Stern v. United States
| Decision Date | 05 December 1957 |
| Docket Number | No. 103,Docket 24685.,103 |
| Citation | 249 F.2d 720 |
| Parties | Matter of the Issuance of a Subpœna to Alfred K. STERN and Martha Dodd Stern, Citizens of the United States Presently Residing in Mexico, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Paul W. Williams, U. S. Atty., New York City, Robert Kirtland, and Herbert C. Kantor, Asst. U. S. Attys., New York City, of counsel, for appellee-movant.
Paul O'Dwyer, New York City, for appellants, in opposition.
Before SWAN, MEDINA, and WATERMAN, Circuit Judges.
The motion is based upon the affidavit of an Assistant United States Attorney, made on information and belief. The affidavit sets out the following facts: On February 22, 1957, subpoenas were issued, pursuant to orders of a Judge of the District Court for the Southern District of New York, commanding the Sterns to appear before a federal grand jury on March 14, 1957, in the United States Court House in New York City. The subpoenas were personally served upon them in Mexico City on February 27, 1957, by an American Consul. Appearing specially by their attorney, the Sterns moved on March 7, 1957, to quash the subpoenas. After argument their motions were denied on March 12. On the following day the Sterns petitioned this court for a writ of prohibition or mandamus directing the District Judge to vacate the subpoenas and to issue a stay pending disposition of the petition. This court denied the stay on March 14, 1957, and on April 16, 1957, denied per curiam the petition.
The grand jury convened on March 14, 1957, but the Sterns did not appear. On the same day Judge Murphy ordered them to show cause on March 26, 1957, why they should not be punished for contempt for failure to obey the subpoenas, and further ordered the Marshal to seize property of the Sterns, not to exceed $100,000 each, within the United States to be held to satisfy any judgment arising out of these proceedings. The order also directed that a copy thereof be served upon the Sterns at least seven days before March 26, 1957. They filed notice of appeal from this order on March 22, 1957.
As the American Consul in Mexico City had been unable to serve a copy of the show cause order of March 14, 1957, Judge Murphy amended the return date to April 15, 1957, and the time for service to seven days prior thereto. This amended order was personally served on the Sterns by an American Consul on April 1, 1957. Upon their application the contempt hearing was adjourned from April 15, to April 25, 1957. On that date the hearing was held before Judge Levet and decision reserved. On May 1, 1957, he denied the motion to set aside the show cause order of March 14, 1957, and refused to expunge that portion of the order which directed the...
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...cases where an individual's liberty is not at stake."), stay denied, 459 U.S. 1309, 103 S.Ct. 663, 74 L.Ed.2d 588 (1983); Stern v. U.S., 249 F.2d 720 (2d Cir.1957) (dismissing the appeal by fugitives from fines and costs for contempt in failing to obey a grand jury subpoena), cert. denied, ......
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