In re Presentment by Grand Jury of Ellison, 44.
Decision Date | 15 April 1942 |
Docket Number | No. 44.,44. |
Citation | 44 F. Supp. 375 |
Parties | In re PRESENTMENT BY GRAND JURY OF ELLISON. |
Court | U.S. District Court — District of Delaware |
William A. Gray, of Philadelphia, Pa., and Harry K. Hoch, of Wilmington, Del., for petitioner.
William Maloney, Sp. Asst. to the Atty. Gen., and Stewart Lynch, U. S. Atty., of Wilmington, Del., for the Government.
Upon a presentment by the Grand Jury a rule was entered on March 6, 1942 on James Austin Ellison to show cause why he should not be adjudged in contempt of court. James Austin Ellison filed a motion to quash and set aside said rule to show cause. Argument was had on the motion. Briefs were filed by both sides, and the matter is now before the Court for disposition.
The presentment of the Grand Jury recites that while testifying before the said Grand Jury Ellison gave evasive, perjurious, and contumacious answers to questions propounded to him and in so doing wilfully and contumaciously obstructed, impeded, and hampered the investigation of the Grand Jury and the administration of justice. It is further alleged that Ellison, while in the hall adjacent to the Grand Jury room, and where witnesses were seated until called to testify before the Grand Jury, endeavored to influence a witness — Cann — not to change his perjurious testimony theretofore given to the Grand Jury and in this manner also obstructed the administration of justice. Attached to the presentment is a transcript of excerpts from the testimony of Ellison given before the Grand Jury which the Government contends is evasive, perjurious, and contumacious. All of the acts charged were allegedly committed while the Grand Jury was in session and considering evidence relating to the General Election of 1940 in Delaware.
This proceeding was brought pursuant to the provisions of 28 U.S.C.A. § 385, Judical Code, Section 268. The motion to quash attacks both the sufficiency of the presentment and the power of the Court to punish summarily the alleged contemnor for the misbehavior charged. In support of the latter contention, Ellison relies upon the case of Nye & Mayers v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172, which, it is contended, has so construed Section 268 as to limit the summary power of the courts to that of punishing misbehavior which disturbs the order and decorum of the court through noise or similar disorderly conduct.
The decision in the Nye case has been considered in the recent case of United States v. Pendergast, D.C., 39 F.Supp. 189, at page 192, wherein Judge Otis, speaking for a three-judge court states, "But counsel seem to argue that the Nye & Mayers case lays down an astounding doctrine — Misbehavior, to be punishable contempt, even if committed in the presence of the court, must be of that character of misbehavior which disturbs the peace of the courtroom.
The Nye case clearly recognizes that there are two classifications of contempt which may be summarily dealt with by the Court: Those which arise from misbehavior in the "presence" of the Court, and those which arise from misbehavior "so near thereto as to obstruct the administration of justice." 313 U.S. 33, 61 S.Ct. 814, 85 L.Ed. 1172. The well reasoned opinion in the Pendergast case demonstrates that the Nye case does not in any way affect those decisions dealing with contemptuous acts committed in the "presence" of the court. It must follow, therefore, that the decisions prior to the Nye case which define what misbehavior constitutes contempt must stand unaffected by the decision in the Nye case, if the misbehavior took place in the "presence" of the court.
There are many decisions which hold that the type of misconduct here charged is punishable as contempt. Ex parte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150; Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993; Camarota v. United States, 3 Cir., 111 F.2d 243; O'Connell v. United States, 2 Cir., 40 F.2d 201; Loubriel v. United States, 2 Cir., 9 F.2d 807; United States v. McGovern, 2 Cir., 60 F.2d 880.
The issue here presented is clearly defined. Were the acts charged committed in the "presence" of the court as that word is used in Section 268? The conclusion is inescapable that if these acts were not committed in the "presence" of the court, they are punishable only by indictment. "It was not misbehavior in the vicinity of the court disrupting to quiet and order or actually interrupting the court in the conduct of its business." Nye & Mayers v. U. S., supra, 313 U.S. 52, 61 S.Ct. 817, 85 L.Ed. 1172.
The Grand Jury is an appendage of the court and contempts committed before it are committed in the "presence" of the court. United States v. Dachis, D.C., 36 F.2d 601; see, also, O'Connell v. United States, 2 Cir., 40 F.2d 201; Wilson v. United States, 8 Cir., 77 F.2d 236. In the Savin case, the court said, 131 U.S. at page 277, 9 S.Ct. at page 702, 33 L.Ed. 150: "We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court."
Counsel for Ellison referred to three recent cases which were decided on the basis of the Nye case and which, it is contended, apply a ruling different from that which was applied in the Pendergast case and which is applied here. Wimberly v. United States, 5 Cir., 119 F.2d 713; Warring v. Colpoys, App.D.C., 122 F.2d 642, 136 A.L.R. 1025; Millinocket Theatre, Inc., v. Kurson et al., D.C., 39 F.Supp. 979. Each of these cases involved misbehavior which took place at a considerable distance from the court — in one case sixty miles — and could not in any way be considered as having occurred in the "presence" of the court. Consequently, as clearly appears from the opinions in those cases, they were not concerned with misbehavior in the "presence" of the court.
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United States v. Cox
...fundamental principles of a free constitution are subverted." 17 Federal Grand Jury Handbook, p. 9. See, In re Presentment by Grand Jury of Ellison, D.C.D.Del. 1942, 44 F.Supp. 375, aff'd 133 F.2d 903, cert. den'd In re Ellison, 318 U.S. 791, 63 S.Ct. 995, 87 L.Ed. 18 Schwartz points up his......
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Carlson v. United States, 4732-4734.
...that broader meaning of 18 U.S.C. § 401(1). Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, 246; In re Presentment by Grand Jury of Ellison, D.C.Del.1942, 44 F.Supp. 375, 377, affirmed, 3 Cir., 1943, 133 F.2d 903, certiorari denied 1943, In re Ellison, 318 U. S. 791, 63 S.Ct. 995, 87......
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Farese v. United States
...819, expressed it as his understanding that the Court did not intend to overrule the Savin case. See also In re Presentment by Grand Jury of Ellison, D.C. Del.1942, 44 F.Supp. 375, affirmed, 3 Cir., 1943, 133 F.2d 903, certiorari denied, 1943, 318 U.S. 791, 63 S.Ct. 995, 87 L.Ed. 1157. Cf. ......
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MacInnis v. United States, 12599.
...but that is quite beside the point because the few days delay did not legally prejudice them. * * *" See In re Presentment by Grand Jury of Ellison, D.C.Del.1942, 44 F.Supp. 375. United States v. Sacher, 2 Cir., 1950, 182 F.2d 416, 428, 429, certiorari denied 341 U.S. 952, 71 S.Ct. 1010, cl......