United States v. Field, 300-302

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation193 F.2d 92
Docket NumberDockets 22116-22118.,No. 300-302,300-302
PartiesUNITED STATES v. FIELD et al.
Decision Date30 October 1951

193 F.2d 92 (1951)

FIELD et al.

Nos. 300-302, Dockets 22116-22118.

United States Court of Appeals Second Circuit.

Argued September 14, 1951.

Decided October 30, 1951.

Writ of Certiorari Dismissed January 7, 1952.

193 F.2d 93

Mary M. Kaufman, of New York City (Victor Rabinowitz, of New York City, on the brief), for appellants Frederick V. Field and W. Alphaeus Hunton.

Charles Haydon, of New York City, for appellant Dashiell Hammett.

Roy M. Cohn and James B. Kilsheimer III, Asst. U. S. Attys., both of New York City (Irving H. Saypol, U. S. Atty., and Robert Martin, Asst. U.S. Atty., both of New York City, on the brief), for the United States, appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

Writ of Certiorari Dismissed January 7, 1952. See 72 S.Ct. 303.

CLARK, Circuit Judge.

This appeal, from three summary orders of contempt, is an aftermath of the affirmance by the Supreme Court in Dennis et al. v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, of the conviction of eleven officers of the Communist Party of America for violation of the Smith Act, 18 U.S.C. § 2385. Those defendants had been enlarged on bail in the sum of $20,000 each, furnished by the Bail Fund of the Civil Rights Congress of New York pending appeal to this court and, after affirmance, United States v. Dennis et al., 2 Cir., 183 F.2d 201, pending certiorari by Circuit Justice Jackson, Williamson et al. v. United States, 2 Cir., 184 F.2d 280, because of the substantial issue of law involved. The present appellants are three of the five trustees of that Fund. When the District Court received the mandate of final affirmance by the highest court on July 2, 1951, it ordered the surrender of the defendants, to commence service of their sentences of imprisonment. Seven appeared and were duly incarcerated. Four did not; and when bench warrants did not produce them on the next day, their bail was declared forfeited. The court then directed the appearance before it of the bondsmen and trustees and officers of the Bail Fund which had acted as surety for the fugitives. Appellants appeared and were examined by the court and by the United States Attorney at hearings occupying several days — Field on July 3 and 5, Hunton on July 6 and 9, and Hammett on July 9. All refused to answer certain

193 F.2d 94
questions and to produce certain books and records of the Bail Fund and were cited for contempt, Field on July 5, and the others on July 9. Field was sentenced to imprisonment for ninety days or until such time as he might purge himself of his contempt. The others were sentenced for six months, with like provision for purging themselves

These are the orders we have for review. Certain later proceedings should, however, be noted. Field applied to Chief Judge Swan for bail pending appeal, who eventually denied the application in a detailed opinion reported in United States v. Field, 2 Cir., 190 F.2d 554; and this was concurred in by Judge L. Hand in denying similar applications by Hammett and Hunton, United States v. Hunton et al., 2 Cir., 190 F.2d 556. Thereafter all three made like petitions before Justice Reed as Acting Circuit Justice for the circuit. Justice Reed denied the petitions in a comprehensive opinion dated July 25, 1951. 193 F. 2d 86. The opinions of these several judges cover with meticulous care a substantial part of the case now before us on this full review of the entire record, and we have been greatly aided by the clear statements of the law there set forth.

Meanwhile Field, having refused to comply with directions of a federal grand jury, was found in contempt and sentenced to an additional term of imprisonment of six months — an order we are reviewing in the companion case herewith of United States v. Field, 2 Cir., 193 F.2d 109. A fourth trustee, Abner Green, was also held in contempt of directions both of a grand jury and of the court in proceedings decided in the third appeal herewith, Green v. United States, 2 Cir., 193 F.2d 111. Application for a special session of the court during the summer recess having been granted, these three appeals were heard at a single sitting in September. It is a matter of regret to the court that some delay in disposing of the cases has occurred, due to illness in the court, pressure of judicial work upon the opening of the regular October term, and the gravity of the issues involved.

The record before us shows that when the judge undertook his inquiry into the escape of the fugitives, there were placed before him the documents filed in court when the bonds were given. These included, first, the "Agreement and Deed of Trust," dated originally September 16, 1946, and amended September 26, 1949, and signed by the five trustees, with the fifth trustee, Robert W. Dunn, signing a second time as "Treasurer." This provided that the Fund was to accept both loans and gifts — for which certificates of deposit and receipts were to be given the lenders and contributors respectively — to be employed in posting bail "for the benefit of strikes, and of those whose civil rights are threatened or under attack." Second, there was a statement under oath, dated November 3, 1949, by three trustees — Field, Dunn, and Hunton — reciting specific authority to Dunn to post the Government Bearer bonds, purchased with moneys given "by diverse persons," as collateral security for bail for the eleven specifically named defendants. It also stated that "in addition to the general authority sic contained in the annexed Agreement and Deed of Trust, all the trustees duly adopted a resolution at a meeting of the trustees held on July 22, 1948, reading as follows: Resolved that the trustees hereby authorized the use of the bail fund for such bail as might be required in the case of the Communist leaders indicted under the Smith Act on July 20, 1948, at all stages of the proceedings and until the case is finally terminated." And third, there were the formal "Bonds on Appeal" in the penal sum of $20,000 conditioned on the appearance of the particular defendant named whenever required by law or order of the court and signed by the particular defendant as Principal and Dunn as Surety.

At the hearing on July 3, Field appeared voluntarily without waiting to be subpoenaed. Advised that the purpose of the hearing was to make inquiry of the sureties under oath as to their knowledge of the whereabouts of the defendants whom the court was seeking — an inquiry "to assist the Court in effecting service of its process, which has been issued" — he was

193 F.2d 95
duly sworn and proceeded to testify. At first he answered readily, stating that he was a trustee of the Fund, that he had paid several visits to the headquarters of the Communist Party during the previous week in order to assure himself that the defendants would appear, and that during one of these visits he had seen at least two of the four who had failed to appear. His first refusal to answer was to a question as to the source of the funds which the group had used in posting the bond in question. He was then asked a series of questions pertaining to the last time he had seen the fugitives, the functioning of the Bail Fund, its officers, and the records it kept. These he answered, with the exception of questions pertaining to those who had contributed to the Fund, as to which he now responded affirmatively to a suggestion in a question put by the court that such a disclosure might tend to incriminate him. Thereafter he stood definitely on this claim of privilege under the Fifth Amendment. When the hearing was resumed on July 5 the court after further questioning ordered the production of the books and records of the Fund which Field had described. Again he refused, alleging the same privilege. The court then made a specific direction that the records be produced and the questions answered. The witness continued his refusal and the citation for contempt followed

Next Hunton was sworn, having also appeared without subpoena upon being advised that the matter was before the court. He likewise admitted his trusteeship of the Bail Fund. Beyond this, however, he would not go; he declined, on grounds of the privilege against self-incrimination, to answer numerous questions concerning the nature and location of the Fund's records, acquaintanceship with the four fugitives, the time when he had last seen them, whether the signatures on the bond or trusteeship agreements were his, and even whether or not he knew what records the Bail Fund kept. Directions to produce such records were variously answered with a plea that he had no control over them and, later, with a plea of the privilege. Specific directions to answer the questions and produce the books were ignored and he also was sentenced for contempt.

When Hammett appeared on July 9 he would admit nothing; he met all questions, including his trusteeship of the Fund, the signatures on the minute book (which Field had produced), his knowledge of the fugitives, and the nature of the books of the Fund, with the same plea. After the court's overruling of the plea and his continued refusal, he too was sentenced for contempt.

Appellants seek reversal here on two basic tenets: that the court had no jurisdiction to conduct the inquiry, and that the appellants were protected by their privilege against self-incrimination under the Fifth Amendment which they had validly asserted.

1. Jurisdiction of the District Court

Appellants' vigorous attack on the court's jurisdiction even to institute and prosecute the inquiry is based upon the premise that the matter concerned a possible crime against the United States. It is the exclusive province of the executive arm of government, they contend, to investigate such matters and, if facts justify, submit them to the courts through the process of grand jury indictment after review of the evidence. The precedents upon which they rely are cases where duties of...

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