United States v. Schiffer
| Decision Date | 09 September 1965 |
| Docket Number | No. 15886.,15886. |
| Citation | 351 F.2d 91 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jacques M. SCHIFFER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Harvey M. Silets, Chicago, Ill., for appellant; Charles R. Purcell, Jr., Chicago, Ill., of counsel.
Theodore George Gilinsky, Department of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Robert S. Erdahl, Attorney, Dept. of Justice, Washington, D. C., John H. Reddy, U. S. Atty., Chattanooga, Tenn., on brief, for appellee.
Before WEICK, Chief Judge, and MILLER and EDWARDS, Circuit Judges.
This is an appeal from an order of the District Court adjudging Appellant Schiffer guilty of criminal contempt and imposing upon him a sentence of sixty days' confinement and a fine of $1,000. The sentence was later corrected by striking therefrom the fine.
Schiffer was Thomas Ewing Parks' attorney in the case of United States v. Hoffa, in which the defendants were tried and convicted for jury tampering. These convictions were affirmed by this Court. 349 F.2d 20 (1965). Immediately after the defendants in the Hoffa case were sentenced, the trial judge read into the record a contempt certificate made pursuant to Rule 42(a) Federal Rules of Criminal Procedure.1 After permitting Schiffer to make a statement, the Court imposed sentence. Motion for a new trial was later filed and denied.
The contempt certificate set forth under four headings divided into sixteen parts the acts, statements and conduct of Schiffer during the six and one-half weeks' trial of the Hoffa case, which acts, statements and conduct took place in the actual presence of the Court and were seen or heard by it. The Court found that they constituted a deliberate and wilful attack upon the administration of justice, an attempt to prevent by improper means the functioning of the Court, and an attempt to degrade and debase the Court. The Court found that such conduct would be calculated to destroy all respect for the Court by attorneys and the public if it went unnoticed and unpunished. The Court regretted that he was compelled to take such action.
The District Judge in his certificate stated that full appreciation of the extent of misconduct and criminal contempt could only be learned by actual presence in the court room and actual observation of the manner in which Schiffer conducted himself throughout the trial. The Court made the entire record of the trial a part of the contempt proceedings in order that the specific acts of misconduct could be viewed in proper context.
The statements of Schiffer, found contemptuous by the Court, were his repeated charges that the Court was conducting a "drum head court martial", and "a star chamber proceeding". He stated that the Court's rulings "smacked of Stalinism, Hitlerism, Mussoliniism, and all these isms". These offensive and derogatory statements were made to the Court seven times during the course of the trial. On one occasion Schiffer accused the Court of "being used as a tool by the Government" to deprive the defendant of putting on his defense.
Schiffer further accused the Court of "* * * being used as an adjunct to the prosecutor to hide evidence * * *"
and stated:
"This is chicanery, not law."
He insinuated that the case was only "a trial technically begun." He stated that the prosecutor "runs to the aid of an affiliate, the Court".
He further accused the Judge of concealing evidence known by him to be perjured, and of keeping Schiffer's mouth closed so that he could not attack it.
He asked the Court to permit him to withdraw from the case and for the Court to defend his client because he was being prevented from defending him.
When the Court sustained an objection to the testimony of a witness in a collateral matter, Schiffer stated:
"Well, Your Honor, may I say this, if in this United States of America we have sunk to the low point in a United States court where a witness for the prosecution commits treason, with the knowledge of the prosecutor, and we are to be prohibited on defense from exposing that kind of a dirty, vicious deal, justice is finished in America."
The Court warned Schiffer to keep his voice down when he was shouting, and to stay within the law. He was also cautioned about arguing matters in the presence of the jury which were not appropriate for argument, and the Court indicated that the matter would be taken up at a later time.
It is not disputed here that Schiffer made the statements attributed to him in the presence of the Court.
Schiffer contends first that we have no jurisdiction to sustain the contempt order on the basis of any fact not specifically recited in the contempt order. We make no attempt to do so. Our opinion is based on the facts specifically set forth in the contempt certificate. The District Court made the entire record a part of the certificate in order that the remarks specifically set forth therein could be taken in context. This was in accord with the procedure followed in Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). See also MacInnis v. United States, 191 F.2d 157 (C.A. 9, 1951), cert. denied 342 U.S. 953, 72 S.Ct. 628, 96 L.Ed. 708; Hallinan v. United States, 182 F.2d 880, 882 (C.A. 9, 1950), cert. denied 341 U.S. 952, 71 S.Ct. 1010, 95 L.Ed. 1375, rehearing denied 342 U.S. 956, 72 S.Ct. 623, 96 L.Ed. 710.
Appellant next contends that the conduct specifically set forth in the contempt certificate did not constitute criminal contempt. We do not agree. We think the remarks were contemptuous per se. Sacher v. United States, supra; MacInnis v. United States, supra; United States v. Hall, 176 F.2d 163 (C.A. 2, 1949), cert. denied 338 U.S. 851, 70 S.Ct. 90, 94 L.Ed. 521. The fact that all except one of them did not take place in the presence of the jury did not make them any the less contemptuous. They were calculated to provoke and to bring undue pressure upon the Court in the making of various rulings during the course of the trial. They delayed the trial, obstructed the administration of justice and interfered with the Court in the performance of his judicial duties.
We realize that in contempt cases against lawyers the evidence must be carefully scrutinized in order that there be no undue interference with their right to properly represent their clients. In the present case the evidence must be viewed in the background of a bitterly contested trial charged with emotions, where things are sometimes said that should have remained unsaid. Here, however, we do not have an isolated outburst in the heat of a trial, but rather deliberate, continuous and repeated acts, extending throughout the trial, which were wholly unwarranted.
It may be conceded that Schiffer had full right to present forcefully to the Court his claims in order to obtain a ruling, even though the presentations may be far fetched and untenable. After he had obtained the ruling he had no right to resist it nor to insult the Judge. Sacher v. United States, supra. If he felt that a ruling was erroneous, he had an adequate remedy to review it by way of appeal. Schiffer not only resisted rulings, but he repeatedly insulted the Court. He made unfounded accusations reflecting on the dignity, integrity and impartiality of the Court. This conduct cannot be countenanced in a Federal Court.
The Supreme Court laid down guidelines in Sacher for counsel to follow in the trial of cases. They were not adhered to by Schiffer.
We find no merit in the claim that since the Court did not bring the contempt charge at the time the acts were committed, there was no obstruction of justice. There were many contemptuous acts. The Court could have punished Schiffer summarily at the time each of the acts was committed. Had he done so, it might have prejudiced the client, delayed the trial, or resulted in a mistrial. It was discretionary with the Court whether to act at the time or to postpone action until after the trial. Sacher v. United States, supra; MacInnis v. United States, supra. We find no abuse of discretion.
Unlike Sacher and Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954), the Judge did not become personally involved or embroiled. He had no personal interest in holding Schiffer in contempt. The Court had infinite patience. He did not engage in wrangling or bickering with counsel. He did his utmost to preserve order and decorum.
It is argued that the Court did not warn Schiffer that the acts which he was repeatedly committing would be punished by contempt. As we pointed out before, the Court did state on one occasion that the matter would be taken up at a later time. He also told Schiffer to keep his voice down, to sit down, and to keep within the law.
While warnings have been given by Courts in some of the cases,2 and we deem this practice generally desirable, we do not believe warnings were essential where, as here, the conduct was clearly contemptuous. MacInnis v. United States, supra; 17 C.J.S. Contempt § 25, pp. 67, 68 (1963). In any event, in the context in which the Court stated that the matter would be taken up at a later time, we believe that no lawyer in the courtroom could have failed to understand that this was a warning pertaining to contempt.
Specification IV charged Schiffer with an attempt to evade personal guilt under 47 U.S.C. § 605 for disclosing intercepted communications by contriving to have the Court, rather than himself, reveal them.
Schiffer had filed a motion for a mistrial and delivered to the Court in a sealed envelope as an exhibit to the motion a transcript of radio communications of the F.B.I., which an expert in electronics, employed by Schiffer, had intercepted.3 Schiffer served a copy of the motion on counsel for the Government, but not of the exhibit. The Court, not being informed of what the envelope contained, opened it, read the exhibit and made it a part...
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