In re Dellinger

• Citation: 461 F.2d 389
• Decision Date: 11 May 1972
• Docket Number: No. 18294.,18294.
• Parties: In the Matter of David DELLINGER et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

461 F.2d 389 (1972)

In the Matter of David DELLINGER et al., Appellants.

No. 18294.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 1972.

Decided May 11, 1972.

Leave to File Petition for Rehearing Denied July 6, 1972.

COPYRIGHT MATERIAL OMITTED

Leonard I. Weinglass, Morton Stavis, Newark, N. J., James Reif, Center for Constitutional Rights, New York City, William W. Brackett, Thomas M. Haney, Stuart S. Ball, Chicago, Ill., Anthony G. Amsterdam, Stanford, Cal., William M. Kunstler, Center for Constitutional Rights, New York City, James B. Moran, Chicago, Ill., Arthur Kinoy, Rutgers University School of Law, Newark, N. J., Doris Peterson, Center for Constitutional Rights, Helene E. Schwartz, New York City, Thomas P. Sullivan, Chicago, Ill., for appellant.

Charles R. Nesson, Cambridge, Mass., for Wm. M. Kunstler and Leonard I. Weinglass.

James R. Thompson, U. S. Atty., Gary Starkman, Asst. U. S. Atty., Chicago, Ill., for appellee.

Alan S. Ganz, Henry F. Field, Robert J. Vollen, Owen Fiss, Neil Komesar, Chicago, Ill., for amicus curiae.

Before FAIRCHILD, CUMMINGS, and PELL, Circuit Judges.

CUMMINGS, Circuit Judge.

After this Anti-riot Act case against seven of these defendants was submitted to the jury, acting under Rule 42(a) of the Federal Rules of Criminal Procedure, the trial judge summarily convicted them and their two trial attorneys of contempt of court in violation of 18 U.S. C. § 401(1). All nine now appeal from the findings of contempt and the sentences imposed upon them.

In the certificates of contempt, the court found that the 5-month trial was "marred by continual disruptive outbursts in direct defiance of judicial authority by defendants and defense counsel." It found that "throughout this case * * * the behavior of the defendants was aimed at baiting the judge and inciting and harassing the U. S. Attorneys in an attempt to stop the trial." The entire record of the trial was made part of the contempt proceedings.

The contempt sentences ranged from 2 months and 18 days for defendant Weiner to 4 years and 13 days for Attorney Kunstler. Many of the arguments raised by the parties were also raised in the contempt case against Bobby Seale, who was a co-defendant in the Anti-riot case until a mistrial was declared as to him, resulting in his severance. In the interest of brevity, we will incorporate the rulings in our opinion in United States v. Seale, 461 F.2d 345, when dispositive of arguments herein.

Electronic Surveillance as to Seale

Appellants argue that their contempt judgments should be reversed because of the Government's allegedly illegal electronic surveillance as to Seale. As co-defendants and counsel, they have no standing to complain that their Fourth Amendment rights were violated where, as here, their conversations or conversations on their premises were not involved. Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176.

We have seen in United States v. Seale, supra, that the only conversation possibly bearing on his contempt is contained in the first paragraph of the earliest of the three logs. There was nothing in any of the logs which could conceivably be deemed an intrusion into councils of the defendants other than Seale. There not only was no "direct intrusion * * * into attorney-client discussions" (Hoffa v. United States, 387 U.S. 231, 233, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738), but also there was no indirect intrusion, however remote, that could possibly give appellants standing to complain of these logs under the Fifth or Sixth Amendments. Cf. Granello v. United States, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458; United States v. Fannon, 435 F.2d 364, 368 (7th Cir. 1970).

If United States v. United States District Court for Eastern District of Michigan, 444 F.2d 651 (6th Cir.), certiorari granted, 403 U.S. 930, 91 S.Ct. 2255, 29 L.Ed.2d 708 (1971), is reversed by the Supreme Court, then under the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. § 2511(3)), the surveillances were lawful and need not be disclosed for this additional reason.

We hold that the Seale logs require neither reversal nor dismissal of the contempt charges against appellants.

Trial Before Another Judge

As a result of the Supreme Court's opinion in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, the Government has conceded that the contempt convictions of all of these appellants, except the two trial counsel, should be reversed and remanded for consideration by another trial judge. The convictions of counselors Kunstler and Weinglass are asserted to stand on a different footing. We disagree.

The Government argues that the post-trial summary contempt punishment of the lawyers in this case was proper under Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. That case involved a trial judge's summary contempt conviction, after trial, of several attorneys who had represented eleven Communist Party leaders convicted of Smith Act violations in the celebrated Dennis trial.¹ It is clear that the lawyers' contemptuous conduct in that case included an attack upon the trial judge personally. 343 U.S. at 4-5, 72 S.Ct. 451 and 343 U.S. at 33-35, 72 S.Ct. 451. (Frankfurter, J., dissenting).² Nevertheless, the Supreme Court majority upheld the post-trial summary procedure, deciding that "summary" as used in Fed.R.Crim.Pro. 42(a) was not synonymous with "instantly" but rather referred to the informality of the procedure. 343 U.S. at 9, 72 S.Ct. 451. If the trial judge could have cited the lawyers instantly, he was entitled to do so at the end of the trial since "no possible prejudice to them can result from delaying it until the end of the trial if the circumstances permit such delay." 343 U.S. at 10, 72 S.Ct. at 455. Responding to the argument that post-trial summary procedure was inappropriate where the conduct in question included a personal attack on the judge, Mr. Justice Jackson, speaking for the Court, said Rule 42(a) contained "no such limitation" and found any distinction between personally offensive contempts and impersonal contumacies illusory. Predicating the applicability of Rule 42(a) upon such a distinction, he stated, "would nullify, in practice, the power it purports to grant." 343 U.S. at 12, 72 S.Ct. at 456.

Were Sacher the Supreme Court's latest pronouncement on the subject, we would affirm the trial judge's use of summary procedure in the instant case since, as the Government argues, the factual postures of the two cases are closely akin. However, as Judge McGowan has convincingly elaborated in United States v. Meyer, 149 U.S.App.D.C. ___, 462 F.2d 827 (1972), cases subsequent to Sacher have considerably undermined its vitality.³

In Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11, the Supreme Court forbade the use of summary contempt power post-trial by a trial judge who had become "personally embroiled" with the lawyer whom he cited. 348 U.S. at 17, 75 S.Ct. 11. The Court, speaking through Mr. Justice Frankfurter, held under its "supervisory authority over the administration of criminal justice in the federal courts" (348 U.S. at 13, 75 S.Ct. at 13) that a trial judge so embroiled could not proceed summarily after the completion of the trial but must recuse himself to allow another judge to adjudicate the contempt.⁴ The Court said: "The pith of this rather extraordinary summary contempt power to punish without the formalities required by the Bill of Rights for the prosecution of federal crimes generally, is that the necessities of the administration of justice require such summary dealing with obstructions to it." 348 U.S. at 14, 75 S.Ct. at 13. The thrust of the Offutt opinion is that where the trial judge waits until the conclusion of trial to cite for contempt, the necessity to preserve order in the courtroom cannot sanction summary procedure. On the other hand, the "fair administration of justice" (348 U.S. at 17, 75 S.Ct. 11) will not tolerate a judge who has become personally embroiled with trial attorneys to sit in judgment on their conduct, at least after the trial is over, merely because that course is more convenient, more economical and less time consuming than having another judge conduct a hearing. See United States v. Meyer, 149 U.S.App. D.C. ___, 462 F.2d 827 (1972).

In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, a witness, who was also a lawyer, in a state criminal trial was held in contempt for his conduct on the witness stand. The trial judge presided over the post-trial contempt proceeding. The witness-contemnor argued this was improper because his remarks were a personal attack on the judge which "necessarily, and without more" disqualified the trial judge from conducting the contempt hearing. 376 U.S. at 583, 84 S.Ct. 841. The Supreme Court rejected the argument and upheld the summary procedure in that case, concluding from its own examination of the record that the witness' conduct "was disruptive, recalcitrant and disagreeable commentary, but hardly an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification." 376 U.S. at 584, 84 S.Ct. at 847. Moreover, contrary to the situation in Offutt, the Court found that the trial judge had not become personally involved with the petitioner. 376 U.S. at 585, 84 S.Ct. 841.

In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, the Supreme Court required recusal as a matter of due process where the trial judge was the victim of an insulting personal attack by a pro se defendant and waited until the conclusion of the trial to cite for contempt. In that case the Court did not find the judge was an "activist seeking combat" as in Offutt, but on the other hand, could not say from its examination of the record that Mayberry's remarks were merely "disruptive, recalcitrant and disagreeable commentary" as were the remarks in Ungar....