Green v. United States

Decision Date31 March 1958
Docket NumberNo. 100,100
Citation356 U.S. 165,2 L.Ed.2d 672,78 S.Ct. 632
PartiesGilbert GREEN and Henry Winston, Petitioners, v. UNITED STATES of America
CourtU.S. Supreme Court

Mr. John J. Abt, New York City, for petitioners.

Mr. Ralph S. Spritzer, Washington, D.C., for respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

Petitioners are two of eleven defendants who were convicted in the Southern District of New York in 1949 of conspiring to teach and advocate the violent overthrow of the Government in violation of the Smith Act, 54 Stat. 670, 671, 18 U.S.C. §§ 371, 2385, 18 U.S.C.A. §§ 371, 2385. Their convictions, each carrying a $10,000 fine and five years' imprisonment, were affirmed by this Court on June 4, 1951, in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. After their convictions, petitioners had been enlarged on bail, and following the affirmance, the United States Attorney served counsel for the petitioners on June 28, 1951, with copies of a proposed order on mandate requiring petitioners to surrender to the United States Marshal on July 2 for the execution of their sentences, and with a notice that such order would be presented to the District Court for signature on the indicated day of surrender. Petitioners were thereupon informed by their counsel that their presence in court would be required on July 2. Both, however, disappeared from their homes, failed to appear in court when the surrender order was signed on July 2, and remained fugitives for more than four and a half years. Ultimately both voluntarily surrendered to the United States Marshal in New York, Green on February 27, 1956, and Winston on March 5, 1956.

Shortly thereafter, the United States instituted criminal contempt proceedings against the petitioners in the District Court for willful disobedience of the surrender order in violation of 18 U.S.C. § 401, 18 U.S.C.A. § 401 (see 78 S.Ct. at page 635, infra). Pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., these proceedings were tried to the court without a jury.1 Following a hearing, the court found petitioners guilty of the contempts charged and sentenced each to three years' imprisonment to commence after service of the five-year sentences imposed in the conspiracy case. See 140 F.Supp. 117 (opinion as to Green). The Court of Appeals affirmed, 2 Cir., 241 F.2d 631, and we granted certiorari because the case presented important issues relating to the scope of the power of federal district courts to convict and sentence for criminal contempts. 353 U.S. 972, 77 S.Ct. 1057, 1 L.Ed.2d 1135.

The petitioners urge four grounds for reversal, namely: (1) the criminal contempt power of federal courts does not extend to surrender orders; (2) even if such power exists, the evidence was insufficient to support the judgments of contempt; (3) a prison sentence for criminal contempt cannot, as a matter of law, exceed one year; and (4) in any event the three-year sentences imposed were so excessive as to constitute an abuse of discretion on the part of the District Court. For the reasons given hereafter we think that none of these contentions can be sustained, and that the judgment of the Court of Appeals must be upheld.


The contempt judgments rest on 18 U.S.C. § 401, 18 U.S.C.A. § 401, which in pertinent part provides that a federal court:

'* * * shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

'(3) Disobedience or resistance to its lawful * * * order * * *.'

Since the order here issued was beyond dispute 'lawful,' § 401 plainly empowered the District Court to punish petitioners for disobeying it unless, as petitioners claim, this order is outside the scope of subdivision (3). This claim rests on the argument that the statute, viewed in its historical context, does not embrace an order requiring the surrender of a bailed defendant.

An evaluation of this argument requires an analysis of the course of development of federal statutes relating to criminal contempts. The first statute bearing on the contempt powers of federal courts was enacted as § 17 of the Judiciary Act of 1789, 1 Stat. 73, 83. It stated that federal courts 'shall have power to * * * punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same * * *.' The generality of this language suggests that § 17 was intended to do no more than expressly attribute to the federal judiciary those powers to punish for contempt possessed by English courts at common law. Indeed, this Court has itself stated that under § 17 the definition of contempts and the procedure for their trial were 'left to be determined according to such established rules and principles of the common law as were applicable to our situation.' Ex parte Savin, 131 U.S. 267, 275 276, 9 S.Ct. 699, 701, 33 L.Ed. 150.2 At English common law disobedience of a writ under the King's seal was early treated as a contempt, 4 Blackstone Commentaries 284, 285; Beale, Contempt of Court, 21 Harv.L.Rev. 161, 164—167; Fox, The Summary Process to Punish Contempt, 25 L.Q.Rev. 238, 249, and over the centuries English courts came to use the King's seal as a matter of course as a means of making effective their own process. Beale, at 167. It follows that under the Judiciary Act of 1789 the contempt powers of the federal courts comprehended the power to punish violations of their own orders.3

So much the petitioners recognize. They point out, however, that, at early English law, courts dealt with absconding defendants not by way of contempt, but under the ancient doctrine of outlawry, a practice whereby the defendant was summoned by proclamation to five successive county courts and, for failure to appear, was declared forfeited of all his goods and chattels. 4 Blackstone Commentaries 283, 319. In view of this distinct method at English common law of punishing refusal to respond to this summons, which was the equivalent of the present surrender order, petitioners argue that § 17 of the Judiciary Act of 1789, incorporating English practice, did not reach to a surrender order, and that the unique status of such an order subsisted under all statutory successors to § 17, including § 401(3) of the existing contempt statute.

We find these arguments unconvincing. The reasons for the early English practice of proceeding against absconding defendants by way of outlawry rather than by contempt are obscure. It may have been that outlawry was resorted to because absconding was regarded so seriously as to require the drastic penalties of outlawry rather than fine or imprisonment. But whatever the reasons may have been, the fact that English courts adhered to the practice of dealing with such cases by outlawry should not obscure the general principle that they had power to treat willful disobedience of their orders as contempts of court. It is significant that, so far as we know, the severe remedy of outlawry, which fell into early disuse in the state courts, was never known to the federal law. See United States v. Hall, 2 Cir., 198 F.2d 726, 727—728. Its unavailability to federal courts, and the absence of any other sanctions for the disobedience of surrender orders, are in themselves factors which point away from the conclusion that the kind of power traditionally used to assure respect for a court's process should be found wanting in this one instance.

The subsequent development of the federal contempt power lends no support to the petitioners' position, for the significance of the Act of 1831, 4 Stat. 487, 488, lies quite in the opposite direction. Sentiment for passage of that Act arose out of the impeachment proceedings instituted against Judge James H. Peck because of his conviction and punishment for criminal contempt of a lawyer who had published an article critical of a decision of the judge then on appeal. Although it is true that the Act marks the first congressional step to curtail the contempt powers of the federal courts, the important thing to note is that the area of curtailment related not to punishment for disobedience of court orders but to punishment for conduct of the kind that had provoked Judge Peck's controversial action. As to such conduct, the 1831 Act confined the summary power of punishment to '* * * misbehaviour of any person * * * in the presence of the * * * courts, or so near thereto as to obstruct the administration of justice * * *.' The cases in this Court which have curbed the exercise of the contempt power by federal courts have concerned this clause, as found in statutory successors to the Act of 1831 including subdivision (1) of present 18 U.S.C. § 401, 18 U.S.C.A. § 401, or a further clause in the Act and its successors dealing with misbehavior of court 'officers,' now found in subdivision (2) of § 401.4

In contrast to the judicial restrictions imposed on the contempt power exercisable under the clauses now found in subdivisions (1) and (2) of § 401, we find no case suggesting that subdivision (3) of § 401, before us here, is open to any but its obvious meaning. This clause also finds its statutory source in the Act of 1831, which first made explicit the authority of federal courts to punish for conduct of the kind involved in this case by providing that the contempt power should extend to '* * * disobedience or resistance * * * to any lawful writ, process, order, rule, decree, or command * * *' of a federal court. Particularly in the basence of any showing that the old practice of outlawry was ever brought to the attention to Congress, there is no warrant for engrafting upon this unambiguous clause a dubious exception to the English contempt power stemming from this practice. Although the 1831 Act no doubt incorporated many of the concepts of the English common law, its legislative history...

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