Froelich v. United States

• Citation: 33 F.2d 660
• Decision Date: 06 July 1929
• Docket Number: No. 8161.,8161.
• Parties: FROELICH v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

33 F.2d 660 (1929)

FROELICH v. UNITED STATES.

No. 8161.

Circuit Court of Appeals, Eighth Circuit.

July 6, 1929.

Donald G. Hughes, of Minneapolis, Minn., for plaintiff in error.

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

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

OTIS, District Judge.

In the District Court the plaintiff in error was found guilty of contempt of court and was sentenced to imprisonment in a county jail for a period of six months. The case is here on writ of error from that judgment. The facts are these:

In the month of January, 1927, at a term of the District Court of the United States for the District of Minnesota then being held at Winona, Minn., Judge John B. Sanborn presiding, an indictment was returned by a grand jury against Frank W. Sommers and others. John S. Pratt, a special assistant to the Attorney General of the United States, with the United States attorney for the District of Minnesota, was in charge of the case, both at the time of its presentation to the grand jury and thereafter. Joel M. Dickey was clerk of the United States District Court for the District of Minnesota.

After the indictment had been returned, and before the trial of the case, plaintiff in error, Gottlieb W. Froelich, a citizen of Minnesota, wrote on a typewriter in a business building several blocks removed from the Federal Building at St. Paul, Minn., a letter. This letter he placed in an envelope, addressed it to John S. Pratt, at Toledo, Ohio, mailed it, and it was thereafter delivered to Mr. Pratt in Toledo. The letter was as follows:

"Cor. 4th and Cedar Sts., Globe Bldg "St. Paul, Minn., January 29, 1927.

"Hon. John S. Pratt, Special U. S. Attorney, Toledo, Ohio — Dear Sir: It may be perhaps of some interest to you that the rumors about town are that prospective jurymen are being interviewed with the end that if a promise to vote for acquittal of Sommer and his associates at the trial of the case here, that they will be called as a juror.

"It is also reported that with a favorable jury and Judge Sanborn presiding, who is a close friend and business associate of Frank W. Sommer's that not much harm can come to them at the coming trial.

"It is further reported that while Mr. Sommer's was chief of police he stole from a prisoner a number of bonds, the particulars of which one of your men may perhaps secure from a local attorney here, W. R. Duxbury.

"It is further reported that one or more of the grand jurors at Winona were approached by Judge Sanborn in an endeavor to forestall the finding of an indictment against Frank W. Sommer's.

"Your informer is not at all interested in the aforestated matters further and other than that the truth or falsity thereof be substantially ascertained and established, and that the Department of Justice forthwith take proper steps and exercise the proper precautions, guaranteeing a fair and just trial in court in place of having the whole matter arranged beforehand.

"It is all important that Joel M. Dickey, clerk of the U. S. District Court, be forthwith removed from said office, and that the Hon. John B. Sanborn be not permitted to preside at the trial thereof.

"Respectfully submitted "A Citizen, St. Paul, Minn."

Several weeks after he received this letter, Mr. Pratt sent it to Judge Sanborn. Thereafter contempt proceedings were instituted by information against the plaintiff in error. At the trial of the case it was admitted that the plaintiff in error had written and mailed the letter, and there was testimony that, before mailing it, he exhibited it or copies of it to two residents of St. Paul. It was contended at the trial in behalf of the plaintiff in error, and is now contended, that his acts did not constitute punishable contempt of court, and that the letter was a privileged communication, and as such could not be made the basis of a contempt proceeding.

1. The statute under which a district court may punish for contempt, section 268 of the Judicial Code, section 385, title 28, U. S. Code (28 USCA § 385), so far as it is pertinent here, is as follows:

"The said court shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority. 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. * * *"

Clearly the acts of the plaintiff in error were not committed in the presence of the court. If, then, they were punishable at all as contempt, it must be on the theory that they were "so near thereto" — that is, so near to the presence of the court — "as to obstruct the administration of justice." If the idea of physical propinquity is involved in the phrase "so near thereto as to obstruct the administration of justice", then the acts of the plaintiff in error can scarcely be said to be within the statute. The mere writing of the offending letter was, of course, not contempt. It was the delivery of the letter at Toledo, Ohio, to the special assistant to the Attorney General, which completed and was necessary to the completion of the contempt, if any there was.

But the contention, long asserted, that only that is so near to the presence of the court as to obstruct the administration of justice which, from its physical proximity to the court, disturbs and interferes with judicial proceedings, was finally disposed of by the Supreme Court in Toledo Newspaper Company v. United States, 247 U. S. 402, 419, 38 S. Ct. 560, 564 (62 L. Ed. 1186). In that case, referring to section 268 of the Judicial Code, the Supreme Court said:

"The provision therefore, conformably to the whole history of the country, not minimizing the constitutional limitations nor restricting or qualifying the powers granted, by necessary implication recognized and sanctioned the existence of the right of self-preservation; that is, the power to restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power given by summarily treating such acts as a contempt and punishing accordingly. The test, therefore, is the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty — a conclusion which necessarily sustains the view of the statute taken by the courts below. * * *"

Whether an act, then, is within section 268, depends, not on the place where it is committed, but on its character. If it tends to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power, it is punishable contempt. It was said by the District Judge in United States v. Toledo Newspaper Company (D. C.) 220 F. 458, 487 (and it was his view of section 268 which the Supreme Court approved in the language above quoted):

"Following United States v. Anonymous (C. C.) 21 F. 761, federal authorities are consistent in applying the principle that the criterion whether a given act is `so near the...