# Respondents Brief — United States v. Wilson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 309

## Text

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

Oe. Oe em et eee ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0056%3A6. Public record. Not legal advice.