U.S. v. Dellinger

• Decision Date: 19 August 1981
• Docket Number: No. 80-2229,80-2229
• Citation: 657 F.2d 140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David T. DELLINGER, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 140

657 F.2d 140

UNITED STATES of America, Plaintiff-Appellee, v. David T. DELLINGER, et al., Defendants-Appellants.

No. 80-2229.

United States Court of Appeals Seventh Circuit.

Argued April 1, 1981.

Decided Aug. 19, 1981.

Morton Stavis, William M. Kunstler, Center for Constitutional Rights, New York City, for defendants-appellants.

David D. Buvinger, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before SPRECHER, Circuit Judge, GIBSON, Senior Circuit Judge, ^* and CUDAHY, Circuit Judge.

CUDAHY, Circuit Judge.

David T. Dellinger, Abbot H. Hoffman, William K. Kunstler and Jerry C. Rubin appeal from the district court's denial of their motion to vacate and expunge the judgments of conviction for criminal contempt entered against them by the district court on December 6, 1973, in the case of In re Dellinger, 370 F.Supp. 1304 (N.D.Ill.1973), aff'd, 502 F.2d 813 (7th Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). For the reasons stated below, we affirm.

I.

The criminal contempt convictions which the defendants seek to set aside arose directly from their conduct during the celebrated 1969-70 "Chicago Seven" conspiracy trial ("1969 conspiracy trial"), at which five defendants were found guilty of violating the Anti-Riot Act of 1968, 18 U.S.C. § 2101 (1976), in connection with their participation in events surrounding the August 1968 Democratic National Convention in Chicago, Illinois. United States v. Dellinger, 68 CR 180 (N.D.Ill.1969). ¹ Dellinger, Hoffman and Rubin were defendants in that case, and Kunstler was one of the two trial counsel for the defendants. After the Anti-Riot Act charges had been submitted to the jury, the presiding judge, the Honorable Julius J. Hoffman of the United States District Court for the Northern District of Illinois, summarily convicted all seven defendants and both trial counsel on a total of 159 specifications of criminal contempt of court, in violation of 18 U.S.C. § 401(1) (1976). These contempt convictions were subsequently reversed by this court and 141 of the specifications were remanded for retrial before another judge. In re Dellinger, 461 F.2d 389 (7th Cir. 1972). ²

The Chief Justice of the United States, pursuant to 28 U.S.C. § 292 (1976), then

designated the Honorable Edward T. Gignoux, District Judge of the United States District Court for the District of Maine, to hear the contempt specifications on remand. After granting the government's motion to limit the maximum sentence of any of the defendants to 177 days and to dismiss 89 of the remaining 141 specifications of contempt, the court, sitting without a jury, heard the case. In re Dellinger, 357 F.Supp. 949, 955 (N.D.Ill.1973). At the conclusion of the government's case-in-chief, which consisted solely of the introduction of the Anti-Riot Act trial transcript and tape recordings, the court acquitted two of the defendants and dismissed a number of the contempt specifications against the other defendants. In re Dellinger, 370 F.Supp. 1304, 1307 (N.D.Ill.1973). At the end of the trial, three more defendants were acquitted on all charges and judgments of acquittal were entered as to several specifications against the remaining defendants. Hoffman, Rubin and Kunstler were each then convicted on two specifications of criminal contempt and Dellinger on seven specifications, although no sentences or fines were imposed. Id. at 1323-34. These convictions were affirmed by this court and certiorari was denied by the United States Supreme Court. In re Dellinger, 502 F.2d 813 (7th Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975).

Defendants' instant motion for vacation and expungement of the contempt convictions is supported by the affidavits of Morton Stavis, who was lead counsel for the defendants during the 1973 contempt trial, and Kunstler, who was one of the counsel for the seven defendants at the 1969 conspiracy trial and co-counsel for the non-lawyer defendants at the 1973 contempt trial. Attached to these affidavits are eleven documents which were obtained pursuant to government disclosures under the Freedom of Information Act, 5 U.S.C. § 552 (1976), and from civil discovery in an unrelated action pending in the United States District Court for the Northern District of Illinois. Nine of these documents were internal FBI memoranda; two were from files of the Chicago Police Department.

One of the FBI memoranda indicates that United States Attorney Thomas Foran requested the FBI before the 1969 conspiracy trial to monitor closely the activities of the defendants and obtain any statements they might have made "to show possible admissions, to thwart a possible attempt to seek a change of venue due to publicity, and to show possible contempt of court before, during, and after the trials by the defendants and their lawyers." A subsequent FBI memorandum states that, during trial, Foran requested the FBI to record any statements made by the defendants, as such recordings "would be invaluable to prove contempt actions" and to demonstrate (in response to a request for change of venue because of adverse publicity) that "the defendants generated their own publicity."

Another FBI memorandum suggests that Judge Hoffman had ex parte conversations with Foran concerning both the defendants' possible claim of adverse publicity and the possible contempt citations against the defendants.

According to another FBI memorandum, "Chief Judge William J. Campbell (of the United States District Court for the Northern District of Illinois) advised ... in strictist (sic) confidence that Judge Hoffman based on actions of the defendants and attorneys in the courtroom may call a mistrial and send all defendants and their attorneys to jail for contempt for six months." Another FBI memorandum indicates that Chief Judge Campbell advised the FBI that a subpoena served by the defendants on the FBI would be quashed.

Three of the documents indicate that the Chicago Police and possibly the FBI had surreptitiously attended and/or surveilled several meetings of the defendants and their counsel. It appears that information obtained in this manner (including trial strategies and potential arguments on appeal) was forwarded to Assistant United States Attorney Richard Schultz, one of the prosecutors at the 1969 conspiracy trial.

Another FBI memorandum relates to a threatening letter that was allegedly signed by "The Black Panthers" and addressed to two of the jurors. After Judge Hoffman showed this letter to one of these two jurors (who defendants believed was favorable to their position), she stated that she feared to remain on the jury. This juror was therefore replaced by one of the alternate jurors (who, defendants allege, was engaged to be married to a "patronage dispenser" of former Chicago Mayor Richard Daley). Defendants challenged the authenticity of the letter and requested that the district court order a full investigation. Judge Hoffman indicated he would do so. The memorandum from the FBI file, however, reads in part:

(Assistant United States Attorney) Jack S. Schmetterer ... requested letter sent to Petersen family and King family be examined for latent fingerprints. He desired absolutely no other investigation or 'outside contacts' at this time. No investigation should be undertaken without contacting him or the USA Thomas Foran. Judge Hoffman concurs.

On June 27, 1980, oral argument on defendants' motion to vacate and expunge their contempt convictions was heard before the Honorable Edward T. Gignoux, sitting by designation. The district court denied defendants' motion in all respects in an order and opinion dated August 14, 1980. This timely appeal followed. ³

II.

Defendants maintain that their contempt convictions should be vacated because the newly discovered evidence summarized above demonstrates the existence of judicial and prosecutorial misconduct during the 1969 conspiracy trial of such a pervasive nature "that there was no judicial proceeding from which contempt proceedings could possibly emanate."

Defendants' motion must be characterized as a petition for a writ of error coram nobis. ⁴ This ancient writ (together with its correlative, the writ of error coram vobis ⁵) was early incorporated into American practice from English common law. See, e. g., Strode v. The Stafford Justices, 23 F.Cas. 236 (C.C.D.Va.1810) (per Marshall, C.J.) (judgment against a defendant, who had died, set aside 14 years later). The coram nobis writ serves the salutory function of allowing a court to vacate its judgments "for errors of fact ... in those cases where the errors (are) of the most fundamental character, that is, such as rendered the proceeding itself invalid." United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914).

The need for the writ has been greatly reduced in modern practice because of the availability of the remedies of habeas corpus, 28 U.S.C. § 2241 et seq. (1976), and motion for a new trial on the basis of newly discovered evidence, Fed.R.Crim.P. 33. Habeas corpus relief is available, however, only if the petitioner is in custody, and the new trial remedy is available only within two years of the date of final judgment in the original proceedings. See note 4, supra. Since coram nobis review is available at any time after entry of final judgment ⁶ in criminal proceedings, ⁷ there remain cases where the writ of coram nobis offers a unique possibility of relief. Thus, in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the Court held that coram nobis relief was available to challenge the validity of a judgment of conviction and term of imprisonment even though the sentence had been fully served. ⁸ See also Moon v. United States, 272 F.2d 530 (D.C.Cir.1959) (coram nobis can for appropriate reasons be invoked to review a sentence which petitioner has not yet started to serve).

The scope of coram nobis...