Farese v. United States

• Decision Date: 13 January 1954
• Docket Number: No. 4762.,4762.
• Parties: FARESE v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

209 F.2d 312 (1954)

FARESE v. UNITED STATES.

No. 4762.

United States Court of Appeals First Circuit.

January 13, 1954.

Francis Juggins, Boston, Mass. (Leonard A. Kelley, 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.

Alfred P. Farese appeals from a judgment of the district court, entered February 20, 1953, imposing upon him a sentence of imprisonment for one year upon conviction of contempt of court.

It appears that there were pending before the district court, early in February, 1953, two criminal proceedings upon grand jury indictments. In one of them (Crim.No. 52-94) Russell H. Peel, Jr., as sole defendant, had been indicted for transporting a stolen motor vehicle in interstate commerce on or about March 3, 1951, knowing the same to have been stolen, in violation of 18 U.S.C. § 2312. Originally, Peel had pleaded not guilty to this indictment. In the other proceeding, an indictment in five counts had been handed down against Frederick J. Martineau, Douglas W. Pike and Russell H. Peel, Jr., as joint defendants, charging that they had, on various dates in 1951 and early 1952, transported certain stolen motor vehicles in interstate commerce, knowing the same to have been stolen, in violation of 18 U.S.C. § 2312. Defendants Martineau, Pike and Peel had each pleaded not guilty to this indictment.

The two cases were called by the district court at a session on the afternoon of February 9, 1953. In No. 52-94 Peel then withdrew his plea of not guilty, and entered a plea of guilty. This action by Peel apparently came as a surprise to Martineau and Pike, co-defendants with Peel in No. 52-128, and to their respective counsel, appellant Farese being counsel of record for defendant Pike. When No. 52-128 was called, it was continued for trial to February 12, 1953. Naturally defendants Martineau and Pike, and Farese as Pike's counsel, were apprehensive, from Peel's action in pleading guilty in No. 52-94, that he might also enter a plea of guilty, and turn state's evidence, in No. 52-128 when that case came on for trial on February 12, 1953.

This apprehension proved to be wellfounded. On February 12, 1953, when No. 52-128 was called for trial, co-defendant Peel withdrew his plea of not guilty and entered a plea of guilty on four of the five counts in that indictment, the other count against him being dismissed. A jury trial of defendants Martineau and Pike then commenced. On the next day, February 13, 1953, Peel was called as a witness for the prosecution and he testified at some length against the other two defendants.

In the course of Peel's cross-examination by attorney Farese, on behalf of defendant Pike, the following took place:

"Q. By Mr. Farese Were you promised anything by the District Attorney\'s Office or by the Federal Bureau of Investigation if you took this stand? A. No, but I was promised something by you the other day in the courtroom.

"Q. Did you ever talk to me? A. No, but you told me something —

"Q. I will let you bring that out. You never talked to me? A. No, I didn\'t; I wouldn\'t want to.

"Q. Mr. Peel —

"The Court: I want to know right now what you meant by that statement.

"The Witness: Yes, your Honor.

"Mr. Farese: I am going to ask him right now.

"The Witness: The other day he approached my wife and another lady in the corridor.

"The Court: Who did?

"The Witness: Mr. Farese. He told them if I took the stand some harm would come to me.

"The Court: Is your wife here?

"The Witness: They are both present, the wife and the other lady.

"Mr. Farese: I want her to take the stand. I have just been accused of something — "The Court: Stop it. Leave the stand and have these two women come up right now."

At this point the district court interrupted the main trial and conducted a preliminary examination of Mrs. Ruth Peel, wife of the defendant Peel, and of another witness, Mrs. Alice Menchin. They testified to alleged threats as to what would happen to Peel if he should turn state's evidence in No. 52-128, which threats they asserted attorney Farese had communicated to Mrs. Peel in the corridor outside the courtroom after the proceedings in the two cases had been concluded for the day on February 9, 1953.

Thereupon, on February 13, 1953, the court, in compliance with the procedure laid down in Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C., addressed appellant Farese as follows:

"Attorney Farese: Notice is hereby given you to appear before this Court on Wednesday, February 18 at 10 a. m. to show cause why you should not be held in criminal contempt, it being charged that during the trial of the case of United States against Pike at al. and in the corridors adjacent to the trial room you, being attorney for the defendant Pike, did attempt to intimidate the wife of the defendant Peel and the co-defendant Peel by direct and indirect threats of bodily harm to the said Peel if the said Peel testified against the said Pike."

The charge of criminal contempt came on for hearing on February 18, 1953, as scheduled.

Mrs. Peel testified, corroborated in material part by Mrs. Menchin, that when they went out into the corridor at the conclusion of the court proceedings on the afternoon of February 9, 1953, Mrs. Pike brought over attorney Farese and introduced him to Mrs. Peel; that Mr. Farese started off the conversation by inquiring "What's the big idea" of Peel's pleading guilty and whether he had the intention of turning state's evidence; that Farese made three comments of a threatening character in the course of the conversation: (1) "You know what happens to stool-pigeons. There's ways of getting at stool-pigeons at Norfolk. They've even been knifed or killed for stooling, and sometimes they even get to their families"; (2) "If he turns State's evidence, all I have to do is to write a couple of letters"; and (3) "If he turns State's evidence I'll break him in halves, I'll tear him wide open." Further, Mrs. Peel testified that Farese told her she had better go out to Norfolk the next day and find out what her husband had to say, "and call Mrs. Pike and let her know so that she can call me and we'll have something to work on." It appears that defendants Martineau and Pike were out in the corridor at that time, but that Peel was not there, he having been taken by a deputy marshal back to Norfolk Prison Colony.

On the same afternoon, and this seems to be unquestioned, Mrs. Peel telephoned to the FBI and reported to Special Agent Schwotzer the conversation she claimed to have had with attorney Farese. As a result Mr. Schwotzer brought the matter to the attention of the Assistant U. S. Attorney in charge of No. 52-128. The next day the U. S. Attorney's office got in touch with Farese and informed him that this complaint of attempted intimidation had been lodged against him.

Appellant Farese, testifying in his own behalf, denied that he had made any threats to Mrs. Peel; and in this he was corroborated to a certain extent by other witnesses whom he called. He was unable to suggest any motive why Mrs. Peel should deliberately concoct such a story, but intimated that perhaps Mrs. Peel had misinterpreted a remark, innocently intended, and addressed to defendant Pike rather than to Mrs. Peel, with reference to what was likely to happen to a "stool-pigeon".

At the conclusion of the testimony the district court made a finding of guilty of criminal contempt as charged. The conflicting testimony presented a clear issue of credibility; and we would be obliged to accept as conclusive this finding of the district court, provided the offense charged was a criminal contempt which could be tried and punished by the court sitting without a jury.

The power of the district court 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."

This provision was derived originally from § 1 of the act of March 2, 1831, 4 Stat. 487, § 2 of which act provided:

"That if any person or persons shall, corruptly, or by threats or force, endeavour to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct, or impede, or endeavour to obstruct or impede, the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished, by fine not exceeding five hundred dollars, or by imprisonment, not exceeding three months, or both, according to the nature and aggravation of the offence."

The statutory crime thus described in § 2 of the act of March 2, 1831, is now found, in substance, in 18 U.S.C. § 1503.

Whatever may have been the earlier expressions of doubt as to the constitutional authority of Congress to curtail this "inherent" contempt power of the courts, it is now well-settled that the district court could not go beyond the statutory boundaries of 18 U.S.C. § 401 in imposing summary punishment for a criminal contempt. See Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 1924, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162; Nye v. United States, 1941, 313 U.S. 33, 61 S. Ct. 810, 85 L.Ed. 1172; In re Michael, 1945, 326 U.S. 224, 66 S.Ct. 78, 90...