United States v. Consolidated Productions, Inc.

• Decision Date: 30 April 1971
• Docket Number: Crim. No. 6883-F-CD.
• Citation: 326 F. Supp. 603
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. CONSOLIDATED PRODUCTIONS, INC. and Thomas S. Tierney, Defendants.

326 F. Supp. 603

UNITED STATES of America, Plaintiff, v. CONSOLIDATED PRODUCTIONS, INC. and Thomas S. Tierney, Defendants.

Crim. No. 6883-F-CD.

United States District Court, C. D. California.

April 30, 1971.

Robert L. Meyer, U. S. Atty., David R. Nissen, Asst. U. S. Atty., Chief, Criminal Division, David H. Anderson, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Vars, Reff & White, Robert J. Vars, Sherman Oaks, Cal., for defendants.

MEMORANDUM OPINION GRANTING MOTION TO DISMISS THE INDICTMENT

FERGUSON, District Judge.

The indictment in this case involves the first criminal prosecution instituted for an alleged violation of 39 U.S.C. § 4009 (1964 ed., Supp. IV). That section provides that a person who has received by mail an "advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative" may request the Postmaster General to issue an order "directing the sender and his agents or assigns to refrain from further mailings to the named addressee" and to delete the addressee's name from his mailing lists. It further provides that the United States District Court has "jurisdiction, upon application by the Attorney General, to issue an order commanding compliance with" the Postmaster General's order. A violation of that court "order may be punished by the court as contempt thereof".

On April 13, 1970, a judgment was entered against Consolidated Productions, Inc., doing business as Adult Novelty Company, in this United States District Court pursuant to 39 U.S.C. § 4009(e). This judgment provided in pertinent part as follows:

"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant comply with the Prohibitory Order issued by the Postmaster General on May 8, 1969, that the defendant refrain from further mailings to WHITEHURST PAVING COMPANY at 2800 Deep Water Terminal Road, Richmond, Virginia 23206, and that defendant remove said name from its mailing lists;".

Thereafter, on June 16, 1970, Whitehurst Paving Company received an additional mailing from Consolidated Productions, Inc. (this time doing business as Cinema Products).

The government then brought this indictment in three counts, pursuant to 18 U.S.C. § 401. This section provides that:

"A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—

* * * * * *

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command."

The first count was against Consolidated Productions, Inc., doing business as Adult Novelty Company, alleging that it had "unlawfully, willfully, and knowingly" mailed an unsolicited advertisement to Whitehurst Paving Company, thereby disobeying the court's order. The corporate defendant pleaded guilty and was fined $2,500. The remaining two counts involve the same allegations but are against Thomas S. Tierney, as the president of Consolidated Productions, Inc., and as an individual.

The parties stipulated to the following relevant facts: (1) On April 13, 1970, judgment was entered against defendant Consolidated Productions, Inc. in the district court, ordering the corporate defendant, plus its agents or assigns having actual knowledge of said judgment, not to make any further mailings to Whitehurst Paving Company; (2) defendant Tierney acquired personal knowledge of the entry of that judgment on or before May 15, 1970; and (3) defendant Tierney had no knowledge of the mailing which was sent to Whitehurst Paving Company and received by the addressee on June 16, 1970.

Pursuant to Rule 12 of the Federal Rules of Criminal Procedure, the defendant has made a motion to dismiss, and asserts two arguments in support thereof:

(a) That as a matter of law, he cannot be found guilty of criminal contempt under the stipulated facts of this case, i. e., that defendant had no knowledge of, and therefore could not have had any "knowing and willful intent" to commit the alleged disobedient act.

(b) That to strike or disregard the allegation in the indictment that the defendant "willfully and knowingly" disobeyed the court's order would render the indictment fatally insufficient for having failed adequately to inform the defendant of the nature of the charges against him.

Both parties rely heavily upon Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In Morissette, the Court held that criminal intent was an essential element of an offense under 18 U.S.C. § 641, which provides that "whoever embezzles, steals, purloins, or knowingly converts" property of the United States commits a crime. The Court noted that while Congress had omitted any express prescription of criminal intent, it had done so in light of an "unbroken course of judicial decision * * * holding intent inherent in this class of offense". And it found nothing in the history and purposes of the statute to imply an affirmative act by Congress to remove intent as a requirement.

In reaching this conclusion, the court noted that in certain "public welfare offenses" which were not common law crimes the Court had construed mere omission from a criminal enactment of any mention of criminal intent as dispensing with it. See, e. g., United States v. Behrman, 258 U.S. 280, 42 S. Ct. 303, 66 L.Ed. 619 (1922); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922). The Court reasoned, however, that:

"Where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed." 342 U.S. at 263, 72 S.Ct. at 250.

This language was quoted with approval in United States v. Freed, 401 U.S. ___, 91 S.Ct. 1112, 28 L.Ed.2d 356 (April 5, 1971). Thus, where Congress uses a term of art in a statute there is a presumption that it retains its traditional meaning absent some contrary expression of congressional intent, either explicit or implied from the history and purposes of the statute.

The origin of the offense of contempt can be traced back to early English jurisprudence. A court has traditionally had the power to punish for contempt either to vindicate its dignity for disrespect shown to it or its orders, or to compel the performance of some order or decree whose performance is within the power of the party held in contempt. Contempt is divided into two categories —criminal and civil—although attempts to draw a definitional line between criminal and civil contempt have met with considerable conceptual difficulty. See generally Goldfarb, The Contempt Power 49-67 (1963).

The basic distinction between criminal and civil contempt is the nature of the relief requested and the purpose for it. The same sanctions, fine and imprisonment, are imposed for both, but in civil contempt they are employed "as coercive sanctions to compel the contemnor to do what the law made it his duty to do". Penfield Co. v. Securities and Exchange Commission, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117 (1947). The relief granted in civil contempt proceedings must be either conditional to induce the contemnor to comply with the court's order, or compensatory to reimburse the other party for losses or damages sustained by reason of the noncompliance. Thus the proceeding is civil if the purpose is remedial and intended to coerce the person into doing what he is supposed to do. The proceeding is one for criminal contempt when the purpose is to vindicate the authority of the court by punishing the wrongdoer.

A second difference is that while willfulness need not be proved to establish civil contempt, McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 93 L.Ed. 599 (1949), willful disobedience is an essential element of criminal contempt, and intent must be proved beyond reasonable doubt. See United States v. United Mine Workers, 330 U.S. 258, 303, 67 S.Ct. 677, 91 L.Ed. 884 (1947); In re Floersheim, 316 F.2d 423, 428 (9th Cir. 1963); Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963); MacNeil v. United States, 236 F.2d 149, 152 (1st Cir. 1956).

In Morissette, the Supreme Court held that when Congress uses a traditional term of art in a new statutory context, the courts must give that term of art its traditional meaning unless there is some contrary indication by Congress, either explicit or implied, from the history and purposes of the statute.

In providing for enforcement of the court's order under § 4009(e), Congress provided that a violation thereof would be punished as contempt. This court must presume that in adopting this term of art—"contempt"—Congress intended the courts to give it its traditional meaning absent some contrary indication. It appears that the government adopted the same reasoning when it initiated prosecution in this case. First, the indictment was brought, not under the new § 4009, but rather under 18 U. S.C. § 401, the traditional contempt statute. Second, the indictment alleges that the defendant "willfully and knowingly" caused the material to be mailed.

Section 4009(e) basically provides that the district courts shall have jurisdiction to order compliance with the Postmaster General's order. With regard to sanctions, it simply states that "failure to observe such order may be punished by the court as contempt thereof". The congressional history of this bill merely indicates that violation of the court's order was to be punished as "contempt of court". See Appendix A. As such, the sponsor of the amendment concluded that: "The court sets the punishment." Nothing in the history of § 4009(e) indicates a congressional intent to modify the court's traditional contempt powers.

While it is always difficult for a court to inquire into the purposes of a...