United States v. Rollerson

• Decision Date: 13 April 1971
• Docket Number: No. 24154.,24154.
• Citation: 449 F.2d 1000
• Parties: UNITED STATES of America v. Roosevelt ROLLERSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

449 F.2d 1000 (1971)

UNITED STATES of America v. Roosevelt ROLLERSON, Appellant.

No. 24154.

United States Court of Appeals, District of Columbia Circuit.

Decided April 13, 1971.

Petition for Rehearing Denied May 13, 1971.

Mr. William H. Allen, Washington, D. C. (appointed by this court) and Mr. Allan J. Topol, Washington, D. C., were on the brief for appellant.

Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and John R. Dugan, Asst. U. S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, and WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN, Circuit Judge.

BAZELON, Chief Judge:

This appeal presents a single question: may a criminal defendant who is summarily punished for contempt of court under Rule 42(a) of the Federal Rules of Criminal Procedure and 18 U. S.C. § 401(1) later be prosecuted under different penal statutes for the same act? We hold that he can.

Appellant was on trial for robbery in February 1963. On the third day of trial, February 14th, moments after the court convened and with the jury in the box, appellant threw an ice-filled plastic water pitcher at the prosecutor, hitting him in the shoulder and causing the pitcher to break. The trial judge immediately excused the jury and told appellant that whether he had been in contempt would be considered at sentencing if he were found guilty or, if he were acquitted, immediately thereafter. The trial resumed after a half hour recess. Later that same day, the trial was completed with a verdict of guilty as charged. One week later, on February 21, 1963, appellant was sentenced to imprisonment for three to nine years for the robbery offense. At the same time, the court found appellant in contempt of court and sentenced him to one year imprisonment, the sentence to be served consecutively to the sentence for the robbery conviction.¹

Four days later, appellant was indicted for assault with a dangerous weapon (22 D.C.Code § 502) and assault on a federal officer engaged in the performance of his official duties (18 U.S.C. § 111). He was tried before a jury on July 15, 1963, and found guilty as charged. The trial judge sentenced him to one to three years on each count, the sentences to run concurrently with each other but consecutively to the sentences previously imposed for robbery and contempt.

The ensuing procedural history of this case — recounted in the margin² — is not directly relevant to the issue on this appeal. Appellant now seeks to reverse a judgment of the District Court denying his motion to void the assault conviction and sentence on the ground that the Double Jeopardy Clause precluded the prosecution for assault, once appellant had been convicted and sentenced for contempt.

Appellant's double jeopardy claim would have received short shrift several decades ago. The contempt power was long considered to be sui generis, and the usual procedural protections accorded criminal defendants were not applicable to one charged with contempt.³ This view of criminal contempt, however, has been substantially eroded by numerous Supreme Court decisions which have tended to assimilate criminal contempt to ordinary crimes.⁴ Appellant's motion can only be denied, therefore, if a separate prosecution for a criminal offense, following a summary contempt conviction, does not violate the policies of the Double Jeopardy Clause.

Even with this different starting point, appellant's claim would still get short shrift if we were to follow the clearest statement from the Supreme Court on the double jeopardy rule for multiple prosecutions. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), petitioner had been prosecuted and convicted first of disorderly conduct, then of insulting a public officer. Though the Court found that he had been twice prosecuted and convicted for exactly the same conduct, it upheld the second conviction. The Court endorsed what is known as the "same evidence" test:

"A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."⁵

Criminal contempt under 18 U.S.C. § 401(1) and the two assault offenses of which appellant in this case was convicted clearly have different elements,⁶ so this test, if still the law, would settle the question against appellant's claim.

We do not rest on this ground, however, for two reasons. First, the status of the Gavieres rule as a binding interpretation of the constitutional provision is in some doubt. The offenses in Gavieres were committed in the Philippine Islands, where the applicable provision was a congressional statute: "No person, for the same offense, shall be twice put in jeopardy of punishment."⁷ The Court remarked that this provision had already been construed as enacting the sense and meaning of the constitutional provision,⁸ but the comparatively recent case of Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), indicates that the Court may treat Gavieres as a case of statutory construction only.⁹

Second, the "same evidence" rule has been the subject of severe academic and judicial criticism for many years, most notably in Mr. Justice Brennan's concurring opinions in Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and Ashe v. Swenson, 397 U.S. 436, 449, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).¹⁰

In searching for broader grounds upon which to rest the decision in this case, we have the benefit of an excellent opinion by Judge Edelstein in a case on all fours with this one, United States v. Mirra, 220 F.Supp. 361 (S.D.N.Y. 1963). Judge Edelstein examined the Supreme Court's dicta in In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L. Ed. 1154 (1897), and Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802 (1935), and found persuasive the observation that contumacious conduct in court can be an offense against the court's jurisdiction as well as an offense against the laws of the United States.¹¹ He then continued:

Moreover, a criminal prosecution arising out of and subsequent to summary contempt conviction does not offend the policy underlying the protection against Double Jeopardy. As Mr. Justice Brennan has stated in Abbate v. United States, 359 U.S. 187, 199, 79 S.Ct. 666, 3 L.Ed.2d 729 * * *, "The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harrassed by successive trials; that an accused shall not have to marshal the resources and energies necessary to his defense more than once for the same alleged criminal acts." Id. 359 U.S. at 198-199, 79 S.Ct. at 672-673. * * * A person held in summary contempt and then subsequently indicted does not suffer the harrassment of successive trials. * * * Since an adversary type proceeding does not precede the swift imposition of a summary contempt conviction, a criminal prosecution on a charge arising out of the contumacious conduct is the first trial-type harrassment to which the contemnor is made subject. Emphasis added.

Here Judge Edelstein identified a consideration which is sufficient to dispose of the case at hand. Appellant committed his contumacious act on the last day of his trial. Since it was committed in the actual presence and hearing of the court, the trial judge was entitled to proceed summarily under Rule 42(a) of the Federal Rules of Criminal Procedure; we think it is without significance in this case that the judge did not cite and sentence appellant for contempt immediately, but waited until the next occasion that appellant appeared before him in connection with the underlying offense.¹² The contempt proceeding did not amount to a separate hearing or proceeding of the kind which invokes the Double Jeopardy Clause.¹³ The judgment of the District Court is

Affirmed.

Senior Circuit Judge WILBUR K. MILLER did not participate in the decision of this case.

1 Pursuant to Rule 42(a), Fed.R.Crim.P., the court filed the following document:

"FINDINGS OF FACT, CERTIFICATE AND ORDER OF CONTEMPT

"The defendant in the above case was charged with the offense of robbery. His case came on for trial, and a jury was sworn on February 12, 1963. On the morning of February 14, 1963, the case had been completed except for the summations of counsel, the Court's charge to the jury, and the verdict. Immediately after the opening of Court on that date, as I was glancing down at some papers on the Bench, I heard a crash, looked up and saw the District Attorney rubbing his left shoulder, and the fragments of a pitcher and ice strewn about him. I then looked to the defendant's side of the courtroom and saw the defendant on the floor struggling with a deputy marshall who was holding him down. I immediately directed the jury to retire to their jury room, after which I instructed the deputy marshall to take the defendant to the cellblock and advise me when the defendant had quieted down and was in condition for a resumption of the trial. Within perhaps a half hour thereafter the defendant was in such condition, and he was brought into the courtroom and the trial was resumed. I did not actually see defendant hurl the pitcher at the District Attorney, as I was looking down at some papers, but that fact is undisputed; and I certify that what I saw and heard constituted contempt by the defendant of the Court's authority in that his conduct constituted misbehavior in the Court's actual presence which obstructed the...