United States v. Green, 288

• Decision Date: 14 July 1949
• Docket Number: No. 288,Docket 21394.,288
• Citation: 176 F.2d 169
• Parties: UNITED STATES v. GREEN.
• Court: U.S. Court of Appeals — Second Circuit

176 F.2d 169 (1949)

UNITED STATES v. GREEN.

No. 288, Docket 21394.

United States Court of Appeals, Second Circuit.

Argued July 1, 1949.

Decided July 14, 1949.

Writ of Certiorari Denied October 17, 1949.

Emanuel H. Bloch, New York City, Walter F. Dodd, Chicago, Ill., George W. Crockett, New York City (Abraham J. Isserman, Los Angeles, Cal., on the brief), for appellant.

John F. X. McGohey, United States Attorney for the Southern District of New York, New York City, for appellee.

Frank H. Gordon, New York City, and Irving S. Shapiro, Washington, D. C., Special Assistants to the United States Attorney.

Edward C. Wallace, Special Assistant to the Attorney General.

Lawrence K. Bailey, Washington, D. C., Attorney, Department of Justice, of Counsel.

Before SWAN and CHASE, Circuit Judges and SMITH, District Judge.

Writ of Certiorari Denied October 17, 1949. See 70 S.Ct. 91.

CHASE, Circuit Judge.

This appeal is by one of the defendants being tried in the District Court for the Southern District of New York on an indictment charging conspiracy to violate the provisions of Title 18, § 10 U.S.C. now 18 U.S.C.A. § 2385. It is from an order of contempt remanding the appellant for the duration of that trial as punishment for a contempt committed in the presence of the court. The applicable statute is Title 18, § 401(1), which 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 —

"(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; * * *."

Other appeals by other defendants in the same suit from orders of contempt have been heard by this court and have been affirmed in an opinion handed down contemporaneously with this opinion. In so far as the issues therein decided are the same as those here presented, we now refer to that opinion without further discussion of them. See United States v. Hall, 2 Cir., 176 F.2d 163, decided today.

Here, as before, the judge orally ordered the remand immediately after the contemptuous conduct and later, this time on the following day, filed an order of contempt, commitment and certificate in compliance with the provisions of Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The following is a copy:

"On the 20th day of June, 1949, the defendant appeared in person and by counsel.

"It is adjudged that the defendant has been found guilty of contempt of court for misconduct committed in the presence of the Court in the course of the judicial proceedings as set forth below.

"It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for the remainder of the trial in United States v. William Z. Foster, et al., C 128-87.

"In conformity with Rule 42(a), Federal Rules of Criminal Procedure, I hereby certify that the conduct for which the defendant is punished for criminal contempt was committed in my presence under the following circumstances:

"On June 20, 1949, at a session of the United States District Court for the Southern District of New York, the defendant Green was on the witness-stand giving testimony on direct examination by his counsel in respect to the charges on trial in United States v. William Z. Foster, et al., C 128-87. In the course of the morning session of the Court, the defendant undertook to answer a question which the Court had directed to his counsel, and after several unsolicited remarks by the defendant the Court stated to him:

"`Why do you keep making these outbursts? There is no question before you and you have been told by me so many times not to do it I should think you could make a special effort and not do it.'

"On the same day, during the afternoon session of the Court, defendant Green's counsel offered a document in evidence. Objection to its admission was sustained. At this juncture the following occurred:

"`Mr. Isserman: I would like to be heard on this, if the Court please. There are five or six different grounds why we deem this article relevant and material to the issues. I would like to be able to state my grounds to the Court.

"`The Court: It seems to me that it represents repetition of the point that has come up in a great variety of ways during the trial here, and I see no necessity for argument.

"`Mr. Isserman: I am asking for an opportunity —

"`The Court: What is that?

"`Mr. Isserman: I am asking for an opportunity to state the grounds.

"`The Court: Yes, I know, but because the question in various forms has so many times arisen here and because of the fact that every time I allow argument the jury is excused and it takes an hour or so before we can calm down again, I find that it is better not to do it. If I felt there was occasion for it I would allow the argument.

"`Mr. Isserman: Can I state for the record my grounds in seeking to have this admitted?

"`The Court: No. I think when a lawyer offers an exhibit, those things are not needed to be stated.

"`Mr. Sacher: Your Honor, this goes to show the intent of this witness. I think that having expressed itself years before the indictment is material.

"`The Court: Mr. Sacher, the intent of these defendants is an intent appearing on the face of the statute and requiring perhaps construction by me, but certainly not an intent as to every detail of every step of everything they do which if we were to stop to have a long statement by every witness of his intent on everything that he did would unduly prolong the case, and I do not consider it relevant.

"`Mr. Sacher: But Budenz has attacked the intent of every defendant here in regard to democracy and democratic institutions.

"`The Court: Well, Mr. Sacher, I do not desire any argument on this.

"`Mr. Isserman: If the Court please, in respect to this exhibit I would like to make an offer of proof, if I may.

"`The Court: Well, I take the same position that I have previously as to offers of proof. I don't think it is necessary to do it.'

"Immediately, the defendant who had no occasion to speak, turned to the bench and said in an angry, sarcastic manner: `I thought we were going to be given a chance to prove our case. That article was germane to the very heart of the issue.' The jury was present while defendant Green interrupted the judicial proceedings with his contemptuous statement.

"The misconduct on the afternoon of June 20th was preceded not only by the warning at the morning session of the court, but also by prior misconduct that also had brought forth warnings which...