Brody v. United States, 5207.

• Decision Date: 17 June 1957
• Docket Number: No. 5207.,5207.
• Citation: 243 F.2d 378
• Parties: Samuel C. BRODY, Respondent, Appellant, v. UNITED STATES of America, Petitioner, Appellee.
• Court: U.S. Court of Appeals — First Circuit

243 F.2d 378 (1957)

Samuel C. BRODY, Respondent, Appellant, v. UNITED STATES of America, Petitioner, Appellee.

No. 5207.

United States Court of Appeals First Circuit.

April 26, 1957.

Writ of Certiorari Denied June 17, 1957.

James D. St. Clair, Boston, Mass., with whom Hale & Dorr, Boston, Mass., was on brief, for appellant.

Andrew A. Caffrey, Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., and George H. Lewald, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Writ of Certiorari Denied June 17, 1957. See 77 S.Ct. 1384.

MAGRUDER, Chief Judge.

This is an appeal by Samuel C. Brody from a judgment of the United States District Court for the District of Massachusetts finding him guilty of a criminal contempt under the provisions of 18 U.S.C. § 401.¹ The contempt consisted of a failure to obey an order entered by Judge Aldrich on January 10, 1956, in a civil action captioned John J. Duffy, Acting Group Supervisor, Internal Revenue Service v. Samuel C. Brody. This order in substance required Brody to submit to a collection officer of the Internal Revenue Service under oath and in writing answers to questions relating to the disposition and location of certain of his assets. Though Brody had ample opportunity to comply with this court order, it is clear that he willfully and deliberately refrained from doing so. An asserted excuse, based upon the privilege of self-incrimination, will be dealt with later in this opinion. Despite the earnestness of the presentation by counsel for appellant, we are satisfied that this is a clear case requiring affirmance of the judgment under review.

The events leading up to Brody's conviction began on November 4, 1955, when the Internal Revenue Service entered a jeopardy assessment against him for unpaid income taxes for the years 1942-1946 in the amount of $663,629.31 and demanded payment. 26 U.S.C. § 6331(a). Commencing a few days after receipt of this demand, Brody proceeded to liquidate a substantial block of securities from which he realized in cash, as of November 29, 1955, the sum of $330,000.00.

On December 6, 1955, the Internal Revenue Service served a summons upon Brody, stated to have been issued under authority of § 7602 of the Internal Revenue Code of 1954, which directed him to report on December 16, 1955, at the office of Myles P. McCabe, an officer of the Internal Revenue Service in Boston, Massachusetts, to give testimony relating to his tax liability. Section 7602, together with other relevant sections of the Internal Revenue Code of 1954, is copied in the footnote.²

On December 7 or 8, 1955, Brody told his counsel, Arthur Gottlieb, Esq., that he would not appear at the revenue office in response to this summons. On December 8 Mr. Gottlieb requested that the hearing be advanced from December 16 to December 14 but did not state a reason for such request.

Mr. Gottlieb appeared on December 14, 1955, at the revenue office and stated that Brody had told him that he was physically unable to be present and also that he probably would not be able to appear for at least a year. The revenue officer requested Mr. Gottlieb to inquire of Brody whether the hearing could not be held on that very afternoon. Later in the day Mr. Gottlieb reported back that Brody had been advised by his doctor not to appear. On the next day, December 15, 1955, Brody left for Florida by airplane without leave of the revenue office and without notice.

As a result of Brody's failure to respond to the summons, a civil action was commenced against him in the United States District Court for the District of Massachusetts on December 29, 1955, by petitioner John J. Duffy, Acting Group Supervisor, Delinquent Accounts and Returns Branch, Internal Revenue Service. The petition recited that it was brought under the provisions of § 7604 of the Internal Revenue Code of 1954. The petitioner asked the court to issue an order to Brody to show cause why his person should not be attached "as for contempt" and to show cause why he should not be ordered to appear on a day fixed by the court before the Internal Revenue Service and testify as directed by the summons. The petition concluded, in the usual form, with a request for "such other order or relief as this Court may deem just and proper." Though this petition is entitled "Petition for Attachment as for Contempt" and though a similar phrase is contained in § 7604(b), the proceeding was not strictly one of contempt, but was more accurately a proceeding to obtain the assistance of the court in forcing Brody to give the desired information to the Internal Revenue Service by the device of having the court issue an order to that effect, disobedience of which would be a contempt punishable by the court. It is true that § 7210 of the Internal Revenue Code makes it a crime for a person who being duly summoned to testify as required by § 7602, neglects to do so. But presumably a conviction of this offense could only be had upon a regular criminal prosecution, with the right of trial by jury. Brody could not have been punished summarily by the court for a contempt of court for his failure to obey the summons of the Internal Revenue Service.

Upon consideration of the foregoing petition by John J. Duffy, the district court entered an order on December 29, 1955, directing Brody to appear before it on January 9, 1956, "and then and there show cause, if any, as to why his person should not be attached as for contempt." Brody did not personally appear in court as directed by this order to show cause; at the hearing Mr. Gottlieb appeared in opposition to the entry of an order for attachment and asserted that Brody was physically disabled. As Mr. Gottlieb did not have specific authority to represent Brody, the matter was continued to the following day, January 10, 1956, at which time Mr. Gottlieb informed the court that he had spoken with Brody and was authorized by him to enter a general appearance, which he did.

Government counsel submitted a draft of a proposed order whereby Brody would be required to state under oath, and in writing, answers to certain questions respecting the disposition of the funds realized from the recently liquidated securities, and other financial information. It was proposed by counsel for the government that Brody prepare his answers in Florida and send them to the collection officer in Massachusetts. Mr. Gottlieb expressed his opinion that this was a "reasonable request under the circumstances." After a further colloquy the court said: "In view of the rather extraordinary circumstances of the defendant not being here before the Court, that we have adverted to in the past, I will enter such an order". Mr. Gottlieb put his initials upon the order as indicating his approval. The court entered the order so drawn on January 10, 1956. This order, the disobedience of which was the basis of the finding of criminal contempt herein, is summarized in the footnote.³

Brody at no time obeyed the order of January 10, 1956, of which he had full personal knowledge within at least seven days of its issuance. Mr. Gottlieb represented to the court that Brody was physically unable to answer, and several hearings were held with respect to his physical condition. On January 19, 1956, an oral application was made for a bench warrant to compel Brody's personal presence. The court did not pass on this motion for lack of medical evidence from which the true state of Brody's condition might be determined.

Against the background of this claimed disability, the record shows that when the request was made to advance the hearing from December 16 to December 14, 1955, neither Mr. Gottlieb nor Brody advised the revenue officials that Brody had an airplane reservation to Miami for December 15, 1955, and that he had made such reservation well before that date. Nor were the officials informed of this on December 14 when Mr. Gottlieb reported appellant's ill health. The record further shows that Brody did not see his regular physician, Dr. Kramer, until the afternoon of December 14; the meeting was not at Brody's home but at Dr. Kramer's office, and the doctor did not "know what prompted this visit." Apparently it was short. "He came in, said hello, good-bye * * *." It seems he did not go to Dr. Kramer for treatment and none was given.

After Brody's arrival in Miami he suffered a heart spasm at his hotel which kept him in bed for several days. His Miami physician attributed this attack to the strain of travel. Following this spasm Brody was not hospitalized but continued to live at his hotel and made visits to the doctor at his office in the same hotel about once a week.

Brody returned to Boston by airplane in April, 1956, but he never made any move to comply with the court's order of January 10. As a result, on June 11, 1956, the United States Attorney, on behalf of the United States, filed a petition against Brody for attachment for criminal contempt under 18 U.S.C. § 401. Upon consideration of this petition, on the same day, the district court entered an order directing Brody to file his answer to the petition in writing and to appear personally before the district court on June 22, 1956, "and then and there show cause, if any, as to why he should not be adjudged in criminal contempt."

On June 21, 1956, an answer was filed in Brody's behalf by Mr. Gottlieb which in substance admitted the factual allegations of the criminal complaint but asserted that the court was without jurisdiction or authority to enter its order of January 10, 1956. Further, the answer stated: "The Respondent's attitude toward this Court has never been contemptuous. He attempted merely, in his difficult situation, to improve his position for negotiating a settlement of the claimed tax liability." Nothing was said in the answer about any privilege against self-incrimination. There was...