United States v. Thompson

• Decision Date: 10 June 1963
• Docket Number: No. 342,Docket 28073.,342
• Citation: 319 F.2d 665
• Parties: UNITED STATES of America, Appellee, v. Roland E. THOMPSON, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

319 F.2d 665 (1963)

UNITED STATES of America, Appellee, v. Roland E. THOMPSON, Respondent-Appellant.

No. 342, Docket 28073.

United States Court of Appeals Second Circuit.

Argued March 28, 1963.

Decided June 10, 1963.

Robert M. Morgenthau, U. S. Atty., Southern District of New York (Arthur I. Rosett, Arnold N. Enker, Asst. U. S. Attys., of counsel), for appellee.

Havens, Wandless, Stitt & Tighe, New York City (Adelbert C. Matthews, Jr., Malvern Hill, Jr., New York City, of counsel), for respondent-appellant.

Before WATERMAN and KAUFMAN, Circuit Judges, and BRYAN, District Judge.

WATERMAN, Circuit Judge.

Roland E. Thompson appeals from a judgment of the United States District Court for the Southern District of New York, Levet, J., holding him in contempt for failure to comply with a grand jury subpoena issued under the provisions of 28 U.S.C. § 1783. We hold that the judgment below must be reversed.

Thompson is an American citizen who, since 1938, has resided in the Philippines where he has substantial business interests. During June 1962, a grand jury sitting in the Southern District of New York was investigating alleged fraud in the procurement of contracts, and other alleged irregularities, in the administration of the Mutual Security Act of 1954. In furtherance of this investigation a subpoena was issued to Thompson by order of District Judge Thomas F. Murphy. The subpoena, bearing a return date of August 2, 1962, was personally served on appellant by the American Vice Consul in the Philippines.¹ On July 16, 1962, Thompson wrote to the Presiding Judge of the District Court saying that he was unable to comply with the subpoena by reason, inter alia, of his poor health. Annexed to this letter was a certificate of appellant's physician, Dr. Luis A. Vazquez, stating that he had advised Thompson not to travel.

Thompson did not appear before the grand jury on August 2, 1962. On August 7, the grand jury filed an indictment charging him and one Addison R. Ketchum, a former employee of the International Cooperation Administration, with conspiracy to defraud the United States. Ketchum, thereupon, was arrested, and a bench warrant was issued for Thompson's arrest. The same day the district court issued an order directing Thompson to show cause why he should not be found in contempt for failure to appear before the grand jury on August 2.² The order was personally served upon appellant and due service by publication was made.³ After continuances to permit appellant's counsel to take depositions in Manila, a hearing upon the order to show cause was had. On January 21, 1963, Judge Levet found Thompson to be in contempt and ordered that he be fined $50,000, subject to his purging himself by appearing before the same grand jury on February 26, 1963. Notice of the present appeal was filed on February 21, 1963.

We are confronted with three issues on this appeal:

I. Does the respondent-appellant as a defense to a contempt action brought for failure to obey the subpoena have standing to challenge the power of the district court to issue a grand jury subpoena under 28 U.S.C. § 1783, or could such a challenge properly have been made only by a timely motion to quash the subpoena?

II. Does 28 U.S.C. § 1783 authorize the federal district courts to issue a subpoena requiring a United States citizen residing in a foreign country to appear before a grand jury?

III. Did the court below consider and pass upon the issue of fact which controlled the question whether respondent-appellant was guilty of contempt for noncompliance with the subpoena?

We shall discuss each of these issues in turn.

I.

Although appellant sought to justify his noncompliance with the subpoena by means of his July 16, 1962 letter to the Presiding Judge of the District Court, it was not until the hearing on the contempt action that Thompson challenged the power and jurisdiction of the court below to issue a grand jury subpoena under 28 U.S.C. § 1783. The Government now contends, as it did below, that, by failure to make a timely motion to quash, Thompson lost all standing to assert the invalidity of the issuance of the order. In so contending the Government relies principally upon Howat v. Kansas, 258 U.S. 181, 189-190, 42 S.Ct. 277, 66 L.Ed. 550 (1922) and United States v. United Mine Workers, 330 U.S. 258, 290-301, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

Howat v. Kansas, supra, establishes the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties, even if the order was erroneously issued, until it is reversed by orderly and proper proceedings. See United States v. United Mine Workers, 330 U.S. at 293, 67 S.Ct. at 695. Here, however, it is precisely the jurisdiction or power of the court below which is challenged by the appellant. We have no doubt that as a matter of international law or constitutional limitations, the United States "possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal." Blackmer v. United States, 284 U.S. 421, 436-437, 52 S.Ct. 252, 254, 76 L.Ed. 516 (1931). That power must, however, be exercised by Congress, and the district court has no such power or jurisdiction unless expressly conferred by statute. Blackmer v. United States, supra.

The Government further argues, relying on United States v. United Mine Workers, supra, and United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950), that even assuming the district court was without power or jurisdiction to order a grand jury subpoena under § 1783, Thompson could not ignore with impunity such an order which was valid on its face. In the United Mine Workers case it was held that except in circumstances of plain usurpation, a United States District Court has the authority to determine its own jurisdiction in a matter before it, and to maintain the status quo, as by issuance of a temporary restraining order, pending the determination of that issue. The Supreme Court concluded, therefore, that even should the district court be ultimately found, in such a case, to lack jurisdiction over the parties or the subject matter, it had power to punish violations of its prior restraining order as contempt. Here, however, the court was not seeking to preserve existing conditions pending a jurisdictional determination. Similarly inapposite is United States v. Bryan, supra, which dealt with the failure of a witness under subpoena to raise objections to the competence of the body before which he appeared to testify. That decision did not touch the question of the validity of the subpoena which was issued or the power or jurisdiction of the body issuing it.

We hold, therefore, that a mandate is void which is beyond the power and jurisdiction of the issuing court and that the court may not punish for its violation. Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861 (1881); In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402 (1888); Ex Parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117 (1885). Thus, the power and jurisdiction of the court to issue a subpoena may be raised for the first time in a proceeding to punish for contempt.

II.

Appellant's major contention, in attacking his conviction below, is that the Walsh Act, 28 U.S.C. § 1783 et seq., confers power upon the district courts to issue subpoenas to witnesses outside the United States only for purposes of securing their testimony in a criminal proceeding, and that a grand jury investigation is not such a proceeding.

28 U.S.C. § 1783 provides, in material part:

"Subpoena of witness in foreign country

"(a) A court of the United States may subpoena, for appearance before it, a citizen or resident of the United States who:

* * * * * *

"(2) is beyond the jurisdiction of the United States and whose testimony in a criminal proceeding is desired by the Attorney General."

The expression "criminal proceeding", as it is found in the statute, is, at best, ambiguous. The weight of authority would appear to hold that the expression as generally employed does not embrace grand jury investigations, and that "criminal proceedings" have not been commenced until an indictment, information or complaint has been lodged against the accused. Post v. United States, 161 U.S. 583, 587, 16 S.Ct. 611, 40 L.Ed. 816 (1896);⁴ Mulloney v. United States, 79 F.2d 566, 578-579 (1 Cir. 1935), cert. denied, 296 U.S. 658, 56 S.Ct. 383, 80 L.Ed. 468; Orfield, The Federal Grand Jury, 22 F.R.D. 343, 391; Ballentine's Law Dictionary, p. 312 (1948 ed.). And see In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957); United States v. Price, 163 F. 904, 906 (S.D. N.Y.1908), aff'd Price v. Henkel, 216 U.S. 488, 30 S.Ct. 257, 54 L.Ed. 581 (1910); Durban v. United States, 221 F.2d 520 (D.C.Cir.1954). Some authorities, however, speaking in a variety of contexts, but, again, speaking without reference to the specific statute before us, have interpreted the phrases "proceeding" or "criminal proceeding" more broadly. See Schwimmer v. United States, 232 F.2d 855, 860 (8 Cir. 1955), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52; Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Hemans v. United States, 163 F.2d 228 (6 Cir. 1947), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).

As the statute before us is ambiguous on its face, we must turn to legislative history to ascertain Congress's intent in enacting the provision. Colony, Inc. v. Commissioner, 357 U.S. 28, 78 S.Ct. 1033, 2 L.Ed.2d 1119 (1958); Offutt Housing Co. v. Sarpy County, Neb., 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151 (1956); District of Columbia v. Y. M. C. A., 221 F.2d 56 (D.C.Cir.1955).

The Walsh Act, 44 Stat. 835, 28 U.S.C. formerly §§ 711-718, was enacted in 1926 as a special...