In re Chase

• Decision Date: 25 September 1972
• Docket Number: No. 18914.,18914.
• Parties: In the Matter of Frederick J. CHASE, Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

468 F.2d 128 (1972)

In the Matter of Frederick J. CHASE, Appellant.

No. 18914.

United States Court of Appeals, Seventh Circuit.

Argued May 15, 1972.

Decided September 25, 1972.

Rehearing Denied October 24, 1972.

William C. Cunningham, Center for Constitutional Rights, New York City, for appellant.

James R. Thompson, U. S. Atty., Gary L. Starkman, John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before CUMMINGS, PELL and STEVENS, Circuit Judges.

Rehearing En Banc Denied October 24, 1972.

CUMMINGS, Circuit Judge.

In June 1969, appellant Frederick Chase and ten others were indicted for destroying government property, mutilating government records, interfering with the working of the Selective Service Act by force and violence, and conspiracy to commit those three offenses. After a lengthy jury trial, Chase was found guilty on all four counts. He was sentenced to five years' imprisonment on Counts III and IV, to run concurrently; as to the remaining two counts, he was placed on probation for five years commencing with the expiration of the other sentences.

When the trial of the eleven defendants commenced on May 6, 1970, Chase refused to stand when the trial judge entered the courtroom, and he continued to do so whenever the judge or the jury entered or left the courtroom during the trial.

At the opening of the afternoon session on May 8, Chase's counsel read into the record a note from Chase explaining his refusal to rise. This note reads as follows:

"The Bill of Rights provides for freedom of religion. While my religious beliefs may not be conventional in terms of religion, I still feel that they have to be followed in order to follow the dictates of my conscience. The First Commandment states, `I am the Lord, thy God. Thou shall not have false gods before me.\'

"My religious belief, if the Judge or anyone cares to call it that, defines God as collection of living things. While I can participate in actions of respect toward human beings, I cannot participate in actions of respect toward institutions which would indicate a superiority of the institutions over human beings. In conventional religious terms I cannot place false gods before the true God. By requiring that I stand, Mr. Robson is violating my right to religious freedom and also requiring that I violate my conscience. I would appreciate it if you would attempt to explain this as soon as possible."

Chase then told the court:

"I have no qualms about standing for you as a man; I respect you as a human being. It is just that I can\'t stand for institutions.

"I feel the same way for the jury. I intend no disrespect for them as human beings, but I can exercise no respect for them as jurors, because I do feel that that violates my conscience. If you are — if you could just say to me that you understand that I would be standing to you as a human being, and not as a judge, I would be willing to do so."

In response, the judge stated:

"Now I am not asking that you stand for me; I am asking that you stand for the courts which are a part of our whole system of government within this country.

"I took a solemn oath when I was sworn in as a judge to uphold all of those standards, including those of the Constitution, and I do not intend to allow one individual or individuals to attempt to break that down.

"Now when you stand, you will be standing to the courts of this country, not for me. I am just a human being, as you are, but I am dealing with institutions.

"Unless you agree to stand, you offer me no alternative but to hold you in contempt of court.

"I have a list of all of the times.

"Now if you will agree to stand, not to me as an individual, but as to the courts, then we will have no problems.

"But if you refuse, you give me no alternative but to exercise the powers that are given to me for carrying out my responsibility as a Judge of the United States District Court."

Thereafter, the following colloquy occurred between the court and Chase:

"THE COURT: Now I ask you now whether or not you will stand not when I come in as an individual, but for me as a representative of the court system, and for the jury as a representative of the court system?

"If you will promise me that you will, we will have no further problems.

"If you refuse to do so, then you will give me no alternative.

"I ask you what your attitude is.

"DEFENDANT CHASE: Well, sir, I am attempting to follow the dictates of my conscience, and I feel that those dictates have priority over the dictates of the State. And I am afraid that I have to say that I can\'t stand.

"THE COURT: All right now let me state this to you, Mr. Chase, that it is not just for this one offense, it will be a continuing one. Every time you fail and refuse to stand, then I will have no other alternative but to hold you in civil contempt."

Subsequently Chase advised the court that he did not belong to any formal religion but was "from a catholic background." He said that since the community of man was his god, he could not place anything above his respect for human life and therefore could stand for the trial judge only as a man rather than as a judge.

The court then announced that it would not impose any contempt sentence for May 6 or 7, but that since Chase had already been warned on May 7, it was imposing a 20-day civil contempt sentence for the eight refusals to stand when the court and jury came in on May 8. The judge explained that Chase would not have to commence serving the 20-day sentence until the end of the trial.¹ He then stated,

"Now, if you continue to flaunt your responsibility as a citizen of this country, I am going to continue to impose contempt citations, and I ask you to think of that.

"If you tomorrow morning, or Monday morning, when Court opens, will come in and promise to observe the proceedings in this Court, I will consider that in connection with it.

"I will give you that opportunity to think of it. You may purge yourself of contempt, or the Court has no other alternative than to impose sentences. Do you understand that?

"DEFENDANT CHASE: Yes, sir."

At the close of the proceedings on May 15, Chase again explained his attitude, stating:

"I think I have made my position fairly clear on the reason why I do not feel I can rise. I understand that you are trying to uphold the law, as you understand it. I am trying to uphold the right as I understand it. I have discovered that the two often come in conflict, but as long as I have the strength, I will have to stand by the right rather than the law."

During the course of the trial and at its conclusion, a total of five certifications of criminal contempt for persistence in refusing to stand on the entrance of the court or jury were read to Chase pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure.² The first certification was rendered on May 11 and was accompanied by the following prefatory remarks:

"Pursuant to Rule 42(a), Federal Rules of Criminal Procedure, the court finds that the defendant Frederick Joseph Chase has committed certain contemptuous acts in the actual presence of the court. The defendant Chase has refused to rise for either the court or the jury at the opening and adjournment of each and every session of the court.

"The record reflects that the court has brought this matter to the defendant Chase\'s attention on several occasions, and warned him that continuation of such conduct would be punished as criminal contempt. At the opening of court on Friday afternoon, May 8, 1970, the court admonished the defendant Chase that his misconduct was a manifestation of contempt not for the court personally but rather indicated his contempt for the judicial process and the courts of the United States. The court then advised the defendant Chase that he would be given the opportunity to reconsider his conduct and purge himself of any and all previous acts of contempt. Following the court\'s admonition, however, the defendant Chase has refused to rise on each and every occasion when so directed by the court through the Deputy United States Marshal. The court therefore adjudges the defendant Chase to be in direct, criminal contempt of this court and imposes the following sentences:"

In the first certification of contempt, 3-day consecutive sentences were imposed for seven refusals to rise when the court or jury entered the courtroom on the afternoon of May 8 and again on May 11. The second certification of contempt occurred on May 15 and covered eleven similar refusals to rise, again resulting in 3-day sentences consecutive to those imposed on May 11. The third certification, handed down on May 19, covered 15 later identical contempts, resulting in a 45-day consecutive sentence; the fourth certification, rendered May 21, covered 13 later contempts resulting in a 39-day consecutive sentence; and the final certification, given at the close of the trial on June 9, covered 53 similar refusals to rise, again resulting in 3-day consecutive sentences for each. Together the five certifications covered 99 identical acts of contempt,³ resulting in a total sentence of 297 days to be served prior to the 5-year prison term imposed upon conviction of the offenses for which he was indicted.

Chase first contends that the certifications of criminal contempt must be vacated because his refusals to rise do not constitute misbehavior obstructing the administration of justice within the meaning of the contempt statute.⁴ We ruled to the contrary in United States ex rel. Robson v. Malone, 412 F.2d 848, 850, stating that the rising "requirement is sufficiently related to maintaining order in the actual presence of the court, so that an infraction can be dealt with summarily under Rule 42(a) * * *."⁵ As we pointed out, "the traditional rising in unison of persons present in a court can reasonably be thought to contribute to the functioning of the court. It is a way of marking the beginning and end of the session, and...