, D.C., on the 17th day of October, 1927.'

This petition was duly verified by Owen J. Roberts, Special Assistant to the Attorney General, and now an Associate Justice of the Supreme Court of the United States. On the same day the court ordered the subpoena to issue, and fixed and determined at $500 the amount to be tendered to each witness 'for his necessary expenses in traveling to and from Washington, D.C., and for his attendance at Court. ' Thereupon a subpoena in regular form was issued, and on May 27, 1927, was served on appellant by George Orr, consul of the United States at Paris, France; the consul's return reciting that the service was 'at the usual residence of the witness, * * * 25 Avenue Montaigue, Paris, France, and in the presence of Consul Raymond Davis and Mr. Henri Gadd, Attorney for the witness. The witness declined to accept the sum of $500 in United States currency tendered him for traveling expenses. The original copy hereof was left in the hands of the witness. ' On June 7, 1927, another such subpoena was served on appellant by Raymond Davis, consul of the United States at Paris, who tendered appellant 'the sum of $500 currency of the United States of America, ' which tender likewise was refused.

On November 4, 1927, counsel for the United States presented a petition to the court below for a rule in contempt, setting forth in detail the proceedings culminating in the failure of appellant to appear as a witness. In addition to the order to show cause, it was prayed that the...

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