Laughlin v. United States

• Decision Date: 30 April 1945
• Docket Number: No. 8757.,8757.
• Citation: 80 US App. DC 101,151 F.2d 281
• Parties: LAUGHLIN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

80 US App. DC 101, 151 F.2d 281 (1945)

LAUGHLIN v. UNITED STATES.

No. 8757.

United States Court of Appeals District of Columbia.

Argued March 26, 1945.

Decided April 30, 1945.

Rehearing Denied May 8, 1945.

Writ of Certiorari Denied December 10, 1945.

Mr. James J. Laughlin, of Washington, D. C., appellant, in proper person.

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.

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

Writ of Certiorari Denied December 10, 1945. See 66 S.Ct. 265.

PER CURIAM.

Appellant is a member of the Bar and in April, 1944, represented Robert Noble and Edward J. Smythe, two of thirty defendants then on trial in the United States District Court in Criminal No. 73086, generally called the "Sedition Case." The trial was begun April 17, 1944, and on April 26th, and before a jury had been secured, appellant filed in the court, with his certification of good faith, the affidavit of his client Noble, charging presiding Judge Eicher with personal bias and prejudice.¹ Immediately thereafter Judge Eicher, on petition of prosecuting counsel and on his own motion, entered an order directing appellant to show cause before Judge Bailey, of the same court, why he should not be adjudged in contempt. Appellant filed his answer and on May 2nd the hearing was begun, and on May 10th Judge Bailey adjudged appellant guilty, imposed a fine and directed that he be committed until the fine was paid. This appeal followed.

The petition for the show cause order, in addition to charging appellant with making scurrilous accusations against the Judge — in the affidavit of bias² —, charged also the untimely submission, contrary to a ruling of the court, of sundry motions for leave to summon witnesses at the expense of the Government, and with giving information to the newspapers of their contents, with the intent to influence prospective jurors and thus to obstruct the due administration of justice. Appellant's answer to the rule admits the filing of the affidavit and submission of the motions, but insists that all were in good faith and that no prospective juror was in fact influenced by subsequent newspaper accounts, and that appellant himself did not, in any of the acts or things done by him, intend to be "contemptuous of the court, or to reflect upon the court, or to impede or obstruct the administration of justice."

Judge Bailey, at the conclusion of the hearing, found that the affidavit seeking to disqualify Judge Eicher was purposely withheld until appellant "found how the case happened to be going against his clients," and was then filed to embarrass the trial; and that appellant's untimely motions for subpoenas and his activities to ensure publication of their contents were all part and parcel of a purpose to disqualify prospective jurors.

In this court appellant insists the adjudication of contempt should be set aside on the following grounds: (1), that Judge Bailey erred in hearing and deciding the proceeding in the face of an affidavit of bias and prejudice which appellant had filed against him; (2), that the petition for the order to show cause not being verified was invalid; (3), that appellant was entitled to jury trial on the issue of his guilt; (4), that his sworn answer denying intent purged him of contempt, if any was shown; and (5), that the evidence was insufficient to sustain a conviction.

Taking up these several assignments in the order we have stated, we come first to consider the effect of the affidavit against Judge Bailey. As to this it appears that the hearing by Judge Bailey on Judge Eicher's order to show cause was set for May 2nd. Just prior to the convening of court appellant handed to one of the deputy clerks an affidavit in the usual form, in which he charged that Judge Bailey had in 1937, in a then pending disciplinary proceeding, voted to suspend appellant from the practice of law without hearing, and on that occasion had made derogatory statements of him to the effect that he believed him guilty of certain criminal charges of which appellant had been convicted, but on which, after reversal in this court, he was tried and acquitted.

We find it unnecessary to decide whether, even if these things were true, they were enough to require Judge Bailey's disqualification.³ For in any case the circumstances, which we shall mention, were such as properly to deprive the affidavit of the right to consideration. Shortly stated, these were that on the morning of the hearing and before the convening of court, appellant handed to the clerk the affidavit seeking to disqualify Judge Bailey, which he then and there swore to. The clerk marked the paper "Filed," but appellant in some way, which is not quite clear, withdrew it and took it with him and kept it in his possession and made no mention of it thereafter at the hearing which followed, and in which appellant actively engaged, first, in moving on technical grounds to quash the show cause rule; then in demanding jury trial, which after hearing was refused, and then in requesting a continuance, which was granted. On resumption of the hearing two days later, Judge Bailey, before proceeding, stated to appellant that the clerk had that morning notified him that appellant had previously sworn to an affidavit of prejudice, but had withdrawn it from the files and had not returned it until the preceding afternoon, and then only at the clerk's request. Appellant answered that it was true he had handed the paper to the clerk and made the oath and that the clerk had stamped it "Filed," but that this latter fact he had not realized until he got back to his office. He explained that the action of the clerk in stamping the affidavit filed was due, perhaps, to the fact that "she probably assumed when I took the oath it the affidavit was intended to be filed." The statement we have quoted explains how the paper mistakenly got into the files, but leaves unexplained how it got out. However, enough appears to justify our concluding, as we do, that appellant's answer to Judge Bailey is consistent only with the theory that he had not at the time intended to file the affidavit and that it was only because the clerk, mistakenly, — or perhaps prematurely — marked it "Filed" that he felt constrained to return it. Accordingly, we are of opinion that the recovery of the paper — even if we may consider it as then filed — was not in compliance with the "time" provision of the statute. The paper shows on its face that the alleged bias on which disqualification was sought had been known to appellant for years. His action, therefore, in deliberately holding back the filing until after the first day's proceedings and after Judge Bailey had ruled on sundry matters, and after he had, at appellant's request, granted a continuance, was not only not a showing of good cause for the delay, but, as the Judge properly held, a waiver of appellant's statutory right to a consideration of the affidavit. Skirvin v. Mesta, 10 Cir., 141 F.2d 668; Refior v. Lansing Drop Forge Co., 6 Cir., 124 F.2d 440; Chafin v. United States, 4 Cir., 5 F.2d 592.

As little need be said of Judge Bailey's adverse ruling on appellant's motion to dismiss the proceedings on the ground the petition to show cause was not verified, for we have previously held that this is not necessary. In re Fletcher, 71 App.D.C. 108, 110, 107 F.2d 666, 668. Nor is there any merit to appellant's position that he was entitled to a jury trial, Eilenbecker v. District Court of Plymouth County, 134 U.S. 31, 36, 10 S.Ct. 424, 33 L.Ed. 801; 28 U.S.C.A. § 385; or to his sworn answer denying that at the time he filed the affidavit he intended it "to be contemptuous of the court or to reflect upon the court, or to impede or obstruct the due administration of justice." For, as the Supreme Court said in Clark v. United States, 289 U.S. 1, 19, 53 S.Ct. 465, 471, 77 L.Ed. 993:

"The oath of a contemnor is no longer a bar to a prosecution for contempt."

This brings us then to the main question, (1), whether the evidence shows beyond a reasonable doubt that appellant's conduct in the progress of the trial in the untimely filing of motions to subpoena witnesses was with the purpose to delay and embarrass the conduct of the trial. Judge Bailey, who patiently heard the evidence, held in the affirmative as to this — and we think correctly. In this respect the record shows that on April 14th, three days before the trial of the sedition case began, appellant applied for leave to subpoena at Government expense General Short and Admiral Kimmel. His act in so doing is not included in the pending contempt...