Respondents Brief — United States v. Wilson

IN THE -

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1162

UNITED STATES OF AMERICA,

Petitioner,

v.

THOMAS JOSEPH WILSON

and

BOBBY ANTONIO BRYAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT

THOMAS JOSEPH WILSON

SHEILA GINSBERG,

WILLIAM E. HELLERSTEIN,

PHYLIS SKLOOT BAMBERGER,

The Legal Aid Society

Federal Defender Services Unit

509 United States Court House

Foley Square

New York, New York 10007

(212) 732-2971

Attorneys for Respondent

Thomas Joseph Wilson

Washington. OC « CLE PUBLISHERS « LAW PRINTING CO « (202) 393.06 25

- ———

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............0 ce ecuueees |

ET MAGE 6 ck6o-0 06s 00 6664 6000060600668 2

SUMMARY OF ARGUMENT ...............0 000 uns 5

GU «0 0 6a bMS ooo UE 0c ch Khecbcccocecs 7

A respectful in-court refusal to testify premised

on Fifth Amendment grounds cannot, consistent

with Harris v. United States, 382 US. 162

(1965), be punished without the procedural

protections prescribed by Rule 42(b), Fed.R.

Crim Proc.

PEE cccdsoGhbbaneecheueras 4awnsecest 18

TABLE OF AUTHORITIES

Cases:

Anderson v. Dunn, 6 Wheat. 204 (1821) ............ 8,17

Bloom v. Illinois, 391 U.S. 194 (1968) .......... 8, 11,15

Brown v. United States, 359 U.S. 41 (1959) .......... 8, 16

Cammer v. United States, 350 U.S. 399 (1956) .......... *

Cooke v. United States, 267 U.S. 517 (1925) .... 8,9,10,11

Ex Parte Robinson, 19 Wall. 505 (1873) ............ 8,10

Ex Parte Terry, 128 U.S. 289 (1888) ...........055. 9, 10

Flores v. United States, 238 F.28 758 (9th Cir.

Dn icuauwes uke ees £0028 s 0060664000060 6% 16

Gompers v. Buck Stove & Range Co., 221 U.S. 418

Pn Screed carabieskendesbowe cues 10, 14, 17

Gompers v. United States, 233 U.S. 604(1914) ......... 1S

(ii)

Harris v. United States, 382 U.S. 162 (1965) ........ 5, ~¥

10, 11, 13, 16

In re Bradley, 318 U.S. $0 (1943) .. 0... eee 8

In re Michael, 326 U.S. 224 (1945S) ............00 cee 8

In re Murchison, 349 U.S. 133 (1955) ... 2.6.6. ee eee 8

J} &> § ') & [) (aaarreererT Tere 10

In re Veriker, 446 F.2d 244 (2d Cir. 1971) ©. 2... ...... 12

Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ......... &

Nye v. United States, 313 U.S. 33 (1941) 2.0... 6 ee ae 8

Offutt v. United States, 348 U.S. 11 (1954) ............ 10

Rex Trailer Co. v. United States, 350 U.S. 148

PE 66556 0.6666606066064000 0606004600855 17

Sacher v. United States, 343 U.S. 1 (1952) .......... 10, 16

Shillitani v. United States, 384 U.S. 364 (1966) ... 14, 16,17

Tate v. Ghest, GE USB. FOS CISTED cc ccccccccccces . 458

Taylor v. Hayes, 94 S.Ct. 2697 (1974) ... 0.6... ae 8,11

United States v. Manuella, 478 F.2d 440 (2d Cir.

Dt. 2464 css bbe 6es Sen 608 Cee 8 6nds éci dos 13

United States v. Marra, 482 F.2d 1199 (2d Cir

DD nx-66 66 Geeeen Gee ob 6 CEe 4056 6 6EbOhs 4408 17

United States v. United Mine Workers, 330 U.S. 258

Dn: -6é¢d60065 4056 6000006 0466006000060%6% 17

Williams v. Illinois, 399 U.S. 235 (1970) .... 2.0... .04.. 15

Yates v. United States, 355 U.S. 66(1957) ............ 17

Other Authorities:

Beale, Contempt of Court, Criminal and Civil, 21

CD Cann i eee ee cee ene es 9

Fox, THE HISTORY OF CONTEMPT OF COURT

PED, 6.6066 54606-0Ob COND EOEEE SECS 0S CoCOC ES 9

a eee Ct

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1162

UNITED STATES OF AMERICA,

Petitioner,

v.

THOMAS JOSEPH WILSON

and

BOBBY ANTONIO BRYAN,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENT

THOMAS JOSEPH WILSON

QUESTION PRESENTED

Whether a respectful in-court refusal to testify

premised on Fifth Amendment grounds can, consistent

with Harris v. United States, 382 U.S. 162 (1965), be

punished without the procedural protection afforded by

Rule 42(b), Fed.R.Crim Proc.

2

STATEMENT

Respondent Thomas Joseph Wilson was summarily

convicted of criminal contempt [18 U.S.C. §401(3)] for

refusing to testify at the bank robbery trial of Robert

Joel Anderson. Respondent, who had been indicted

with Anderson for the robbery of the Empire National

Bank in Tuxedo, New York,' had, nine days prior to

Anderson’s trial, pleaded guilty, but had not yet been

sentenced when called to testify. Judge Lasker, who

was presiding at Anderson's trial, was the judge before

whom respondent would be sentenced.

Unable to post bail pending sentence, respondent was

brought to the courtroom from Federal Detention

Headquarters without subpoena,’ placed on the witness

stand, and asked to testify (App. 4). He refused to

answer the prosecutor’s questions on the ground that

his answers might tend to inciiminate him and result in

a more severe penalty on the bank robbery charge

(App. 3).

' Anderson was also charged in this indictment with robbery

of the Nanuet National Bank in Mount Ivy, New York. In a

separate indictment assigned to the Hon. Irving Ben Cooper,

respondent Bobby Antonio Bryan was charged with helping

Anderson commit that crime. Bryan was also called by the

Government as a witness in Anderson’s trial. Despite the

sequence of the transcripts in the appendix, which indicates that

respondent was called before Bryan, the trial record establishes

that the reverse is true and that Bryan’s refusal to testify and his

conviction for contempt occurred first.

? Defense counsel objected in vain to this circumvention of

Rule 17, Fed.R.Crim-Proc. (App. 4).

3

Acknowledging that the pendency of Wilson's

sentence for the bank robbery was a “relevant legal

consideration” to his obligation to testify, Judge Lasker

attempted to sentence respondent immediately (App.

4). However, after hearing a description of respondent's

psychiatric problems’ and general background from

defense counsel and the probation department, Judge

Lasker concluded, “I do not beiieve that in this

complicated case I have sufficient information before

me to permit me justly to proceed to sentence with Mr.

Wilson” (App. 6-14).

Unable to obviate respondent's claim of possible

prejudice to him on his sentence for the bank robbery,

Judge Lasker concluded that respondent could not be

forced to testify (App. 14). The court also rejected

the Government's suggestion that respondent be given a

provisional maximum sentence, subject to the result of

a ninety-day study and observation, explaining that he

3A psychiatric examination ordered by the district court for

the purpose of the bank robbery sentence asserted that, because

of a schism with his family, respondent viewed himself as an

“unworthy and hopeless individual.” Respondent had also

received a medical discharge from the Navy due to emotional

maladjustment. Judge Lasker, in weighing sentencing alternatives

as to the bank robbery, acknowledged respondent's need for

psychiatric treatment (App. 11-13).

“Although the judge did not here explain his reasons for this

decision, he had earlier, at Bryan's contempt proceeding,

articulated that there was “no way” to insulate from a

sentencing judge’s knowledge either the substantive testimony

given or the refusal to testify itself (App. 24).

4

would not impose an arbitrary sentence merely to

accommodate the Government.°

Nonetheless, after hearing further argument by the

Government, Judge Lasker reversed himself and con-

cluded that although respondent had not been

sentenced. the Government's offer of immunity was

sufficient (App. 15-17). Accordingly, he granted

immunity and ordered respondent to testify (App.

17-18). Despite her request, at no time was counsel

afforded an opportunity to research the immunity issues

raised (App. 5-6). When respondent adhered to his

Fifth Amendment privilege, Judge Lasker immediately

convicted him of criminal contempt and sentenced him

to six months’ imprisonment, to run consecutively to

the sentence yet to be imposed for the bank robbery’

(App. 19, 20). The sentence was provisional and subject

to the court’s receipt of additional information about

respondent (App. 18). Execution of the sentence was

stayed pending appeal (App. 19).

The court of appeals unanimously reversed, holding

that the district court erred in proceeding under Rule

‘The court also expressed the view that, while not cumulative,

respondent's testimony was not essential, as two other witnesses

could identify Anderson (App. 15). As it turned out, even

without respondent’s testimony Anderson was convicted in a

second trial of the Empire Bank robbery.

*Not only did defense counsel request a brief continuance to

enable adequate preparation of a defense, she also specifically

objected to this “hasty” determination of the contempt issue

(App. 5).

"Respondent was eventually sentenced for the bank robbery

to an indefinite term of imprisonment as a youthful offender,

pursuant to 18 US.C.§5010(b). He is presently serving that

sentence.

5

42(a) rather than 42(b). Relying on Harris v. United

States, 382 U.S. 162 (1965), the court ruled, as it had

on a prior occasion, that the extraordinary remedy of

summary contempt was “inappropriate in the case of an

orderly refusal to testify on Fifth Amendment grounds

despite a grant of immunity” (Pet. App. 22).

SUMMARY OF ARGUMENT

The court of appeals, relying on Harris v. United

States, 382 U.S. 162 (1965), correctly held that an

orderly and respectful in-court refusal to testify could

be punished only after the hearing afforded by Rule

42(b), Fed.R.Crim. Proc. The Government proffers the

theory that because the conduct occurred in the

presence of the judge, a hearing was unnecessary, and

that immediate, summary punishment pursuant to Rule

42(a) was appropriate.

The Government's argument ignores the express

language of Harris, which limits the use of summary

punishment to “exceptional circumstances” constituting

“misbehavior.” Only the exigencies of a situation

engendered by misbehavior occurring in open court and

resulting in destruction of the dignity and civility of the

court and its process justify circumvention of the

procedural safeguard of Rule 42(b). Dis: bedience, the

conduct in question here, is not of the type punishable

by summary proceeding, for it can be satisfactorily

treated after application of procedural protections.

The distinction between misbehavior and dis-

obedience is historically based, and has been used to

prevent abuse of the contempt power. Further,

6

the function of the hearing under 42(b) is not simply,

as the Government would have it, to allow resolution of

factual issues, but also to enable counsel for the

contemnor to present legal defenses to the contempt

and factors in mitigation of the sentence.

The Government suggests that these safeguards

should nonetheless be abandoned because summary

contempt is necessary to procure testimony of

recalcitrant witnesses. This theory is not only inappli-

cable to the facts of this case—conviction here imposed

purely as punishment for refusal to testify—but also

is alien to contempt law which provides that civil,

rather than criminal, contempt is the remedy. The

proper procedure is the immediate imposition of the

civil sanction followed, should that fail, by imposition

of the criminal penalty after notice and a hearing. In

those rare instances where the testimony is essential and

previous incarceration renders the civil sanction in-

effective, thereby compelling government reliance on

the incidental coercive effect of the criminal penalty, a

brief adjournment of the on-going proceedings to enable

a Rule 42(b) hearing before conviction is the proper

procedure.

7

ARGUMENT

A RESPECTFUL IN-COURT REFUSAL TO

TESTIFY PREMISED ON FIFTH AMEND-

MENT GROUNDS CANNOT, CONSISTENT

WITH HARRIS v. UNITED STATES, 382

U.S. 162 (1965), BE PUNISHED WITHOUT

THE PROCEDURAL PROTECTIONS PRE-

SCRIBED BY RULE 42(b), FED.R.CRIM.

PROC.

The court of appeals held that an orderly refusal to

testify is not an exceptional circumstance justifying the

summary procedure of Rule 42(a) of the Federal Rules

of Criminal Procedure. The court's ruling was based on

its reading of Harris v. United States, 382 U.S. 162

(1965), which the Government argues was erroneous

because Harris must be read to hold that the

applicability of Rule 42(a) is governed solely by the

place of the alleged contempt, not its nature. Although

the conduct in Harris occurred before the grand jury,

the Court’s language and extensive analysis of Rule 42

renders untenable the Government's simplistic situs

formula.

Harris was decided in the context of the “concern

long demonstrated by both Congress and this Court

over the possible abuse of the contempt power*®

Sin 1831, the abuses of a federal district court judge named

James Peck led to the termination of the broad authority granted

by Section 17 of the Judiciary Act of 1789 to “... punish by

fine or imprisonment, at the discretion of said court, al!

and...the wording of the Rule.” 382 U.S. at 164.

Thus, it is stated that because it “prescribes the

procedural regularity of all contempts in the federal

regime” (/d. at 167), Rule 42(b) “is the norma!

procedure.” /d. at 164. On the other hand, Rule 42(a)

was specifically “reserved ‘for exceptional circum-

stances’ such as acts threatening the judge or disrupting

a hearing or obstructing court proceedings.” 382 U.S. at

164, citing Brown v. United States, 359 U.S. 41, 54

(1959) (dissenting opinion). Consequently, “{s] ummary

contempt is for ‘misbehavior’ in the ‘actual presence of

contempt of authority in any case or hearing before the

same...” | Stat. 83. To replace Section 17, Congress passed the

Act of 1831, which drastically limited the power to punish for

criminal contempt. In only three instances was it possible:

misbehavior in the presence of the court; misbehavior of court

officials in their official transactions; and disobedience of

or resistance to the lawful writ, process, order, or decree of the

court. 4 Stat. 487.

This concern for abuse of the power also found expression in

judicial decisions which drastically curtailed the substantive scope

of the power. Anderson v. Dunn, 6 Wheat. 204, 231, (1821)

(“least possible power to [achieve] the end proposed”); /n re

Michael, 326 U.S. 224, 227 (1945). The type of punishment that

can be imposed was limited [/n re Bradley, 318 U.S. 50 (1943),

Ex Parte Robinson, 19 Wall. 505, 512 (1873)], as were the

offenses to which the statute applied [Nye v. United States, 313

US. 33, 48 (1941); Jn re Michael, supra, 326 U.S. 224] and the

category of persons to whom it extended [Cammer v. United

States, 350 U.S. 399 (1956)]}.

Similar concern is manifest in the procedural protections that

have been afforded. Cooke v. United States, 267 U.S. 517, 536

(1925) [hearing and counsel]; Bloom vy. Illinois, 391 US. 194

(1968) [right to jury trial in serious contempt cases]; Taylor v.

Hayes, 94 §. Ct. 2697, 2704 (1974); Mayberry v. Pennsylvania,

400 U.S. 455 (1971); In re Murchison, 349 US. 133 (1955),

Cooke v. United States, supra, 267 US. at 539 [right to an

impartial judge] .

9

the court,’” where “‘summary vindication of the

court’s dignity and authority’” is essential. And the

Court’s reliance on only Ex Parte Terry, 128 U.S. 289

(1888), and Cooke v. United States, 267 U.S. 517

(1925), cases involving violent conduct in the court-

room and insolent behavior toward the bench, gives

meaning to “misbehavior” as a term of art in the

context of contempt law.

“Misbehavior” is historically quite distinct from

simple “disobedience” to a court order. From earliest

times contempt with respect to the latter has been

deemed “entirely different in its nature and origin”

from contumacious acts which physically disturb the

court. Beale, Contempt of Court, Criminal and Civil, 21

Harv. L. Rev. 161, 164 (1908). Indeed, disobedience of

a court order, previously the Writ of the King, is the

original predecessor of civil, not criminal contempt.’

Fox, THE HISTORY OF CONTEMPT OF COURT, |

(1927)."® The distinction is, of course, reflected in the

*The Government’s failure to recognize this fundamental

distinction explains the error of its conclusion that historically,

disobedience was subject to summary criminal punishment (Br. at

11-13). While disobedience may have been dealt with summarily,

it was treated exclusively as civil and not criminal contempt.

Beale, Contempt of Court, Criminal and Civil, supra, 21 Harv. L.

Rev. at 164; Fox, THE HISTORY OF CONTEMPT, 1, 3 (1927).

‘The distinction between “misbehavior” and “disobedience of

a court order” prevailed in the colonial period and appears in the

early precursors of present contempt laws. Without exception,

these historic antecedents establish that each of the thirteen

colonies enacted statutes which dealt separately with refusal of

witnesses to testify. See Appendix to the Government's Brief in

Harris v. United States (No. 6, October Term, 1965).

In each of eleven colonies which enacted separate statutes for

misconduct in the presence of the court [excepting Georgia and

10

very statute under which this case arises. Compare 18

U.S.C. §401(1) with 18 U.S.C. §401(3). Thus it is not

accidental that cases before this Court involving

misbehavior involved instances of violence, disorder,

physical disruption, and insolence. Ex Parte Robinson,

19 Wall. SOS (1783); Ex Parte Terry, supra, 128 U.S.

289; In re Savin, 131 U.S. 267 (1889); Cooke v. United

States, supra, 267 U.S. 517; Sacher v. United States,

343 U.S. 1 (1952); Offutt v. United States, 348 U.S. 11

(1954).

When abusive language is uttered in open court,

physical violence is threatened or actually occurs, or

insolence is demonstrated, the dignity and civility of

the court and its process are challenged. The urgency of

the situation is self-evident, and summary action is

required “to protect the judicial institution itself.”

Harris v. United States, supra, 382 U.S. at 167; cf Ex

Parte Terry, supra, 128 U.S. at 209; Cooke v. United

States, supra, 267 U.S. at 536. Where, however, there is

simple disobedience to a court order, the integrity and

dignity of the court is not in issue,'' and the situation

North Carolina] it was clear that the acts envisioned were those

of violence, disorder, disrespect, ie., swearing, tobacco chewing,

leaving the courtroom before discharge, and noise. /d. at 10-12,

33, 60-61, 117, 172, 187, 212, 267, 297, 343.

"Indeed, refusal to comply with a court order to testify,

absent special elements of contumacy, may well be viewed as

resistance not to the court, but to parties to the litigation.

Gompers v. Buck Stove & Range Co., 221 U.S. 418, 442 (1911).

See also Appendix to the Brief of the United States in Harris,

supra, which demonstrates that the majority of local colonial

governing bodies provided that the refusal to testify would result

in imprisonment (until compliance) or a compensatory fine.

es

is not the “exceptional” or “unusual circumstance” of

which Harris speaks. See also Bloom v. Illinois, 391 U.S.

194, 208-09 (1968). Thus, Harris and history mandate

that the applicability cf Rule 42(a) turns not only on the

place of the contempt, but on the nature and effect of

the conduct in question.'?

The Government also argues (Br. at 13) that when

the facts surrounding the contempt are within the

judge’s personal knowledge there is no need for a

hearing because the primary purpose of the Rule 42(b)

proceeding is to resolve disputed issues of fact. While

factual inquiry is, of course, one of the purposes of the

hearing, it is not its only function."*

In both Harris v. United States, supra, 382 U.S. at

163, and Cooke v. United States, supra, 267 U.S. at

537, the procedural protections of Rule 42(b) were

mandated despite the absence of a factual issue as to

the contempt itself in order to ensure the opportunity

to present legal defenses, propose alternative pro-

cedures, and present facts in mitigation.

In this case, had she been given the opportunity,

there was much that counsel could have done pursuant

'2Bven the cases cited by the Government (Br. at 22) to

establish the “general rule” that contempt committed in open

court is summarily punishable are all cases of misbehavior.

'31n fact, even if the contempt occurred in the presence of the

court, jury trials are constitutionally mandated when the penalty

imposed is more than six months. Bloom y. Illinois, 39\ U.S. 194

(1968). See also Taylor v. Hayes, supra, 94 S. Ct. at 2702-04,

where a hearing was mandated despite the judge’s personal

knowledge of all the facts.

12

to the plenary procedures of 42(b).'* Since respondent

had not been sentenced and could still move to

withdraw his plea, counsel could have developed a

defense based on the transactional immunity provisions

of 18 U.S.C. §§2514, 2516."* In re Veriker, 446 F.2d

244 (2d Cir. 1971). Counsel could also have obviated

the necessity of a contempt finding by proposing the

very procedure described in the court of appeals

decision—that the record of respondent’s testimony be

sealed and the matter referred to another judge for

sentencing. (Pet. App. 21). Indeed, not only did the

district court ignore this possibility, it fostered the

belief, to respondent’s detriment, that there was no

manner in which he could be protected at sentence

from prejudice caused by his testimony.

Finally, counsel could have developed all factors

germane to sentencing as contemplated by Harris itself:

... [A] hearing and only a hearing will elucidate

all the facts and assure a fair administration of

justice. Then courts will not act on surmise or

“The Government’s reliance on the fact that counsel presented

no defense (Br. at 16) is disingenuous since the absence of a legal

defense is necessarily the result engendered by refusal to provide

notice and a hearing.

SRespondent was granted use immunity under 18 U.S.C.

§ §6002-6003. However, since he was indicted for bank robbery

(18 U.S.C. §2113) and was being questioned about that very

crime, it was indeed arguable that he was entitled to the broader

immunity afforded by 18 U.S.C. §§2514 and 2516. Although

repealed, these provisions do not become inoperative until

December 15, 1974. See Pub.L. 91-452, Title Il, §227(a),

enacted October 15, 1970, but “effective four years following

the sixteenth day after the date of enactment....”

et RE tT

I 8S ay

13

suspicion but will come to the sentencing stage of

the proceeding with insight and understanding.

382 U.S. at 167.

In this case respondent received the maximum

penalty despite evidence which, even on this paltry

record, suggested that his refusal to testify stemmed

from emotional difficulties. In fact, it was the very

absence of adequate psychiatric evaluation that pre-

cluded the district court from sentencing respondent

immediately on the bank robbery charge despite the

court’s strong wish to avoid the contempt issue by

doing so. Thus the court of appeals correctly observed

that

[with additional time to prepare a defense,

counsel for Wilson might have enlarged on the

issue of [Wilson’s] mental health, and perhaps

shown a relationship between any psychological

difficulties and the refusal to serve as a witness.

(Pet. App. 24).

Therefore, contrary to the Government’s assertion

(Br. at 18), this record is not silent with respect to

mitigating circumstances. Moreover, as the Court

itself, noted in Harris v. United States, supra, 382

U.S. at 166, a silent record is the beginning, not the

end, of the inquiry.'®

‘The Government is also wrong when it suggests Judge

Lasker’s willingness to entertain a later motion for reduction of

sentence compensates for the deficiencies of the sentencing

procedure under 42(a). Such procedure is improper under United

States v. Manuella, 478 F.2d 440 (2d Cir. 1973), as was argued

below. However, the court did not have to reach this issue.

14

Ill

The Government's final argument that summary

imposition of the criminal sanction is justified because

it is the only device that will produce desired testimony

is also misconceived. It is civil, not criminal contempt,

which is designed to secure compliance. As the Court

wrote in Shillitani v. United States, 384 U.S. 364

(1966):

“It is not the fact of punishment but rather its

character that distinguish” civil from criminal

contempt. Gompers v. Buck Stove & Range Co.,

221 U.S. 418, 441 (1911). Despite the fact that

[petitioners] were ordered imprisoned for a

definite period their sentences were clearly in-

tended to operate in a prospective manner—to

coerce rather than punish. As such, they must

relate to civil contempt. While any imprisonment,

of course, has punitive and deterrent effects, it

must be viewed as remedial if the court conditions

release upon the contemnor’s willingness to testify.

384 U.S. at 369-70.

Nothing serves tc demonstrate the foregoing more

than the facts in this case. Judge Lasker did not im pose

this criminal sentence to coerce respondent's testimony.

The record is clear that the sentence was imposed as

punishment for refusal to testify: no expectation that

the sentence would produce compliance was expressed,

and there was no promise of sentence reduction should

respondent change his mind. The sentence was made

“provisional” strictly because the judge was without

sufficient information to arrive at a proper sentence.

Moreover, the possibility of even inadvertent coercion

ee ee

15

was precluded when the sentence was stayed pending

appeal. As Judge Lasker stated:

I will stay the execution of the sentence until

the appeal is determined and | will consider a

reduction of the sentence should the appeal affirm

my ruling so that I don't think anybody needs to

be worried about the situation at the moment.

(App. at 19-20. Emphasis added).

Assuming arguendo'’ that civil contempt will not

effectuate compliance, the criminal sanction does not,

ipso facto, become legitimate for that purpose. Criminal

contempt which seeks to vindicate the court’s authority

is punitive in purpose. Shillitani v. United States, supra,

384 U.S. at 370; Gompers v. Buck Stove & Range Co.,

supra, 221 U.S. at 442-43. Its liability is greater than

civil contempt for not only does it penalize, it

stigmatizes a contemnor with a criminal conviction.

Bloom vy. United States, supra, 392 U.S. at 201;

Gompers v. United States, 233 U.S. 604, 610 (1914).

That a criminal contempt sanction may have an

incidental coercive effect does not eradicate the

distinction between civil and criminal contempt.

'"The Government's assertion (Br. 16) that in the instance of

short trials or where, as here, the witness is already incarcerated,

criminal contempt must be used in place of the civil remedy to

coerce testimony finds no support in fact or law. This theory

indulges in pure speculation by concluding that even a short

period of incarceration pursuant to a civil contempt order will

not produce compliance. The sting of imprisonment, however

brief, will have a strong impact on most men. In respondent's

case, imposition of a criminal penalty merely because he was

already incarcerated due to indigence itself raises constitutional

questions of substance. Tate v. Short, 401 US. 395 (1971),

Williams vy. Illinois, 399 U.S. 235 (1970).

a EE

16

Shillitani v. United States, supra, 384 U.S. 364. Nor can

the coercive effect be used in a bootstrap fashion

to circumvent the procedural safeguards normally

attendant on the criminal sanction. If the Anderson

trial could not have continued without respondent's

testimony, an hypothesis boldly contradicted by the

record,’® it was open to the judge to adjourn the

proceedings for a short period of time to hold a Rule

42(b) hearing. This would have insured respondent's

procedural rights without impairing the on-going trial.

Harris v. United States, supra, 382 U.S. at 164.

It is also doubtful that immediate rather than

subsequent imposition of a criminal sanction would be

successful in procuring testimony. Disobedience is best

overcome by the knowledge that a continuing failure to

cooperate will result in severe punishment. See Sacher

v. United States, supra, 343 U.S. at 37 (Mr. Justice

Frankfurter, dissenting). In contrast, the finality of a

criminal sentence, rather than encouraging compliance

with an order to testify, may well, because the penalty

has already been imposed, make the decision not to

testify immutable. In short, as one might say, the

significance of the Damocletian sword is not that it falls,

but that it hangs.'*®

*Judge Lasker was obviously correct when he found that the

testimony was not essential, since Anderson was eventually

convicted without it.

"Moreover, since the power to grant motions for a reduction

of sentence pursuant to Rule 35 is purely discretionary [Brown

v. United States, supra, 359 US. at $6 (dissenting opinion);

Flores v. United States, 238 F.2d 758 (9th Cir. 1956)], the

prospect of a possible reduction is far less certain or attractive

than the guarantee of release from incarceration imposed

pursuant to civil contempt or the likelihood that criminal

sentence could be avoided by cooperation.

17

The procedure for dealing with recalcitrant witnesses,

suggested by the Court and adopted by the court of

appeals, provides that a judge intent upon obtaining

testimony can immediately give the witness notice of a

charge of criminal contempt and summarily incarcerate

the witness for civil contempt pursuant to 28 U.S.C.

§1826(a). If and when the civil remedy fails, the judge

is then free to conduct a Rule 42(b) hearing to

determine whether the witness should be convicted of

criminal contempt and punished. Yates v. United States,

355 U.S. 66, 75 (1957); see also Rex Trailer Co. v.

United States, 350 U.S. 148, 150 (1956); United States

vy. United Mine Workers, 330 U.S. 258, 299 (i947),

Gompers v. Buck Stove & Range Co., supra, 221 US.

at 452: United States v. Marra, 482 F.2d 1199, 1202

(2d Cir. 1973).

Initial resort to the civi! sanction ensures that “the

least possible power to the end proposed” will be used.

Shillitani v. United States, supra, 384 U.S. at 371;

Anderson v. Dunn, supra, 6 Wheat. at 231. Moreover,

there is no diminution of the judge’s power to

incarcerate or to protect the process. As with summary

criminal contempt, the recalcitrant witness is im-

mediately imprisoned, but when punishment is called

for it can be achieved without depriving him of the

procedural protections which are designed to enhance

the accuracy of the proceeding.

CONCLUSION

For the foregoing reasons, the judgment of the court

of appeals should be affirmed.

Respectfully submitted,

SHEILA GINSBERG,

WILLIAM E. HELLERSTEIN,

PHYLIS SKLOOT BAMBERGER,

The Legal Aid Society

Federal Defender Services Unit

509 United States Court House

Foley Square

New York, New York 10007

(212) 732-2971

Attorneys for Respondent

Thomas Joseph Wilson

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