Cammer v. United States

• Citation: 223 F.2d 322
• Decision Date: 05 May 1955
• Docket Number: No. 12353.,12353.
• Parties: Harold I. CAMMER, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

223 F.2d 322 (1955)

Harold I. CAMMER, Appellant, v. UNITED STATES of America, Appellee.

No. 12353.

United States Court of Appeals District of Columbia Circuit.

Argued November 29, 1954.

Decided May 5, 1955.

As Amended May 12, 1955.

Mr. Charles E. Ford, Washington, D. C., for appellant.

Mr. Oliver Gasch, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

Cammer appeals from an order adjudging him guilty of criminal contempt. The essential facts are that Cammer is attorney of record for one Gold; on August 28, 1953, an indictment was returned against Gold by the May 1953 grand jury; the grand jury after Gold's indictment subpoenaed other persons represented by Cammer; on September 22, 1953, Cammer appeared in the District Court on behalf of these other persons and moved to quash and vacate the subpoenas served upon them; on this same day and the day following, September 22 and 23, 1953, Cammer sent identical letters and questionnaires to some fifteen members of the grand jury who were federal employees, and in so doing, Cammer acted without the permission or knowledge of the District Court. The questionnaires related in general to the effect of the government's loyalty program on the grand jurors. The letter accompanying the questionnaire stated that it was being submitted "in the interest of the fair administration of criminal justice" and urged that it was the recipient's "duty as a citizen to help enlighten the court on an issue which affects the liberty of a citizen on trial in a criminal case."

The trial judge found that the questionnaires harassed the jurors and impinged upon their freedom of thought and decision. He described Cammer's action as "intolerable" but concluded that a fine of $100 would be sufficient punishment since there was some doubt as to whether Cammer's acts "were committed in conscious wrong."

Cammer's contempt was adjudged specifically under § 401 of the Federal Contempt Statute, 18 U.S.C. § 401 (1952),¹ which provides as follows:

"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none others, as —

"(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

"(2) Misbehavior of any of its officers in their official transactions;

"(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."

The government's application for an order to show cause was predicated upon acts and conduct said to constitute a violation of subsection (2) of the foregoing section. Although appellant set up certain defenses which will not be detailed, his answer admitted all allegations of the government's petition except the following:

"The acts and conduct of Harold I. Cammer, as set forth in the foregoing paragraphs, constitute:

"Misbehavior by an officer of this Court in his official transactions with this Court, in violation of section 401, Title 18 U.S.C."

The power of Congress to legislate with respect to the contempt powers of the federal courts other than the Supreme Court, is not open to question. "These courts were created by acts of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted." Ex parte Robinson, 1873, 19 Wall. 505, 510-511, 22 L.Ed. 205. The contempt statute has been described as an attempt by Congress "drastically" to limit the contempt powers of the courts. In re Michael, 1945, 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30; Nye v. United States, 1941, 313 U.S. 33, 44-48, 61 S.Ct. 810. The Michael and Nye cases emphasize, however, that the main concern of Congress and the Supreme Court is not to protect contemptuous conduct, but to prevent abuses which may result from summary punishment.

Under the terms of 18 U.S.C. § 401(2), we inquire whether: (1) Cammer was an officer of the court, (2) engaged in an official transaction, (3) whose conduct constituted misbehavior. For the reasons which follow, the majority answers these questions affirmatively, though with great respect for the contrary views of our colleague.

1. Cammer was an officer of the court.

It seems clear that attorneys are officers of the court within the intendment of the statute. In Ex parte Garland, 1866, 4 Wall. 333, 378, 18 L.Ed. 366, Justice Field said: "Attorneys are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. . . . The order of admission is the judgment of the court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded." See also, Ex parte Robinson, 1873, 19 Wall. 505, 512, 22 L.Ed. 205; Ex parte Bradley, 1868, 7 Wall. 364, 374, 19 L.Ed. 214, and Tanner v. United States, 10 Cir., 1932, 62 F.2d 601, certiorari denied 1933, 289 U.S. 746, 53 S.Ct. 689, 77 L.Ed. 1492, all of which involved contempt situations.²

2. Cammer was engaged in an official transaction.

That Cammer, as an "officer of the court," was engaged in an official transaction is clear. The facts show beyond dispute that Cammer's actions occurred while he was directly engaged "in the practice of the profession." Ex parte Bradley, supra, 7 Wall. at page 374, 19 L.Ed. 214. The grand jury had just indicted one of his clients, and as he knew, currently had others under investigation. Each letter identified Cammer as attorney for the indicted client, Gold, and stated that he was addressing it to all federal government employees "who sat on the Grand Jury which indicted Mr. Gold." Cammer's letter, appealing directly to the grand jurors' purported duty "to help enlighten the court," transmitted a questionnaire containing inquiries, a few samples of which will demonstrate its inevitable impact on the grand jurors.³

The grand jury is an appendage of the court and "proceedings before it are to be regarded as being proceedings in the court." Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, 246, certiorari denied 1940, 311 U.S. 651, 61 S.Ct. 16, 85 L.Ed. 416. See also, United States v. Smyth, D.C.N.D.Cal.1952, 104 F.Supp. 283, 291. The grand jury acts "under the authority of the court," we note in Savin, Petitioner, 1889, 131 U.S. 267, 277, 9 S.Ct. 699, 702, which predicated Justice Cardozo's pronouncements "A talesman when accepted as a juror becomes a part or member of the court", Clark v. United States, 1933, 289 U.S. 1, 11, and again at page 12, 53 S.Ct. 465, at page 468, 77 L.Ed. 993, "A talesman, sworn as a juror, becomes, like an attorney, an officer of the court, and must submit to like restraints." That Cammer, in so communicating with an official arm of the court while conducting the court's business, was engaged in an official transaction cannot be doubted.

In urging that the statute does not apply in such circumstances appellant relies on the Nye, Michael and second Schmidt (6 Cir., 1941, 124 F.2d 177) cases. The Nye proceedings, brought under the first subsection of 18 U.S.C. § 401, did not involve an officer of the court, and the alleged contemnors, in fact, were not even parties to the litigation. The Court's opinion stated, 313 U.S. at page 44, 61 S.Ct. at page 814: "The question is whether the conduct of petitioners constituted `misbehavior . . . so near' the presence of the court `as to obstruct the administration of justice' . . .." Concluding that the words have a geographical connotation, the majority ruled that the reprehensible conduct was not punishable as contempt within the meaning of § 401(1) though of a kind which corrupts the judicial process and impedes the administration of justice. The case on its facts has nothing to do with our problem. In the Michael case, supra 326 U.S. 224, 66 S.Ct. 78, the contemnor, a court appointed trustee, had been adjudged guilty of contempt because of "false and evasive" testimony before a grand jury. The issues were not unlike those presented in Ex parte Hudgings, 1919, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656. The Court noted that perjury alone does not constitute an "obstruction" of justice within § 401(1), and that element must be clearly shown where contempt is charged. The opinion cited Clark v. United States, supra, as an example of obstruction where a prospective juror had falsely testified in order to qualify. "It is difficult to conceive of a more effective obstruction to the judicial process than a juror who has prejudged the case," wrote Justice Black, 326 U.S. at page 228, 66 S.Ct. at page 80, pointing out further that "the mere fact that false swearing is an incident to the obstruction charged does not immunize the culprit from contempt proceedings." But perjury alone did not predicate contempt proceedings under § 401(1), nor could the conviction be sustained under § 401(2) where the contemnor, though an officer of the court, was not engaged in an official transaction while testifying generally before the grand jury. In short, where the charge of perjury could be prosecuted with determination of guilt by a jury, that course, rather than summary contempt action, should be followed where there was lacking the element of obstruction of justice. The Michael case offers no comfort to one who either sought...