Widger v. United States
Decision Date | 26 June 1957 |
Docket Number | No. 16201.,16201. |
Citation | 244 F.2d 103 |
Parties | Harry WIDGER, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
F. Irvin Dymond, New Orleans, La., for appellant.
E. E. Talbot, Jr., Asst. U. S. Atty., M. Hepburn Many, U. S. Atty., New Orleans, for appellee.
Before HUTCHESON, Chief Judge, and CAMERON and JONES, Circuit Judges.
Appellant, Harry Widger, was sentenced to a year's imprisonment for refusal to answer questions asked him in a criminal prosecution.1 The sentence was to begin at the termination of a sentence of life imprisonment for murder appellant was already serving in the Louisiana Penitentiary.
Appellant had plead guilty to murdering one Henry Stern in New Orleans, Louisiana, June 16, 1950. He was called by the government as a witness in the prosecution of Anthony Maenza for violating Title 18, Section 1073, United States Code Annotated, by traveling in interstate commerce with intent to avoid prosecution for said murder.2 Appellant refused to answer questions by the United States Attorney and the Court on the ground that to do so would subject him to imminent danger of being murdered.3 He answered that he was not standing on any constitutional right, that no threats had been made against him but he asserted that he was positive that he would be killed if he testified.
The Court took appellant upon examination and reminded him that if a detainer were not placed against him, he could be released after ten years and six months, stating, "You realize that if you refuse to testify in this and other cases growing out of this killing, that you may wind up the only one serving time for the offense". Appellant's attitude remaining unchanged, the hearing was recessed for the night with the statement by the Court to the witness: "Well, you had better give this some more thought".
The following morning appellant was asked whether he knew Anthony Maenza and whether he drove from New Orleans to Memphis on the evening of June 16, 1950, and whether he, Joseph Bagnola and Anthony Maenza were at the Stern home on the night of June 16, 1950, all of which questions he refused to answer on the plea that to do so would be to sign his death warrant.
The Court thereupon read to appellant the "pertinent Louisiana law" governing the rights of prisoners sentenced to life imprisonment to obtain commutation of their sentences under the circumstances there recited and stated, "Now the Court orders you to answer these questions"4. Upon appellant's refusal to answer, the Court stated:
The Court was proceeding under Rule 42(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.5 The foregoing took place in open Court on May 21st and 22nd and the judgment was signed June 20, 1956. This judgment recited that appellant refused to answer the questions propounded to him, that he was ordered to answer said questions and failed to comply and that "for the reasons orally assigned", he was adjudged guilty of contempt for wilfully and knowingly violating the orders of the Court.
During the foregoing proceedings, appellant was not represented by counsel and no interval elapsed between the refusal to answer the questions and the adjudication of contempt and no notice was given him (except as appears from the language quoted above), that he stood charged with contempt.
On June 1st, eight days after the proceedings above outlined and nineteen days before the judgment was entered, appellant appeared by attorney and filed a "Motion to Vacate the Judgment of Conviction and to Recall the Sentence", same being sworn to by the attorney and supported by appellant's affidavit. The motion set out that, in view of the fact that appellant was under life sentence and was not subject to parole as long as the contempt sentence remained outstanding, that sentence would cause appellant to be imprisoned for the rest of his natural life rather than for a term of ten years and six months as was customarily the case with prisoners whose behavior was good. Appellant's affidavit stated that he would be subjected to danger of loss of his life or grave bodily harm if he testified against Maenza, and that the warden of the prison had expressed in the presence of a number of officials that such testimony by appellant would "tend to place him in grave danger of physical harm."6
The Court below entered its judgment without passing on this motion to vacate and to recall the sentence and without hearing any testimony to determine the truth or falsity of the statements and claims made by appellant. This we think was error. A Court would not lightly require a witness to testify if it were convinced that death or serious bodily harm would ensue therefrom. The Court below evidently did not believe appellant's testimony. But it had no right to reject without a hearing his uncontradicted statements and particularly was this true when appellant's statements were buttressed by his affidavit and that of the attorney in connection with the motion. From these documents it appeared that the warden of the penitentiary would tend to corroborate appellant's testimony and that the United States Attorney had been advised of appellant's apprehensions.7
The Supreme Court8 reversed a decision of the Court of Appeals for the Third Circuit9 which struck from the record and refused to consider a "Petition for Reconsideration of Allowance of Bail Pending Appeal" filed in the District Court two weeks after the contempt order had been entered, on the ground that the facts disclosed by the petition were "not before the court when it found appellant in contempt". In doing so, the Supreme Court emphasized the solicitude which courts should employ in probing every available source of truth in determining whether the court ought to "discharge the contemnor for good cause". We hold that it was error for the Court below to fail to have a hearing and to consider the facts disclosed in the motion, filed as it was prior to entry of the order sentencing the appellant, especially in view of the harsh results the Court below and appellant's attorney thought to be a consequence of such a sentence.
Moreover, we do not think the proceedings in the Court below were conducted in obedience to the requirements of Rule 42(a). By its terms, a criminal contempt may "be punished summarily" only "if the judge certifies" that he witnessed the alleged contemptuous conduct and that it was committed in his actual presence. The rule further provides that the order must "recite the facts". This record contains no certificate at all by the judge and the order does not recite any fact but merely the conclusions of the Court.
This rule providing for punishment of contempts summarily must be given a "narrow construction" providing, as it does, for punishment without affording the accused "the normal safeguards surrounding criminal prosecutions"; it being plain from the history of contempt procedures that the courts and congress have demonstrated a definite "plan to limit the contempt power to `the least possible power adequate to the end proposed'".10 It is, therefore,...
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Brown v. United States
...reprisals, a not unreasonable fear in such circumstances. Regardless of the legal significance of such a defense, see Widger v. United States, 5 Cir., 244 F.2d 103, a hearing would have provided an opportunity for presentation of such facts to the judge and might well have affected the leng......
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...be meticulously careful to observe * * * (procedural) safeguards,' Yates v. United States, 9 Cir., 227 F.2d 848, 850; Widger v. United States, 5 Cir., 244 F.2d 103, 107; * * *." 502 P.2d at In Townes we were concerned with the need for the trial judge to file an order which certified in spe......