In re Thompson

• Decision Date: 17 January 1963
• Parties: In the Matter of the Issuance of a Subpoena upon Roland E. THOMPSON, a citizen of the United States of America, presently residing in the Republic of the Philippines.
• Court: U.S. District Court — Southern District of New York

213 F. Supp. 372

In the Matter of the Issuance of a Subpoena upon Roland E. THOMPSON, a citizen of the United States of America, presently residing in the Republic of the Philippines.

United States District Court S. D. New York.

January 17, 1963.

Robert M. Morgenthau, U. S. Atty., S. D. New York, for the United States; Arthur I. Rosett, Victor Temkin, Asst. U. S. Attys., of counsel.

Havens, Wandless, Stitt & Tighe, New York City, for Roland E. Thompson; Adelbert C. Matthews, Jr., Malvern Hill, Jr., New York City, of counsel.

LEVET, District Judge.

In this proceeding the United States of America seeks to hold respondent Roland E. Thompson in contempt for his failure to obey a subpoena to appear and testify before a federal grand jury.

Respondent is a citizen of the United States who now resides and for some time has resided in Manila, Republic of the Philippines.

PROCEEDINGS HEREIN

On June 29, 1962, pursuant to the provisions of Title 28 U.S.C. § 1783, Judge Thomas F. Murphy of this court ordered that a subpoena issue directed to Roland E. Thompson, commanding Thompson to appear before a grand jury for this district on August 2, 1962. The order provided that the subpoena was to be sent to the Consul General at the Embassy of the United States in Manila, Republic of the Philippines for personal service upon Thompson.

The subpoena was personally served upon Thompson in Manila by David W. McClintock, American Vice Consul, on July 13, 1962, together with a first-class round trip airplane ticket between Manila and New York and $29.50 in travel funds.

On August 2, 1962, the grand jury met and Thompson failed to appear.

On August 7, 1962, the grand jury reconvened and again Thompson did not appear. The grand jury thereupon returned an indictment charging Thompson with conspiracy to violate Title 18 U.S.C. §§ 281 and 371. On the same day, Judge Wilfred Feinberg of this court signed an order to show cause directing Thompson to show cause why he should not be found in contempt. Under the provisions of 28 U.S.C. § 1784(b) all United States marshals were directed to levy and seize any property within the United States of Thompson or the Wm. H. Rennolds Company, Inc., a Philippine corporation of which Thompson is President and a stockholder, and with whose assets it is alleged his personal assets are mingled.

On August 16, 1962, Judge Feinberg signed a supplemental order continuing the return date of the order to show cause to September 4, 1962 and providing for the service of these orders on Thompson and the corporation not less than ten days before that date. On August 22, 1962, both orders were served on Thompson and the corporation in Manila by Vice Consul McClintock.

On September 4, 1962, the return date of the motion to punish for contempt, the government appeared, presented evidence and rested its contempt case. The proceedings were adjourned to September 28, 1962 to afford defense counsel an opportunity to obtain written authority to appear in this matter and to present any evidence in Thompson's defense.

On September 13, 1962, respondent's attorneys served notice to take depositions in Manila. On September 14, 1962, the government moved by order to show cause to quash the notice to take depositions. After hearing the parties, this court denied the motion to quash the notice to take depositions and ordered that a Commission issue, directed to the Consul General of the United States of America in Manila, Republic of the Philippines, to examine under oath various persons named in the notice to take depositions. Pursuant to this order, depositions (Res. Exs. E through O) were taken in Manila between the second and ninth of November, 1962.

On December 12, 1962, the respondent presented his proof and both sides rested. Memoranda were filed and oral arguments were heard on December 20, 1962.

Respondent moved to dismiss this proceeding on the following grounds:

1. "Section 1783 of Title 28, U.S. C. is Arbitrary, Capricious, Unreasonable, and Indefinite and is, Per Se, Unconstitutional in Violation of the Fifth Amendment in that no `Proper Showing' is Required For the Issuance of a Subpoena."

2. "The Jurisdiction and Power and authority of the Court to Issue a Subpoena to an Absent Citizen Under Section 1783 of Title 28, U.S. C. is Permitted Only in a Trial in a Criminal Action Pending Before the Court."

3. "As a Matter of Fact and as a Matter of Law, Thompson's Physical Incapacity Excused him from Complying with the Court's Subpoena."

CONSTITUTIONALITY OF TITLE 28 U.S.C. § 1783

Respondent asserts that Section 1783 is violative of the standards of due process because the subpoena may be issued by the court upon a showing that the presence of a witness in a criminal proceeding is "desired by the Attorney General." Without words in the statute requiring a "proper showing" to justify the issuance of a subpoena by the court, respondent argues, there is an assumption of unconstitutional power and authority by the Attorney General denying due process of law to the citizens of this country and Thompson personally.

The issuance of a subpoena under Section 1783 is addressed to the discretion of the court. The court in the exercise of its discretion determines whether a proper showing is made. Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932).

Due process does not forbid discretion merely because discretion may become arbitrary. The requirements of due process are not premised upon judicial and executive capriciousness. Blackmer v. United States, supra.

Respondent also alleges that he had no material evidence to present to the grand jury. However, a witness under subpoena to appear before a grand jury has no authority to contest obedience on the ground that his appearance is not necessary because he allegedly has no material evidence to give. Nelson v. United States, 201 U.S. 92, 26 S.Ct. 358, 50 L.Ed. 673 (1906); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L. Ed. 979 (1919).

Upon the affidavit of Arthur I. Rosett, Assistant United States Attorney, dated June 28, 1962, the court ordered the issuance of the subpoena. The affidavit disclosed the following:

(1) That Roland E. Thompson was a United States citizen residing in Manila, Republic of the Philippines.

(2) That Thompson's testimony was desired before a grand jury investigating matters of which he had personal knowledge.

The affidavit indicates that there was a proper showing made; therefore, the subpoena was properly issued.

Aside from the question of proper showing there is no doubt that it is constitutional for a United States Court to subpoena as a witness a citizen residing abroad. The Supreme Court so held in Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932), which upheld the constitutionality of the Walsh Act, predecessor of Section 1783.

THE APPLICABILITY OF 28 U.S.C. § 1783 TO GRAND JURY PROCEEDINGS

Respondent contends that Section 1783 does not authorize the issuance of a subpoena to a witness to appear before a grand jury. This contention is based upon the following grounds:

(1) That Section 1783 provides for the issuance of a subpoena in a "criminal proceeding," and that Grand jury proceedings are not "criminal proceedings."

(2) The legislative history of the 1948 Revision of the Judicial Code indicates that when the Walsh Act (formerly 28 U.S.C. §§ 711, 712) was superseded by Section 1783 it was not the intention of Congress to change the meaning of the Walsh Act. The Walsh Act provided for the issuance of a subpoena in a "trial of any criminal action" instead of a "criminal proceeding," as provided by Section 1783.

These contentions are without merit. United States v. Leff, Docket 143/309 (S. D.N.Y.1954); United States v. Stern, Docket M11-188 (S.D.N.Y.1957), appeal dismissed Stern v. United States, 249 F.2d 720 (2 Cir., 1957), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1958). By its terms, Section 1783 provides for the issuance of subpoenas to witnesses in "criminal proceedings." Grand jury proceedings are "criminal proceedings." In Schwimmer v. United States, 8 Cir., 232 F.2d 855, 860, cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed. 2d 52 (1956), the court stated:

"The term `criminal proceeding', * * * includes the investigation of a grand jury, since such a body is merely an adjunct or `appendage' of the court, and the things it does represent an incident or process in the part played by the judicial system in criminal law enforcement. 24 Am.Jur., Grand Juries, § 2."

See also Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1958); Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960); Hemans v. United States, 6 Cir., 163 F.2d 228, cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L. Ed. 380 (1947).

The term "criminal proceedings" is used in the Federal Rules of Criminal Procedure as a generic term. It can be found in the Rules relating to all stages of criminal matters. (See Rules 1 through 5 and 23 through 31) Furthermore, Rule 17, which governs subpoenas, makes no distinction whatever between subpoenas for testimony at grand jury proceedings and those for testimony at trial. In fact, Rule 17(e)(2) provides a specific cross-reference to Section 1783. This cross-reference indicates that the term "criminal proceedings" has the same meaning in both authorities.

Respondent argues that Section 1783 does not apply to grand jury proceedings because the words "before it" as used therein mean "before the court." He cites a number of cases for the obvious proposition that a court and a grand jury are not synonymous. This is too apparent for comment. It is equally apparent, however, since grand juries are accessories to the criminal jurisdiction of a court, that it is entirely proper...