United States v. Thompson, 126

• Decision Date: 02 December 1958
• Docket Number: Docket 25245.,No. 126,126
• Citation: 261 F.2d 809
• Parties: UNITED STATES of America, Appellee, v. Robert G. THOMPSON, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

261 F.2d 809 (1958)

UNITED STATES of America, Appellee, v. Robert G. THOMPSON, Appellant.

No. 126, Docket 25245.

United States Court of Appeals Second Circuit.

Argued November 5, 6, 1958.

Decided December 2, 1958.

Mary M. Kaufman, New York City, for appellant.

Joseph P. Altier, Asst. U. S. Atty., S. D.N.Y., New York City (Arthur H. Christy, U. S. Atty., and Mark F. Hughes, Jr., Asst. U. S. Atty., New York City, on the brief), for appellee.

Before CLARK, Chief Judge, WATERMAN, Circuit Judge, and GALSTON, District Judge.

CLARK, Chief Judge.

Appellant is one of the four defendants who fled from the jurisdiction upon the affirmance in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, of their convictions for conspiracy to violate the Smith Act. The first of these defendants to be apprehended was Hall, who was seized in Texas in a few months and found guilty by Judge Ryan of a criminal contempt, United States v. Hall, D.C.S.D.N.Y., 101 F.Supp. 666, which we affirmed, 2 Cir., 198 F.2d 726, and the Supreme Court denied certiorari, 345 U.S. 905, 73 S.Ct. 641, 97 L.Ed. 1341. Next this appellant was seized in California some 27 months later; he was found guilty of criminal contempt and sentenced to 4 years' imprisonment by Judge Noonan, United States v. Thompson, D.C.S.D.N.Y., 117 F.Supp. 685; we affirmed, 2 Cir., 214 F.2d 545, and the Supreme Court denied certiorari, 348 U.S. 841, 75 S.Ct. 48, 99 L.Ed. 663. Thereafter and nearly 5 years after their escape, Green and Winston surrendered, notifying the press in advance of their intent to do so. They, too, were found guilty of criminal contempt. See United States v. Green, D.C.S.D.N.Y., 140 F.Supp. 117, per Dawson, J. We affirmed, 2 Cir., 241 F.2d 631, and, certiorari having been granted, Green v. United States, 353 U.S. 972, 77 S.Ct. 1057, 1 L.Ed.2d 1135, the Supreme Court in turn affirmed, but by a sharply divided court, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672. The present motion to vacate the conviction or correct the sentence under 28 U.S.C. § 2255 and F.R. Crim.P., Rule 35, admittedly presents no new issues, but asks us to re-examine the record in the light of the several opinions, including the two sharp dissents for four members of the Supreme Court, in the Green case. Judge Palmieri has denied the application.

At the outset the United States vigorously challenges the right of the defendant to obtain a review in this proceeding of matters fully considered and adjudicated on the previous appeal. The extent of review available on this motion — the modern equivalent of a writ of error coram nobis — has not been explicitly stated by the Supreme Court, although it seems clear that the motion is broadly available to correct an injustice in a conviction or sentence. Thus had the Court in the Green case adopted the view of its minority that a judge lacks power to inflict punishment for criminal contempt by way of summary proceeding and that the defendants were entitled to be tried by a jury after indictment by a grand jury, we should not doubt both our power and our duty to apply that principle to Thompson's case now. The Court, however, affirmed, and thus this appeal can do no more than retest the evidence upon which Judge Noonan acted in holding Thompson to have had knowledge of the district court order he disobeyed by flight. It does seem to us that such re-review of the evidence is not a right to be accorded in this proceeding and that it can produce only confusion and discrimination among defendants if execution of a judicial mandate is thus to be delayed in the hope of inducing some judicial vacillation. See, e. g., cases such as McGuinn v. United States, 99 U.S.App.D.C. 286, 239 F.2d 449, certiorari denied 353 U.S. 942, 77 S.Ct. 818, 1 L.Ed.2d 762; Herman v. United States, 4 Cir., 227 F.2d 332; United States v. Rosenberg, 2 Cir., 200 F.2d 666, 668, certiorari denied Rosenberg v. United States, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384; United States v. Walker, 2 Cir., 197 F.2d 287, certiorari denied Walker v. United States, 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679. Here the other fugitives have served or are serving their sentences. So the defendant, who has been on bail, granted to await the outcome of the Green and Winston cases after serving a part of his sentence, and whose conduct appears more continuously contumacious than that of the others, might well receive an unfair reward for his persistence.

Nevertheless we have chosen to reexamine the record because the opinions in the Green case do prompt to careful study and because we wish to satisfy ourselves, since the earlier affirmance was by a different panel of this court. And upon such examination we are clear that Judge Noonan's findings find support in the actual testimony before him and the reasonable and rational inferences which he as a trier of facts properly drew from the evidence. The main issue of course is whether Thompson knew in fleeing from the jurisdiction that the proposed surrender order of July 2, 1951, had actually been entered. This is not a matter of constructive notice, as has at times been said; whatever notice should have been given Thompson was supplied by the marshal, who went to his home to serve the warrant of arrest on the afternoon of July 2 and found him missing. It is thus a question of actual knowledge of the order's entry proven circumstantially.

We shall not detail all the evidence which Judge Noonan has carefully summarized in his opinion, D.C.S.D.N.Y., 117 F.Supp. 685. Thompson's original bail bond in 1949 contained his explicit agreement to surrender upon affirmance; but when the affirmance came, and nine days later on June 13, 1951, Thompson left his home in Long Island City and moved under circumstances of semiconcealment (using his name, but with a garbled address) into a mid-Manhattan hotel. Here he stayed until sometime on Sunday, July 1, 1951, being seen there that day, though he did not sleep there that night, leaving without paying his hotel bills and abandoning his personal belongings, including suits and a toothbrush. Unlike the other fleeing defendants, however, he is shown to have remained in or around New York City for a time as we shall develop below. Meanwhile the Government served upon his counsel on June 28 an order on mandate in complete form, with direction to surrender to the United States Marshal on Monday, July 2, together with notice of its proposed settlement before the court. His counsel appeared in court on June 29 and tried unsuccessfully to have the surrender postponed until after July Fourth. Judge Noonan's analysis of the evidence concluding that Thompson was notified of the proposed surrender order even before the court hearing on June 29, 117 F.Supp. 685, at...