United States v. Hall

• Decision Date: 19 December 1951
• Citation: 101 F. Supp. 666
• Parties: UNITED STATES v. HALL.
• Court: U.S. District Court — Southern District of New York

101 F. Supp. 666

UNITED STATES v. HALL.

United States District Court S. D. New York.

December 19, 1951.

Myles J. Lane, U. S. Atty., S. D. N. Y., New York City, Roy M. Cohn, James B. Kilsheimer, III, and Albert A. Blinder, Asst. U. S. Attys., New York City, of counsel, for petitioner.

Harry Sacher, New York City, for respondent.

RYAN, District Judge.

This proceeding to punish Gus Hall for contempt of court was commenced by the application of Myles J. Lane, United States Attorney for the Southern District of New York. Rule 42, Fed.Rules Crim.Proc. 18 U.S.C.A. An order was made, on October 31, 1951, citing the contemnor to show cause before this court on November 2, 1951 why he "the said Gus Hall should not be adjudged and held in criminal contempt of Court and punished for said criminal contempt of this Court by reason of the fact that he disobeyed and resisted lawful orders and commands of this Court directing him to appear before it on July 2, 1951, and July 3, 1951; requiring him to surrender himself in execution of the judgment and sentence imposed under Indictment C 128-87, upon such day as the District Court may direct; and requiring him to remain within the jurisdiction of the District Court of the United States for the Southern District of New York, or the District Court of the United States for the Northern District of Ohio."

Service of this order and of the affidavit of the United States Attorney upon which it was based was duly made upon the contemnor. The contemnor, represented by counsel, appeared on the return day at the bar of this court and the matter was adjourned for trial. Thereafter and on November 19, 1951, the United States Attorney served upon the contemnor and his attorney specifications of the criminal contempts charged. It was set forth in these specifications that,

"The United States of America, for its specifications of criminal contempt, alleges that the contemnor, Gus Hall, has committed criminal contempt in this Court by wilfully and knowingly disobeying and resisting the following orders, decrees and commands of this Court:

"1. Order of Honorable William Bondy, United States District Judge, dated November 10, 1949;

"2. Order of Honorable Sylvester J. Ryan, United States District Judge, dated April 2, 1951;

"3. Order of Honorable Sylvester J. Ryan, United States District Judge, dated July 2, 1951.

"The United States of America further alleges that said contemnor, Gus Hall, committed criminal contempt of this Court by reason of the following:

"A. The contemnor disobeyed and resisted the orders of this court, listed as numbers 1 and 2, supra, by being without the jurisdiction of the districts specified in said orders.

"B. The contemnor disobeyed and resisted the order listed as number 3, supra, by failing to appear before this Court on July 2, 1951, by failing to surrender on said date, or at any other time prior to his apprehension at Laredo, Texas, on October 10, 1951."

Copies of the orders which it was charged contemnor disobeyed and resisted were annexed to the specifications.

The contemnor was duly arraigned on November 21, 1951 and entered a plea of not guilty to each of the contempts charged. Trial was then had to the court without a jury. Rule 42(b), Fed.R.Crim.P.; United States v. United Mine Workers of America, 330 U.S. 258, 298, 67 S.Ct. 677, 91 L.Ed. 884.

At the outset of the trial contemnor moved to dismiss the charge of contempt based on the order of the Honorable Sylvester J. Ryan, dated April 2, 1951. The United States Attorney consenting, this charge of contempt was dismissed. The trial continued as to the other two specifications numbered 1 and 3 — contempt of the order of Bondy, J., of November 10, 1949 and contempt of the order of Ryan, J., of July 2, 1951.

We turn, first, to examine the record of the prior proceedings which gave rise to the making of these two orders.

The contemnor and eleven codefendants were indicted by the Grand Jury impaneled for the Southern District of New York on July 20, 1948, charged with violation of Section 3 of the "Smith Act", Sec. 11, 18 U.S.C.A. 1946 ed., 1948 Revised Criminal Code, 18 U.S.C.A. § 2385. Following a plea of not guilty, the defendants were released on $5,000 bail; contemnor and ten of his codefendants were later tried and convicted by verdict of a jury. The contemnor, on October 21, 1949, was sentenced to a term of imprisonment of five years and fined in the sum of $10,000, and remanded to commence service of the term so imposed.

An appeal was taken from the judgment of conviction by these defendants, including the contemnor, to the Court of Appeals for the Second Circuit. On an application for bail, the Government conceded that the appeal presented a substantial question, and on November 2, 1949 the Court of Appeals allowed bail. The contemnor and his codefendants were enlarged upon bond in the sum of $20,000 posted by each of them on November 3, 1949.

The contemnor signed and acknowledged his bond; he personally subscribed to the conditions of the recognizance. These conditions, in part, provided that the contemnor "* * * shall abide by and obey all orders made in said cause and shall surrender himself in execution of the judgment and sentence appealed from upon such day as the District Court of the United States for the Southern District of New York may direct, if the judgment and sentence appealed from shall be affirmed * * *."

The bond further provided that the contemnor "* * * shall not depart the jurisdiction of the District Court of the United States for the Southern District of New York without leave * * *."

The contemnor later, on November 4, 1949, swore to an affidavit which stated that he resided at 1708 West 31st Place, Cleveland, Ohio, and that he was "desirous of departing from the Southern District of New York to his place of residence to be with his family and to take care of his affairs." This affidavit was submitted to the court on an application made by the contemnor to enlarge the conditions of his bail so as to permit him to journey to and temporarily stay in the federal district in which was located his home. It was on this application that, on November 10, 1949, Judge Bondy made the order upon which Specification of Contempt No. 1 is predicated.

The convictions were affirmed by the Court of Appeals on August 1, 1950, United States v. Dennis, 2 Cir., 183 F.2d 201. The "defendants expressed an intention to petition the Supreme Court to review their cases. The prosecution asked that bail be revoked and defendants remanded to jail. * * * The Court of Appeals did not summarily terminate bail but a majority of the judges extended it for thirty days, expressly to enable application to the Circuit Justice for further extension." Opinion of Jackson, C. J., Williamson v. United States of America, 2 Cir., 1950, 184 F.2d 280, 281. The Circuit Justice, on September 25, 1950, ordered that the bail posted by the contemnor and codefendants was to be "continued until the Supreme Court of the United States shall deny their petition for certiorari or, if it be granted, shall render judgment upon their cause."

Petition for certiorari was granted. 340 U.S. 863, 71 S.Ct. 91, 95 L.Ed. 630. The appeal was thereupon brought on for argument and on June 4, 1951, the conviction was affirmed by the Supreme Court. 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. At that time, the contemnor was at large on bail furnished on November 3, 1949.

With the arrival of the mandate of the Supreme Court affirming the conviction, this court (Ryan, J.) made the order of July 2, 1951, directing all the defendants including the contemnor to surrender to the United States Marshal for the Southern District of New York on the 2nd day of July, 1951, at 11:05 in the forenoon of that day. The contemnor did not then surrender nor did he at any time thereafter surrender or voluntarily make himself amenable to the process of this court. When the contemnor and three of his codefendants failed to appear on July 3, 1951, a warrant was issued for their arrest. The contemnor remained a fugitive until October 10, 1951 when he was located and arrested in Laredo, Texas. He was then imprisoned to serve the sentence which had previously been imposed upon him. The contemnor is still confined serving this sentence and was brought into court by his jailor to answer the charges of contempt now preferred against him.

Before the presentation of evidence, the contemnor also moved to dismiss the charge of contempt based on the order of Judge Bondy of November 10, 1949. It was urged in support of this motion that the order contained no express command to do or to refrain from doing anything. It was argued that it merely sets forth an enumeration of the conditions of contemnor's bail bond, violation of which would justify forfeiture of the bond.

The pertinent portions of Judge Bondy's order read:

"Ordered that each of said defendants-appellants, Gus Hall, Carl Winter, Gilbert Green, Robert G. Thompson and John Gates is hereby given permission to depart from the Southern District of New York upon the following express conditions and subjects in all other respects to the conditions of the bonds aforesaid: That he may depart from the Southern District of New York and go to the Federal District in which his home is located to be with his family and attend to his affairs temporarily; that he will return to the Southern District of New York whenever ordered by this Court to do so; that in case he removes from his present home or changes his address, he shall forthwith inform the United States Attorney for the Southern District of New York to that effect; that Robert W. Dunn, who executed the bail bond for each of the defendants-appellants hereinabove named, shall give his written consent to the making and entry of this order; and that Robert W. Dunn, Frederick V. Field, Dashiell Hammett, W. Alphaeus Hunton and Abner Green, Trustees of the Bail...