United States v. McGovern

• Decision Date: 23 August 1932
• Docket Number: No. 469.,469.
• Parties: UNITED STATES v. McGOVERN.
• Court: U.S. Court of Appeals — Second Circuit

60 F.2d 880 (1932)

UNITED STATES v. McGOVERN.

No. 469.

Circuit Court of Appeals, Second Circuit.

August 23, 1932.

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Daniel F. Cohalan, of New York City (Daniel F. Cohalan, John F. Collins, Harry S. Bandler, David V. Cahill, and George J. Langley, all of New York City, of counsel), for appellant.

George Z. Medalie, U. S. Atty. (Thomas E. Dewey, David Paley, and Murray I. Gurfein, Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

The appellant now complains because, as he says, due process of law was denied him, in that "there was no attempt to formulate or define an accusation against the defendant. He was confronted with an entire record, was told that he had testified falsely before the Grand Jury and that the false testimony was in the record of the proceedings." The short and sufficient answer to this is found in the fact that counsel for the appellant expressly waived objection at the opening of the hearing. That there was any doubt or misapprehension as to the charges is inconceivable and we need now take no time, in view of the waiver of objection, in considering the sufficiency of the specifications. On May 25th the district attorney clearly stated the substance of the grounds upon which the appellant was presented for contempt, and he was given until May 31st to prepare to meet them. There is no suggestion in the record, until after the judgment was entered and the court requested counsel to speak on the question of sentence, that the time and opportunity given him was not ample. There is no set form to which such a proceeding as this for contempt not committed in the presence of the court must conform, but it is essential that the accused be acquainted with the charges and given a fair and reasonable opportunity to meet them either in the way of a complete defense or of explanation and in mitigation of the sentence. He must be given an opportunity to secure the help of counsel and to present evidence relevant to the issues if he desires to do so. Cooke v. United States, 267 U. S. 517, 45 S. Ct. 390, 69 L. Ed. 767; Randall v. Brigham, 7 Wall. 523, 19 L. Ed. 285; In re Savin, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150. This appellant was accorded all this. He had his day in court, and now has no just cause for complaint about the procedure. O'Connell v. United States (C. C. A.) 40 F.(2d) 201; Lang v. United States (C. C. A.) 55 F.(2d) 922.

The power of the court to punish for contempt committed in its presence "or so near thereto as to obstruct the administration of justice" rests upon Judicial Code, § 268 (28 USCA § 385). The power extends to witnesses before a grand jury. O'Connell v. United States, supra.

What a grand jury may investigate or the scope of its inquiry cannot be questioned by a witness before it. Blair v. United States, 250 U. S. 273, 39 S. Ct. 468, 63 L. Ed. 979. All persons within its jurisdiction, upon being lawfully summoned before it, are bound to disclose what they know in answer to questions asked to discover the truth concerning the matters being investigated. Neither the competency of their testimony or its relevancy is their concern. Nelson v. United States, 201 U. S. 92, 26 S. Ct. 358, 50 L. Ed. 673. As no formal charge against any one need have been made before a witness can be compelled to testify before a grand jury, Hale v. Henkel, 201 U. S. 43, 26 S. Ct. 370, 50 L. Ed. 652, it is obvious that a witness can rarely, if ever, know whether his testimony is relevant or not. Indeed, the purpose of the grand jury's inquiry is to get at facts which will enable it to determine whether formal charges should be made against some one and not to try offenders. Hendricks v. United States, 223 U. S. 178, 32 S. Ct. 313, 56 L. Ed. 394. As the investigation proceeds, whatever leads may be developed must be run down to find as accurately as possible what the truth is, and any false testimony which impedes and hampers the course of the investigation is material in the sense that it has a tendency to affect the ultimate action of the grand jury. Carroll v. United States (C. C. A.) 16 F.(2d) 951. Evasions and half truths which hinder and mislead stand the same. A wiley witness who avoids the danger of a blunt refusal to answer by mere lip service to his duty and conceals the truth by the use of words may be as obstructive as his fellow of less mental agility who simply says nothing. When the answers of a witness amount to the crime of perjury, the offender may be guilty of contempt, provided there is also some obstruction of justice in addition to the necessary elements of that crime. Ex parte Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333. But the power to punish for contempt does not reside in the court to compel a witness to testify in accord with the court's conception of the truth. On the other hand, a witness who obstructs the course of justice by so acting that the court's performance of its duty is frustrated is not beyond the reach of the contempt power because he chooses false swearing as the means to his end in so doing. Of...