United States v. Bollenbach

• Decision Date: 27 January 1942
• Docket Number: No. 187.,187.
• Citation: 125 F.2d 458
• Parties: UNITED STATES v. BOLLENBACH.
• Court: U.S. Court of Appeals — Second Circuit

125 F.2d 458 (1942)

UNITED STATES v. BOLLENBACH.

No. 187.

Circuit Court of Appeals, Second Circuit.

January 27, 1942.

Charles L. Kahn, of New York City, for appellant.

Samuel H. Reis, for appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

Bollenbach appeals from two judgments, each sentencing him to three months imprisonment for criminal contempt, to be served consecutively. The only point raised is whether the offenses were such as justified summary judgment under § 385 of Title 28, U.S.C.A. The facts are as follows: Bollenbach was one of six persons indicted in November, 1939, for conspiracy to transport stolen securities in interstate commerce, and for the substantive crime. The day set for trial, December 1, 1941, arrived and the attorney who had been retained by Bollenbach a long while before, returned his fee and refused to represent him because of an existing engagement elsewhere. (One attorney had already appeared for him when he was arraigned, and he had later retained a second, one Hawthorne, whom he had never discharged.) Bollenbach then asked for a continuance which the judge granted until December 4th, but on that day the situation remained unchanged. The case had already been set for trial many times, the prosecution had brought together a great many witnesses who were in attendance; but Bollenbach asked for a further continuance which this time the judge denied, over his protest assigning Hawthorne, then present in court, to defend him. The prosecution then opened to the jury and the attorneys for the other accused followed. When it came Bollenbach's turn, he opened for himself, protesting against being forced to trial and repudiating any assistance from Hawthorne. In the course of some rambling and not altogether coherent talk, he spoke as appears in the passage which we quote in the margin.^* (Keating and Milenky mentioned by Bollenbach were government employees who had been engaged in working up the case for the prosecution.)

At the conclusion of the openings the jury went out, and counsel for several of the other accused asked for a severance on the ground that Bollenbach's appearance and words must have irretrievably prejudiced their clients in the jury's mind. Bollenbach also asked for a severance, and kept repeating his demand for a continuance until his attorney should be disengaged. Nothing further was however done that day, and the judge continued the case until December 8th, when he announced that Bollenbach's conduct had deserved punishment, but that he did not wish to imprison him if he "behaved himself" in the future. Thereupon Bollenbach still again brought up the fact that his attorney was engaged elsewhere, and still again complained that he was "being represented in this trial without the attorney of my choosing." The other accused thereupon began to argue once more that there should be a severance because of Bollenbach's imputations against the prosecutors' conduct with the women witnesses, and because of his general conduct and bearing. During this argument one of them said — as showing Bollenbach's bad faith — that he had asked the Keating mentioned above, whether in his opening he had not "put on a good act." Bollenbach repeated once more: "I do not intend to go to trial without a counsel of my own choosing. I would rather go to jail fighting for democracy. That is what we are fighting for, democracy; and I say to you, I respectfully request you to have my attorney in court here, the attorney of my choosing." Later: "I tell you I am going to fight; and I will go to jail fighting. I am fighting for democracy. I am fighting with" (for?) "my attorney; the attorney of my choice shall represent me." The Judge and the attorneys then went to chambers where the case against Bollenbach was severed from that against the rest, and he was sentenced to three months imprisonment.

The trial then proceeded before the jury already impanelled, and on the same day Bollenbach, who was in custody, was brought into the court room to be identified by a witness on the stand. No questions were asked of him but the following occurred.

"Mr. B.: I respectfully state I have just been jeopardized by this particular case. I have been committed for contempt of court for three months. I am downstairs engaging counsel so I respectfully ask don't jeopardized my interest. I respectfully ask—

"The Attendant: Be quiet.

"Mr. B.: I will not be quiet. This is an educated democracy (yelling at the top of his voice).

"The Court: Be quiet.

"Mr. B.: I will not be quiet.

"The Court: Again the judge will adjudge you in contempt of court and sentence you to three more months."

The summary power of the court to punish disturbance or contumely in facie curiae is ancient and has never been questioned; it needs no discussion. Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L. Ed. 405; Ex parte Savin, Petitioner, 131 U. S. 267, 9 S.Ct. 699, 33 L.Ed. 150; Cooke v. United States, 267 U.S. 517, 534, 536, 45 S. Ct. 390, 69 L.Ed. 767; United States v. Landes, 2 Cir., 97 F.2d 378. No judge can do his duty, if his power to maintain decorum and secure his authority from being flouted, is subject to cavil and captious question; he must be able to repress disorders quickly and, if necessary, ruthlessly; and unless when he does so, he will be free from later question, he cannot effectively deal at first hand as he must, with the lawless, the defiant, or the covertly contumacious. But just because his powers must be so ample, they must be subject to an eventual scrutiny in the large; so that it may be certain that there existed the substance of an occasion for their exercise. In the case at bar the second...