Conley v. United States, 9371

• Decision Date: 25 May 1932
• Docket Number: 9372.,No. 9371,9371
• Citation: Conley v. United States, 59 F.2d 929 (8th Cir. 1932)
• Parties: CONLEY v. UNITED STATES. CORNEABY v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

59 F.2d 929 (1932)

CONLEY v. UNITED STATES.

CORNEABY v. SAME.

Nos. 9371, 9372.

Circuit Court of Appeals, Eighth Circuit.

May 25, 1932.

Arthur T. Conley, of Minneapolis, Minn., pro se.

Frank Corneaby, pro se.

Lewis L. Drill, U. S. Atty., and George A. Heisey, Asst. U. S. Atty., both of St. Paul, Minn., for the United States.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.

VAN VALKENBURGH, Circuit Judge.

We have two separate appeals upon one transcript of record. Appellants were found guilty of contempt of the District Court for the District of Minnesota, and appellant Corneaby was sentenced to imprisonment for a period of two years. Appellant Conley received no punishment for contempt, but was also found guilty of unprofessional conduct, and was disbarred as an attorney and officer of said District Court.

The alleged misbehavior of appellants arose thus: July 5, 1930, one Erwin O. Huckenpoehler was arrested for violations of the National Prohibition Law (27 USCA). A complaint was filed by prohibition agent Knutson, and on July 7, 1930, Huckenpoehler was arraigned before United States Commissioner Abbott, charged with sales, possession, and the maintenance of a nuisance. He waived examination, pleaded not guilty, and furnished bond in the sum of $2,500 for his appearance September 8, 1930, in the District Court of the United States to answer said charges. The transcript of these proceedings, constituting the statutory return of the commissioner, was duly transmitted to the clerk of the United States District Court for the District of Minnesota at Minneapolis, and was filed July 7, 1930. The testimony of the government was that appellant Corneaby, during the period under consideration, had no business except what is described as running errands for appellant Conley, by whom he was sent out on collections and with papers to serve; in short upon the various duties of confidential clerk in a law office. He learned of the charges against Huckenpoehler, the proceedings before the United States commissioner, and the filing of a transcript of those proceedings in the District Court. He told appellant Conley of this situation, and Conley telephoned Huckenpoehler to come to his (Conley's) office. It appears that Conley had acted as attorney for Huckenpoehler theretofore for a number of years. The next day Huckenpoehler appeared in response to Conley's message and was introduced to Corneaby. Thereafter appellants told Huckenpoehler that by reason of Conley's acquaintance and influence with one of Minnesota's Senators he could get the pending case against Huckenpoehler dismissed. That this would require $2,500, of which $1,000 should be raised and paid immediately. Ways and means of raising this money were discussed. Huckenpoehler was told that, of the initial $1,000, $800 should go to the Senator's headquarters in Minneapolis, and $200 should go to the prohibition agent in charge of the Minneapolis office, represented to be a personal friend of Corneaby. Prompt action was urged, because it was stated that the Senator would remain in Minneapolis only two or three days longer. Thereafter Conley and Corneaby, particularly the latter, repeatedly urged Huckenpoehler to raise the amount asked and give it to them for the purpose stated. He was told that the Prohibition Administrator and agent in charge were appointees of the Senator, and would do as he wished. It was pointed out to him that, since enforcement of the Prohibition Act had been transferred to the Department of Justice, and because of the numerous charges against him, he would probably receive a severe sentence, from four to seven years, in the penitentiary at Walla Walla, Wash., where the discipline was exceptionally severe. He was advised that, if he could not raise the money to get his case fixed, he had better get ready to "beat it" out of the country. Huckenpoehler testified that he was unable to raise the money demanded; and, being in fear of the severe sentence pictured by appellants, he took their advice and did not appear in the District Court in September, as required by the terms of his bond. September 8, 1930, the United States attorney filed against him in the District Court an information charging him with unlawful possession of intoxicating liquor, and with unlawful maintenance of a nuisance. Because of his failure to appear on that date his bond was forfeited, and a warrant was issued. He appeared voluntarily in the latter part of October, 1930, and, on December 2, 1930, entered a plea of guilty to the charges preferred against him. This case against appellants was instituted in March, 1931. Appellant Corneaby filed no written answer or return to the rule to show cause. He appeared in person April 1, 1931, and entered a plea of not guilty. Appellant Conley answered. He stated that Huckenpoehler, an old client, came to see him unsolicited, told him of his arrest and asked him (Conley) to represent Huckenpoehler's aunt, Selma Joel, in recovering his automobile on which she had a mortgage and which had been seized by the government; that all Conley's efforts had been confined to this employment. He also testified that on one occasion Huckenpoehler had asked him if he thought one O. R. Leen, an attorney, together with one of the Senator's campaign managers, could "fix" his case for $2,500. Appellant Corneaby testified that he first heard of Huckenpoehler August 10, 1930, through this same attorney, Leen; that Leen had asked him to tell Huckenpoehler that he (Leen) had seen the Senator about his case; that the Senator in turn had seen the prohibition agent in charge, who said that: "The only way Mr. Huckenpoehler could get out of his jam was to turn in three or four stills, to make a showing with the government, because some showing must be made in order to make disposition of his case." Both Conley and Corneaby denied making any offer to "fix" Huckenpoehler's case, and Conley denied that Corneaby was in any way engaged in soliciting business for him. The witness Leen denied categorically that he had sent Corneaby to Huckenpoehler with the message above set out, and both Huckenpoehler's wife and his aunt Selma Joel corroborated Huckenpoehler's testimony in substantial particulars. The court found that there was not a scintilla of evidence that the Senator had ever concerned himself with the proceedings against Huckenpoehler, and that the evidence fairly established beyond reasonable doubt: "That Corneaby is guilty of the charges contained in the information. That Corneaby was associated with Conley; that he conveyed to Conley the information that Huckenpoehler was in trouble, and procured Conley to call Huckenpoehler to his office, and that he, together with Conley, attempted to procure from Huckenpoehler $2,500 by means of misrepresentations and threats, as charged in the information and as testified to by Huckenpoehler; that Corneaby was in fact acting as a solicitor for Conley, and that, while Corneaby was mainly responsible for what was done with reference to endeavoring to procure the $2,500 from Huckenpoehler, Conley aided and abetted him in that regard."

In his brief, appellant Corneaby says that: "For the purpose of argument appellant will make three major titles and adopt the authorities cited in co-defendant's brief: I. Information and offense, II. Sufficiency of the evidence, III. Judgment and order." Appellant Conley announces that the errors assigned will be taken up under the following points:

"I. The Court had no jurisdiction in this case for the reason that there was no criminal proceeding then pending in the United States District Court, District of Minnesota, 4th Division, wherein the said United States of America was plaintiff and Erwin O. Huckenpoehler was defendant.

"II. That the information does not state facts sufficient to constitute either an actual or constructive contempt of court under any law of the United States or under any inherent power, rule, practice, custom or usage of any court under the common-law or code system.

"III. That defendant Conley was purged by his written answer under oath.

"IV. Judgment of disbarment void and not sustained.

"V. There is insufficient evidence on which to find a verdict of guilty of contempt and of misconduct."

1. The question of jurisdiction first claims our attention. Section 268 of the Judicial Code (28 USCA § 385) provides: "The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority. Provided, That Such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts."

In this case we have to do only with such misbehavior as tends to obstruct the administration of justice. The specific point urged under this first specification relied on is that there was then no criminal proceeding pending in the District Court. Concerning this point, counsel for appellee say: "It is elementary, of course, that before it can be claimed that the administration of justice has been obstructed there must be a cause pending in the United States District Court in which it is possible to obstruct the administration of justice — hence the allegations of paragraph III aforesaid of said Information. The government claims that on and after July 7, 1930 (the day upon which the United States Commissioner held said Huckenpoehler and made to and filed in the United States District Court his return which included a transcript of the proceedings had before him...