Klein v. United States, 8870.

• Decision Date: 30 April 1945
• Docket Number: No. 8870.,8870.
• Citation: 151 F.2d 286
• Parties: KLEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

151 F.2d 286 (1945)

KLEIN v. UNITED STATES.

No. 8870.

United States Court of Appeals District of Columbia.

Argued March 26, 1945.

Decided April 30, 1945.

Mr. William J. Powers, of Chicago, Ill., pro hac vice, by special leave of court, with whom Mr. James J. Laughlin, of Washington, D. C., was on the brief, for appellant.

Mr. Philip R. Miller, Special Attorney Department of Justice, of Washington, D. C., with whom Messrs. O. John Rogge and Joseph W. Burns, Special Assistants to the Attorney General, were on the brief, for appellee. Mr. Edward M. Curran, United States Attorney, of Washington, D. C., also entered an appearance for appellee.

Before GRONER, Chief Justice, and LAWS^* and MORRIS,^* Associate Justices.

PER CURIAM.

This also is a contempt proceeding growing out of the trial of the so-called "Sedition Case." See Laughlin v. United States, No. 8757, ___ App.D.C. ___, 151 F. 2d 281, and Jones v. United States, No. 8778, ___ App.D.C. ___, 151 F.2d 289, decided today.

Appellant, a New York attorney, was of counsel for one Sanctuary, a defendant in that trial. James J. Laughlin, Esquire, of the District of Columbia Bar, was his attorney of record.

The trial had begun in April, 1944, and on the following June 29th had reached the point where the introduction of evidence had been commenced by the prosecution. On that day the court adjourned to the following July 5th. Shortly after the court rose (June 29th) appellant returned to his home in New York City and at the conclusion of the adjournment (July 5th) failed to return. On that day Mr. Laughlin, for reasons which the court deemed sufficient, was expelled from the courtroom by the presiding Judge and denied the right to participate further in the trial. As a result, the court was obliged to appoint other counsel to represent Sanctuary. At various times from July 5th to July 14th the Judge inquired of Sanctuary if he had arranged to substitute new counsel of his own selection, and was informed by him that he had not. The court then directed him to communicate with appellant and urge his return, and in the meantime the court appointed as locum tenens one or another of counsel in the case. On July 14th, appellant not having returned, the court, upon its own motion and on motion of counsel for the Government, entered an order under Section 268 of the Judicial Code, 28 U.S.C.A. § 385, directing appellant to show cause on the 21st day of July why he should not be adjudged in contempt. The order recites that it is entered "Upon the annexed petition of O. John Rogge and Joseph W. Burns, Special Assistants to the Attorney General of the United States, and upon the Court's own motion." And the petition, in turn, charges:

"* * *

"3. That Henry H. Klein, who represented himself to the Court to be a member of the bar of the State of New York, with an office at 261 Broadway, New York, New York, requested and was granted permission by the Court to appear as counsel for said Eugene Nelson Sanctuary.

"4. That the said Henry H. Klein, pursuant to the permission granted, did appear at said trial on April 17, 1944, and did continuously thereafter until July 5, 1944, appear at said trial and represent said Eugene Nelson Sanctuary.

"5. That on or about July 5, 1944, while said trial was in session and not completed, the said Henry H. Klein filed with the Court a document entitled `Exceptions, Objections, and Motions,' a copy of which is attached hereto, in which he stated that because of the rulings of the Court in said case, his disagreement therewith, and the refusal of the Court to change them, he would withdraw from further participation in the case and that he would refuse to continue as counsel for the defendant Eugene Nelson Sanctuary. And in pursuance of his purpose, on July 5, 1944, without leave of Court, the said Henry H. Klein wilfully and abruptly abandoned and deserted his client, the said Eugene Nelson Sanctuary, although he was still on trial charged with a serious crime, and although as the said Henry H. Klein well knew, the trial of the said criminal case could not proceed without the defendant Eugene Nelson Sanctuary having the assistance of counsel.

"6. That the said trial has continued on July 6, 7, 10, 11, 12, and 13, but the said Henry H. Klein has refused and continues to refuse to appear in said court to represent said Eugene Nelson Sanctuary."

Under the order referred to above appellant was arrested in New York and, after a hearing before a United States Commissioner there, was ordered transferred to the District of Columbia. In due time thereafter the present proceeding was begun before Judge Eicher. At that time, addressing himself to appellant, the Judge made the following statement, delimiting the scope of the hearing. He said:

"The Court, in reading the petition that was presented by Government counsel, noted at that time and notes now that the sole ground of the present proceeding is your absenting yourself without leave and refusing and continuing to refuse to appear and represent your client."

Section 268 of the Judicial Code, Title 28 U.S.C.A. § 385, provides as follows:

"The courts * * * shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts."

Obviously, this statute limits the power of federal courts summarily to punish for contempt to three classes of cases, — (1),...