United States v. Carmine Galante and Anthony Mirra

FRIENDLY, Circuit Judge

(concurring and dissenting).

I concur in the dismissal of Galante’s appeal as moot, although regretting the action, 290 F.2d 908 (2 Cir. 1961), that made it so. With respect to Mirra, I agree that the judge was not required to utilize the full-scale procedure of F.R. Crim.Proc. 42(b). Nevertheless I would reverse the conviction because of the judge’s failure, of his own motion, to accord Mirra any opportunity to speak in explanation or extenuation, either in person or by counsel. In my view this was so fundamental a requirement that it is immaterial either that Mirra’s counsel did not affirmatively seek such an opportunity 1 or that the point was not urged before us.

*77 Audi alteram partem is basic to our law; “* * * it has long been a received rule in the administration of justice, that no one is to be punished in any judicial proceeding, unless he has had an opportunity of being heard,” Parke, B., in In re Hammersmith Rent-charge, 4 Ex. 87, 96, 154 Eng.Rep. 1136, 1140 (1849); see Windsor v. McVeigh, 93 U. S. 274, 277 , 23 L.Ed. 914 (1876). Very likely this principle underlies the historic rule requiring “allocution,” now applicable in the federal courts in broadened fashion under F.R.Crim.Proc. 32 (a) and not without at least analogical application here; that too imposes an “affirmative duty” on the court, whether request by the defendant is made or not, Gadsden v. United States, 96 U.S. App.D.C. 162, 223 F.2d 627, 632 (D.C. Cir. 1955). Long ago English courts extended the requirement to an administrative agency, even in the teeth of an Act of Parliament making no provision for hearing of any sort, Cooper v. The Board of Works for the Wandsworth District, 14 C.B. (N.S.) 180, 143 Eng. Rep. 414 (1863), 2 as they had done much earlier, in a famous judgment, with respect to a private body. 3 See also Smith v. The Queen, 3 A.C. 614, 624 (1878). Coming close to the problem here, the Judicial Committee of the Privy Council, in In re Pollard, 5 Moore P.C. (N.S.) 111, 16 Eng.Rep. 457 (1868), held the granting’ of an opportunity to make a statement to be essential before a sentence for contempt, even in the case of an attorney who had repeatedly indulged in remarks in open court that the judge considered insulting. Later, applying a Hong Kong ordinance relating to perjury, which provided that “where such perjury is committed by any person examined as a witness in open Court, it shall be lawful for the Court, instead of directing such prosecution to be instituted as aforesaid, either to commit such witness as for a contempt of the Court to prison for any term not exceeding three months, * * * or to fine such witness in any sum not exceeding one hundred dollars,” a dichotomy somewhat parallel to F.R.Crim. Proc. 42(a) and (b), the Judicial Committee ruled that the judge should have given the accused “an opportunity of giving reasons against summary measures being taken.” even though this does not appear to have been sought. 4 *78 Thus has Blaekstone’s much quoted statement, “If the contempt be committed in the face of the court, the offender maybe instantly- apprehended and imprisoned, at the discretion of the judges, without any further proof or examination,” 4 Com. 286, been qualified in the land that gave it birth.

Even a right so basic as that to speak in one’s own defense must sometimes yield, as was held in Ex parte Terry, 128 U.S. 289 , 9 S.Ct. 77 , 32 L.Ed. 405 (1888), to the overriding necessities of maintaining order in the court-room or of protecting officers of the court. Hence it may well be that if the judge had sentenced Mirra immediately after the latter’s remarks on April 3, no opportunity even to make a statement need have been given. But surely there was no such necessity here, when the charge was not made until the trial had ended. Although the delay did not prevent proceeding under Rule 42(a), since the basic facts were within the judge’s knowledge, an abridgement of the elemental right to make a statement in explanation or extenuation, justifiable in any case only because of “the need for immediate penal vindication of the dignity of the court,” Cooke v. United States, 267 U.S. 517, 536 , 45 S.Ct. 390, 395 , 69 L.Ed. 767 (1925), is not permissible when no such need exists. Offutt v. United States, 348 U.S. 11 , 75 S.Ct. 11 , 99 L.Ed. 11 (1954), is enough to show that Rule 42(a) is not to be given a literal application. Not a word in the Rule suggests that on some occasions the contempt proceeding must be before another judge — -indeed, it very nearly suggests the opposite — yet the Supreme Court held it to require precisely that under the circumstances of that case. However unlikely it was that anything that Mirra or his counsel might have said would have altered the judge’s determination, Mirra was entitled to the opportunity; 5 moreover, although I do not consider this essential, an argument such as that made before us on Mirra’s behalf might at least have led the judge to impose a lesser sentence than what my brothers characterize as a severe one for the sole incident named in the certificate.

I find nothing in the language of Rule 42(a) or in the decisions under it inconsistent with these views. “Summary Disposition” and “summarily” mean only that certain usual procedural requirements may be dispensed with, not that basic rights can be sacrificed. If examples are needed to show that these words do not imply a lack of opportunity for a response of some sort, 9 U.S.C. § 4 , F.R.Civ.Proc. 56, 28 U.S.C.A., and Supreme Court Rule 44, subd. 3, 28 U.S. C.A. will seiwe. Giving a defendant charged with contempt in open court a chance “to state why the judgment of the court should not be pronounced against him” was a procedure known long before adoption of the Federal Criminal Rules, In re Maury, 205 F. 626, 628 (9 Cir. 1913). Yet Rule 42(a) “did not confer power upon district judges not possessed prior to March 21, 1946.” Offutt v. United States, supra, 75 S.Ct. at 13 ; it “was not inserted in the Rules in order to ease the difficulties of prosecuting contempts,” Chief Justice Warren dissenting in Brown v. United States, 359 U.S. 41, 54 , 79 S.Ct. 539, 548 , 3 L.Ed.2d 609 (1959). Although in one sense the judge in Sacher had not afforded the defendants “a chance to say a word before he acted,” 343 U.S. at 14, 72 S.Ct. 457 , Mr. Justice Black dis *79 senting, he had, of his own motion, permitted each of them to address the court immediately after he read the certificates and orders, 182 F.2d 416, 418 (2 Cir. 1950), and surely would have altered these if defendants’ statements had proved persuasive; I therefore do not read Sacher as sanctioning the procedure here. This is particularly so since in Brown v. United States, supra, 359 U.S. at 52 , 79 S.Ct. 547 , in affirming a conviction for contempt under Rule 42 (a), the Court emphasized that “Before sentence was imposed, the petitioner’s counsel was fully, repeatedly and patiently heard.” See also Levine v. United States, 362 U.S. 610, 613-614, 618 , 80 S.Ct. 1038 , 4 L.Ed.2d 989 (1960). Important as is the right to a public trial, the lack of which a bare majority held in Levine not to require reversal in the absence of a request for it, under the particular circumstances there presented, it is not so completely basic as the right to be heard at all.

. One cannot tell how much chance there was to make such a request. Upon the motion for a mistrial being made, the judge said that, before acting upon it, he wished “to consider certain situations in the trial of this action” and proceeded immediately to read from the transcript of April 3, 1961. At the end of this reading, the following occurred:

“The Court: Upon the basis of the record in this court heard by me and seen by me I hereby sentence the defendant Mirra for contempt and direct that an order be prepared by the United States Attorney’s Office citing the facts which I have just mentioned and the sentence of twenty days to follow the present sentence now being served by the defendant Mirra on another charge.

“Mr. Katz [attorney for Mirra]: I take exception to the ruling.

“The Court: Very well. Now the defendant Galante.”

There was clearly no opportunity to make a request before the reading, and it seems rather plain that there was no time for Mirra to confer with his counsel afterwards.

. Chief Justice Erie sustained the plaintiff’s contention “that, although the words of the statute, taken in their literal sense, without any qualification at all, would create a justification for the act which the district board has done, the powers granted by that statute are subject to a qualification which has been repeatedly recognized, that no man is to be deprived of his property without his having an opportunity of being heard.” p. 187, 143 Eng.Rep. at p. 417. Byles, J., thought that “ * * * although there are no positive words in a statute, requiring that the party shall be heard yet the justice of the common law will supply the omission of the legislature.” p. 194, 143 Eng.Rep. at p. 420. For the development in the United States see 1 Davis, Administrative Law Treatise (1958), ch. 7.

. The King v. The Chancellor, Masters and Scholars of the University of Cambridge, 1 Str. 557, 93 Eng.Rep. 698 (1723). In this mandamus to restore Richard Bentley to his “academical degrees,” Mr. Justice Fortescue traced emit alteram partem back to the garden of Eden, saying (at p. 567, 93 Eng.Rep. at p. 704):

“The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence.”

For the more modern development see Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv.L.Rev. 993, 1015-1016 (1930), and authorities cited.

. Chang Hang Kiu v. Piggott, [1909] A.C. 312, 314, 316. The Committee added, at p. 316:

“This need not have involved, as suggested in argument, the case being thereupon retried and witnesses called, which would have deprived the alternative course of the summary character which *78 (it is reasonable to suppose) was deemed important by the framers of the Ordinance who enacted it as an alternative to formal proceedings for perjury; but it would have given an opportunity for explanation and possibly the correction of misapprehension as to wliat bad been in fact said or meant.”

More recently Samaratunga v. The Queen, [1958] A.C. 424, 432, recognized the principle of the Pollard and Chang Hang Km cases but held that an adequate “opportunity of giving reasons against summary measures being taken” bad been afforded.

. It is bard to believe that anything that could have been said by Pollard, supra nóte 4, would have affected the sentencing judge.