United States v. Temple

• Decision Date: 02 July 1965
• Docket Number: No. 9645.,9645.
• Citation: 349 F.2d 116
• Parties: UNITED STATES of America, Appellee, v. Elam Remanuel TEMPLE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

349 F.2d 116 (1965)

UNITED STATES of America, Appellee, v. Elam Remanuel TEMPLE, Appellant.

No. 9645.

United States Court of Appeals Fourth Circuit.

Argued March 1, 1965.

Decided July 2, 1965.

John W. Hinsdale, Raleigh, N. C., for appellant.

Alton T. Cummings, Asst. U. S. Atty. (Robert H. Cowen, U. S. Atty., on brief), for appellee.

Before SOBELOFF and BOREMAN, Circuit Judges, and BUTZNER, District Judge.

SOBELOFF, Circuit Judge:

At a pretrial conference on a case in which Elam Remanuel Temple appeared as counsel for a plaintiff he was ordered to file a brief before August 1, 1963. When that deadline passed without his filing the required brief, opposing counsel moved to dismiss for failure to prosecute. Temple then made reply in writing, asserting that his failure to file was due to illness and he submitted his brief on August 7.

The cause came on for hearing on August 12, 1963, the date originally set, at which time Temple repeated, this time in open court, that his failure to file a timely brief was occasioned by his illness. The Judge accepted this statement as true, permitted the brief to be filed, and proceeded with the hearing in normal course. During the following year, however, government agents investigating a collateral matter came across evidence indicating that Temple had not been ill as claimed during the period in question. As a result of this discovery an order was served on Temple in August, 1964, to show cause why he should not be cited for contempt. This was well within the applicable five-year period allowed by the statute of limitations. 18 U.S.C.A. § 3282. The same Judge to whom Temple had offered his excuse for the late filing of the brief held a hearing on the contempt charge. He found Temple guilty of criminal contempt and sentenced him to six months in jail.

The defendant made a demand for particulars, seeking disclosure of the evidence to be presented by the Government in the contempt proceeding. The demand was denied by the presiding Judge. Since all of the documentary evidence used by the Government was voluntarily disclosed to the defendant's counsel before trial, it is unnecessary to decide whether the failure to allow the bill of particulars constituted error. It certainly was not prejudicial.

The power of a federal court to punish for contempt is limited by statute. Contempt includes "misbehavior by any person" in the court's presence. 18 U.S.C.A. § 401(1). Lying to a judge is certainly misbehavior in the court's presence and therefore punishable under section 401.¹

The defendant having failed to take the stand, the Judge, at the close of the testimony, commented as follows:

"Now, he knows whether he was ill or not. Above every other person on earth, he knows; and though he is not compelled to testify, he remains silent and gives no explanation of what his condition was. I am sure in my own mind that if I were charged with giving a false impression to a court that the first witness that I would insist on having the privilege of testifying to when my case was called would be myself so that I might be able to testify as to exactly what the facts were.

"I realize he is not compelled to testify. Neither can he be directed to go to the witness stand to testify, but surely in a contemptuous proceeding if it would be upon him he should tell and not only tell but gladly tell and truthfully tell what his position was. He can."

The Judge was certainly correct in stating that the defendant in a criminal contempt proceeding cannot be compelled to testify against himself. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Cliett v. Hammonds, 305 F.2d 565, 570 (5th Cir. 1962). While recognizing the defendant's right to remain silent, the Judge evidently thought he was justified in treating this silence as an indication of guilt. Such a practice has since been ruled invalid by the Supreme Court. Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (April 28, 1965). There it was held that a trial judge may not charge the jury that they are free to consider the defendant's silence and draw an unfavorable inference therefrom. If a judge is not permitted so to...