Levine v. United States, No. 164

CourtUnited States Supreme Court
Writing for the CourtFRANKFURTER
Citation80 S.Ct. 1038,362 U.S. 610,4 L.Ed.2d 989
PartiesMorry LEVINE, Petitioner, v. UNITED STATES of America
Docket NumberNo. 164
Decision Date23 May 1960

362 U.S. 610
80 S.Ct. 1038
4 L.Ed.2d 989
Morry LEVINE, Petitioner,

v.

UNITED STATES of America.

No. 164.
Argued March 22, 1960.
Decided May 23, 1960.
Rehearing Denied June 27, 1960.

See 363 U.S. 858, 80 S.Ct. 1605.

Page 611

Mr. Myron L. Shapiro, New York City, for petitioner.

Mr. Philip R. Monahan, Washington, D.C., for respondent.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

This is a prosecution for contempt arising from petitioner's refusal to answer a series of questions propounded to him by a federal grand jury. In every respect but one, this case is a replica of Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, and as to all common issues it is controlled by that case. In Brown, however, we expressly declined to decide the effect of claimed 'secrecy' upon proceedings culminating in the petitioner's sentencing for contempt, 'because the record does not show this to be the fact.' 359 U.S. at page 51, 79 S.Ct. at page 547, note 11. Here, it appears that the contemptuous conduct, the adjudication of guilt, and the imposition of sentence all took place after the public had been excluded from the courtroom, in what began and was continued as 'a Grand Jury proceeding.' The effect of this continuing exclusion in the circumstances of the case is the sole question presented.

On the morning of April 18, 1957, pursuant to a subpoena, petitioner appeared as a witness before a federal grand jury in the Southern District of New York engaged in investigating violations of the Interstate Commerce Act. He was asked six questions relevant to the grand jury's investigation. After consultation with his attorney, who was in an anteroom, he refused to answer them on the ground that they might tend to incriminate him. He persisted in this refusal after having been directed to answer by the foreman of the grand jury and advised by

Page 612

government counsel that applicable statutes gave him complete immunity from prosecution concerning any matter as to which he might testify. See 49 U.S.C. § 305(d), 49 U.S.C.A. § 305(d).

Later that day the grand jury, government counsel, petitioner and his attorney appeared before Judge Levet, sitting in the District Court for the Southern District of New York, the grand jury having sought 'the aid and assistance of the Court, in a direction to a witness, Morry Levine, who has this morning appeared before the Grand Jury and declined to answer certain questions that have been put to him.' The record of the morning's proceedings before the grand jury was read. After argument by counsel, the judge ruled that the adequate immunity conferred by statute deprived petitioner of the right to refuse to answer the questions put to him. Petitioner was ordered to appear before the grand jury on April 22, and was directed by the court then to answer the questions.

On the morning of April 22 petitioner appeared before the grand jury. The questions were again put to him and he again refused to answer. Once again the grand jury, government counsel, petitioner and his counsel went before Judge Levet, for 'the assistance of the Court in regard to the witness Morry Levine.' At this time the record shows the following:

'The Court: Will those who have no other business in the courtroom please leave now? I have a Grand Jury proceeding.

'The Clerk: The Marshal will clear the court room.

'(Court room cleared by the Marshals.)'

Petitioner, his counsel, the grand jury, government counsel and the court reporter remained. Petitioner objected to further participation by the court in the process of

Page 613

compelling his testimony, except according to the procedures prescribed by Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. That provision, which relates to contempts generally, excluding those 'committed in the actual presence of the court' as to which the judge certifies 'that he saw or heard the conduct constituting the contempt,' provides in effect for a conventional trial. In petitioner's view the court was compelled to regard his contempt, if any, as having already been committed out of the presence of the court, through petitioner's disobedience before the grand jury that morning of the court's order of April 18.

The judge, however, did not treat petitioner's renewed refusal to answer the grand jury's questions as a definitive contempt. He chose to proceed just as he had two weeks earlier in the case of Brown, reviewed here as Brown v. United States, supra, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609. The morning's grand jury proceedings, showing petitioner's refusals to answer, were read, and petitioner was ordered by the judge to take the stand. The court indicated it was proceeding as '(t)he Court and the Grand Jury' 'in accordance with Rule 42(a),' which relates to the procedure in cases of contempt 'committed in the actual presence of the court.' Over objection, the court then put to petitioner the six questions which he had refused to answer when propounded by the grand jury. Petitioner again refused to answer these questions on the claim of the privilege against self-incrimination. In answer to a question by the court he stated that he would continue to refuse on that ground should the grand jury again put the questions to him. Government counsel asked that petitioner be adjudged in contempt 'committed in the physical presence of the Judge.' The court asked for reasons 'why I should not so adjudicate this witness in contempt.' Petitioner's counsel made three

Page 614

points: (1) that the procedures had not been in accordance with 'the requirements of due process'; (2) that the procedures had not followed the requirements of Rule 42(b) of the Federal Rules of Criminal Procedure; and (3) that, on the merits of the charge, the statutory immunity was not sufficiently extensive to deprive petitioner of his privilege not to answer. No reference was made to the exclusion of the general public from the proceedings. Petitioner was adjudicated in contempt and, after submission by counsel of views regarding sentence, one year's imprisonment was imposed. The conviction was affirmed by the Court of Appeals, 267 F.2d 335, and we granted certiorari, 361 U.S. 860, 80 S.Ct. 118, 4 L.Ed.2d 101, limiting our grant to the question left open in Brown v. United States, namely, whether the 'secrecy' of the proceedings offended either the Due Process Clause of the Fifth Amendment of the Constitution or the public-trial requirement of the Sixth Amendment.

The course of proceeding followed by the District Court in this case for compelling petitioner's testimony was the one approved in Brown. Specifically, it was established by that case that, after petitioner had disobeyed the court's direction to answer the grand jury's questions before that body, it was proper for the court, upon application of the grand jury, (1) to disregard any contempt committed outside its presence; (2) to put the questions directly to petitioner in the court's presence as well as in the presence of the grand jury; and (3) to punish summarily under Rule 42(a) as a contempt committed 'in the actual presence of the court' petitioner's refusal thereupon to answer.

It was surely not error for the judge initially to have cleared the courtroom on April 22 when the grand jury appeared before him for the second time seeking his 'assistance * * * in regard to the witness Morry Levine.'

Page 615

The Secrecy of grand jury proceedings is enjoined by statute (see 18 U.S.C. § 1508, 18 U.S.C.A. § 1508, and Federal Rules of Criminal Procedure 6(d) and (e)), and a necessary initial step in the proceedings was to read the record of the morning's grand jury proceedings. The precise question involved in this case, therefore, is whether it was error, once the courtroom had been properly, indeed necessarily, cleared, for petitioner's contempt, summary conviction and sentencing to occur without inviting the general public back into the courtroom.

From the very beginning of this Nation and throughout its history the power to convict for criminal contempt has been deemed an essential and inherent aspect of the very existence of our courts. The First Congress, out of whose 95 members 20, among them some of the most distinguished lawyers, had been members of the Philadelphia Convention, explicitly conferred the power of contempt upon the federal courts. Section 17 of the Judiciary Act of 1789, 1 Stat. 73, 83, 18 U.S.C.A. § 401. That power was recognized by this Court as early as 1812, in a striking way. United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259. As zealous a guardian of the procedural safeguards of the Bill of Rights as the first Mr. Justice Harlan, in sustaining the power summarily to punish contempts committed in the face of the court, described the power in this way: 'the offender may, in (the court's) discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; * * * such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions.' Ex parte Terry, 1888, 128 U.S. 289, 313, 9 S.Ct. 77, 83, 32 L.Ed. 405. It is a particular exercise of this power of summary punishment of contempt committed in the court's presence which is at issue in this case. This Court has not been wanting in

Page 616

effective alertness to check abusive exercises of that power by federal judges. See Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11. It would, however, be throwing the baby out with the bath to find it necessary, in the name of the Constitution, to strangle a power 'absolutely essential' for the functioning of an independent judiciary, which is the ultimate reliance of citizens in safeguarding rights guaranteed by the...

To continue reading

Request your trial
335 practice notes
  • Cassano v. Bradshaw, Case No. 1:03 CV 1206
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 18, 2018
    ...assert [it] in a timely fashion, he is foreclosed"); Peretz v. United States, 501 U.S. 923, 936 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960), for the proposition that "failure to object to closing of courtroom is waiver of right to public trial"). The Court has explained......
  • Richmond Newspapers, Inc v. Virginia, No. 79-243
    • United States
    • United States Supreme Court
    • July 2, 1980
    ...of openness inheres in the very nature of a criminal trial under this Nation's system of justice. Cf., e. g., Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989. Pp. 563-575. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share......
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 4, 2006
    ...in the bill of rights for protecting one accused of ordinary crime from the danger of unjust conviction."); Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960) (explaining that challenges to the fairness of criminal contempt proceedings are "derive[d] from ......
  • State v. Sublett, No. 84856-4
    • United States
    • United States State Supreme Court of Washington
    • November 21, 2012
    ...were previously closed for grand jury proceedings be opened for the criminal contempt proceeding that followed. Levine v. United States, 362 U.S. 610, 618-19, 80 S. Ct. 1038, 4 L. Ed. 2d 989 (1960). Then, in Waller itself, the Court made it clear that a state procedural bar to consideration......
  • Request a trial to view additional results
328 cases
  • Campbell v. Blodgett, No. 89-35210
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 1, 1992
    ...486 (1985) (absence of objection constitutes waiver of right to be present at all stages of criminal trial); Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 1044, 4 L.Ed.2d 989 (1960) (failure to object to closing of courtroom is waiver of right to public trial); Segurola v. Unit......
  • Gilman v. Com., Record No. 1928-04-3.
    • United States
    • April 4, 2006
    ...in the bill of rights for protecting one accused of ordinary crime from the danger of unjust conviction."); Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960) (explaining that challenges to the fairness of criminal contempt proceedings are "deriv......
  • Flemming v. Nestor, No. 54
    • United States
    • United States Supreme Court
    • June 20, 1960
    ...process' itself becomes so wholly dependent upon this Court's idea of what is 'arbitrary' and 'rational.' See Levine v. United States, 362 U.S. 610, 620, 80 S.Ct. 1038, 1044 (dissenting opinion); Adamson v. California, 332 U.S. 46, 89—92, 67 S.Ct. 1672, 1695—1696 (dissenting opinion); Rochi......
  • State v. Bayless, No. 75-149
    • United States
    • United States State Supreme Court of Ohio
    • November 24, 1976
    ...law, the right is considered to be waived if not raised by the defendant at an appropriate time. Levine v. United States (1960), 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989. Therefore, the question in this case is whether the judge's order constituted a denial of defendant's rights under the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT