Clark v. United States, 9457.

Citation61 F.2d 695
Decision Date20 October 1932
Docket NumberNo. 9457.,9457.
PartiesCLARK v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

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Sigurd Ueland, of Minneapolis, Minn., for appellant.

Fred Horowitz, Sp. Asst. to Atty. Gen. (Lewis L. Drill, U. S. Atty., of St. Paul Minn., on the brief), for the United States.

Before STONE, KENYON, and GARDNER, Circuit Judges.

KENYON, Circuit Judge.

This is an appeal from a judgment of the District Court entered on the 26th day of December, 1931 (1 F. Supp. 747), adjudging appellant, Genevieve A. Clark, guilty of contempt, and imposing as punishment confinement in the county jail of Ramsey county, Minn., for a period of six months and payment of a fine of $1,000. As we hereinafter fully discuss the facts, it will be necessary at this point merely to refer briefly to some of them.

Appellant on August 24, 1931, was summoned to report on September 1, 1931, as a juror in the United States District Court at St. Paul, Minn. The case for which she was summoned was that of United States v. W. B. Foshay, Palmer V. Mabry, et al., a somewhat celebrated mail fraud case (which will be referred to hereinafter as the Foshay Case1). She did not know at the time of the summons for what particular case she was called. Within a day or two after the receipt of the summons she telephoned her sister, who worked in the Federal Building at St. Paul, about being called on the jury, and discussed with her the question of postponement of her service on account of expecting a friend to visit her during the week of September 1st. In one of the telephone conversations with her sister she was advised that the case she was called upon was the Foshay Case. She was also advised by her sister that she would probably be disqualified because she had been employed by Foshay Company, a corporation in which a number of the defendants were interested. Appellant had been married to one D. D. Clark in January, 1921. He was president of the Citizens' State Bank of St. Paul from January, 1921, until August 1925, when at the request of the State Banking Department he agreed to resign. Prior to her marriage she had been employed in the bank as a stenographer, and so continued for a time after her marriage. Appellant had been employed by the Foshay Company for some two weeks in the summer of 1929. She was not acquainted with any of the defendants. In the years 1922 and 1923 her husband had some business transactions with defendant W. B. Foshay. The record contains a number of letters written back and forth between Foshay as president of the W. B. Foshay Company, and her husband as president of said Citizens' State Bank, which show rather intimate business relations between them. Her husband at the time of the trial was a member of the real estate firm of Willie & Clark, having left the service of the bank some time previous thereto. One of the defendants, Mabry, transacted business with said Citizens' State Bank from 1917 until 1925, and was acquainted with appellant's husband. Prior to appellant's examination on the voir dire she talked with some women who were also summoned for service on the panel. These women testified on the hearing for contempt that she made statements that she wished to serve on the jury and that she had a special reason for wanting so to do, and was afraid that her former employment by the Foshay Company would disqualify her. Judge Molyneaux conducted the examination of the jurors on the voir dire, and appellant during said examination was asked questions and gave answers as follows:

"Q. Have you yourself ever been in any business of any kind? A. I have been a stenographer before my marriage, yes.

"Q. In what kind of business did you work? A. Well, I did some banking, and some real estate and insurance, and I was with an automobile concern, with a Nash agency."

She testified further that after the summons she discussed with her husband the probability of being on the jury; that she had formed no opinion thereon and did not know the lawyers of defendants. The following also occurred on this examination:

"Q. Well, do you feel that you are now — that your mind is now open and free, and that you are not biased either one way or the other? A. Yes, I do feel that way.

"Q. Did you ever sit on a jury before? A. No, sir.

"Q. And you think, in the trial of this lawsuit, you could follow the evidence, or would try to follow the evidence, and base your judgment on that and the law as given to you by the Court? A. Yes, I do."

She was accepted and sworn as the final juror.

Evidence was introduced in the contempt hearing by other jurors as to her conduct in the jury room, and certain statements she made before the jury when it was deliberating, on the theory that they tended to show bias and prejudice at the time of her examination. We refer to them hereinafter. Appellant's husband visited her about once a week during the course of the trial before the jury retired to consider its verdict. She claims to have talked to him only while Mrs. Henderson, a bailiff, was present. Mr. Clark did not testify in the present hearing. She expressed a desire before the jury to talk to her husband, that "she would like to have his opinion — how he would vote." In the jury room she discussed the evidence but little.

The trial of the case lasted about seven weeks. The jury was out approximately one week, being discharged on October 23, 1931. It stood from the commencement of its balloting eleven for conviction and one (appellant) for acquittal. The government instituted an investigation of the circumstances surrounding this trial under which appellant became a member of the jury. On November 3, 1931, Mr. Horowitz, counsel for the government, Post Office Inspectors Schriver, Simmons, and Hugdal, and the court reporter, Mr. Ackerman, called upon appellant and her husband at their home. Stenographic notes of what transpired were taken, and were used on the cross-examination of Mrs. Clark.

On November 4th a petition was filed in the District Court charging appellant with criminal contempt, and a rule to show cause was issued thereon returnable November 9, 1931. On that day appellant filed a sworn answer denying the charges of the petition for the rule. Additional time to prepare for trial was asked, but the court proceeded to hear witnesses on behalf of the government, and then granted a continuance for ten days to enable appellant to prepare her defense.

The case was heard by two District Judges, Sanborn (now Circuit Judge) and Nordbye. A written opinion was filed in which the court said: "The evidence does conclusively establish that Mrs. Clark, at the time of her examination, did have in mind that she had worked for the Foshay Company in the summer of the year 1929. She had been informed by her sister that that fact would probably disqualify her as a juror in that case. Her discussion with other prospective jurors clearly indicates that she herself was apprehensive that such employment would prevent her from being accepted as a juror. We are convinced that she deliberately and intentionally concealed her association with the Foshay Company when she was examined by the court."

Also as to her answers concerning freedom from bias and prejudice: "* * * It is our opinion that Mrs. Clark purposely withheld information from the Court so as to be accepted as a juror. Her remarks to her fellow prospective jurors as to her desire to be accepted on the panel and that she had a special purpose in mind, may without any other circumstances, be quite consistent with an honest rather than a wicked intent. Her studied attempt, however, to get on the jury, her evasive and incomplete answers, coupled with her conduct after she was accepted, convince us that her mind was prejudiced by some person, or for some reason, before she took her oath as a juror."

It is the contention of appellant that she has been convicted of something claimed to constitute contempt, of which she was not accused; that she was charged with perjury and the same was not proved; that the court misapprehended the nature of contempts; that the court erred in receiving evidence of deliberations in the jury room; erred in permitting cross-examination of appellant in respect to what she said and did in the jury room; that it was denial of due process of law to proceed to trial on the return day; that the sentence is excessive; that it was error to sentence appellant to both fine and imprisonment.

It thus appears that many important questions are raised by the assignments of error.

Counsel for appellant in his brief states: "The startling fact is that appellant has been convicted of something claimed to constitute a contempt of which she was not accused." The seriousness of this charge challenges our first attention.

We agree with the argument of counsel that the contempt, if any, was what the law regards as a "constructive" contempt, rather than a "direct" one.

The alleged contempt, while within the presence of the court, could not be known to the court in its judicial knowledge or observation, and hence there could not be summary punishment. The proceeding here was the proper one, and due process of law entitled appellant to be informed of the alleged contempt and of what it consisted, and to a reasonable opportunity for preparation of her defense; also to be represented by counsel and to immunity from self-incrimination. Cooke v. United States, 267 U. S. 517, 45 S. Ct. 390, 69 L. Ed. 767. Contempt proceedings have many times been said by the courts to be sui generis. The accusation does not require the same particularity as an indictment. It is sufficient if it fairly advise an alleged contemnor of the offenses with which he is charged so as to enable him to prepare properly his defense thereto. In Aaron v. United States, 155 F. 833, 836, this court said: "It is now the recognized rule that the information in a contempt proceeding is sufficient...

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