United States v. Turk

• Decision Date: 07 December 1934
• Citation: 10 F. Supp. 957
• Parties: UNITED STATES v. TURK.
• Court: U.S. District Court — Eastern District of New York

10 F. Supp. 957

UNITED STATES v. TURK.

District Court, E. D. New York.

December 7, 1934.

Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y. (Kenneth E. Vought, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the motion.

Max Nachamie, of New York City, opposed.

INCH, District Judge.

This is a proceeding to punish a man named Jack Turk for criminal contempt. The government claims he deliberately gave false, evasive, and perjurious testimony, in an examination pursuant to section 21a of the Bankruptcy Act (11 USCA § 44 (a), before a special commissioner, and thus deliberately obstructed the due administration of justice. The statute under which the government is proceeding is found in section 268 of the Judicial Code (28 USCA § 385).

The special commissioner certified that he found the said Jack Turk committed a contempt of this court.

Jack Turk is a bankrupt, trading as "Dolph's Sample Shoes." On or about July 18, 1934, the special commissioner was duly appointed to take testimony in the bankruptcy proceeding under section 21a of the act, 11 USCA § 44 (a). On or about July 23, 1934, Turk was examined before this commissioner by an attorney for the petitioning creditors. Turk was represented by an attorney. Certain testimony was given by Turk at this hearing in which, among other things, he positively denied that he had ever sold any shoes to an auctioneer. That he had deposited his receipts in his bank account every day. That he kept a record of such receipts. That he had borrowed less than $100, from friends, during the past two years. This testimony is set forth in full in the certificate of the commissioner.

The examination was closed on August 8, 1934.

Within a few days thereafter Turk, by his attorney, notified the commissioner that he desired an opportunity to appear before him and sign his testimony and also make certain corrections.

Accordingly, on August 17, 1934, a period of about ten days after the said examination had closed, a part of which time the stenographer was writing out the testimony, Turk appeared before the commissioner and stated that before he signed the testimony he desired to change materially his testimony. Apparently a colloquy then took place in which the attorney for the receiver and that of the bankrupt and the commissioner each took part. In the end the commissioner allowed the bankrupt to make his statement as to the changes desired by him and then proceeded to set forth the testimony and changes in a certificate whereby the commissioner certifies that he finds that Turk had testified on July 23 and August 8, knowingly and falsely with the deliberate intention of concealing his transactions from the receiver and the court and that he therefore finds him in contempt of court.

Upon this certificate the attorney for the petitioning creditors then moved to punish Turk for a civil contempt. This proceeding came on to be heard before Judge Moscowitz who received briefs and reserved decision. Before he was able to make a decision, he was compelled to go to the Southern District of New York under a due assignment and referred the entire matter to Judge Campbell then holding Bankruptcy Term, who in turn, as the present application to punish Turk for criminal contempt was then pending before me apparently in accordance with a suggestion of Judge Moscowitz, referred all the papers in the civil matter to me.

As the two proceedings are distinct, the alleged civil contempt has been decided in a separate memorandum.

I shall now address myself to the criminal contempt proceeding instituted before me.

The bankrupt duly answered the petition of the government herein and counsel for Turk now moves to dismiss on the ground that it appears from the record, as a matter of law, that there has been no criminal contempt committed. The government relies entirely upon the said certificate of the special commissioner which sets forth in detail all the facts about which there appears to be little or no dispute. Certainly there is no substantial dispute about what occurred.

It appears therefore that the testimony of Turk given at the hearings under 21a which concluded on August 8, 1934, was untrue. We are not concerned now with whether or not Turk committed some other crime in so giving this testimony, but whether in so testifying he showed, beyond a reasonable doubt, that he had contempt for the court and was intentionally and deliberately trying to thwart the purpose of the investigation being conducted under section 21a of the act by the commissioner.

The present charge against him is a serious one. Punishment is not to be lightly considered nor imposed.

The law governing this court as shown in the light of the decisions is quite plain. Ample authority exists to punish a witness who obstructs and seeks to thwart a proper investigation whether conducted by a grand jury or by another duly constituted body. This is so whether the act forms the basis for prosecution for a crime other than contempt. Loubriel v. United States (C. C. A.) 9 F.(2d) 807. See, also, In re Schulman, 177 F. 191 (C. C. A. 2); In re Kaplan Bros., 213 F. 753 (C. C. A. 3); Haimsohn v. United States, 2 F.(2d) 441 (C. C. A. 6); United States v. Karns (D. C.) 27 F.(2d) 453.

The crimes of perjury and contempt are distinct. Blim v. United States (C. C. A.) 68 F.(2d) 484; Loubriel v. United States (C. C. A.) 9 F.(2d) 807.

Before a witness can be punished for criminal contempt, it must appear beyond a reasonable doubt that his "acts" obstructed and tended to thwart the investigations.

This word "acts" may embrace many things, one of them being the giving of testimony or failure to so testify, but, after all, it is this attitude of mind in the person that represents the...