# Opposition Brief — Blackmer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0112%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1932 - **Citation:** 284 U.S. 421 ## Text — . ; : ee Ee ee. FILECOPY ~~ #|_ As1a10 3 3 fcteercos on Th the Supreme. Court of the: Unite States - OCTOBER TERM 1931. Nos. 200-201. ; | Harrt M. Buacksian, Ei Petitioner, ) Vs. Unitep Sratzs,. . ' Respondent. BRIEF. IN OPPOSITION TO THE PETITION FOR _ WRITS.OF CERTIORARI | To the Court of Appeals of the District * —_— df Leo A, eves, United.States Attorney, 5 District of Columbia, Washington, D. C., { Artzz Pomzrenz, | - Special Counsel, 1857 Union Trust Building, Cleveland, Ohio, Attorneys for Respondent. - Frank Hagrison, . ‘ | 1857 Unioh Trust Building, Cleveland, Ohio, Of Counsel. in . : 72 PE ES LAINE Tux Garxs Least Pusiisurma Co., CLEVELAND, O. he the Supreme Cain of the United States : _ OOTOBER TERM 1931. Nos. 200-201. Harry M., Bracken, Petitioner, VS. _ ‘UnitEp Srarss, . 4 Respondent. | BRIEF IN OPPOSITION. TO. THE PETITION FOR 3 WRITS OF CERTIORARI ak \—. To the Court of Appeals: of the District of Columbia. —_ A. Rover, , ‘United Statcs Attorney, District of Columbia, ‘ Washing.on, D. C., ATLEE Pomerene, — : Special Counsel, | 1857 Union Trust Building, Cleveland, Ohio, ’ * ; ai - Respondent. Frank Harrison, | 1857 Union Trust Building, Cleveland, Ohio, Of Counsel. > . ‘i F ‘ * - Ps . « . . . ‘ c @ . sd . a 5 « © A ‘ © a ’ } ' : a e . . ® ‘ . o - a . . . . . . z . 4 e | ig : « $ Qe? . / 5 - = e - . S ‘ ‘ . 2 . . ° . . e P ’ . = / wT © = . ° . . ?. - . . a : | é . rm > e . - : . . / “ “ « . - . . + ? -- . os r . ¥ ’ . : . . ‘ s ‘ - . . . ? . : : - ° 3 : “ ‘ . . : . " . 4 . . , . . i -s% Ps a e . . e° “XN ; 4 . ° id 4 » “ e ‘ ° ‘ e -" + ~ . ° » : J 4 ~- © “0 . . . . > . fa] rie s > ’ , ‘ ve @ : * e . . , ° - . . ’ 2 ‘ " ge . . ‘ . ? : . os - , a ° . . > : . . - % - Spee . ‘ e * ‘ - 2 P ‘ ‘ ‘ . DS ‘es e ‘ 2° . ‘ a val - * = * / . 4 . . * - ‘ % TABLE OF CONTENTS. Statement of the Case Procedure in No, 9131 Procedure in No. 5132 _ Summary of Facts Summary of the Act and Proceedings Thereunder .... The Constitutionality of a ‘Statute Will Be Presumed 14 | - Answering Petitioner’s Point A .......@7™\........ -_ ° me The. Act of . July 3 18 and the ee Herein Do Not Violdte Due Process Under the. Fifth Amendment of the Constitution af Duty of Protection of the Citizen by the Govern- ment and Obedience by the Citizen to His Gov- .ernment Whether at Home or Abroad ; III.. Under the English Common Law and the Acts of .° Parhament Citizens Abroad and Not Returning ~ Home When Summoned Are Guilty of Contempt . Under the Revenue Acts Non-Resident Citizens Are Liable for Taxes on Income.Earned in Busi- ness in Foreign Countries : F Citizens Punishable in the United States for Offenses Committed on the High Seas-or in ~ Foreign Countries . Appellant Fails to See That This Proceeding i is .One Quasi in Bom or in Rem and Not in Ber- -AJT udgment in Personam May be ae in State Courts Against a Citizen Absent from the 15 . ate, Where Service is Per lly Made With--” out the State Under a Statute go Authorizing .. . Contempt Proceedings Are Sui Generis . Process of a Court May Extend by Legislative Authority from one District to Another _- X. Likewise Process of Court May Be Extended by - . Congress to Foreign Countries ...... Vem XI. No Special Form of Procedure or Notice Re- quired BIS Sha a Fees er ea ‘ere eee Answering Petitioner’s Point Re ce Thé ‘Proceeding is Quasi in Rem, or in Rem, Not ‘in Personam. va Answering Petitioner’s Point C........ ae ree oe ae he Petitioner Had Actual Notice of the Offense Charged and the Government’s Claim Against His Property. ors le OE: Answering Petitioner’s I TD gs ng ho oe Tae ,\ The ‘Search and Seizure Provided by the Act is © Not an Unreasonable Search and Seizure and Does Not Violate the Fourth Amendment. ' Answering Petitioner Se ee ere - he Provisions of the Act for Hearing and Judg- ment in His Absence and‘ Without His Consent Do e _ Not Violate Due Process. ° | Answering Petitioner’s Point | ER ere re toe The Petitioner Complains that the Act Violates the Sixth. Amendment Because It Does Not Give - to the Defendant in a Criminal. Prosecution the 37 . 38. Right to Extra-Territorial Subpoenas, or td Have’ ’ Compulsory Process in His Behalf. * Answering Petitioner’s 8 er ane orrn i: The Act Is Not Arbitrary, Capricious’ and Unrea- “sonable. | . Answering Petitioner’s Point H-a ees preg ceees Procedural Points. | ; bite Petitioner Complains of Lack of Proper Showing ca. for Subpoenas. = ara? en .- Answering Petitioner’s Point H-b .........- cy oe Petitioner Complains that the Subpoena Did Not Carry Notice of the Act. 39 Answering Petitioner’ s Point H-c ..... FECES sais a . Petitioner. Complains that There Was No Notice of the Alleged ear or of the Claims Against His Property. Answering Petitioner’s Point = UAL eee arene . Levy and Seizure in No. 5131 Not Abandoned. | Answering Petitioner’s Point H-e ......... EEN, eee 43 Petitioner Claims He Was, Subpoenaed to Attend. ** ‘Prial on April 2, 1928, and Not on _— 9, 1928. Ny III vs Cooper v. Reyholds, 10 Wall. 308 ae iver: Poe Bs 96 © Fletcher v. Peck, 6 Cranch. 87,128 ......: putat es oe 7 ee. oe nS Galpin v. Page, 18 Wall. 350 ......... Sn ee 26 Glass-v. The. Sloop ‘Betsey, 3 Dallas, EO peer ae om . Gompers-¥, y. Bucks ~— & Range Company, 2216. ia a RRS ea ia ee re eens oe Gompers Re, 40 App. D. Cc, 293. rere eer ay 30 . 2 ? H. > . ’ “’ | | : Hammond et al. v. District Courts 298 Pin. 758 ae pire 38 Hendrickson In Re, 167 N: W. Rep. ee cn ; a. is nowles v. Luce,:Meore 109; 72 English Rep. Full Re- or ae eae ee eee Meeks’ AY coe 18,41 ee tn a ae Langdon t. Doud, 6 Allen; 423 ....:........:. Bitar 28 - Luria v. United States, 231 U..S. 9 Cae ee © | Massachusetts Bonding é Insurance Company v. Con- -- erete Steel Bridge haere 37 Fed. (2d) 695 “a ©. ©. Ai) oie eee bee e eee eee e ete Mellen v. Moline Fron Works, 131 U. 8. $52 ..:....... 3 “Michaelson v. United States, 266 U.S. 42... ue :30, 36, 37 ‘Minder v. Georgia,.183 U.S. 559 ............5 00.5 26. Minor v. Happersett, 21 Wail. Mes ig hess eT Missouri v. North, 271 U. S. ae a i. ff ine. Myers v. United States, “264 a S. 95 ...... Pee tees _ 29 ; aa v. Hitchcock, 25 D. 0. i 200, 205 ° . Mchols-v. vangnam, 217 Mass. 548 — ; O. ; Onden e Saunders, 12. ;Wheat. 213, 970 | P.. R. hidieae a Wellman, 143 U.S. 339, 345, 346 .. , Robertson v. Railroad Labor Board, 268 U. S. 619 26, 40° Rose v. . Himely, 4 Cranch 241 | S. ‘Savin, Petitioner, 131 U. S. 267 Schooner Exchange v.M ’Faddon, 7 Cranch, 116 * Schwartz v.'United States, 217 Fed. 866 Sinking Fund Cases, 99 U. S..700; 718 ao a re ‘Toland v. Sprague, 12 Peters 360 Umited States v. Bowman, 260 U.S. 94 United States .v. Heinze, 218 U. 8. 532 ‘ ; a - W. c ae - ; | Waters-Pierce Oil Company v. Fexas, 212 U.S. 86... e Text and Reference Books. B Chethes: Cheney Hyde: International Law Digest, Vol. 1, page 424, paragraph 240 ..............---.--. 18 Cooley’s Principles of Constitutional ‘Law, 163 et seq. 14 - 1 Foster’s Federal: Practice, eae a ND “ae 35 L. R. A. pp. 296-297 ...:.....- Bae tase Sad eens 28 Miller on the Constitution of ‘the Umted States pp. s- 294-295 pan tye inentnnensaraeenwecrerstereer es: yi Moore: International Law Digest, Vol. 1, pp. 255, 256 17 a Roses Notes; 396, 397 et seq. ......+ hasten ees eae ae 2 Roses Notes, 412, 418 et seq. ..... trl vee he eee 14 Vattel, “The iow of Nations,’’ 1853 Edition, pp. 105, 17%, 273, 174 ... -....--- eee eee ee creer es 17 Willoughby on the teedintion, pp. 247, 548, Secs. 120, ee teRG kind edad dads se eee woe oss a a United States Statutes. ; Act of July 3, 1926 (44 Stat. 831, 835 ; U. S. C. A. Tit. 28, Sees. 700-718 Oe 36 Clayton ‘Act of 1914 (U. S.C. A. Tit. 28, Sec. 387) . 35 The Judicial Code, Sec. 574(U. S. C. A. Tit. 28, Sees. ae 118, 655, 877)... tee ... 81, 32,33, 43 " The Judicial Code & Judiciary, _— 2, Paragraph A RR El oa RE, PR _#Revenue Act of 1921, Sec. 210 (42 Stat. 227, 233) . 19 ody ne Abbreviation. | a Printed Record ........ anor SE, EN rE : * ‘ to subpoenas issued out of said court. and directed to. | Ih the ii Cin of the United States OCTOBER TERM 1931. Nos. 200-201. ' Harry M. BLAckmer, Petitioner, _ = *Uyrimp States, Respondent. BRIEF IN: OPPOSITION. TO THE PETITION FOR WRITS OF CERTIORARI To the Court of Appeals of oe District of __—— ¥ To the Honorable, Cheetos Evans Bajos, Chief Justicg, of the United States, and the ‘Associate Justices of the . ‘Supreme Court of thé United States: , . The United States, the respondent herein, submits this | brief i in opposition to the petitions for writs of certiorari. - Opinion of the Supreme Court of the District of Co- . lumbia Printed in Record, No. 5131, at pp. ' 20-33, 58- 65; in Record, No. 5132, at. ‘pp. 42-49. . ” Opinion of the Court of Appeals of the District of Columbia Printed in Vol. 49 _ ad ees STATEMENT OF THE CASE. The petitioner, a citizen of the United isten sees tried -in the Supreme Court of the District of Columbia in two cases for contempt, No. 16 and No. 18, in failing to respond r MEERA DIERKS TE OEM 2 eo consuls of the United. States then in 1 France to be served _ upon the petitioner, Harry M. Blackmer, then residing in Paris. The subpoenas were issued under the “Act of J uly 3, 1926, commonly known as the Walsh: Act. All proceed- ings herein were taken under the ‘said Act. The late Mr. Justice Siddonstried the cases arid sentenced Blackmer to pay a fine of $30,000 and*‘costs in each case. An appeal was taken by him to the Court of Appeals ' of the District-of Columbia. The cases in said: court are ‘designated respectively as No. 5131 and No. 5132. On April 6, 1931, the Conrt of Appeals of the District of Columbia, Mr. Justice Robb delivering the opinion, af- firmed the judgments and sentences of the trial court. Case No. 43,324, Cnited States v. Harry F. Sinclair and Albert B. Fall, indictment for conspiracy to defraud, was assigned for trial on October 17, 1927. PROCEDURE IN NO.. 5131. ve ‘On May 13, 1927, counsel, representing the govern- ment, filed their petition, signed by thém and sworn to by’ Owen J. Roberts, praying for the. issuance of subpoenas - ‘under the Act: of J uly 3, 1926, fae, Harry M. Blackmer and another to attend’ the trial in Washington. The United: States Attorney, Honorable Peyton Gordon,.and Special Assistants to the. Attorney General, Owen J» Roberts and _ Atlee Pomerene, set out-in said petition that the attendance ~ of said witnesses was vital. and important to the United States; that they had knowledge and information with re gard to certain important facts which the United States ‘desired, to prove” in said case and that ‘their ane” as-to said facts would be material i in connection with the | establishment, not only of ‘ the conspiracy charge between the said defendants, but in-connection with certain sete \ we done in pursuance thereof, , and particularly they set: t that said witnesses could testify to facts: concerning ~~ ae 2 ° . 3 - the persons, who, in the latter part of the year 1921, were . the stockholders in the Continental’ Trading Company Limited, and with regard to the distribution by. that cor- . - . poration to its stocMholders of certain 314% Liberty Bonds, ~ which were subsequently delivered by the defendant, Harry F. Sinclaix, to his co-defendant, Albert.B. Fall. (R. 5131, pp. 1-3) ‘eee The court issued an order granting said subpoenas,. addressed to certain consuls of the United States in France, to be served upon said witnesses for their appearance in Criminal: Court No. 2 in Washington on the 17th day of * October 1927, and requiring that the said witnésses should each be tendered Five Hundred Dollars ($500.00) for. necessary expenses jn traveling to ‘Washington and return and attending the court. Said subpoenas were in the tsial form, from ‘‘The President of the United States to H. M. — Blackmer,’’ commanding him to attend said court on Octo- _ ber 17, 1927, at 10 o’clock A. M., to testify on behalf of the United States and ‘‘not @epart the court without leave of © ’ the cotirt’ or District Attorney.”’ (R. 5131, p. 7) , _ Two subpoenas were served, one by George Orr, consul of the United States at Paris, directing him to serve the subpoena and make return thereof to the coyrt. His return ~.. (R. 5131, p. 8) shows that the witness Blackmer was served — personally, on the ’27th day of May 1927, at his usual place _ Of residence, and the original of said subpoena left in his - hands, and the said consul tendered him Five Hundred Dol- lars ($500.00) for traveling expenses, which he, refused. On June'7, 927, a similar subpoena was served by Ray- mond Davis, consul of the: United States at Paris, upon ~ » ___Blackmer personally by reading the same to him and leav-— ~. inga duplicate copy with him at Paris. He also tendered: to the said Blackmer Five Hundred Dollars ($500.00) in _ currency, which tender Blackmer refused. (R. 5131, pp. 9-10) . | | | iy a in nce ‘ “= + Blackmer ‘failed to appear in court at ‘the time re- . quired. ‘His name was called by the - Clerk. Counsel representing him appeared for the purpose of explaining to the court why Blackmer was not present. The record — shows that he was not in court in response to the subpoena . _ and would not be. (R. 5131, p. 11). , "On November 4, 1927, counsel for the government filed their petition for a rule in contempt alleging in substance that on May 43, 1927, they presented ‘their pétition: to the. _ trial judge for a subpoena for H. M. Blackmer, a citizen of - the United States, temporarily sojourning in France, to appear in court as a witness on October 17, 1927; that the’ said order was issued, commanding him to appear at 10 ) clock, on said day, in court at Washington, to testify on behalf of the United States in Criminal Case No. 43,324, ‘ and ‘‘not depart the court without leave of the court or District -Attorney.”’ : -The court further ordered ‘that the needs should tender Five Hundred Dollars ($500.00) for his necessary expenses in traveling to. and from the place in which the court sat and his expenses in attendance thereat; that on the 27th of May,. 1927, the consul of the United States at Paris, France, served a subpoenagon the said Blackmer by . exhibiting the same to him and delivering to him personally a copy thereof and tendering to him the sum of Five. Hun- © dred Dollars ($500.00). On the ‘7th day of June.1927 a ” similar subpoena was served upon him personally by another consul of the United States by exhibiting and read- ing same to him, leaving a copy with him and tendering him Five Hundred Dollars ($500. 00) and due’ return of said subpoena was made to the Clerk of the trial court ‘and at the time stated, the witness was called by the Clerk in open’ ° court. He did not respond and neglected and refused to ~ appear. Blackmer’s attorneys appeared and.at his request stated that the witness was not present and would not ap- _ ‘pear. eorey. e bd : 5 . ; _ On November 16, 1927, on the petition filed by the same attorneys, representing the government, the: court is- sued an order oe Blackmer to appear, on Friday, h January 6, 1928, to fhow cause why he should not’ be ad- judged guilty of contempt and. punished accordingly ; directing that his property within the United States, in the amount of $100,000 should be seized by the United States marshal ‘‘to satisfy any¥®=judgment that may be rendered against him in this -proceeding,’”? The marshal was.also. ' directed, upon making such levy, to forward to the consuls of the United States in France a copy of -said order with, _ the, request that: it be served personally upon the said Blackmer and the marshal was ordered to publish said order in The Washington Evening Star, a newspaper of _ general circulation in the District of Columbia, once a week for six -weeks.. The marshal’s return showed that the $100,000, the propérty- of Blackmer, was levied upon and seized. The United States cohsul at Paris made due return _sary expenses in traveling to and from Washington’ and hisattendance in court; that the subpoenas were sent to the United States consuls in France; that they were served personally by said consuls upon the said Blackmer in Paris,. France, and that tender in each case of Five Hundred Dol- °° : lars ($500.00) was made to him; as ~hafeinbefore set out. The witness failed to appear in the first ease 6n October 17, 1927, the date named in the subpoena, and being called by the Clerk he failed and neglected to appear. In the second case the subpoena required his appear- , *. ance on April 2nd. He did not appear. The case was con- tihued by order of the court til April 9th when the. trial was begun. Blackmer failed to appear. His name was called. A petition was filed in each case in the Supreme Court .. of the District of Columbia by Government Counsel for an order that Blackmer show cause why he should-not be ad- judged guilty of qoutempt of court in neglecting, failing and refusing to obey the said subpoenas. The marshal was ordered to seize and did seize the property described, and caused the’ order to be published in The Evening Star. The ‘orders were forwarded to the United States Consuls and oN _ Were personally served upon the said Blackmer. ‘In a word e 5 —— LEAL TOLD LOPLI 01S AIOE IG LTE NIE AT TE RINE AC ™ ; . > ad a : 10 - the procedure in each case was in our judgmeht i in ‘substan- tial, if not literal, accord with the provisions of the Act of _ July 3, 1926. a ete The two €ases were tried together omit a fine of $30: 000 ‘and costs adjudged i in each case to say satisfied. by the} — erty seized. : : In the court below the ere filed: a. motion in each case to vacate. and set aside the order to show cause. In case No. 16 below (R. 5131). Counsel for the ieee filed a brief from which we quote as follows: + «469 ® © Phe proceedings here in question, ‘aceiaeias were all taken in exact pursuance of an Act of Con- . gress purporting to validate them and enacted for the very purpose of validating such proceedings in this particular ease against this particular respondent. The ‘question thus: reduces itself to a consideration of the consijtutionality of this legislation,’’ (Appellant’s Brief for the Respondent in Support of Motion to Vacate Proceedings, 1 page 4.) it SUMMARY OF THE ACT AND PROCEEDINGS THEREUNDER. ‘Section 1 of the Act provides that the siinsiles; if a citizen of the United States, or domiciled therein, refuses i respond to letters rogatory, addressed to any court of ‘ any foreign country, the court issuing such letter’ may au- _ thorize the issuance of a subpoena for such witness,. to. be . served by: any consul of the United States within the country‘ where such witness may be, commanding .him to -appear before the court issuing such subpoena at a time ~ and place designated.’ This section suffices for the purpose. of any party to a civil action, and of a defendant in a crimi- © _ inal. action, or in. a contempt proceeding. The defendant in a criminal action has the right to letters rogatory. ‘The “Cnited States does not have a en right, If.the Ja defendants in: the Sincldir-Fall criminal conspiracy case oii desired the testimony of the appellant, they could have ob- tained letters rogatory and, if-appe nt had refused: to respond, they could have subpoenaed him as a‘witness With _ like. result to him, as in the pending case. The appellant — _ also could have obtained letters rogatory in these contempt eases for any witness, a citizer of the United States or , domiciled. therein, and enforce the ‘subpoena, as as ptovided .: for in this. Act.. = _ Section 2 provides that in a criminal action thie court, upon application of th Attorney, General, or any Assistant | or District Attorney, acting under him, may upon ‘‘a ‘proper _ showing’’ order a subpoena to be issued and addressed to . “a United States consul for any witness desired,’who is a citizen of the United States or domiciled therein and is be- .#! ' « yond the jurisdiction of the United States. A petition was filed in each case and on the showing made the court . ordered the subpoenas to-be issued and served. Under Section 3 it was made the duty of the consul to serve such subpoena personally and to make return thereof — ‘| ~=te the courtissuing same, teridering to .the witness the - amount i tp issuing the subpoena for his net- essary expenses In-fraveling to and from: the place of court and in attending thereon; said amount to be supplied to the consul making the service. This was done. (R: 5131,. PP. . 4, 43,-45)- (R.-5182, pp. 4; 24,26} ——_— SI Ase i Section 4 of the Act provides that if the witness served shall neglect or .refuse to appear, as in the subpoena di-’ rected, the court issuing the same, shall, upon proof being — _ made of ‘the service and default, issue an order directing the witness to appear before the court at a time in such order designated. to show cause why he shall not be ad- - _. Judged guilty of contempt and punished accordingly. This © gives the recusant witness. the notice and hearing necessary ee e+ 18 _to due process. The witness did not respond to the sub- poenas and did not appear at either trial. (R. 5131, pp. 45-6) (R. 5132, pp. 26-27). Counsel for the United States a preserfted a petition, or application i in writing, to ‘the court. zi out of which the subpoenas had issued, showing inter alia - - the personal service made by the consuls, the tender of Five ‘Hundred Dollars ($500. 00) for expenses, the return of the consul, and that. the witness did not respond to the sub- -poenas. (R. 5131, pp. 4-11) (RB: 5132, pp. 5-9) ~The court, | thereupon, in each case issued an order directing the appel- lant to appear before the court at a fixed time to show cause ‘why he should not be adjudged guilty of contempt and’ punished. (R. 5131, pp. 11-12) (R. 5132, pp. 11-12) ~ Section 5 provides that the court, issuing such order, ‘may direct the property of any stich witness at any place — within the United States, or so much thereof in value as » the coum may direct, to be levied upon and seized-by the - United States Marshal, to be held to satisfy any judgment - that may be. rendered against such witness. .The court in each case directed the seizure of the witness’s property to’ the value of $100, 000. This was done, ‘The same property held in the first case. "Weiter levy was abandoned. . Section 6 provides that the marshal, having made such levy, shall forward, to the United States consul of any country where the recusing witness | may be, a copy of such. _ order to show. cause why such ‘witness should not be ad- — - judged guilty of contempt, with the request that the said counsel make ,service of the said order personally upon — the recusing witness and cause the order. to show cause and for -the sequestration of the property of'.such wit- , ~ ness, to be published in-some newspaper of general circula- tion in. the, district within which the court, issuing the order, sits, once a week for six, consecutive weeks. Alt of — this was done. a 9131, pp. 12- 14) (R. 5132, pp, 12- 5: , =~ 13 In each ‘case -the eins to. show- ‘cause, as ene described, was forwarded by the marshal ‘to the United States consul S at Paris and was personally served upon the: witness and ". -zeturn of such service made, (R. 5131, pp. 12-13) (R. 5132, p. 14) and publication in each case was made in The Wash- - ington Evening Star, as directed. (R. atid pp. 14-16) (R.. ". §132, p.42) : mi Section 7 of the ro provides that on the return day of the order to show cause, or any later day to which the’ | hearing may be’ continued, proof shall be taken. If the charge of recusancy.is sustained, the court shall adjudge him guilty of contempt and may impose upon him a fine ‘not exceeding $100,000 and direct the amount thereof and . the costs to be satisfied, unless paid, by the sale o the ~property of the: witness-so-seized-or_levied upon. ‘The full text of the Act of July 3, 1926 is printed | as * an appendix hereto. - In each case a iene was tial on '™ 16th and 17th \ of September 1929. (R. 5131, p. 72) (R. 5132, p. 56) The witness, Blackiner, was*represented by counsel since shortly after May 17,1927, the day when he was first . served with a subpoena to appear in court and was given- ~ every opportunity to test the validity of the proceedings in ‘the interval from ‘the date-of the first citation to the ‘time of trial. We say that he was so represented by couhsel since shortly after May 17, 1927, because Mr. George Gordon Battle testified (R. 5131, p. 77) (R.-5132, p. 70) that he was °" in Paris, France, in the summer of 1927 just aver the first subpoenas had been séfved on Mr. Blackmer, saw him there at, the time, discussed with him the constitutionality of the Walsh “Act and of the procedure and advised him as to what his action should be with respect to responding | | to the subpoena.- He told Blackmer that they (he and sev- we. eral other ominent attorneys) had considered very careful- ° ¢ 14° . ly the constitutionality of the Walsh Act and that in their judgment it -was unconstitutional and that the “subpoena. ‘‘was not a valid obligation upon him.’’ The pleas of the ¥ ‘ appellant admit all the-facts deemed by the Government * Counsel to be necessary, except the official character of the -cgnsul serving the subpoerias and orders. This was proveg — in one case and admitted i in the other, (R. 5131, pp. 73-74) | (R. 5132, p. $9) ‘ From a constitutional standpoint the procedure pro- vided for in the Act of July 3, 1926, does not differ from | the procedure with reference to suits to enforce liens against absent defendants, Section 57 of the J udicial Code, -— (U. 8. C. Aw Title 28, Reetion 1t8) THE CONSTITUTIONALITY OF A STATUTE _ WILL BE PRESUMED. A declaration that an Act of Congress is unconstitu- ) tional ‘‘should never be made except in a clear case.” (Chief Justice Waite in the bscieis Fund pcos, 99 U..8.— 700, 718) ee re . “To the same effect: Chief Justice » Marshall ; in the case ‘of Fletcher. v. Peck, 6 Cranch, *87, 128; Mr. Justice Wash- ington.in the case of Ogden v. Saunders, 12 Wheat. *213, ~ "270; and see, Briscoe‘v. Bank of Kentucky, 8 Pet. 118, 122; Railway Company v. Wellman, 143 U. S. 335, 345, | | 346; Brown v. Walker, 161 U. S. 591, 596; Naganab v. | _____ Hitchcock, 25 D.C. App.,-200, 205; Cooley’sPrineiples-of — Constitutio aw, 163, et seq.; 1 Roses Notes 396, 397, et seq.; and 2 Roses Notes 412, 418, et seq. The principle of these cases can not be doubted. They are cited only for convenient reference. Ld 15 AN SWERING PETITIONER’ S POINT A. | _ THE ACT OF JULY 3, 1926 AND THE ‘PROCEEDINGS HEREIN DO NOT VIOLATE DUE PROCESS UNDER THE . FIFTH AMENDMENT OF THE CONSTITUTION. We do not claim the government has the right to " invade by force the territory of another sovereignty against its will. We do claim that the govérnment has the right to recall its citizens who may be abroad for military service. — ‘By. the same token it can recall theth as-witnesses. The means ‘and method to” be adopted are for the Congress to determine. The United States possfsses. the inherent sovereign power to recall its citizens from abroad. No one doubts the power. of Congress by statute to authorize the President ‘to recall its citizens who may be abroad to serve the country in time of war and to provide for penalties on failure to respond. . Similarly in the administration of jus- tice the Congress has a right to provide for the issuance _—of-subpoenas and to. have them served, as in this instance, _by some designated individual. In the case at bar the Act of July 3, 1926 provides that the subpoena shall be directed to a consul of the United States i in the country where the witness is residing. We submit the consul in making this _ service is not acting in a sovereign capacity. Rather he is acting i in a ministerial capacity because of the order of the court under the statute. : : ___ Citizens owe allegiance to their sovereign in exchange for protection.. They owe the same duty to obey the Con- . stitution’ and the laws whether at home or, abroad. Con- structively the citizen witness is presumed to know the law. Actually he had personal knowledge of ' this law. (R. 5131; p. 77) (R. 5132, p. 70) - \ e His duty to obey follows him. wherever \he is. The _ purpose of the Congress, in: designating the consul to serve the. subpoena and the orders, was no doubt to avoid un- Y . had given Bartue permission to go to Germany to collect debts due the estate of the Duke of Suffolk. The Duchess . of Suffolk followed without license. In truth both left for religious reasons. The Queen sent a messenger with sum- - mons under seal commanding their return, but their serv- ants attacked the messenger and forced his return. without service of. the Summons. The messenger reported to _ - chancery. and chancery issued mittimus to exchequer. Kx- chequer issued a comission to a gentleman in Lincoln ' County, recifing the.contempt and directed seizure of. all real, personal ahd mixed property of the fugitives and re: when the fugitives filed a traverse in the exchequer to the charge of contempt alleging they did n-* adhere to enemies of England and that the purpose ‘for © ing the license ‘had not been completed. The J ndges * 1 the fugitives — guilty. of contempt. Jn 1579 the Exehequer division of Court of Common ‘' Pleas decided Knowles. v. Luce (Moore 109’; 72 English Re-. ~ ports, Full Reprint, 473). Knowles brought ejectment — against Luce involving a copyhold. The question. was the _ validity of the seizure under. order. of the Queen. | The property had belonged to Englefield who was given a li- cense to go abroad. Subsequently: the Queen sent a mes- . senger with summons for his return, which was served and not obeyed. The Queen issued a warrant reciting the con- . tempt and directing the ,commissicners to seize -his prop- erty. The income thereafter was paid to the Queen. The _precedure was repeated in 1579 under a statute that year passed. The finding was for Knowles and it was said in’ the opinion: , er | ‘The reason for the judgment.as it:was delivered by Manwood, Chief Barron, was such (that is) .that the thirteenth and fourteenth statutes of Elizabeth were lade in accordance with the common ‘law, and did not ' give the Queen any new right, but only explained what she had before; ‘for by ancient ‘prerogative, the Queen ‘. had a natural interest in the person of each subject, to. serve-her in such capacity as she should appoint ; and for this the common law gives the principle of ‘non exeas Regnum’. (Do not leave the Country) before the subject goes outside of the Realm, and when he is overseas, the common: law: gives the Queen liberty to recall him, and if he does not wish to return: then the - Queen cam seize his lands until he returns, and use the. profits in the maintenance of others to do the service | that he would do her if he were in the Realm ; amd also, to restrain him from the ability and power of continu. ing in his disobedience; and with respect to this he cites two precedents in the Exchequer, viz. the case of ~——~~Mortymer in the reign-of Edward It and the case of Bartue in the reign of Queen Mary.” , IV. UNDER THE REVENUE ACTS NON-RESIDENT. CITI. ZENS ARE LIABLE FOR TAXES ON INCOME EARNED . IN BUSINESS IN FOREIGN COUNTRIES. . In Cook v. Tait; 265 U. 8. 47 (1924) under the Revenue Act of 1921, Section 210 (42 Stat. 227,° 233) the United States taxes non-resident citizens upon their income from *arnings not within the territorial domain of the United 7 '° 20 ‘States. The Supreme Court held this statute.a constitu ~ tional exercise of sovereign jurisdiction. Cook sued Tait, a Collector of Internal Revenue. Cook was a native citi- zen: of the United States domiciled in Mexico. _ Under pro-.. ' test he made a return of his income from property situ- _ ated in México: He began suit to recover. A demurrer to the petition was sustained. The Supreme Court affirmed it.. Mr. Ji ustice McKenna, delivéring the opinion, on page y. 54, said: , % ; “Plaintiff assigns “against the power not only pis rights under the Constitution of the United States but -. under’ international law, and in support of the assign- _ ments. cites many cases, It will be observed that the’ foundation of thd assignments is the fact that. the . citizen receiving the’ income, and the property of which it is the product, are outside of the territorial limits of the United States. : These two facts, the con- tention is, exclude the existence of the power to tax. Or to put the contention another way, as to the ex- istence of the power and its exercise, the person -re- . ceiving the income, and.the property from’ which jhe receives it must both be within the territorial: limits of- the United States to be within the taxing-power of ’ the United States. The contention is not justified, and that it is not justified is the necessary deduction of | recefit cases. gt a : srg Se ‘The court rejected the contention that a citizen’s prop- erty. without the limits of the United States derives no benefit from the United States. It decided. the govern- - ment’s power is based on the presumption that government by its very natute benefits the citizen and his Brapeny wherever found. 3 Mr. Justice McKenna turthier side: (p.-56) - ue ee Or ta express it another way, the basis of the power to tax was not and cannot be made ‘depend- ent upon the situs of the property in all cases, it being: | ' “in or out of the United States, and was not and cannot . 21 . be made dependent upon the doneisihe of the citizen, that being im or out of the United States, but upon his ' relation as.citizen to the United States and the- rela- = tion of: the latter to him as citizen, * *° #9? «- Ss v. CITIZENS PUNISHABLE IN THE UNITED STATES FOR ae OFFENSES COMMITTED ON THE HIGH SEAS OR IN _ FOREIGN COUNTRIES. United States ‘v. Bowman, 260° U. 8. 94 (1923), The ‘indictment was.for d~criminal conspiracy to defraud ~ United States Shipping Board. The defendant in err@r an others conspired on the high seas for the delivery wr Rio‘de Janeiro by the Standard Oil Company of 600 tens _ of oil and to charge the Emergency Fleet Corporation | _ for 1,000- tons and then divide the money for the unde- livered 400 tons among themselves. @00 tons ‘of oil were - delivered at Rio de Janeiro. Payment was collected for ; 1,000 tons... A demurrer was filed to the indictment upon the ground: of lack of jurisdiction because the crime was committed on the high seas or within the jurisdiction of Brazil. The*demurrer was sustained and the indictment quashed. In-reversing the judgment of the District Court _ Mr. Chief Justice Taft, in discussing the extraterritorial jurisdiction of the United States, said: (pp. 98-100.) ‘sBut the same rule of: interpretation should not be applied to criminal statutes which are, as a class, © not logically dependent on their locality for the - Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction. or fraud wherever perpetrated, especial- _ ly if committed by its own citizens, officers, or. agents. - Some such offenses can only be commitied within the territorial jurisdiction ‘of the Government because of 3 . the local acts required to constitute them. Others are ' such that to limit their locus to the strictly territorial . - : ‘jurisdiction would be greatly to curtail the s¢ope and. usefulness: of the statute and leave open a: large i im-- ° munity for frauds as easily committed by citizens on. ae <> 7 22» the high vial cand ius in foreign countries as at home. bh i. ~ guch cases, Congress has not thought it necessary t ‘make specific provision in. the law that the locus sf include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.. Many © "of these occur in c. 4, which bears the title ‘Offenses _ against the operations of the Government.’ -Section - 70 of that chapter punishes whoever ‘as consul know- ingly certifies a false invoice. Clearly the locus of this crime as intended by Congress iis in a foreign country and certainly the foreign country in which he dis- charges his official duty could not object-to the trial in a United States court of a United States consul for crime of this sort committed. within its borders. Forging. or altering ship’s ‘papers is made a crime by. Sec. 72 of c. 4. It would be. going too far to say that because Congress does not fix any locus it intended to exclude the high seas in respect of this crime. The nat- - -ural inference from the character of the offense is that the sea would be a probable place for its commis- _ -sion. Seetion 42 of c, 4 punishes enticing desertions from the naval service. Is it passible that Congress did not intend by this to include such enticing done aboard ship on the high seds or in a foreign ‘port, . . where it would be most likely to be done? Section 39°: ' punishes bribing a United States officer of the civil, military or naval service to violate his duty or to aid in committing a fraud on the United States. It is hard- ly reasgnable to construe this not to include such of- fenses when the bribe is offered to a consul, ambas- sador, an army or a naval officer in a foreign country or on the high seas, whose duties are being performed _ there and when his connivance at such fraud must occur there. So, too, Sec. 38 of c. 4 punishes the wil- .fully doing or aiding to do any-act relating to the bringing in, custody, sale or other disposition of prop- erty captured as prize, with intent to defraud, delay or injure the. United States or any captor or* claimant of such property. This would naturally often occur at sea, and Congress could not have meant to.confine " it to. the land of the United States. Again, in Sec. 36 oh ae ’ of c. 4, it is made a crime to steal, embezzle, or know- _ ingly apply to his own ‘use ordnanee, arms, ammuni- tion, clothing, subsistence, stores, money . or other - ‘property of the United States furnished or to ‘be used for military or naval service. It would hardly be rea- sonable to hold that if any one, certainly if a citizen of the United States, were to steal or embezzle-such prop- erty which may properly and lawfully be in the cus- tody of army or naval officers either in foreign coun- tries, in foreign ports or on the high seas, it would not be in such places an offense. which Congress intended to. punish by this section.’**.* * oo a aiid further, at page 102:. ‘“* * * We cannot suppose that when Congress - enacted the statute or amended it, it did not have in mind that a wide field for such frauds upon the Govern- ment was in private and public vessels of the United States on the high seas and in foreign ports and beyond the land jurisdiction of the United States, and there- fore intended to inélude them in the section.”? ‘ ” * * ia. ““*'* * The three defendants who were found in New York were citizens of the United States and were certainly subject to such laws at it might pass to pro- . teet itself and its property. Clearly it is no o ffense to the digmty or right of sovereignty of Brazil to hold - them for thts crime against the government to. which they owe allegiance.*.**’? = + ° OB: ‘ness which might be subject to penalties for a a eh _ could not disturb France: 4 -1. by arrest upon his return; 2. by expatriation, or _ 8. by forfeiture of property w'thin the control of the United States. . Any other, limitation upon the extraterritorial power of a sovereign over its citizens abroad is unsound in principle and contrary to authority. Thus, a sovereign may require its citidens to return for military duty. and to pay taxes on his ; property_at. hhome0r abroad. - If-so,-why cannot the sovereign require such wit-_ ness to give testimony for the sovereign, or to do any other act of allegiance, or of civic or inilitary duty,.and enforce such.requirements in any way not inconsistent with the _ peace, dignity and equality of the alien sovereign, provided that in this country, under our Constitution the witness is given a reasonable opportunity to be heard and to show why apparent disobedience is not actual disobedience. 4 — VI. APPELLANT FAILS TO SEE THAT THIS PROCEEDING _I8 ONE QUASI IN REM OR IN REM AND NOT IN PERSONAM. - The judgment rendered in these cases is a enforce- able against the property seized. No effort has been made, or could be made, to enforce it personally, or against prop- erty other than that which was seized. If it could nof,be thus satisfied in whole or in part, we are noi claiming that ‘property could be seized ——— as in a az aN - personam. The authorities cited by the petitioner are ining They are either: 1. Cases which recognize that sovereigns. have . extra-terzitorial power as au To the same effect: 26 ; 3 Schooner ‘ diaiaical v. M ’Faddon, 7 Cranch, 116° (Plaintiff’s Brief, p..24); or . : * : : : > ‘ = . i , * : $ > y 4, * " re ‘ 2 2 RPE, % Pen ie OE ees Od oe i * “% CASS ‘ . . oY - ‘ . a 33 > LIKEWISE PROCESS OF COURT. MAY BE EXTENDED BY CONGRESS TO FOREIGN COUNTRIES. - ! , Thus, it is clear, that when sufficiently. ‘authorized by statute a court’s procéss may run do a foreign country in - -guech a way: as to give the court jurisdiction over matters subject to its territorial jurisdiction. Section 57 of the Judicial Code (U. S.C: A. Title 28, Sec. 118) provides that in any suit begun in any’ District _ Court of the United States tognforce any legal or equitable . ‘Tien, or to quiet title to real or personal property within the - district Where such suit is brought, if one or more of the defendant's therein is not an inhabitant of, or found within . the district, upon order of the court, he may be required to appear and plead. If not found in the district he may be | served ‘‘af practicable, wherever found.’ This statute was under Msideration by this Court in Perez v. Fernandez, 920 U. S. 224. In that case the property in suit was located in Porto Rico. The defendant, Pere& was a nage and - resident of Spain. The marshal made the return t fie could not be found for personal service. cuisenSte was -had. “Under the statute within a year Perez applied a set aside the, judgment. The plain and necessary implication of - the decision is that under Section 57 of the J udicial Code a , court of ihe United States has power to base its jurisdic- tion upon personal service outside of its’ district and in a foreign country. (See pp. nied XI. NO "SPECIAL FORM OF . PROCEDURE oR ‘NOTICE REQUIRED. In Cooke v. United States, 267 U. Ss. 517 (1925) Mr. | Chief Justice Taft, in discussing contempt i in open court, vie said (pp. 536-537) : _ ' «&* * * there-is no such right or reason in dispensing with ‘the: necessity of ‘charges: and the opportunity of-. _ the: accused to present his defense by witnesses and 34 ¢ argument. The exact form of the procedure in the _ prosecution of such’‘contempts is not important. * * *” _ **Phe court in Randail v. Brigham, 7 Wall., 523, 540, -In speaking of what was necessary in proceedings against an attofney at law for malpractice said: ‘All that is requisite to their validity is that, when not taken for matters occurring in open court, « in the presence of the judges, notice should be gwen. - to the attorney of the charges made and opportunity afforded him for explanation and defense. The ‘manner in which the proceeding shall be conducted, so that it be without oppression or es 1S @ \ matter of judicial regulation.’ “The” court in Savin, Petitioner, 131 U. S. 267, ap- plied this rule td proceedings. for contempt. 3 “Due process of law, therefore, in the prosecution - of contempt, except of that committed in open court, - requires. that- the accused sBould be advised of -the - charges ‘amd have a reasonable opportunity to meet them by way of defense or explanation. er eee Applying these. principles we have in the cases pend- ing subpoenas served personally by order of the court, ex- pense money tendered, neglect to ‘appear, an order of the court to show cause why he should not be punished for _ contempt, notice thereof personally served, a hearing, and his own counsel testifying that he advised Blackmer that the Act was unconstitutional, the proceedings thereunder _ illegal and in mitigation testifies that for the reasons stated _Blackmer did not appear. All of this gives notice of the offense charged and a reasonable opportunity to be heard. Due process of the Fifth Amendment of the Constitution is: therefore not violated. 9 ae , . ANSWERING PETITIONER'S POINT B. THE PROCEEDING IS QUASI IN REM, OR IN REM, NOT IN PERSONAM. °. — Answering petitianer’s Point B, ‘to the effect that the | Act does not provide due process, we adopt,. without re- peating here, ‘our previous argument on Point A. With . due respect the petitioner seems to misunderstand. It must. be cohstrued as a whole, not piecemeal. . The witness was served personally. -He refused: to appear. “On petition of _. the government the court issued the order to show cause and to seize the property. Again, the witpess ‘was served per- | sqnally with a copy of the order. A cause of action in con- | tempt is thus stated. It is similar to a civil action with the . writ of attachment ancillary thereto. -The plaintiff in a civil suit is obliged to make proof of his claim on trial be- ; fore the attached property can be subjected to its payment. So here the government makes out its charge. of contempt and the court, if the recusant witness is found guilty, as- -sessés the fine before the property seized can be subjected to ifs payment.. Of course, this proceeding is based upon the Act of July 3, 1926. We concede that without this legislation it could not be maintained. | ANSWERING PETITIO R’S POINT C. THE PETITIONER HAD ACTUAL NOTICE OF THE OFFENSE CHARGED AND THE a CLAIM AGAINST .HI8 PROPERTY. A subpoena’ alg the order to show cause were per- -sonally served. The witness refused to respond to either. ‘He violated both the subpoena and the order of the court. ~ _ If any desired information was -not disclosed by the sub-. poena and the order, it was of record i in court and avail- able, if he had responded. .> The petitioner té sustain his contention refers to the Provisions of the Clayton: ng °(U: S. C. A. Title 28, Sec- . tion 387) relating to cert&in ‘specific acts. The Clayton . law requires that a copy of the affidavit of information shall be served upon the person charged. Such being the requirement of the Clayton Act, it must be complied with, . The Act of July 3, 1926, contains no such provision. The Congress evidently thought that such provision was not advisable or necessaty_under the Act of July 3, 1926, _ _ It does-not follow that because the Congress-saw fit to use one form of procedure under the Clayton Act that'the same form of procedure must be followed in the Walsh Act. No special form of procedure is required in contempt cases "under the common law: It can be modified, at least so far as the lower courts are concerned, by the Congress. Michaelson v. United States, 266 U. S. 42, supra. : Having received the notices of the subpoenas and the orders, as above set out, being advised by his own counsel as to the alleged unconstitutionality of the Act and the pro- ceedings thereunder, and there being no provision under the Constitution as to the form of the notice to be served, - it does not lie in petitioner’s mouth to say that he had no ‘factual or any other notice’’ of the offense, or of the gov- ) ernment’ s claim against his — - ANSWERING PETITIONER'S POINT D. ‘THE SEARCH AND SEIZURE PROVIDED BY THE ACT ‘Is NOT AN UNREASONABLE SEARCH AND SEIZURE AND © DOES NOT VIOLATE THE FOURTH AMENDMENT. : The Act provides in this behalf,-Section 5, that the - property of the recusant witness, or so much thereof as the court may direct, may be levied upon and seized by the marshal in the manner provided by law, or the rule of the court, for a levy or seizure. under execution, to be held to satisfy any judgment. There is not one word in the rec- ord showing any. ‘‘unreasonable search’’ or any search in fact. It does provide for a levy and seizure, nothing more. 37 if eee The Saat limited the amount in each easé to be seized at - _ the amount’ and value of $100,000. There i is enough in the record to show that Blackmer was a man of large affairs; that he was living abroad and had‘been for yéars; that he refused to testify in the Mammoth nd Company case; that he was told of the provisions oK\ the . Act; that he saw fit to ignore the notices of the egurt in a case of great im- portance to the government.. In refusing to find that a penalty of $1, 600,000 imposed upon a corporation, guilty of violating the Anti-Trust Law ‘in Texas, was. too excessive, the Supreme Court jn the case. of Waters-Pierce Oil Company v. Texas, 212 U.S. $6 (1969); Mr. J ustice Day,. delivering the opinion, said: “The fixing of punishment for crime or penalties for unlawful acts against its laws is within the pblice power of the State. We-can only interfere with such _ legislation and judicial: action of the States enforc- ing it if the fines imposed are so grossly excessive as . tg amount to a deprivation of property without. due process of law.’’ Q ANSWERING PETITIONER'S POINT E. THE PROVISIONS oF THE ACT FOR HEARING AND JUDG- _ MENT IN HIS ABSENCE AND WITHOUT HIS CONSENT .DO NOT VIOLATE DUE PROCESS. _ Again, we must remind the petitioner that this is a proceeding for punishment for criminal contempt and not for a crime. The procedure adopted was a substantial, if .. Not a literal-compliance with the statute. The power to punish for contempt is inherent in all courts. It ‘‘may be regulated within limits not — ; defined?’ by the Congress. - : Michaelson v. United States, 266 U. S, 49, supra. While the witness specially appeared, for the purposes - of his motion to vacate the order and the proceedings there- ae : | ¢ x sm a ee ES, 38 ’ under, because of their unconstitutionality, and again in filing his pleas and amended pleas, and in objecting to the’ _ taking of any testimony in the absence of the defendant (B, _ 5131, p?73 and R. 5132, p. 57), Mr. George Gordon Battle took the. stand i in behalf of the defendant to testify in miti- gation of the offense charged. - 5131, pp. 76-84 and R. 5132, pp. 70-78) “Mr. Justice Robb in delivering the opinion of the Court of Appeals. referred fo the fact that Mr. George Gordon | Battle took the stand in behalf of the defendant to testify > in mitigation of the offense and said: ‘‘This amounted to a general appearance and Ps pellant will not now be permitted to challenge the suf- ficiency of the rules to show cause.’’ Blackmer v. United States, 49 Fed. (2d) 523; ~ Similar authorities: Bradstreet Company v. | Bradstreet’ s Collection . Bureau, 249 Fed. 958 (2 C. C. A. 1918); | Hammond et al. v. District Court, 228 Pac. 758; Massachusetts Bonding & Insurance Company ». — Concréte Steel. Bridge Company, 37 Fed. (2d) 695 (4 C. C. A. 1930); . , 1 Foster’ s Federal Practice, 976. ANSWERING PETITIONER’S POINT F. ‘THE PETITIONER COMPLAINS THAT THE ACT VIOLATES THE SIXTH AMENDMENT BECAUSE IT DOES NOT GIVE TO THE DEFENDANT IN A CRIMINAL PROSE- CUTION THE RIGHT TO EXTRA-TERRITORIAL SUB- - POENAS, OR TO HAVE COMPULSORY PROCESS IN Rus BEHALF. . The Sixth Amendment provides for compulsory prec ess, but it does not provide for equal process. Under Sec- tion 1 of the Act, if a citizen refuses to respond to letters _ rogatory, the court, issuing such letters, may authorize the . 7 nla eh ae adh lea asi hae ea EE Le pare a eg tBt OPS a eke | gg. issuance of a subpoena for such citizen to appear, before the trial court at the time and place designated. The au- . thority under this. section is available to either party ina ° civil case and to-the defendant in a criminal action, or in» a contempt proceeding. The government cannot take ad- vantage of it, because the Constitution requires that the defendant shall be confronted by.the witness against him at ‘the trial. The United States is not entitled -to letters rogatory in a criminal case.- The defendant may have such letters, and, if the’ witness-Trefuses to respond, he may be subpoenaed, as provided in the subsequent sections. He, therefore, has substantially — process to that accorded the. United States. In United States v. Heinze, 218 Uv. S: 532 (1910) the contention was advanced that the defendant in a criminal ‘ease was denied due: process. and equal protection of the law, because he was not accorded rights to appeal equal ‘to those accorded the prosecution: The: contention was re- po . "ANSWERING PETITIONER’ S POINT G. THE ACT IS NOT ARBITRARY, CAPRICIOUS °" AND UNREASONABLE. ~ When the subpoena was served and the witness failed , torespond the contempt was complete. Ownership of prop- erty is not an element of the offense. If he is beyond the territorial jurisdiction of the country, then a method is pro- ‘vided for his punishment in part by seizing his property within the territorial jurisdiction of the United States. If he has no property, then the court may.be powerless to en- force its order. Because the court may, or may not be able - to proceed where the recusant witness has no property, is Rot a sound reason why another should escape, who has ‘Property within the territorial jurisdiction of the court. ° . ‘i ! nd i =a og @ «potorneqeience, CAL ed: EN NSE, fase ie ae eee eRe ere aT a ty ce . : 4 ° ° 40 ’ As well might it be said that a debtor in a‘civil action © should escape liability, if he. was beyond the jurisdiction of the court and had property within its jurisdiction, be- cause another debtor had gone beyond the jurisdiction of ' the court who had no property within its jurisdiction., AN SWERING PETITIONER’S POINT Ha. PROCEDURAL POINTS. © PETITIONER COMPLAINS OF LACK OF PROPER SHOWING FOR SUBPOENAS. . Section 2 provides that upon a ‘‘proper: showing”? the judge before whom the action is pending may issue an order for a subpoena, addressed to any consul where the witness may be, commanding his attendance. ‘It is not for the wit- ness to determine what is a ‘‘proper showing:’’ The power is addressed to the court to issue, or not to issue, the sub- poena and lies in his discretion. It is assumed he will usea _. judicial discretion. Nothing in the record shows abuse of - judicial discretion, either in the issuing of the + ee ” or the order to. show cause. | In each case a petition duly signed = the United States Attorney and by two special assistants to the Attorney Gen- eral, and verified by one of them, was presented to the court; and the —" was issued thereon. (R. 5131, p. 3) (R. 5132, p. 3)” : ars AN SWERING PETITIONER ’S PRINT H- b. PETITIONER COMPLAINS THAT THE SUBPOENA DID NOT CARRY NOTICE OF THE ACT. It did not. Constructively the witness knew the law." - Actually he was advised by his counsel of the law and its - provisions and under the alleged belief on. witness’ ‘part _ that it was unconstitutional, he refused to obey. Petitioner asserts it is not contempt to disobey a wit- ness subpoena served extra-territorially and cites Robert- IES P LET RR NSIT) FL SRAMCIL PIMA ERT ie WO ALS ARERR SF a ae oo. oF son.v. Railroad Labor Board, 268 U. 8S. 619. The question there was whether under the. Transportation Act. the Rail- road Labor Board could subpoena a witness from one judi- cial district to appear in another. The Supreme Court held that under that particular statute no such authority existed, The case is tlearly to the effect that the authority to issue and serve such subpoena depends upon the scope of. the legislation. We note that subpoenas may be ‘issued under the. criminal practice for witnesses in any state of the Union. ; ) Under a statute, which recently ‘expired. by. limita: tion, in civil cases the court could order the issuance of a subpoena for a witness extending into any state. ; Petitioner complains that the subpoenas are defective - _ because they do not show that ‘they were issued under the authority of the Act. No such proyision is contained in — this Act, nor in any other Act, so far as we know. One case - was cited in the court below sustaining petitioner’s conten- tion. It was a Canadian case in which the statute itself ex- ~ pressly provided that such’ notice should be incorporated inthe subpoena. o. -_ Directly contrary to the contention of the petitioner the common law does make it contempt to ‘disobey a sub- ‘poena issued by the sovereign and served extra-terri- | .torially. See: Bartue and Duchess of Suffolk, and Knowles v. Luce, supra. ANSWERING PETITIONER’S POINT H-c. ae COMPLAINS THERE WAS NO NOTICE OF THE ALLEGED OFFENSES, OR OF THE CLAIMS AGAINST | HIS PROPERTY. | He does not contend as to the form of the notice. He - . protests the total lack of notice: in any form. eee 8 . Brief, page 44) | If we understand correctly. this seems to beg the entire tion. We assume he means no constitutional notice was ~ e . + SRE an RR 7 / | : 7 42 ; / given. The facts, as heretofo stated, are that the court ordered the subpoena to be issued. It was served person-- ally ‘by the consul and due return thereof made. . The order: .to show cause was likewise issued and personally served, Under the notices.thus authorized and personally served ' the witness was advised by the subpoena : 1. in what case to appear ; 2. that it-was by order of the President of the United - States; — | 3. when and where to attend court; 4. to testify on behalf of the United States and not to depart without leave. . By the order to “show oni he was advised: the court in which he was to have a hearing; the time of such hearing; ‘its object; . the seizure of the property; the object of the seizure. This eertainly is such notice as'‘to provide due process of law. per err 3 a” “ANSWERING PETITIONER'S POINT H-d. LEVY AND SEIZURE IN NO. 5131 NOT. ABANDONED. - In No. 5131 certain bonds were seized. In No. 5132 the " - same bonds, which had been theretofore seized in No. 5131, _ were ‘again seized. The seizure in both cases was on behalf ‘of the United States against the same witness. . Petitioner claims abandonment i in the first case. There is no evidence in the record that the first seizure was abandoned, As pointed out by Mr. Justice:Robb.in the court below io the authorities’ cited by the petitioner are: “to the effect that if in a particular action an alias order is issued — the ial! taken under the diese i 43 writ is disposed of, the alias order destroys the lien ' acquired by the original writ. These cases are not in _ point, for here there were two different seizures in two - different cases upon two different causes of action.’’ ‘AN SWERING PETITIONER'S POINT H-e. PETITIONER CLAIMS. HE WAS SUBPOENAED TO ATTEND TRIAL ON APRIL 3, 1928, AND NOT ON APRIL 9, 1928. Blackmer was subpoenaed to appear on April 2, 1928, as.a witness in United States v. Sinclair-Fali. Later the case was’ contjnued to April 4, 1928. On April 3, 1928 the court continued the case until April 9, 1928. The witness ‘did not appear on any of the days named. “His subpoena - directed that he’ attend to testify on behalf of the United States and ‘‘not depart the court without leave of the court or District Attorney.’’ (R. 5132, pp. 8, 78,-79) U.S. C. A., Title 28, Section 655; U.S. C. A., Title 28, Section 877. Had he attended on April 2, 1928, he would nave been ‘advised of. the continuances of the case. IN CONCLUSION. While the government admits that the Act of J aly’ 3, 1926 has never been ‘before this’ Court for construction, the ‘principles involved have been. Citizens, whether at home or abroad, owe allegisnce to the country and obedience to the Constitution and the laws in peace, as well as in war. | The petitioner was a citizen of the United States, temporarily residing abroad, and was désired as a witness in the trial, of an important case. On the sworn petition of counsel for the government the court issued a subpoena to the American ‘consul in France, directing him to per- . sonally serve the witness and to tender him Five Hundred _ Dollars ($500.00) for traveling expenses and the attendance | ‘upon the court. The subpoenas were served personally, % ° ¥ the money | swndered ‘and due. returr thereof made to the. court. The witness refused to signee and did not respond. ‘when called by the. Clerk. " ‘Upon petition. in: each case “by government counsel, showing the procedure:as stated, the court issued an order _ for the witness to appear to show cause. why he was not in contempt; his. bonds to the amount of,-$100,000 were: ordered seized. They were seized by the marshal to be held: to awalt disposition of the éase, and publication- of said. : order made in a paper of ‘general circulation in the District ) Columbia. : ‘The order, as issued, was served personally, upon the witnéss and published. - The witness did not * pear and the. trial Drocediien. Though the withess appeared anidtatity by counsel for — the purpose of his motion to vacate the order, as well as toy file his pleas and to object to the trial in his absetice, his "attorneys appeared and one of them testified, giving the a facts * mitigation of his offensg. . ae one BA the authorities cited by the petitioner deny the s power of Congress. to to authorize courts to serve their. (proe-.: > @8s upon citizens. "beyond. our territorial confines, - We submit that the > Congiees and the courts ought not to be and are not powerless to serve process upon their _ citizens when abroad, ‘or to ‘subject their. property within * the: United States to the payment of:a fine, which may be assessed. because of a \ Reet violation na the will of the pata ~The sovernmebit nds authority ‘to recall its citizens 3 from abroad for military service. Why then may not the Congress sinthinetee the cotirt to ‘service notice upon the witness, a citizen of the United . Sestes tethporarily sojourning abroad, ang compel him to court under the terms and conditions set out in the | “ke of. sini Pr tance : ry. e. cs : ; aw * — See. 5. Upon i issuing such’ order the: court may, upon the giving of security for any damages which the recusing . witness may have suffered, should the charge be dismissed _ (except ey no security shall be ‘required of the United States), direct as a part of such order that the property, of the recusing witness,-at any. -place within _the United - States, or so much thereof in value as the court may direct . _thall be levied upon and seized by tlie marshal of said court _ in the manner provided by law or the rule of the court for _. slevy or seizure under execution, to be held to satisfy any Jadgment that may be rendered ee such wittiess 1 in us | peins so inatituted. : 48 a Sec. 6. Ee Gone having made such levy, shj ~ theFeupon forward to the consul of any country where : recusing witness may be a copy of the order to show ca i why such: witness should not -be adjudged guilt “ot tempt with the request that said consul make se oft th same personally upon the recusing witness, and shall cang to be‘published such order to show cause and for the sequ : tration of the property of such witness, in some news Oe _ of general circulation in the district within which the eo issuing such order sits, once each week for six ‘consecut ’ weeks. ! | | ; Szc. 7. On the return day of such order or any id day to which the hearing may by the court be. eontim a proof sliall be taken; ‘and if the charge of recusaml against the witness. shall be sustained, the court ¢ h adjudge him guilty of contempt and, notiithetandingm limitation upon the power: of the court generally to put for contempt, impose upon him a fine not exceeding $100 4 and direct that the amount thereof, with the costs " { pfuceeding, be satisfied, unless paid, by a sale of the p ‘ -erty of the witness so seized or levied upon, suoh sale ¢ 2 ‘conducted upon the notice required and i in the manner J _ vided for sales upon execution. ° q ~ zo: 8. "Any judgment rendered pursuant * , this | upon sefvice by publication only may ‘be opened for 4 . swer within thé time and in the manner pn, ing ‘ 57 of the Judicial Code...” Approved, sare 3; 1926. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0112%3A06. Public record. Not legal advice.