United States v. Bukowski

• Decision Date: 15 October 1970
• Docket Number: No. 17378.,17378.
• Citation: 435 F.2d 1094
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph S. BUKOWSKI, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

435 F.2d 1094 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph S. BUKOWSKI, Respondent-Appellant.

No. 17378.

United States Court of Appeals, Seventh Circuit.

September 15, 1970.

Rehearing Denied October 15, 1970.

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Anna R. Lavin, Carl M. Walsh, Chicago, Ill., for respondent-appellant.

William J. Bauer, U. S. Atty., D. Arthur Connelly, Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, FAIRCHILD and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

Respondent appeals from a 3-year sentence for criminal contempt allegedly committed by him while a juror in the case of United States v. Durovic, et al., No. 64 CR 668 (N.D.Ill.1966).

On April 27, 1965, respondent and the other members of the trial jury were sworn for examination upon the voir dire. Between April 28, 1965, and the conclusion of the trial on January 31, 1966, Bukowski and his fellow jurors were ordered and directed by the trial judge to avoid discussing, reading or hearing about the case, either intentionally or inadvertently. The instructions directed them not to converse among themselves concerning the case, or with outsiders. They were expressly directed to avoid reading newspaper or magazine articles, and were warned concerning radio and television broadcasts. The district judge also admonished any juror obtaining outside information to report that fact to the court immediately. These instructions were given the jury every day, four times a day, during the entire duration of the trial until January 31, 1966.

The Durovic trial concerned allegedly fraudulent practices connected with the sale of the "anti-cancer" drug Krebiozen. During the course of the trial, an article by Dr. Andrew C. Ivy, a defendant, appeared in the July-August 1965 issue of the "Butcher Workman" magazine published by the Amalgamated Meatcutters and Butcher Workmen of North America. The article was entitled "The Truth That Won't Stay Buried," and the same edition contained an editorial on Krebiozen. Respondent, a member of the executive board of the Chicago Joint Board Amalgamated Meatcutters and Butcher Workers, Fur, Leather and Luggage Division of the publishing organization, allegedly read these items and discussed them with other members of the jury. Similarly, respondent allegedly read and discussed subsequent articles on Krebiozen in the October 1965, November-December 1965, and January 1966 issues of "The Butcher Workman."

In addition to these improprieties, respondent was also charged with attending a convention of the Amalgamated Meatcutters in Springfield, Illinois, during the course of the trial. The minutes of the convention reveal that a speaker favorable to Krebiozen addressed the members, and subsequently a film on the same subject was shown. The members of the union at that convention entered a resolution calling for a "fair and impartial clinical test of Krebiozen." Respondent allegedly engaged in these activities in contravention of the court's order. At no time did Bukowski report any such activities to the trial judge as instructed.

On December 29, 1967, the United States Attorney for the Northern District of Illinois initiated contempt proceedings against respondent by filing a verified Notice and Petition For Rule to Show Cause with the district judge. The judge issued the Rule to Show Cause to respondent why he should not be held in criminal contempt under 18 U.S.C. § 401(3)¹ for violating judicial orders regarding publicity and conduct of jurors during the Durovic trial.

Respondent filed motions to discharge the Rule to Show Cause in March 1968 which were denied on April 5. Subsequently, respondent unsuccessfully attempted to obtain recusation of the judge. On January 7, 1969, the judge designated the offense as serious and denied a Supplemental Motion to Discharge the Rule to Show Cause. On January 16, 1969, after a jury trial, respondent was found guilty, and the judge sentenced him to imprisonment for three years. Respondent appeals from his conviction and sentence.

I

Respondent first objects to the manner in which criminal contempt proceedings were instituted against him. The procedures followed in initiating this prosecution complied with the specifications of Rule 42(b) of the Federal Rules of Criminal Procedure relating to the disposition of contempts occurring out of the presence of the judge.² The processes outlined by that rule include notice and specification of charges. Despite prior approval of the Rule's procedures (United States v. United Mine Workers of America, 330 U.S. 258, 296, 67 S.Ct. 677, 91 L.Ed. 884; Yates v. United States, 316 F.2d 718 (10th Cir. 1963)), respondent asserts their insufficiency.

Specifically, respondent contends that the Constitution prohibits imposition of the 3-year sentence without an indictment or presentment of a grand jury. He argues that the Fifth Amendment bars the Government from holding persons "to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury * * *." A crime is "infamous" for purposes of this protection when it is punishable by imprisonment in a penitentiary. Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909. Punishment of contempt by the 3-year sentence subjecting respondent to imprisonment in a penitentiary under 18 U.S.C. § 4083 purportedly establishes the conviction as an "infamous crime."

The identical argument was categorically rejected by the Supreme Court in Green v. United States, 356 U.S. 165, 183-187, 78 S.Ct. 632, 2 L.Ed.2d 672.³ The Court refused to interject any independent body into the criminal contempt process which might interfere with or impede judicial disposition of such matters. The majority rested its rejection of the requirements for either grand or petit jury action because of the sui generis "general status of contempts under the Constitution, whether subject to `infamous' punishment or not." 356 U.S. at p. 183, 78 S.Ct. at p. 643. The traditionally summary nature of these proceedings led the Court to conclude:

"We do not write upon a clean slate. The principle that criminal contempts of court are not required to be tried by a jury under Article III or the Sixth Amendment is firmly rooted in our traditions. Indeed, the petitioners themselves have not contended that they were entitled to a jury trial. By the same token it is clear that criminal contempts, although subject, as we have held, to sentences of imprisonment exceeding one year, need not be prosecuted by indictment under the Fifth Amendment. In various respects, such as the absence of a statutory limitation of the amount of a fine or the length of a prison sentence which may be imposed for their commission, criminal contempts have always differed from the usual statutory crime under federal law. As to trial by jury and indictment by grand jury, they possess a unique character under the Constitution." 356 U.S. at p. 187, 78 S.Ct. at pp. 644-645.

Respondent nevertheless asks this Court to depart from that ruling on the basis of more recent decisions of the Supreme Court. Criticism and continued attacks eroded the conclusion of Green that jury trials need never be afforded defendants in even serious criminal contempt cases. After forecasting possible reconsideration of the right to jury trial in United States v. Barnett, 376 U.S. 681, 694-695, 84 S.Ct. 984, 12 L.Ed.2d 23, the Court exercised its supervisory powers over federal courts to require jury trials of serious contempts. Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 16 L.Ed.2d 629. Finally, in Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, the Court reconsidered and repudiated the rule exempting criminal contempts from constitutional requirements of a jury trial in state cases as well.

In holding that the Constitution requires jury trial in serious criminal contempts, the majority in Bloom declined to adhere to reasoning espoused previously in Green. Thus the majority in Bloom rejected historical practice as dispositive of the constitutional issue. 391 U.S. at p. 200, note 2, 88 S.Ct. 1477. The Court also disavowed the conclusion that the judiciary could be trusted "with completely untrammeled power to punish contempt," or that considerations of judicial independence, economy, and efficiency outweighed the fundamental needs of fairness to safeguard the trial of such contempts from arbitrary governmental actions. 391 U. S. at pp. 207, 208-209, 88 S.Ct. at p. 1485.

Though a fundamental departure from prior law, neither Bloom nor subsequent decisions of the Supreme Court dealing with serious contempts have expressly overruled the holding of Green excepting grand jury indictments in criminal contempts. Moreover, our reading of those decisions fails to disclose inconsistencies or implicit disapproval of that holding which would warrant reconsideration of Green by this Court.

No decision has indicated a rejection of the engrained conceptual framework of criminal contempts relied upon by the Court in Green as the basis for its ruling. These actions have traditionally been considered a unique, quasi-criminal sanction. As stated in Myers v. United States, 264 U.S. 95, 104-105, 44 S.Ct. 272, 273, 68 L.Ed. 577:

"While contempt may be an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not `criminal prosecutions\' within the Sixth Amendment or common understanding." Accord, Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665; Blackmer v. United States, 284 U.S. 421, 440, 52 S.Ct. 252, 76 L.Ed. 375; Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523 (opinion of Justice Clark); see generally, Goldfarb, The Contempt Power (1963).

This constitutional distinction between the status of statutorily defined offenses and the judicial power...