Hallinan v. United States

• Decision Date: 13 July 1950
• Docket Number: No. 12424.,12424.
• Citation: 182 F.2d 880
• Parties: HALLINAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

182 F.2d 880 (1950)

HALLINAN v. UNITED STATES.

No. 12424.

United States Court of Appeals Ninth Circuit.

May 23, 1950.

Rehearing Denied July 13, 1950.

George Olshausen, San Francisco, Cal., Robert W. Kenny, Los Angeles, Cal., for appellant.

Frank J. Hennessy, U. S. Atty., Joseph Karesh, Robert B. McMillan, Asst. U. S. Attys., San Francisco, Cal. (James M. McInerney, Asst. Atty. Gen., James W. Knapp, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellee.

Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.

ORR, Circuit Judge.

Appellant appeared as attorney for the defendant in a case entitled United States of America v. Bridges et al., D.C., 87 F. Supp. 14. The action was tried in the United States District Court for the Northern District of California, Southern Division, Honorable George B. Harris, District Judge, presiding.

During the course of the trial a judgment of contempt was rendered against appellant. He appeals and makes the following principal contentions:

1. The record does not show contempt.

2. That by waiting one day subsequent to the commission of the alleged contempt, the Court lost its power to punish summarily under Rule 42(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., but could proceed only on notice and hearing under Rule 42(b). Furthermore, since the matter is properly under Rule 42(b), the Court was disqualified to pronounce judgment.

The trial Court filed a certificate setting forth the facts on which it based the judgment of contempt, in conformity to the requirements of Rule 42(a). Consideration of the questions involved requires a rather lengthy statement of the conclusions reached by the Court and the references to the record, as set forth in the certificate. At times we make reference to portions of the record not referred to in the certificate: this for the purpose of assisting in our determination of whether the conduct of defendant, upon which the judgment of contempt was predicated, was in good faith. The portions of the record to which we refer were designated by appellant on this appeal. In considering portions of the record not referred to in the certificate we have not overlooked the requirement that if the judgment is to be sustained the conduct complained of in the certificate must in itself constitute contempt. We find that it does.

The rulings and assertions made during appellant's opening statement contain several lines of thought. For clarity we consider these rulings and assertions separately according to the subjects with which they deal. The first of these subjects is labor union disputes.

In pronouncing the judgment of contempt the Court states: "Mr. Hallinan, unbridled again, lapsed into a violation of the orders. At page 550 the Court had occasion to sustain an objection interposed by Mr. McMillan to matters that should not have been brought in on an opening statement and to matters which should not have been brought before the jury." The record pertaining to this incident shows the following:

In the course of his opening statement appellant stated: "Now, Mr. McMillan says that they will bring into this trial certain labor leaders, former associates of Harry Bridges. Unfortunately they will, because the labor movement, as you may have all observed, at times in its career turns back on itself and rends and destroys itself and engages in internecine quarrels that destroy its utility." The Court thereupon "admonished" appellant that "we are not trying warfare or alleged warfare between any union or any group and the like." While the certificate makes no reference to prior admonitions the record discloses this to be the fourth time after appellant began his opening statement that the Court had expressed the opinion that historical accounts of labor union activities in which Bridges had taken part were immaterial, were inflammatory or were far divorced from the indictment before the court.

Subsequently, appellant again began a recital of a history of the growth of the C.I.O., and its expulsion from the A.F.L., which was said to have been accompanied by charges that the C.I.O. and certain of its leaders, including Bridges, were communistic. This recital was objected to and the objection sustained. The Court, in its certificate, then refers to a "long dissertation" by appellant concerning "some internal warfare between the C.I.O. and the A. F. of L." It appears of record that immediately after the sustaining of the above objection, appellant made some statement concerning the affiliation of Bridges' I.L.W.U. with the C.I.O. and began a further discussion of a Maritime Federation of the Pacific. Objection was again made and sustained. Immediately thereafter, in disregard of the ruling, appellant continued with the discussion of the Maritime Federation of the Pacific, and its alleged control by Harry Lundeberg, who appellant stated would be a government witness, and to whom he referred in derogatory language. Objection was made and the Court said: "What Mr. Hallinan has to say is in reality that type of matter that may be reserved for closing argument, if the facts demonstrate it. * * * I think, Mr. Hallinan, that these excoriations and vituperative matter bearing upon Mr. Lundeberg and others has no place at the present time." The certificate recites that only a few seconds or minutes later, appellant again "launched into the same demeanor, same conduct, persistent, studied as it was." From the record we learn that when appellant resumed his opening statement, his very first sentence had to do with quarrels between Bridges' union and the A.F.L. He went on to charge that Lundeberg and another labor leader were joined in their fight against Bridges and the latter's union by employer groups, goon squads, killers and perjurers. After the statement that certain government officials also joined in this persecution of Bridges, although other "upstanding, granite-honest" government officials had gone out of their way to protect him, another objection was interposed and sustained. Immediately thereafter appellant said, "the strength and extent to which these people were willing to go may be learned from the fact that as early as 1936 they caused a warrant for Mr. Bridges' arrest on a deportation inquiry to be issued by the Secretary of Labor." Appellant also referred to the passage of a "bill of attainder" against Mr. Bridges by the United States House of Representatives, and also stated that "Mr. Bridges has made the mistake of not taking the $50,000 that was offered to him back in 1934 to throw the strike and go back to Australia." Again objection was made and again sustained, and appellant then referred to the labor situation in Hawaii as "the renewal of about what had happened in San Francisco — poison gas and clubs for the workers * * *." Again objection was made and again sustained.

The next type of matter found in the opening statement consists of direct attacks upon the credibility and character of anticipated opposing witnesses. The Court, in the absence of the jury, stated that in its opinion appellant had, in his opening statement, been "anticipating much of the Government's case, indulging in speculation on speculation," and "creating an atmospheric quantity at this stage designed to prejudice and inflame the jury." Reference is made to Government counsel's statement as to the position of the Government. This, the record discloses, was to the effect that appellant was not entitled to attack the credibility of prosecution witnesses in the opening statement. Appellant then resumed his opening statement. We learn from the record and certificate that appellant referred to Harry Lundeberg as "one of the most remarkable of the witnesses that will be produced," "like a character from Jack London, a typical bucko mate, with a reputation for violence and ferocity as wide as the Seven Seas, a man who has been arrested for brawling and assaults in half the courts of the world." Objection was again made and the Court stated: "This wild anticipation of the Government's case is to my mind novel," and ruled that "these excoriations and vituperative matter bearing upon Mr. Lundeberg and others has no place at the present time." The Court also specifically instructed the jury to disregard the statements about Lundeberg's arrests in all parts of the world. Only a few seconds later, appellant "launched into the same demeanor, same conduct, persistent, studied as it was." The subsequent statements included assertions that the defense would prove that Lundeberg and another labor leader employed a known murderer to kill Bridges and did in fact send a man to New Orleans who killed a C.I.O. organizer there. Appellant also asserted that the labor leaders had under their control goon squads, killers and perjurers.

Appellant further stated: "Now, as early as 1936 there had been introduced into Harry Bridges' union and into his personal office as his private secretary a woman employed by the Waterfront Employers Association, and she was also the mistress of Mr. Harry Lundeberg." Objection was made and appellant gave as justification for the statement his purpose of showing Bridges' consciousness of being watched by agents of his enemies, who would use against him any detected activities in the Communist Party. The Court then said, among other things, that an opening statement was not a sounding board for giving vent to immaterial matters, and that it was very unfair to make such a reference to the woman. After some discussion, the Court stated to appellant: "You characterized all of these witnesses as perjurers, low people, characterized them with vile, vituperative terms. 125 in number. I do not know at the present time the identity of any witness about to be called for the United States Government, and I dare say that in large you do not. Now I think it highly unfair to this Court, indulgent as I have been with you, to continue on that...