United States v. Mirra

• Decision Date: 19 July 1963
• Citation: 220 F. Supp. 361
• Parties: UNITED STATES of America v. Anthony MIRRA, Defendant.
• Court: U.S. District Court — Southern District of New York

220 F. Supp. 361

UNITED STATES of America v. Anthony MIRRA, Defendant.

United States District Court S. D. New York.

July 19, 1963.

Vincent L. Broderick, U. S. Atty., by Wm. M. Tendy, Asst. U. S. Atty., for plaintiff.

Charles H. Miller, New York City, for defendant.

EDELSTEIN, District Judge.

In an incident that has become one of several causes celèbres of a trial frequented by scenes of "outrage * * disruption and violence in the courtroom,"¹ the defendant Anthony Mirra, while under cross-examination, "stood up, took the witness chair on which he was sitting, and hurled it at the Assistant United States Attorney * * * threw it some fifteen feet."² The chair struck the jury rail about three feet from the lectern where the Assistant United States Attorney was standing. For committing such a violent outrage upon the dignity and decorum of the court, Mirra was summarily held in contempt of court and sentenced to imprisonment for one year. On June 26, 1962, the trial judge filed his certificate pursuant to Fed.R.Crim.P. 42(a) reciting the facts of the contemptuous conduct.³ On July 12, 1962, the Government filed Indictment 62 Cr. 727, in one count which charged that Mirra:

"Unlawfully, wilfully and knowingly did with the use of a deadly and dangerous weapon, forcibly assault, resist, oppose, impede, intimidate and interfere with an Assistant United States Attorney while said Assistant United States Attorney was engaged in and on account of the performance of his official duties."

This indictment, charging a violation of 18 U.S.C. § 111⁴ was predicated on the chair-throwing incident of June 4, 1962. Mirra now moves to dismiss the assault indictment on the ground that the Fifth Amendment's guarantee against Double Jeopardy⁵ is violated by the Government's attempt "to punish the same conduct upon successive proceedings."⁶ Mirra urges that the Double Jeopardy guarantee is applicable since the contempt conviction as well as the assault indictment are based on the same fact situation and "that both the instant indictment and the contempt conviction require the self-same evidence." The defendant seeks to avoid being placed in the path of a cross-fire of, as he terms them, "prosecutions." Having already proceeded to judgment on the chair-throwing incident the Government is barred, Mirra alleges, by the Fifth Amendment's Double Jeopardy protection from prosecuting him on a "subsequent indictment." The defendant's claim is appealing but not well-founded. It is axiomatic that the prohibition of the Double Jeopardy clause is "not against being twice punished, but against being twice put in jeopardy." Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963); United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). And an examination of the summary contempt power will provide a more definite answer to Mirra's predicament and will serve to demonstrate that the Government is not barred from prosecuting a summary contemnor on a subsequent assault indictment.

Possibly no other exercise of judicial discretion has evoked as much critical discussion and recurrent inquiry as summary contempt. See generally, Goldfarb, The Constitution and Contempt of Court, 61 Mich.L.Rev. 283 (1962); Nelles, The Summary Power to Punish for Contempt, 31 Colum.L.Rev. 956 (1931);⁷ Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95 (1957); Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 96 L. Ed. 717 (1951). Mr. Justice Black's oft-quoted statement in Green v. United States, 356 U.S. 165, 193-194, 78 S.Ct. 632, 2 L.Ed.2d 672 (1957) (dissenting opinion), although made in a different context, is perhaps the high water mark of a flood of criticism leveled at the use of the contempt power itself and its increased utilization without affording the contemnor the commensurate protection of constitutional safeguards.

"The power of a judge to inflict punishment for criminal contempt by means of a summary proceeding stands as an anomaly in the law. In my judgment the time has come for a fundamental and searching reconsideration of the validity of this power which has aptly been characterized * * * as, `perhaps, nearest akin to the despotic power of any power existing under our form of government.' Even though this extraordinary authority first slipped into the law as a very limited and insignificant thing, it has relentlessly swollen, at the hands of not unwilling judges, until it has become a drastic and pervasive mode of administering criminal justice usurping our regular constitutional methods of trying those charged with offenses against society."

Id., 356 U.S. at 194, 78 S.Ct. at 648 (1957). See Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L.Rev. 673,707 (1963).⁸ Mr. Justice Black's concern that the punitive nature of a summary contempt conviction requires that a summary contemnor be afforded the full panoply of constitutional and statutory safeguards has not gained currency. See Sacher v. United States, supra, 343 U.S. at 20-23, 72 S.Ct. at 460-462 (dissent). Indeed, the courts have rejected attempts by contemnors to denominate their contemptuous conduct as a criminal offense to which more pervasive procedural safeguards pertain. Sacher v. United States, supra (contemnors not entitled to court trial on summary contempt conviction committed in presence of court); Green v. United States, supra (conviction for criminal contempt without criminal trial constitutional); Cooke v. United States, 267 U. S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888).

In rejecting attempts to equate, for procedural purposes, contempt with crime, the courts have bottomed their decisions on a rationale that finds its roots in "stark necessity." Green v. United States, supra, 356 U.S. at 213, 78 S.Ct. at 658. The courts have not been unmindful of the dangers of abuse inherent in the contempt power, but have found sound justification for it, nevertheless: "Summary punishment always, and rightly, is regarded with disfavor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes. But the very practical reasons which have led every system of law to vest a contempt power in one who presides over judicial proceedings also are the reasons which account for it being made summary. * * * The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess * * * power to curb prejudicial and excessive zeal * * *. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defendants." Sacher v. United States, supra, 343 U.S. at 8, 72 S.Ct. at 454. Without the contempt power, courts would find it most difficult to control the disorderly and the violent who respect neither the laws enacted for the vindication of public and private rights nor the officers charged with the duty of administering them. Yates v. United States, supra, 355 U.S. at 70, 78 S.Ct. at 131; Ex parte Terry, supra, 128 U.S. at 313, 9 S.Ct. at 82.

Despite the efforts of court and counsel, they have been unsuccessful in finding a case directly dispositive of Mirra's contention. However, the dicta in In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154 (1897); Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935); and Merchants Stock and Grain Co. v. Board of Trade, 201 F. 20 (8th Cir. 1912) lends support to the conclusion that Mirra is not entitled to the Double Jeopardy guarantee. In Chapman, the Supreme Court upheld a conviction under a Federal statute which made refusal to testify before a Senate committee punishable as a misdemeanor even though the contemnor was also subject to punishment for contempt of Congress. Mr. Justice Fuller, addressing himself to the problem of cumulative punishment resulting from the possibility that the United States Senate might still hold the convicted defendant in contempt, wrote:

"It is improbable that in any case cumulative penalties would be imposed, whether by way of punishment merely, or of eliciting the answers desired, but it is quite clear that the contumacious witness is not subjected to jeopardy twice for the same offence, since the same act may be an offence against one jurisdiction and also an offence against another; and indictable statutory offences may be punished as such, while the offenders may likewise be subjected to punishment for the same acts as contempts, the two being diverso intuitu and capable of standing together." In re Chapman, supra, 166 U.S. at 672, 17 S.Ct. at 681.

In Jurney v. MacCracken, supra, 294 U.S. at 151, 55 S.Ct. at 380, the contemnor argued that his conviction for contempt of Congress was improper because his conduct was also subject to prosecution under a special Federal statute. The offense in MacCracken could have been punished twice—once for contempt and again under the statute which made a refusal to answer questions or to produce papers before either House of Congress a misdemeanor. Mr. Justice Brandeis dismissed the argument that the defendant was immune from one punishment because of the existence of the other. He stated: "Punishment, purely as such, through contempt proceedings, legislative or judicial, is not precluded because punishment may also be inflicted for the same act as a statutory offense." Ibid. But the most direct confrontation of the issue of whether conduct deemed contumacious may at a subsequent date be made the basis of a criminal prosecution finds expression in the Merchants' Stock & Grain case, supra, 201 F. at 27: "An act which is a contempt of court and also a crime may be punished both by the summary provision and by indictment, and neither will bar the other. * * * In other words, the provision protecting him against being twice put in jeopardy does not...