State of North Carolina v. Carr

• Decision Date: 15 February 1967
• Docket Number: No. 2178.,2178.
• Citation: 264 F. Supp. 75
• Parties: STATE OF NORTH CAROLINA v. Gordon S. CARR.
• Court: U.S. District Court — Western District of North Carolina

264 F. Supp. 75

STATE OF NORTH CAROLINA v. Gordon S. CARR.

No. 2178.

United States District Court W. D. North Carolina, Charlotte Division.

February 15, 1967.

Elliott Schwartz, Sol. 14-A, Dist. of North Carolina, Charlotte, N. C., for State of North Carolina.

William Medford, U. S. Atty., Asheville, N. C., and Joseph R. Cruciani, Asst. U. S. Atty., Charlotte, N. C., for respondent.

MEMORANDUM OF DECISION

WARLICK, Chief Judge.

This matter for decision comes to the court on a motion to remand filed by Elliott Schwartz, Solicitor for the 14-A Solicitorial District of North Carolina, and brings before the Court the question of the right of a subordinate official of the Department of Justice of the United States to refuse to obey a subpoena duces tecum, ordering production of papers of the Department, and evidence based thereon in his possession, or as found by him while in his investigation, and forwarded to the Department in Washington. The official's refusal to answer questions as well as to produce papers was based upon regulations issued by the Attorney General of the United States, under 5 U.S.C. § 22, the officer to whom the subpoena duces tecum was directed, and on whom service was had was Gordon S. Carr, a member of the Federal Bureau of Investigation stationed in Charlotte, and in charge of the Bureau in that city.

The facts have their inception more or less in this fashion:

A case appearing on the Civil Issue Docket of the Superior Court of Mecklenburg County, North Carolina, entitled "S. W. Ellis, plaintiff, vs. Ellis Lee, defendant", which had been filed and docketed some two years before, was calendared for and came on to trial on Monday, January 30, 1967; it involved an attempt on the part of the plaintiff to recover of the defendant a sum of money arising from the alleged misappropriation of a trailermobile trailer and involved a sum of money in which the jurisdiction would lie in the Superior Court of North Carolina. On the trial of the above and at 2:45 in the afternoon Gordon S. Carr was served with a subpoena duces tecum issued by the Clerk of the said court and at the instance of plaintiff, S. W. Ellis, which in effect directed that the said Gordon S. Carr, in addition to appearing personally bring with him to the Superior Court on that date certain records from the FBI Office in Charlotte, which had been obtained and compiled in the course of an official FBI investigation.

No attempt on the part of the plaintiff or his attorneys had been made to obtain prior approval from the Attorney General of the United States for the release of the information contained in the FBI files and sought by the subpoena duces tecum.

The Attorney General of the United States, by his order and over his signature, issued Order Number 324-64, dated October 8, 1964, as fully set forth in The Federal Register under parts 16.1, 16.2 and 16.3, prohibiting the disclosure of any information contained in the official files or discovered in the course of an official investigation, by any officer or employee of the Department of Justice, including Special Agents of the FBI. This regulation was in full force and effect on January 30, 1967, and still continues.

On such subpoena duces tecum being served on him, Special Agent Carr immediately advised the office of the United States Attorney at Charlotte of such service and shortly thereafter the United States District Attorney advised the Department of Justice in Washington, of such action and the contents of the subpoena, and during that same afternoon the Department of Justice directed the United States Attorney at Charlotte that he should move the Superior Court to quash the subpoena duces tecum served on Mr. Carr; such motion was filed at 9:30 o'clock on the following morning of January 31, and on the convening of court an Assistant United States Attorney appeared before the court and was heard on such motion to quash, which motion was continued until 2:00 o'clock that same afternoon.

Following the convening of court after the noon recess the Assistant United States Attorney presented the court with a copy of the regulations from the office of the Attorney General, dated October 8, 1964, a copy of which regulation was attached to the motion to quash.

Throughout the hearings the Attorney General, following the advice given by the United States Attorney of the service of a subpoena on Agent Carr, additionally dispatched instructions to him, directing Carr to appear in the Superior Court as subpoenaed but to respectfully decline to produce any files of the FBI or give testimony as to any information he had received in the course of his official investigation. Mr. Carr in line with the subpoena and the instructions was physically present at all times before Judge Latham. That at no time did plaintiff Ellis seek or have in his possession any information that Special Agent Carr had with respect to the cause in issue except that which he had obtained in his official capacity as such Special Agent of the FBI.

Following the convening of court after the adjourned period, Agent Carr appeared as directed, was duly sworn, and answered responsively all questions put to him until he was asked to disclose information which he was prohibited to divulge by order of the Attorney General of the United States.

Special Agent Carr, on the basis of the instructions from the Attorney General respectfully declined to answer those questions which would have disclosed prohibited information.

The court further finding that the questions and answers upon which the charge of contempt is in part based are set out below as taken from the stenographic report:

"Q. (By Mr. Clarkson of counsel for S. W. Ellis): Now, Mr. Carr, during the month of November, 1964, as an agent of the FBI, did you have occasion to investigate the theft of a 1961 trailmobile trailer?"

"A. Your Honor, on the basis of Department Order #324-64, I respectfully decline to answer."

The next question appears as follows:

"Q. Did you bring the files and records set forth in that subpoena with you today?"

"A. Your Honor, I decline to answer that question on the basis of the same departmental order."

Obviously other evidence was taken as indicative above but none of which is material to this inquiry as the whole of the controversy resolves around the factors in line with that set up above.

Following such refusal on the part of Agent Carr and on the basis of the facts set out above Judge Latham concluded that Mr. Carr was guilty of contempt of court in refusing to produce the records referred to in the Subpoena and to testify and make answer to the questions asked by counsel; and entered a judgment finding certain facts all as appear therein and including in his judgment his sentence against Mr. Carr for contempt of his court:

"It is the sentence of this court that you be taken into custody by the High Sheriff of Mecklenburg County and confined in the common jail, of this county until you have produced those documents called for in the subpoena duces tecum served upon you on the 30th of January, 1967, in the above entitled cause, or until you have otherwise purged yourself of contempt, as may be hereafter provided by this court." It is further ordered that capias and commitment shall not issue until completion of the evidence for the defendant in the case now in hearing, and the plaintiff, at that time, may move to reopen his case and recall Mr. Carr for further examinations."

During the early part of that same afternoon the United States Attorney filed a "Petition for Removal of Criminal Contempt Proceedings" under Title 28 U.S.C. §§ 1442 through 1449, properly verified by Mr. Carr. Whereupon a temporary restraining order was issued by this court and made returnable before the undersigned Chief Judge of the Western District of North Carolina, at Charlotte on the 6th day of February, 1967, at 10:00 o'clock in the morning.

All papers were then transferred to the office of the Clerk of this Court by the Clerk of the Superior Court of Mecklenburg County.

Following such transfer and on February 3, 1967, Elliott Schwartz filed his properly verified motion to remand to the Superior Court of Mecklenburg County.

At such hearing before the undersigned on February 6, it developed from the argument that Judge Latham in the Superior Court in dictating his Findings and Conclusions and the judgment based thereon had originally made certain statements in the record, and as a part thereof, which later, following a reading on his part, caused him to make certain changes and to delete some statements from his Findings and Conclusions as originally dictated by him; and when counsel seemingly were about to become involved in a heated discussion with respect to what had been changed, how the changes had come about, etc., it became apparent that it would be not only wise but provident for a full transcript of the contempt proceedings, had in the instant hearing before Judge Latham in the Superior Court, would be necessary, and in line with such thinking the Mecklenburg County official court reporter was directed to make available to this court a full...