United States v. Dachis

• Decision Date: 30 December 1929
• Parties: UNITED STATES v. DACHIS.
• Court: U.S. District Court — Southern District of New York

36 F.2d 601 (1929)

UNITED STATES v. DACHIS.

District Court, S. D. New York.

December 30, 1929.

Charles H. Tuttle, U. S. Atty., and Thomas J. Curran, Asst. U. S. Atty., both of New York City.

David P. Siegel, of New York City, for defendant.

GODDARD, District Judge.

This matter comes before the court on two orders to show cause: One initiated by the United States Attorney of this district, requiring Dachis to show cause why he should not be punished for criminal contempt because of his alleged perjury before the grand jury in his attempt to obstruct the due course of justice; the other requiring the United States Attorney to show cause why the original order to show cause should not be dismissed on the ground that the court had no jurisdiction to entertain the proceeding, and that the affidavits upon which it was based did not set forth facts constituting a contempt of court.

In the affidavits in support of the original order to show cause it is set forth that in the course of an investigation conducted by the October, 1929, federal grand jury for the Southern District of New York, it became material for it to locate and have produced before it certain books of account of Herman Hide & Fur Company, Inc., with vouchers covering the period from January 1, 1929, to May, 1929; that Dachis, when examined as a witness before the grand jury in its effort to locate and to obtain them, testified that the said books and vouchers were then in Winnipeg, Canada, having been taken there by an officer of the Herman Hide & Fur Company, Inc.; and that therefore he (Dachis) did not have possession of the books and could not produce them as directed to by the foreman of the grand jury, as they were then in Canada, nor comply with a subpœna duces tecum which had been served upon him. This testimony was repeated on two subsequent days when he was again called before the same grand jury, while the truth was that the said books were not in Canada, but were in this district as Dachis well knew, and were then in his possession or under his control. This October grand jury before whom he appeared as a witness has been finally discharged.

Section 268 of the Judicial Code (title 28 USCA § 385) reads as follows: "§ 385 (Judicial Code, section 268.) Administration of oaths; contempts. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority. Such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. (R. S. § 725; Mar. 3, 1911, c. 231, § 268, 36 Stat. 1163.)"

If the facts alleged in the affidavits of the United States Attorney are sustained, it seems to me beyond question that Dachis' act constituted a direct contempt of court for which he may be punished and should be punished, for here was a deliberate effort to obstruct the due course of justice by circumventing the grand jury in its effort to locate and examine books and records material to its investigation.

That the court has the inherent power to punish one who disregards and flaunts its orders and authority is settled. For without such power it could not administer public justice. Bessette v. Conkey, 194 U. S. 337, 24 S. Ct. 665, 48 L. Ed. 997; Loubriel v. United States (C. C. A.) 9 F.(2d) 907; United States v. Collins (D. C.) 146 F. 554.

Although defendant may also be liable for perjury, that does not prevent his act from being treated as a criminal contempt. Ex parte Savin, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150; Ex parte Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333.

"The power of the court to treat as a criminal contempt a persistent perjury which blocks the inquiry is settled by authority in this circuit." U. S. v. Appel (D. C.) 211 F. 495.

See, also, In re Fellerman (D. C.) 149 F. 244; In re Ulmer (D. C.) 208 F. 461; In re Steiner (D. C.) 195 F. 299.

The grand jury is an appendage of the court, and proceedings before it are regarded as being in the presence of the court. Contempts occurring there are treated as taking place in the presence of court and are included in the class referred to as "direct" contempts. Ex parte Savin, ...