MacNeil v. United States

• Decision Date: 10 August 1956
• Docket Number: No. 5094.,5094.
• Citation: 236 F.2d 149
• Parties: Angus M. MacNEIL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

236 F.2d 149 (1956)

Angus M. MacNEIL, Appellant, v. UNITED STATES of America, Appellee.

No. 5094.

United States Court of Appeals First Circuit.

Heard June 6, 1956.

Decided August 10, 1956.

Rehearing Denied August 15, 1956.

Writ of Certiorari Denied November 13, 1956.

Angus M. MacNeil, Somerville, Mass., pro se.

Maurice P. Bois, U. S. Atty., Concord, N. H., with whom William Maynard, Asst. U. S. Atty., Plymouth, N. H., was on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

Writ of Certiorari Denied November 13, 1956. See 77 S.Ct. 150.

HARTIGAN, Circuit Judge.

This is an appeal from a judgment entered January 4, 1956, in the United States District Court for the District of New Hampshire whereby the defendant was adjudged in civil contempt and ordered committed to custody until such time as he should comply with the Court's order to return to William H. Craig, Jr., Receiver, the sum of $473.09. The defendant was further adjudged guilty of criminal contempt and ordered to pay to the clerk of the court a fine of $400, together with costs in the amount of $137.59, and to stand committed until the sentence be performed.

The following quotation from the opinion of the trial judge provides a convenient statement of most of the relevant facts.

"This action was brought to foreclose a mortgage upon a multiunit housing project situated in Manchester. Garden Homes, Inc., the mortgagor, remained in possession of the premises pending adjudication of the issues, and a receiver for rents and profits was appointed, with authority to reimburse the mortgagor for the necessary expenses incurred in the maintenance and operation of the project. This procedure proved unsatisfactory to Garden Homes, and, claiming it was a hardship to require it to pay these expenses in the first instance, it petitioned this court to instruct the receiver to make payments to it for maintenance upon presentation of proper vouchers detailing the debts incurred. On September 17, 1953, the following order was entered: `Upon consideration of defendant\'s motion for instructions, filed August 10, 1953, the receiver, William H. Craig, Jr., and counsel for defendant are directed that payments for maintenance, care, and operation of the property of the corporation are to be paid by the receiver, upon presentation to him of payroll accounts and outstanding bills, if it appears to the receiver that such expenditures have been incurred in the operation of the project and receipts are furnished for all prior payments of similar charges.\'

"It appears that Garden Homes, Inc. was justly indebted to J. J. Moreau & Son, Inc. in the amount of $369.33 for goods used in the maintenance of the project, and to one Joseph Pepin in the sum of $44.64 and one Sal Toscano in the amount of $59.12 for maintenance services. Upon receipt of a proper voucher, signed and certified by Angus M. MacNeil, the receiver, in accordance with the order of September 17, 1953, gave Garden Homes, Inc. sufficient funds with which to satisfy the above debts. The attention of the court was directed to the failure of Garden Homes, Inc. to disburse these funds to the creditors at a hearing held June 27, 1955, upon, inter alia, the receiver\'s final report. MacNeil was present at this hearing and the court directed as follows: `I am going to give you twenty days to produce that money or issue a citation for you to show cause why you shouldn\'t be cited for contempt\' and Garden Homes, Inc. was informed of this directive. On November 15, 1955, in open court, the court inquired of MacNeil whether its directive had been complied with, and, advised that it had not, gave him notice, pursuant to Rule 42(b) of Federal Rules of Criminal Procedure, that a hearing would be held to determine whether he was guilty of civil and criminal contempt. The court stated the essential facts constituting the offense charged."

It further appears from the record that bad checks drawn in favor of Pepin and Toscano in the amounts of $44.60 and $59.12 respectively and signed Somerville Milling Company by Angus M. MacNeil were cashed for the drawees by Champagne's Super Market which at the time of the trial had not attempted to obtain restitution from the drawees and had been unable to collect from the drawer.

The record further shows that the defendant attempted to elicit testimony to the effect that Garden Homes, Inc. delivered merchandise to J. J. Moreau and Sons, Inc. in excess of $369, it apparently being contended that the bill in that amount had thereupon been paid.

Still further we think it should be noted that this entire proceeding in its civil as well as criminal aspect was initiated by the trial judge entirely on his own motion without application by any party to the original foreclosure action.

Defendant contends that there was no valid order which was legally entered upon which a contempt could be predicated. We do not agree. The order of September 13, 1953, although ostensibly directed toward the receiver, clearly contemplated that all funds paid over would be applied by the defendant to the payment of bills approved by the receiver.

Defendant further contends that there was no notification and information of the crime charged as required by law. We find no merit in this contention. The defendant was apprised by the trial judge in open court as follows:

"I will correct that, I am going to give you plenty of time for doing those things. I am going to have the United States Attorney proceed under the process for civil and criminal contempt, under Rule 42. Under that rule, I will give you notice — December 12th, at 11:00 a. m. You will have reasonable time for the preparation of the defense which you say you have, and the essential facts that are to be considered is the order of June 27th — I think that is the date of the order, isn\'t it? June 27th, 1955. And your failure to comply with the order of the Court, which was — under date of September 17, 1953. I will read it to you so that you will have full concept of what it was: `Upon consideration of the defendant\'s motion for instructions (that means, of course, Garden Homes) filed August 10, 1953, the receiver, William H. Craig, Jr. and counsel for the defendant, are directed that payments for maintenance, care and operation of the property of the corporation are to be paid by the receiver upon presentation to him of payroll accounts and outstanding bills, if it appears to the receiver that such expenditures have been incurred in the operation of the project, and receipts are furnished for all prior payments of similar charges.\' That is the order that went out under my signature. Now, those are the essential facts upon which you will be proceeded against, Mr. MacNeil. Let me add parenthetically that I have no desire to hold you in contempt — not any. I do feel, however, that you should comply with the agreement which you made with this court and which you operated under for so many months without any question. There is the picture. I want to give you opportunity to prepare yourself and to take up this matter. I would rather not have this unpleasantness arise. If you can establish that you are not liable for those items, all well and good."

This was a clear compliance with Rule 42(b), F.R.Cr.P. 18 U.S.C. which provides in part:

"A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. * * *"

Defendant's contention that hearings were held in his absence is disproved by the record and merits no serious consideration.

Likewise without merit is the contention that defendant was subjected to double jeopardy in violation of law by the court's action in vacating the verdicts of December 30, 1955, wherein defendant was found guilty of civil and criminal contempt, and the substitution therefor on January 4, 1956, of a sentence to the following effect:

"* * * I am now making a guilty finding in criminal contempt and I am finding you in civil contempt, which is reflected by my findings this day which have been reduced to an opinion, and which I will hand you a copy."

This amounts to nothing more serious than changing the date of the findings. No substantial changes were introduced and the defendant has not been prejudiced. Although the opinion of January 4, 1956, which was incorporated by reference into the judgment of the same date emphasized that the defendant was not personally liable for the payments ordered, this was apparently done out of an abundance of caution since the verdict of December 30 did not in any way imply a personal obligation. Parker v. United States, 1 Cir., 1942, 126 F.2d 370.

We defer momentarily our consideration of defendant's contention that there was no loss complained of by the plaintiff, preferring to treat it in conjunction with the additional contention that the court took a very interested position and was the real prosecutor.

Accordingly we...