In re Cohen, 72 Cr. 941.

• Decision Date: 03 December 1973
• Docket Number: No. 72 Cr. 941.,72 Cr. 941.
• Citation: 370 F. Supp. 1166
• Parties: In the Matter of Stanley S. COHEN.
• Court: U.S. District Court — Southern District of New York

370 F. Supp. 1166

In the Matter of Stanley S. COHEN.

No. 72 Cr. 941.

United States District Court, S. D. New York.

December 3, 1973.

Paul J. Curran, U. S. Atty., S. D. N. Y., New York City, for the United States; Henry Putzel, III, Asst. U. S. Atty., of counsel.

Barry Ivan Slotnick, New York City, for respondent; Bertram Zweibon, Stanley Cohen, New York City, of counsel.

EDWARD WEINFELD, District Judge.

Stanley S. Cohen (hereafter respondent) was cited for criminal contempt of court in violation of 18 U.S.C., section 401(1)¹ for misbehavior in the course of a criminal trial presided over by Judge Dudley B. Bonsal, wherein he was counsel for the defendant, one Stuart Cohen. The trial commenced on March 12 and was concluded on March 26, 1973, when the jury returned a verdict of guilty.² On March 30, 1973, Judge Bonsal issued the contempt citation, pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure,³ which he referred to the Chief Judge of this Court for the designation of another judge to hear and determine the charges; this Court was so designated.⁴ The citation was duly served upon the respondent, who appeared by an attorney who represented him throughout these proceedings. Upon representations made by the government at a pretrial conference, with the defendant's acquiescence and the Court's approval, the trial was nonjury.⁵

Before considering the citation, it is desirable to set the matter in proper focus. Rule 42 is a means of "vindicating the majesty of law, in its active manifestation, against obstruction and outrage."⁶ Whether the summary procedure under subdivision (a) of the Rule is invoked by the trial judge in whose presence the alleged conduct is committed or the notice and hearing procedure before another judge under subdivision (b) is applied, the purpose of the Rule is to assure the integrity and efficiency of the judicial process. The Rule protects the right of counsel to be a fearless, vigorous and effective advocate of his client's interest, but rejects the concept that contemptuous conduct is to be equated "with courage or insults with independence."⁷

The citation was based upon thirteen (13) incidents occurring at various times during the trial. As to each, Judge Bonsal specified the pages of the trial record,⁸ but did not enumerate each as a separate charge. Although, upon the hearing,⁹ these incidents, for convenience, were referred to by counsel as numbered specifications or particulars, this Court indicated its determination would be based on the totality of the cited occurrences as charging a unitary offense.¹⁰ In addition to the acts or statements contained in the trial transcript, the government, to support the charge, relied upon the testimony of one of Judge Bonsal's law clerks,¹¹ who was present throughout the entire trial and who described the respondent's expressions, manner of speaking, bearing and attitude with reference to each cited particular.¹² The respondent testified on his own behalf, giving his version of the events; in general he urged mitigating circumstances and denied an intent to obstruct justice. An attorney associated with the defense testified in a challenge to the accuracy of the court reporter's transcription of one specification which attributed to respondent a vulgarity, referred to hereafter.

A proper evaluation of the charges required, in addition to consideration of the hearing testimony and an appraisal of the witnesses who testified thereat, a close study of the trial record to place in their proper perspective the acts and conduct which underlie the charges against respondent¹³ — to recreate, to the extent possible, the living trial as it unfolded from day to day.¹⁴ Thus, the Court has read the entire record of the trial of Stuart Cohen, almost 2,000 pages.

The indictment upon which Stuart Cohen was brought to trial was comparatively simple. It charged that he and another had made false material statements to a licensed gun dealer on three separate occasions in connection with the purchase of rifles, in violation of the Gun Control Act,¹⁵ and that they, together with other named persons, had conspired to violate that Act.¹⁶ The co-defendant had previously pled guilty and Stuart Cohen was the sole defendant on trial before Judge Bonsal.

The record indicates that from the very start of the trial, even before the jury was sworn, an atmosphere of tension was created. When the case was called for trial, in an obviously emotional argument, the respondent moved for dismissal of the indictment upon a claim that his client previously, on July 9, 1971, had entered a plea of guilty in the Eastern District of New York to a charge of conspiracy to possess and transport explosives (upon which he had received a suspended sentence) on a "distinct understanding" or "impression" of a promise by the prosecution that the plea would cover the instant charges, and expressed the view his client had "been betrayed."¹⁷ The charge was denied by the prosecutor as without substance, noting that the instant indictment had been returned in August 1972, more than a year after the entry of the guilty plea in the Eastern District, and almost two years before the instant case was called for trial. Additionally, Judge Bonsal observed that pretrial conferences had been conducted in September and October 1972, and January and February 1973, and no such claim had ever been advanced on behalf of the defendant. He ordered the trial to proceed. The voir dire of the jurors was not without incident. Respondent's conduct required an admonition from the Court that he sit down — a direction that was necessary to repeat on a number of occasions on the opening day of trial, and may times thereafter.¹⁸ Also on that first day, the trial judge cautioned respondent, "please don't keep making these speeches"¹⁹ — an admonition which likewise it was necessary to repeat throughout the course of the trial.

Respondent, in his opening statement to the jury, sought to inject into the case obviously irrelevant matters,²⁰ which if permitted would have proliferated the issues under the indictment. Thus he addressed the jurors: "And Mr. Cohen does believe, as I believe and as many other Jews believe, that another holocaust may come and that we may have —." Upon objection by the prosecution, the Court urged upon defense counsel: "Don't get into that, please. You raised the issue of knowledge and intent, quite properly. But let's not get into other issues."²¹ But as counsel continued with his opening argument, he disregarded the Court's request and again touched upon irrelevant matters. He then referred to the Jewish Defense League, a militant organization whose activities had come to public notice and of which the defendant was a member. The Court, in an effort to keep the trial within the framework of the indictment charges, noted: "This case does not involve that. This case purely involves the question of these guns, and whether there was a conspiracy to acquire these guns . . . . Let's keep to the issues of this case."²² The Court previously had observed that the indictment was "very simple," charging the defendant "with having made false statements to get three rifles, with a conspiracy count thrown in . . .," which respondent challenged as "not that simple," and the Court continued, "It is going to be that simple."²³ At the end of the first day of trial, after the jury had been discharged, the following occurred:

"MR. JAFFE the Assistant United States Attorney: . . . I would ask you to admonish defense counsel to stop making speeches on objections.

"THE COURT: I have been doing my best. I will try to stop him. Please don't make speeches."

The Court thereupon admonished both defense and government counsel: "Stop all this rhetoric and let's move along with the trial."²⁴ It is against the background of this charged atmosphere at the very start of the trial, which intensified over the following eleven trial days, that the respondent's acts and statements, set forth in the citation which is attached hereto,²⁵ must be considered.

Upon a careful word by word study of the trial transcript and an evaluation of the testimony and demeanor of the witnesses who testified at the hearing with respect to the circumstances attendant upon each specification, there emerges a clear pattern of persistent and repetitive tactics by respondent which obstructed and interfered with and delayed the orderly progress of the trial and hampered the trial judge in the performance of his judicial duties.²⁶ It would be a work of supererogation to detail the evidence and the circumstances surrounding each numbered specification. A number of instances will suffice.

The first incident, while perhaps by itself not constituting contemptuous conduct, was a forecast of subsequent incidents enumerated in the citation which clearly come within the ban of proscribed conduct. Immediate events surrounding this incident establish that respondent shouted in making objections, used a strident tone and sarcastic language,²⁷ engaged in unnecessary argument and misstated the law.²⁸ After the jury was excused, the prosecutor appealed to the trial judge to "have the defense counsel stop misstating what the law is and misstating what I am doing." The Court thereupon said to respondent, "I do agree that it is unwise to make these speeches," and commented that the sidebar conferences were delaying the trial. The response of the respondent was, "I would ask that the Court at this time declare a mistrial and disqualify itself from sitting in this matter. I think that the Court throughout the inception of this proceeding has been grossly prejudicial and unfair and unheeding of the rights of the defendant —."²⁹ An objective study of the record indicates that there was not the slightest justification for this accusation of prejudice, unfairness or indifference to the rights of the defendant on trial. This was the forerunner of similar...