Carlson v. United States, 4732-4734.

• Citation: 209 F.2d 209
• Decision Date: 07 January 1954
• Docket Number: No. 4732-4734.,4732-4734.
• Parties: CARLSON v. UNITED STATES (three cases).
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

209 F.2d 209 (1954)

CARLSON v. UNITED STATES (three cases).

Nos. 4732-4734.

United States Court of Appeals First Circuit.

January 7, 1954.

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Joseph J. Gottlieb, Boston, Mass. (Lawrence E. Cooke, Boston, Mass., with him on brief), for appellant.

Charles F. Choate, Asst. U. S. Atty., Boston, Mass. (Anthony Julian, U. S. Atty., and Edward D. Hassan, Asst. U. S. Atty., Boston, Mass., with him on brief), for appellee.

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

MAGRUDER, Chief Judge.

Three appeals by John H. Carlson were consolidated by our order and heard together. Our disposition of the main appeal, No. 4732, renders the two other appeals moot, and they will be dismissed on that ground.

The appeal in No. 4732 is from a judgment of the district court on December 15, 1952, adjudging appellant Carlson guilty of the offense of criminal contempt and sentencing him to imprisonment for eighteen months.

This appeal was heard along with appeals in several companion cases, all of which have certain features in common.¹ They are a by-product of the spectacular robbery perpetrated on January 17, 1950, at the Boston premises of Brink's Inc., a commercial company engaged in guarding and transporting moneys. The criminals made off with over a million dollars in cash and securities, some of it federal funds. In anticipation of the early running out of the statute of limitations relating to the federal offense involved, the government made strenuous efforts to procure indictments by a federal grand jury. No indictments were forthcoming, and subsequently the grand jury was discharged.

As indicating the extremity to which the prosecution went in this connection, it caused a grand jury summons to be served on one Joseph J. ("Specs") O'Keefe, a notorious gangster with a long criminal record, then serving a sentence in Pennsylvania for illegal possession of firearms, and a key suspect in the Brink's robbery case. It appears that prior to this summons the United States Attorney had applied to a United States Commissioner for a warrant authorizing search of "Specs" O'Keefe's home in Stoughton, Mass., upon the basis of an affidavit by an agent of the Federal Bureau of Investigation that a substantial sum of money which was part of the Brink's loot was believed to be secreted in the house. The warrant was issued, but the search on July 22, 1950, was unproductive. Before the grand jury, O'Keefe claimed his Fifth Amendment privilege against self-incrimination. Upon a subsequent presentment by the grand jury, the district court held that O'Keefe had lawfully claimed his privilege and declined to hold him in contempt of the authority of the court.

Along with "Specs" O'Keefe, numerous other persons, relatives of his, or presumed associates, including appellant Carlson, were summoned before the grand jury in connection with the Brink's investigation. A number of them declined to answer various questions on the ground of their privilege against self-incrimination, and after separate proceedings before the district court upon presentment by the grand jury they have each been adjudged in criminal contempt by the court sitting without a jury. Their several appeals are now before us.

Before stating the particular details of the Carlson case, we think it will be helpful to make some general observations upon the offense of which Carlson stands convicted.

The Congress has not made it a separate and distinct offense for a witness before a grand jury to refuse to answer any question pertinent to the matter under inquiry. In that respect the present case is to be distinguished from the situation where a witness before a congressional committee refuses to answer a pertinent question, which is covered by 2 U.S.C.A. § 192:

"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

2 U.S.C.A. § 192 makes it a misdemeanor not to answer a pertinent question at a congressional committee hearing. Of course, the statute cannot deprive a witness of his constitutional privilege against self-incrimination, and so if he properly invokes the privilege his refusal to answer is not an offense. Aiuppa v. United States, 6 Cir., 1952, 201 F.2d 287. The witness acts at his peril if he refuses to answer a question either on the ground that it is not pertinent or on the ground that an answer would tend to incriminate him. If it turns out that he was in error in either particular, he has irretrievably committed a misdemeanor under 2 U.S.C.A. § 192 regardless of his good faith. See United States v. Murdock, 1933, 290 U.S. 389, 397, 54 S.Ct. 223, 78 L.Ed. 381; Sinclair v. United States, 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; United States v. Costello, 2 Cir., 1952, 198 F.2d. 200, certiorari denied, 1952, 344 U.S. 874, 73 S.Ct. 166; Aiuppa v. United States, 6 Cir., 1952, 201 F.2d 287. Where the witness before a congressional committee erroneously, but in good faith, invokes the privilege against self-incrimination, it has even been held that he has committed the offense described in 2 U.S.C.A. § 192 without the necessity of a ruling by the committee that the claim of privilege is rejected. See Bart v. United States, 1952, 91 U.S.App.D.C. 370, 203 F.2d 45, 48-49; Emspak v. United States, 1952, 91 U.S. App.D.C. 378, 203 F.2d 54, 57, certiorari granted, 74 S.Ct. 23.

In the absence of a comparable provision of law making it a misdemeanor for a witness before a federal grand jury to refuse to answer a pertinent question, the grand jury must depend upon the court to punish contumacious witnesses. The criminal contempt, if it be one, is contempt of the authority of the court.

In its substantive aspects, the power of a court of the United States to impose punishment for contempt of its authority is defined and limited by 18 U.S.C. § 401:

"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 other, 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."

Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C., governs the procedural aspects of proceedings for criminal contempt in the United States district courts. Rule 42 is as follows:

"(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

"(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant\'s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment."

When 18 U.S.C. § 401(1) includes, as a criminal contempt of the court's authority, misbehavior in the "presence" of the court, the word "presence" is used in a brooding, metaphorical sense broader than misbehavior in the "actual presence" of the judge as used in Rule 42(a). The grand jury is an arm of the court; and no doubt there may be instances of misbehavior in the grand jury room that constitute a completed offense of criminal contempt of court because committed in the "presence" of the court within that broader meaning of 18 U.S.C. § 401(1). Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, 246; In re Presentment by Grand Jury of Ellison, D.C.Del.1942, 44 F.Supp. 375, 377, affirmed, 3 Cir., 1943, 133 F.2d 903, certiorari denied 1943, In re Ellison, 318 U. S. 791, 63 S.Ct. 995, 87 L.Ed. 1157. See O'Connell v. United States, 2 Cir., 1930, 40 F.2d 201, 203; Ex parte Savin, 1889, 131 U.S. 267, 277, 9 S.Ct. 699, 33 L.Ed. 150.

Thus if a person interrupts the orderly course of a grand jury proceeding by making a physical attack upon the foreman, this would certainly be misbehavior in the presence of the court, punishable as a contempt under 18 U.S.C. § 401(1). Such misbehavior need not necessarily be of a violent character; for instance, tampering with a witness about to enter the grand jury room by bribing him to give perjurious testimony would be contumacious misconduct. See In re Presentment by Grand Jury of Ellison, supra, D.C.Del.1942, 44 F.Supp. 375. See, also, Ex parte Savin, 1889, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150.

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