In re Fletcher

• Decision Date: 08 November 1954
• Docket Number: No. 6804.,6804.
• Citation: 216 F.2d 915
• Parties: In the Matter of Edmond C. FLETCHER on a charge of Criminal Contempt. Appeal by Edmond C. Fletcher.
• Court: U.S. Court of Appeals — Fourth Circuit

216 F.2d 915 (1954)

In the Matter of Edmond C. FLETCHER on a charge of Criminal Contempt Appeal by Edmond C. Fletcher.

No. 6804.

United States Court of Appeals Fourth Circuit.

Argued October 11, 1954.

Decided November 8, 1954.

Writ of Certiorari Denied January 31, 1955.

Edmond C. Fletcher, pro se.

R. R. Ryder, Asst. U. S. Atty., Richmond, Va. (L. S. Parsons, Jr., U. S. Atty., Norfolk, Va., and James R. Moore, Asst. U. S. Atty., Richmond, Va., on brief), for the United States.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

Writ of Certiorari Denied January 31, 1955. See 75 S.Ct. 347.

PER CURIAM.

This appeal is taken from a judgment of the District Court whereby it was found that Edmond C. Fletcher was guilty of criminal contempt of court and a fine of $100 was imposed to be paid in sixty days. The judgment also provided that if the fine was not paid, the defendant should be imprisoned for thirty days. The case was tried upon an order of notice of contempt charge issued on December 15, 1953 by Judge Albert V. Bryan of the Eastern District of Virginia, wherein the essential allegations constituting the charge were set out in substance as follows:

On January 17, 1933, in the case of United States v. Gilliam and Ellis, Receivers of the Quantico Company, Incorporated, in the District Court for the Eastern District of Virginia, a decree was entered perpetually enjoining the respondents therein, their agents, attorneys and employees, from bringing or procuring to be brought, or otherwise instigating, any action or proceeding intended to disturb the United States in the possession of certain parcels of land at the United States Marine Corps Post at Quantico, Virginia, and from in any manner claiming title thereto.

On August 4, 1953 Fletcher violated this decree by depositing with the clerk of said court a motion to intervene in the form of a paper entitled "Intervener's Complaint" in the suit in said court of Ellis, Receiver of the Quantico Company v. Cates, and sought by such complaint to disturb the United States in the possession of the lands above referred to.

On October 9, 1953 Fletcher further violated the injunctive decree by appearing in the chambers of the judge of the court and before the judge at a pretrial conference to prosecute the intervener's complaint.

The order of Judge Bryan further declared that by filing said complaint and by appearing at the conference, Fletcher attempted to assert for himself a claim which he could assert and enforce only as an attorney permitted to practice in the court; but that he was not such an attorney and was not allowed to appear therein as an attorney, having been heretofore found guilty of criminal contempt for so doing. It was further ordered that a copy of the charges be served upon Fletcher as notice of the charge of criminal contempt against him, and that a copy be sent to the United States Attorney who was designated to prosecute the charge.

Notice of the charge was served upon Fletcher. He thereupon filed an affidavit of personal bias or prejudice against Judge Bryan, who retired from the case, and Judge John Paul of the Western District of Virginia was duly designated to sit in the hearing of the case. Fletcher also filed an affidavit of personal bias or prejudice on the part of Judge Paul, but since the statute only permits the filing of one such affidavit, Judge Paul refused to disqualify himself.

Fletcher filed an answer to the charge in which he claimed that the order to show cause was void because it failed to comply with Rule 42 of the Rules of Criminal Procedure. Rule 42 (a) provides for the summary punishment of contempts committed in the actual presence of the court by the judge if he certifies that he saw or heard the conduct constituting the contempt. Rule 42(b) provides that, except as provided in sub-division (a), a criminal contempt shall be prosecuted on notice which shall be given orally by the judge in open court in the presence of the defendant, or on application by the United States Attorney or an attorney appointed by the court for the purpose, by an order to show cause.

The basis for the contention that the order to show cause was void is that it was drawn by Judge Bryan while in chambers and not by an attorney for the United States or other attorney; and that it contains no certificate of the judge as provided by Rule 42(a), and fails to show that it was orally given by the judge in open court in the presence of the defendant or on application of the United States Attorney or an attorney appointed by the court for that purpose, as required by Rule 42(b).

These contentions of the defendant are not tenable. The case was not tried summarily but was tried by Judge Paul after the answer was filed, and there was no need for the certification by the judge that the contempt was committed in the actual presence of the court. The fact that the judge drew the order to show cause upon his own motion rather than upon the application of the United States Attorney or an attorney appointed by the court for the purpose is immaterial. The power of a court of the United States to punish by fine or imprisonment such contempt of its authority as disobedience to its lawful orders or commands is clearly defined in 18 U.S. C.A. § 401.¹ It becomes the duty of the judge to take affirmative action when the lawful commands of the court are defied; and it was not the purpose of Rule 42(b) to limit the authority of the judge or to make the institution of a contempt proceeding contingent upon the consent of any attorney, but rather to aid the judge by providing for the prosecution of the charge by an attorney rather than by the court. In the instant case all the safeguards for the protection of the defendant, including notice and opportunity to be heard, were complied with, and the United States Attorney appeared and participated in the trial of the case. Minor variations from the precise procedure outlined in Rule 42 were considered and found immaterial in United States v. United Mine Workers, 330 U.S. 258, 297-298, 67 S.Ct. 677, 91 L.Ed. 884; International Union, United Mine Workers v. United States, 85 U.S.App.D.C. 149, 177 F.2d 29, 36; Fletcher v. United States, 4 Cir., 174 F.2d 373, 376.

The defendant also makes the contention that the injunctive order of January 17, 1933, whose violation is the basis of the present proceeding for contempt, was void and of no effect. The order was entered in a series of suits instituted by the United States against Gilliam and Ellis, Receivers of the Quantico Co., Inc., Bruce McIntosh, Trustee of Hugh B. Hutchinson, and others, in order to quiet title and to restrain the defendants therein from prosecuting certain ejectment suits in the Circuit Court of Prince William County of Virginia against officers of the United States in charge of the Quantico Marine Corps Post. The cases were tried and decided by Judge W. Calvin Chesnut of the District of Maryland, under a special designation. See United States v. McIntosh, D.C.E.D.Va., 57 F.2d 573; Id., D.C., 2 F. Supp. 244. The contention is now made that the final judgment and injunction order in these cases was void because it was signed by Judge Chesnut in his chambers in Baltimore and sent by him to the Clerk of the District Court of the Eastern District of Virginia to be filed. There is no substance in the point. Under the authorities and the provisions of the statute then and now in effect, the judge had full authority to take the course indicated, and the judgment signed by him in Maryland was as effective as if it had been signed in the Eastern District of Virginia. See United States v. Goldstein, 8 Cir., 271 F. 838; In re American Home Furnishers' Corp., 4 Cir., 296 F. 605; Clarke v. Chicago, B & Q. R. Co., 10 Cir., 62 F.2d 440, 28 U.S. C.A. § 296.

In considering the merits of the pending contempt charge the following facts which have come to the knowledge of this court through prior proceedings should be taken into consideration. On December 18, 1947 the defendant, acting in disregard of the injunctive order of January 17, 1933, attacked the title of the United States to the Quantico lands in an action instituted by him as an attorney together with another attorney in the Eastern District of Virginia on behalf of Ellis, Receiver of the Quantico Company, against the Commanding General in charge of the Quantico Marine Corps...