Rosner v. United States

• Decision Date: 01 March 1926
• Docket Number: No. 216.,216.
• Citation: Rosner v. United States, 10 F.2d 675 (2nd Cir. 1926)
• Parties: ROSNER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

10 F.2d 675 (1926)

ROSNER v. UNITED STATES.

No. 216.

Circuit Court of Appeals, Second Circuit.

March 1, 1926.

Ferris, Shepard, Joyce & McCoy, of New York City (John E. Joyce, of New York City, of counsel), for plaintiff in error.

William A. DeGroot, U. S. Atty., of Brooklyn, N. Y. (Howard Osterhout, Asst. U. S. Atty., of Mineola, N. Y., of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

Reduced to its lowest terms this indictment charges that the United States attorney wrote a note to Miller, requesting or directing him to come down to the courthouse and plead to an information lately filed against him. Rosner advised Miller not to go, and Miller obeyed the suggestion; therefore Rosner is said to be guilty under the quoted section of the Penal Code.

The turpitude of Rosner, and the dirtiness of the whole business, is quite immaterial. Rosner may have said, in effect, that he would bribe somebody, and he quite probably obtained money under false pretenses, but with neither of these offenses is he charged. Our question is whether to advise disobedience for any reason, or no reason, to such a request, constitutes an obstruction of, or an endeavor to obstruct, the "due administration of justice" in the District Court for the Eastern District of New York.

First we note that there is a difference between obstructing justice, and obstructing the administration of justice. One may obstruct justice by merely failing to aid, but to obstruct any administration requires something more than nonaction.

It must be admitted as immaterial that this request was in writing. The United States attorney might just as well have telephoned it, or personally or by deputy said to Miller, "I ask you to plead in court on" such a day. Admittedly, also, no letter such as the one described in the indictment is process, nor is it specifically authorized by any statute of the United States.

If it constitutes an obstruction to the administration of justice to advise a defendant not to accede to the request of such a letter, it must be equally an obstruction of administration to refuse to obey a request, if personally conveyed by word of mouth, or through the telephone. We think the foregoing reduces the matter to an absurdity; to say that one accused of crime commits another crime by declining voluntarily to attend court and plead is intolerable.

It is doubtless more convenient in many cases to write a note, rather than pursue the way laid down by tradition and statute, and send a deputy marshal with a warrant out to Hempstead (where Miller lived) and bring him in to Brooklyn. But convenience does not rule, and we find no warrant of law for a United...