Petition for Writ of Certiorari — Pendergast v. United States

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‘Supreme Court oft the United BG ea oe |

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. .. OCTOBER TERM, 1942.

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THOMAS J.’ PENDERGAST, PETITIONER,

ie ean VS. ners

g UNITED STATES OF AMERICA; RESPONDENT.

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PETITION’: FOR w RIT OF ¢ ERTIORARI TO THE

; U NITED STATES CIRCUIT COURT OF APPEALS |

' . FOR THE EIGHTH CIRCUIT, AND BRIEF

ae , IN SUPPORT: | THEREOF, ,

Y —Joun G. MAppen,

Fidelity Building,

Kansas City, Missouri,

~R. R. Brewster,

Federat Reserve Bank Building.

ia . . Kansas City, Missouri,

. James: E. Burxr,

iidélity Building,

‘Kansas: City, Missouri.

Counsel. for Petitioner”

INDEX

Petition for Writ of Certiorari. to the United States

Circuit Court of Appeals for the Eighth Circuit—

A. Summary: statement of the matter involved ee

| The insurance rate litigation... 3

The transactions between Street and Pesidergest, :

O’Malley and: McCormack in 1935 and 1936__ a

The grand jury investigation o Pendergast - =

O'Malley in March, 1939 on charges of income

"tax evasion, the agreement of Pendergast. with

the United States, and the plea of guilty en- .

tered pursuant thereto. 2 6

The reopening’ of the insurance rate litigation -

_.The conviction and subsequent proceedings...“ 7

eR Statement of the jurisdiction of this court.” el

(1) Statutory provision believed to sustain a

jurisdiction —_..... owe

(2) The date of the ‘eadlaeiat 4 to >be reviewed aes

(3) Statement of the nature of the case and the.

- rulings of the circuit court of appeais bring- |

ing the case -within the en of this

a court... : _9

(4): Cases believed t to sustain the jurisdiction ‘a

this court raeaierad oe

Cc. The questions silent. a

‘DD. ‘Reasons relied 6n for the allowance of the writ... 11

; Copehusionn 2 sere pee OE

Brief in Sappert of Petition for Writ of Certiorari—

ie Opinions of the courts below... jaiidsiadiacaaen:* ae

'_. B. Grounds on which the jurisdiction of this. c court

., is invoked. iehsrsnsieieipipceiiecoac Seialaimeniiaonicntel 15

-.C Beitement of the wee 16

D. Specification of errors iptended to be aa 16

-E. — of the Kee es RAE pitas 16, 19

aed

= | ees

__F. Argument—

Point I. The conduct cf petitioner did. not.con-\ -

stitute misbehavior on his part in the presence ©

of the court or so near thereto as to obstruct .

the administration of justice, within the mean-.

INDEX

ing of Section 268 of the Judicial Code (28

U. S. C: A.; Sec. 385), and did not render him

punishable for contempt upon information;

the majority opinion below (Riddick, J., dis-

senting), in holding“him§ thus punishable.

therefor, is in conflict with applicable decisions .

of this court and with decisions of other circuit

courts of appeals on the same matter _

- Point Il, The prosecution of petitioner. ‘under.

the information was barred by the statute of

- limitations, and laches, since any and all acts of

alleged. contempt occurred more than, three .

years next before the filing of the information; —

the majority opinion below, in holding that the

prosecution. was not thus barred; and in further

ruling that the appropriate statute of limita- .

tions (R. S., Sec. 1044; 18 U. S. C..A., Sec.

582) was inapplicable to this proceeding either:

by analogy or enactment, is in conflict with ap-

plicable decisions of this court, of, if the ruling -

below is not in ‘conflict with decisions, of this - .~

- court, as petitioner contends, such majority

* . opinion has decided an important question of

federal law which has not been, but should be,

settled by this court

je Point III. The cofviction. below should: <4 re--

versed, and further proceedings stayed, for the

reason that the prosecution of petitioner under

' the information is in violation of his agreement’

ith the United States; and the majority opin-

idrbelow, in refusing to give effect to. such

agretantink ‘has decided a federal question in a

Way probably in conflict with applicable de- -

cisions of this court or, if such ruling is not thus

in conflict, as petitioner contends, the majority

opinion has decided an important question of | :

| federal law which has not been, but should be,

‘settled sedi this court _ sie

INDEX | . III.

7 ’ Point Iv. The court badeur’s i } —

— -\ dietion to entertain this proceeding; and the

ee ‘Majority opinion below, in holding that the pur-

ported statutory court was vested with such .

jurisdiction, and in further holdi that the

-conviction of petitioner was in any event vali-

dated by the fact that one of the members of 9

such court, as theh district judge for the Cen- ~

tral Division of Western District of Mis-

' gsouri, issued the original restraining order in ;

- ‘the insurance rate litigation, has decided a ee a

eral question in a way probably in conflict w ;

! applicable decisions of this court .. cet,

Conclusion Spenisonnnianpesiel chon a

TABLE or CASES.

Aetna oats Co. vs. O'Malley, 342 Mo. 800; 118 «

ey SG | Vent A eee oie 30

Appeal of Marks, 144 Pa. Sup. Ct. R. 556, 20 Atl. (2d)

(gH SESS. CSS Rh CESS aia arse 12, 36.

‘Beattie vs.- People, 33 Til. App. ee ieee 12, 36

. Boyd vs. Glucklich, 116 Fed. 131... baipciadecpetiaianbess 11, 23

Brewer vs. State, 176 Miss. 803, 170 So. (Miss.) 540.12, 36

_Brown vs. State, 178 Okla. 506, 62 Pac. (2d) 1208... 36

. Craig.vs. Hecht, 263 U. S. 255, 1. c. 280, 68 L. Ed. 293. ae

Ex parte Bransford, 310 U. S. 354, 84 L. Ed. 1249 __13, 16, 41

Ex parte Grossman, 267 U.S. 87,-69 L. Ed. 527...

ents 12, 13, 15, 33, 38, 39

Ex parte Poulson, 19 Fed. Cases 1205, Case No. 1350.11, 23 as

. Ex parte Robinson, 86 U. S. 505, 22 L. Ed. mn. ae ieekty ae. \

Ex parte Schulenburg, 25 Fed. 211... 11, 23

Ex parte Terry, 128 U. S. 289, 32 L. Ed. 405__ _-35, 37

Gompers vs. Stove Co., 221 U. S. 418, 55 L..Ed. 197 :

Lateienisy 20, di, 42

.Gompers vs. United: States, 233 U. S. 604, 58 L. Ed.

2) sce 4 a 12, 15, 33, "34, 35, 36, 37

_ _ Goodall vs. Superior Ch, 37 Cal. ‘App. 723, sis a :. 26

_ ae | ae

?

. geil (._ pax Pin rar ea

, inden: vs. Commonwealth, 141 Ky. 461, 133 S. Ww.

__In re se Hy

Michaelson vs. United States, 66.U. Ss. BL c 64, Ee

L. Ed. 162 1. c. 167... ee anes _.13, 16, 41

‘Middlebrook vs. State, 43 Conn. 257. ry c. .. 269. cia lias Sb: 36. 3

Hart vs. Oil Co., 27 Fed. ‘Supp. 113 \ met 12, 33, 36 |

In re Cary, 165 Minn: 203, 206 N. -W. Minn. ) 402 te 36, 38

_ In re Foote, 76 Cal. 543, 18 Pac. (Cal.) 678.0: =. 36

. in re'Fox,. 06 Ped. (28) Bic B.S

Millinocket Theatre vs..Kurson, 39 Fed. Supp. 979.11; 30°

* Morgan vs. United States, 95 Fed. es (8th Circuit)

Russell vs. United ‘States, 86 Fed. (2d) 389, 1. c. 392. 13, 41

State vs. Guild, 149 Mo. 370, 1. c. 376, 50S. W. 909. 39

- Thomas J. Pendergast vs. . United States, au U. Ss. ‘574,

United States | vs. - Goldman, 277 U. s. 229, 72 L. Ed.

sa nea

206 eer es ...12, 36

In re Jibb, 123 N. J. Eq. 251, 197

OOP cde 11, 23

Nye vs. United ‘States, 31. UL Ss. 33, "85 = ‘Ed. 1172.

11, 15, 20, 21, 23, 24, 26, 27, 28, 29

Pate vs. Toler: ‘190 Ark. 465, .79 S. W. (24) (Ark. ) :

444 12, 36

Phillips \ Vs. United States, 312 U. ry 246, 85 Et Ed.

— ae 13, 16, 41

Public Service Commission v Vs. Brashear Freight Lines, )

-. 312 U. S. 621, 85 L. Ed. 1082 _ RO DS

State vs. Phipps, 174 Wash. 443, 24 Pac. (2d): (Wash.)

1073 12, 36

86 L. Ed. 55... . a 8, 13, 16, 43

Toledo Newspaper. Co. VS. ;. United States, 247 US. 402,

62 L. Ed. 1186... 15, 23, 24, 25, 26, 27, 31, 33

United States vs. Bittner, 11 Fed. (2d) 93 1. ce... &

United States vs. Ford, 99 U. S. 593, 25 L. Ed. 399 -

. 12, 16, 39, 40

862 _ Wt —12, 15, 33, 38

United States vs. José, 63 Fed. 951, 4, c. 954. - sang ae Es

Warring vs. foes. 122 Fed. _ (2d) (C. A. ‘D. C.)

642 es 11, 1§, 30.

Wimberly vs. United States, 119. Fed. (2d) 6th ~~ 7

cuit) 713_ Re Ris 1, 15, 30 .

“@ 7

I :

; STATUTES

‘R. Ss. Sec. 1044, 18 U. S..C.A., Sec. 582 Bane 11, 15,18, 32,

Section 135, Criminal Code, 18 U.. S. C. A., Sec. 241.21;

‘~Section 240(a), Judicial Code, as amended by the Act

| . of February 13, 1925, c. 229, Section 1, 43 Stat t. .938

; (28 U.S. CA. 347(a)), and under same Act, c. 8.

Section. 8, 24 Stat. 940 (28 U. S.C. A. 350)... eerste

Section 266 of the Judicial Code (28 U. S.-C. a Sec. wt

- 380)/ — jem oe

, section 268, ot the Judicial Code (28 U. S. oe & 8

a MAAS CR seal , 10, 11, 15, 18, 20, 22

4 U.S. Statutes at lace. 181 oe

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Supreme Court of the Ruited States

OCTOBER TERM, 1942.

fe Be

. P . \

THOMAS J. PENDERGAST, PETITIONER,

-. UNITED STATES OF AMERICA, RESPONDENT.

‘puerto FOR WRIT OF. CERTIORARI To THE

‘ . UNITED STATES CIRCUIT. COURT OF

_ APPEALS FOR THE EIGHTH CIRCUIT.

To THE HONORABLE THE CHIEF JUSTICE AND THE ASSOCIATE

JUSTICES OF THE SUPREME Court oF THE a STATES:

-YouF petitioner, Thomas J. Penteteiet, in support of

his petition for a writ of certiorari to review the final .

judgment of the United: States Circuit Court of Appeals .

for the Eighth Circuit, entered June 1, 1942, affirming

his conviction for alleged criininal contempt on June 7,

1941 (whereunder he- was’ sentenced to serve a term of

‘two years in a penitentiary) by a Stas sabe statutory

court, . —- shows:

A.

SUMMARY STATEMENT or THE MATTER INVOLVED.

As indicated in’ the majority opinion below (R. 1188),

the essential facts must be stated with particularity to

% >

2 , ”

‘present properly the matter involved. ~ This. proceeding

was initiated by an information by the United States on

July 13, 1940, upon the official oath of the acting United

States Attorney, entered ‘upon the criminal docket of the.

Central Division of the Western Distri¢t of Missouri as

cause No. 5040 (R. 1). K+ was entertained by a purported

statutory court constituted | of Judge Kimbrough Stone,

présiding judge of the United States Circuit Court of

_ Appeals’ for the Eighth Circuit, ‘and Judges Albert L.

Reeves and Merrill E. Otis of thé District Court for the

Western District of Missouri. The information, briefly

summarized charged (a) the pendency of certain insur-.

ance rate litigation wheréunder interlocutory injunctions

had issued restraining interference by Missouri officials

with a promulgated rate increase by insurance companies,

.(b) the filing on June 18,°1935 by such companies. of a

motion for decree in accordance with a stipulation of set-.

tlement, (c) the entry by:the purported statutory court on

February 1, 1936 of the decree as pfayed, (d) ,that such set-

tlement was corruptly procured by Charles R. Street,:

representative of ‘the insurance companies, by the pay-.

. ment of divers sums of meney to petitioner T. J. Pender-

gast and R..E. O’Mallev, then Missouri Superintendent

of ‘Insurance, a co-defendant, A, L. McCormack, acting as _

interthediary, and‘ (e)* that Pendergast, O'Malley and-

- McCormack-agreed to conceal’ such transactions. which —

were eventually disclosed by McCormack in March, 1939

to a grand jury investigating income ‘tax evasion on the —

part of Pendergast. After an appropriate motion to quash .

was filed (R. 10-14) ‘and overruled-with opinion ‘filed.

4(R. 21-31), petitioner answered (R, 32, 33). The proceed-

_ing-came out for trial on |April 14, 1941. Apart from the —

- testimony of McCormack (R. 694-733) the material. evi-.

_ dence was entirely documentary." “An examination of-the -

brief testimony of McCormack will. reveal the .only al-

legedly contemptucus acts. charged against petitioner.

or

The Insurance Rate Litigation

It appears by stipulation that on December | 31,1929 .

- certain insurance companies in Missouri promulgated

a rate increase and so advised the Missouri Superintend-

ent of Insurance (R. 363). Before official action there-

on in approval or disapproval, bills in equity were filed in

‘the United States Court for ‘the Central Division of. the

-* Western District of Missouri seeking injunctive relief

against official -interference with the rate increase in-

- question (R. 363, 364): The Superintendent thereupon

‘refused to approve the incréase and amended bills were .

filed (R. 364-435). The bills in equity preceeded upon

. the theory that the action of the Superintendent as to

rates was arbitrary, unconscionable and confiscatory (R.

365-435). A special master was -appointed on -Septem-

ber 22, 1930 (R. 602).-'In the meantime, on July 2, 1930,

an interlocutory injunction had issued upon the. ground

of the allegedly confiscatory character, of the action of

the Superintendent (R. 502), wherein official interfer-

‘ence with the increased premium rates was_ restrained

AR. 503), upon the condition, however, that, the entire

amount representing such increase ‘should be -impounded

(R..505) with a custodian appointed . by the court (R.

_ 506, 507). The special master, after hearings, filed. a

‘*report, as to a number of the cases, sustaining the position

of the companies*.. A supplemental report, as to the re-

maining cases, wag.to follow.. While the matter of the

approval of this report was pending before the court, the

companies on June 18, 1935 filed a Verified motiorr for

-decree, reciting that the litigation had been compromised

_ (R. 603). On June 19, 1935 there was filed a” stipula-

. tion’ of settlement in support of the motion for decree (R.

607). The. actual compromise was accomplished -by an

_ agreement of May: 18, 1935, and the motian and stipula-

. tion aforesaid were prepared pursuant thereto (R. 890):-

!On February 1, 1936 the court “entered its. decree -dis-

i»

a

28 Fed. Supp. 601, I ce. 603.

. eel | 4 | : : | ; by

_missing - he causes and. directing ‘the distribution Of the

‘impounded funds (R. 617). The substantial effect: of

- the compromise was the retroactive approval by the

Superintendent -of four-fifths of the promulgated rate

increase and the distribution ‘of the impounded funds in

accordance therewith. ;

‘ ‘The Transactions Between Street and Pasion, O'Malley

°- ; and McCormack in 1935 and 1936,

The testimony of McCormack is the sole evidence upon

_ this issue and, ‘since ‘it is. brief, and to avoid controversy, -

may appropriately be digested:

McCormack was engaged in the genial insurance’

business in St. Louis, Missouri, and-for a time was

' president of the Missouri Fire Insurance Agents Asso-

ciation (R. 694-697). In the latter part of -1934 or in

the early part of 1935, O’Malley, then Superintendent —

of Insurance, inquired ‘of McCormack if the companies

were interested in a ‘settlement of the rate litigation

(R. 699). He proposed a meeting between Street and

Pendergast (R. 699). Street was. chairman of: the coni-

mittee in charge of the Missouri-situaticn-on behalf of

the companies (R. 700). ._The meeting was arranged -

_ and took place in Chicago (R. 702, 703). In conference

with Pendergast, Street pointed out that the “insur-

ance companies had won: this case”, (presumably re-

ferring to’the favorable report of the special master)

but that the’ business of the compariies was neverthe- ~

* less suffering and their agents.were complaining (R.

704). He expressed a desire to expedite the final dis-.

‘position of the litigation’ (R. .704) | and offered to pay.

- Pendergast a fee of $500,000.00 to. ecomplish that.end, .

_ to which the latter de that : ‘he would see what he

- could do about it” 705). rly in* 1935 (R. .782,

.. 783) Street gave Pe ae! 000.00 which the lat-

ter delivered to Pendergast in ‘Kansas City (R. 706,

707). On another occasion, during the early part of

the same yéar (R. 783), Street delivered a further $50.-

000.00 to McCormack, who brought it to Pendergast in

Kansas ‘City;. the latter iota $5,000.00 and McCor-

mack and O'Malley divided the remaining $45,000.00

(R. 709, 710). Subsequently; in the spring or -early

© -

oe

summer of 1936 (R, 783), Street gave McCormack $330, -

. 000.00, and the latter brought that sum 1) Kansas City

(R. 711). Pendergast ‘took $250,000.00 and gave Mc-

Cormack $80,000.00. (R: 712): McCormack divided the ©

‘$80,000.00 with O'Malley (R. 713, 714). In’ October,

1936 (R.'783),-when Pendergast was ill in the hospital,

McCormack at the instance of Street delivered to him

a further sum of $10,000.00 (R. 783, 784, 716, 717).

In May, 1935, McCormack attended a-conference at the

Muehlebach Hotel. in Kansas City, Missouri, called for

the purpose of attempting to effect a settlement of the

rate litigation (R. 724). Street, O’Malley and various ©

counsel attended; Pendergast was not present (R.°724).

The’ conference. extended into the night before agree-

ment was reached. (R. 724, 725,). }

In February and March of 1939, McCormack appeared

before the grand jury investigating charges of income |

tax evasion against Pendergast. and O’Malley (on ac-

count of their failure to report the receipt of the sums

mentioned*) and was interrogated with reference to his

delivery of the various sums of money mentioned (R.

_ 717). _He.appeared before the grand. jury three or

four times (R. 717).. Upon his first appearance he did

not testify to the transactions in question** (R. 718).

While he was thus ander subpoena befora the grand

jury he saw O'Malley but not Pendergast (R. 719). He

did -not discuss his testimony with him (R. 719).

O'Malley remarked in substance that “he hoped noth-

ing would develop that would involve him” (R. 722).

- McCormack testified affirmatively that there was —

no agreement (as charged in the information) to kéep

the transactions in question: secret or to prevent the

court from discovery thereof (R. 728). After O'Malley.

had expressed the hope that his name would not be

brought into the matter, McCormack nevertheless dis-

- closed the entire history of the transactions in question

(R. eas

*28 Fed. Supp. 601, 1. c. 604..

-**This proof, consistent with refusal to. testify on constitutional

_ grounds, was referred to by the trial court aS-an admission of . -

perjury. a8 87), ”

6

It will be noted that the testimony of this government

witness (the only witness upon the issue) does not sus-

tain the exeiRod of fact by the trial court (R. 51).

ion of Pendanmant al ‘O'Malley

in ‘March, 1939 on Ch4rges of Income Tax Evasion, the ©

Agreement of Pejidergast with the United States;~_

od the Plea of Guilty Entered Pursuant Thereto.

_As appears from /the information. (R. 8) and from the

testimony ‘of McCofmack, (R. 717), a grand jury investi-

gation of Pendergast and O'Malley on charges of income

tax evasion for having failed to report the receipt of the

sums mentioned from Street ‘was conducted during Feb-

-ruary’and March of 1939*. There is no claim.that that.

grand jury investigation concerned the rate litigation;

the issue was solely one of income tax evasion. Pender-

gast.and O'Malley were indicted therefor (R. 841, 858, 859).

It was subsequently agreed hetween the United States and

. Pendergast and O'Malley that, if the latter entered pleas of

guilty to the tax-.evasion indictments, there would be —

no further prosecution on account of other offenses. The

-‘ agreement took into account specifically the alleged con- .

tempt arising from the transactions incident tg: the com-

promise of the. insurance rate litigation, and it was in °

terms agreed that there would be no prosecution there-

for (R. 840, 841, 842, 843, 845. et seq.). This agreement

. was confirmed in open court ty the acting United States

Attorney (R. 845), by the Chief.of the’ Appellate Section

of the Criminal Divi igion of the office of. the Attorney

General of the United States (R. 848), and by the United.

' States Attorney. who had made. the origirial agreement

(R. 852, 853). Pursuant ‘to that agreement .Pendergast *.

eniered the plea of guiltyi (R. 843, 845). After the entry

of. su¢h plea, but fore sentence, the United States At-.

torney fully advised the trial court (in scrupulously car: _

rying out the ‘agreement — that the plea —

————

‘Opinion, United States v. Pendergast, United States v. O'Malley,

28 Fed. Supp. 601, 1. c. 604.

>

“all proceedings against Pendergist, including any proceed- 5

ing’ for alleged’ contempt, and that there would be no_

‘prosecution therefor (R. £42, 843). Sentence was imposed,

and served (R. 843, 844).

The Respening of the Insurance Rate ‘eiieniien.

- When the foregoing transactions were disclosed, the

successor Superintendent of Insurance on _May’ 29, 1939. :

filed a motion to cite the insurance companies to show

cause why. the decree of February 1, 1936 should not be

"vacated or modified (R. 746). On the same day tHe court

entered an order of restitution, directing that qll funds:

paid out.to the insurance companies under the decree of

February 1, 1936 be restored to the custodian (R. 756). ©

An order to show cause was also entered on the same

date whereunder the insurance companies were: directed

' thus to show cause why the re§$ored funds should not

instanter be distributed. among the policyholders (R. 753).

On August 14, 1940, the court entered its decree directing

the distribution among the policyholders of the funds

th heretofere; under the decree of February 1, 1936, ordered

paid to the insurancé « companies or ‘their representatives

(R. 628). ge ; °

The Conviction and Subsequent Sea

Upon these facts ‘the trial court filed its opinion on

. May 28, 1941. (R. 50),.and judgment and sentence were ©

pronounced on June 7, 1941 (R. 65). :

This proceeding was entitled cause No. 5040 on the

criminal docket of the Central Division of the Western’. .

' District of Missouri up to the time of final judgment.

(R. 1). Asa part of such judgment the trial court di-

rected the clerk to. restyle all pleadings and orders there-

- tofore filed -by adding to the designation, cause No. 5040,

the descriptive term ‘‘a proceeding in contempt inciden‘al

to equity eases Nos. 270 to 426, inclusive”. (R. 66, 1184).

~While in | the record the” enicnbien and present plead-

: &

ings and orders carry that. descriptive style, they were —

not so styled up to the time of final judgment, and then .

were retroactively modified by the clerk in obedience to”

the order. , os

Appeals were talkie both to this Court and to ‘the Court.

of Appeals. Thomas J. Pendergast v. United States, 314

U. S. 574, 86 L. Ed 55.° Upon appeal, in the court

below, petitioner contended: (1) that neither the acts

. charged nor proved ‘constituted misbehavior on his part |

"ment on June 1,°1942.

‘in the presence of the court or so near thereto as to

.obstruct the administration .of justice; (2) that prose-

cution was barred by laches and the statute of limitations;

.(3) that petitioner’s conviction should be reversed and

further proceedings stayed, for the reason that his pro-

secution is in violation of an agreement.with the United

States; {4) that the court below was without jurisdiction

These contentions were rejected (R. 1188 et seq.). This

petition is filed within thirty days next- after final judg-

oo

| STATEMENT OF THE JURISDICTION OFr THIS COURT.

() Statutory provision believed: to sustain the juris-

diction. ya

The jurisdiction of this Court -is invoked senile: Gaskins

240(a) of the Judicial Code; as amended by the Act of

February 13, 1925, c. 229, Section 1, 43 Stat. 938 (28 U.

oe RY 347(a)), and under, the same Act c.. 229, Section |

8, 24 Stat. 940 (28 U. S. C. A. 350).

‘ (2). ‘The date of the’ judgment to be reviewed.

The judgment of the Circuit Court of Appeals for the |

Eighth Circuit affirming the conviction of petitioner was

entered on June 1, 1942 (R. 1213-1214). The issuance

of the mandate has: been stayed pending this application

(R. 1218): This petition, with supporting brief, and the f@>

3 . a ee

9

certified record, are filed within thirty ays: next after

final jndgment. ; a

*(3) | Statement of the nature of the case and je rulings ©

‘of the Circuit Court of Appeals bringing the case within the

jurisdiction of this wap 3

_ The nature of the case (a prosetution: for criminal con-

tempt) has heen heretofore stated. The Circuit Court of .

Appeals ruled: (1) that, although no act of petitioner

occurred in the presence of ¢he court or in any geograph-

icdl proximity thereto, he was’ nevertheless guilty of mis-

behavior in the presence of the court, within the meaning

- of Section 268 of the Judicial Code (28 U.S. C. A., Sec.

385), and hence was punishable upon information for con-

- tempt (R. 1197); (2) that this prosecution is not barred

- by the fact that all allegedly contemptuous acts occurred

more than three years next before the filing of the infor-

mation, upon the ground that no statute of limitations is

applicable to a prosecution for contempt for misbehavior

in the presence of the court (R. 1197); (3) that, although

the prosecution of petitioner was:in breach of his agreement

' with the United States, such agreement did not give rise to

"any equitable right to have the proceedings stayed pending

application for executive clemency (R. 1201); (4) that the

. trialcourt was vested with jurisdiction (R. 1205). Each

of such. rulings is reviewable by this court under the

appropriate statutory eigoatzsaes noted.

i+ Cases believed to ‘sustain ‘the jurisdiction of . this

court. . . ) | nee

This court is vested with jurisdiction und& the statu-_

_ tory provisions heretofore specified. The cases submitted |

by petitioner as ‘the basis for the exercise of such juris-

- diction, to review the judgment below, .are cifed.\here-_

after in connection with petitioner’s reasons for the al-

: lowance of the writ of certiorari. na \

:

¢

: _., ‘THE QUESTIONS PRESENTED.

(1) Did oe coriduct of petitioner constitute misbe-

havior on his part in, the presencé of the court or so-near

thereto as to obstruct the administration of justice, within.

the meaning of Section 268 of the Judicial Code (28 U. S.

C..A:, Sec. 385), and thereby render him pasmorsrs for

contemngt upon information? 3

(2) Was prosecution of petitioner under the informa-

tion barred -ty laches. ‘and the statute of limitations in

view of the admitted fact that any and all acts of alleged

contempt (i. e., misbehavior in the presence'of the court

or so near thereto as to obstruct the administration of jus-

- tice) occurred more than three years next before the filing

of the information?

eee

(3) “Should the conviction below be reversed, and fur-

ther proceedings stayed, for the reason that the prosecu- |

tion of petitioner under the information is in violation

of his agreement with the United States? ot

_ (4) Was the purported statutory court vested with ju-

risdiction to entertain.this independent criminal prosecution

at law for alleged contempt or to impese therein a punitive

sentence? If the purported statutory court was thus with-

out jurisdiction to entertain this proceeding, is its judg-

ment convicting petitioner validated by the fact tha e

of its members, as then District Judge for the Central

Division of the Western District of Missouri, issued the

original restraining order in the insurance rate litigation,

when, under the rules of. the District Court for.the West-

ern District of Missouri, no member of the purported

statutory. court was, at the time of the institution of this

prosecution, judge of or for .the Central Division: of the

Western District of Missouri? ;

ps WS ae

A D.

REASONS RELIED ON FOR THE ALLOWANCE OF THE WRIT.

(1) In ruling (R. 1197) that the conduct of petitioner

constituted misbehavior on his part in the. presence of

the court or so near thereto as to obstruct the adminis-

tration of justice, within the ‘meafiitig of Section 268 of

- the Judicial Code (28 U. S.C. A., Sec. 385),-and thereby

rendered him punishable for contempt upon information,

although petitioner at. no time was in the presence of

the court or in geographical proximity thereto, no mis-

behavior there occurred, and no claimed ‘misbehavior dis-

rupted order or decorum or actuall interrupted the court

in the conduct of its business, thé/ Circuit Court of Ap- |

peals (Riddick, J., dissenting) ,has decided a federal ques-

tion in a way probably in conflict with applicable deci-

sions of this Court, viz: Ex parte Robinson, 86 U. S.

_ 505, 22 B. Ed. 205, Nye v. United States, 313 U..S.. 33,

.85_L. Ed. 1172; and has rendered a decision in conflict ©

with decisions of other Circuit Courts of Appeals on the

same matter,. viz: Wimberly v. United States, t19 Fed.

- (2d) (5th Circuit) 713, Warring v. Colpoys, 122 Fed. (2d)

(C. A. D. C.) 642. See further: Dissenting opinion below

of Riddick, J. (R. 1206); Morgan v. United States, 95 Fed.

(2d) (8th Circuit) 830; Ex parte Poulson, 19 Fed. Cases

1205,. Casé No. 11350; Ex parte Schulenburg, 25 Fed. 211;

Boyd:v. Glucklich, 116 Fed, 131; Millinocket Theatre v.

: Kurson, 39 Fed. Supp. 979.

(2), In ruling that the prosecution of Pe under

_ the information was not barred‘by the statute of limi-

tations or laches, despite the‘admitted fact that all acts of

alleged contempt (1. e., alleged misbehavior in the pres-

‘ence of the court or .so near thereto as to obstruct the ._

administration of justi¢e) occurred more than three years

next ‘before the. filing of the information, and in further

ruling that the appropriate statute of limitations (R. S.,

See. 1044; 18 UsS..C. A., Sec. 582) was inapplicable either

A none > eee ~tad

ee ~

12” . Weg

- by analogy or enactment, the Circuit Court of -Appeals has

decided a federal question in. a way: probably in conflict

‘-with applicable decisions of this Court, viz: Gompers v.

United States, 233 U. S. 604, 58 L.Ed. 1115, United States .

“" v, Goldman, 277 U. S. 229, 72 L. Ed. 862, Ex Parte Gross-

man, 267 U. S. 87, 69 Is. Ed. 527, or, if the ruling below * -

, is notin conflict with the foregoing décisions of this -

Court, as pétitioner contends,-the Circuit Court of Ap-

- peals has decided an important: question of federal" law

» which has not been, but should be, settled by this court.

‘The ruling below is unmistakably in conflict with the -

doctrine of the Gompers Case as heretofore judicially con-

strued (e. g., Appeal of Marks, 144 Pa. Sup. Ct. R. 556,

20 Atl. (2d) (Pa.) 242, In.re Jibb, 123 N. J. Eq. 251, 197

Atl. 12, Hart v. Oil Co., .27 Fed. Supp..713), and with the

weight of authority (e. g., Beattie v. People, 33 Ill. App.

651, Goodall v. Superior Ct., 37 Cal. Appi. 723, 174: Pac.

924, Gordon v: Commonwealth, 141 Ky. 461, 133-S: W..

206, Brewer v. State, 176 Miss. ‘803, 170 So. (Miss.) 540,

Pate v. Toler, 190 Ark. 465, 79 S. W. (2d) (Ark:) 444,

State v. Phipps, 174 Wash.. 443, 24 Pac. (2d) (Wash.)

. ‘073); hence if, contrary to the contention of petitioner,

_the ruling below is-not literally in conflict with the

Gompers Case, it presents an important question of fed-

eral law which should be settled by this court. -

(3) In:ruling that the conviction below should not be

reversed or further proceedings. stayed, by reason of |

tact that the présecution of petitioner under the inform). .

tion is in .violatioh of his agreement with the United

States, the Circuit Court of Appeals has decided a federal

- question in a way probably in conflict with an applicable

decision of this court, viz: United States v. Ford, 99

U. S. 593, 25 L..Ed. 399, declaring the rule that an agree-

- ment with the United States creates an equitable right

' , to a'stay of any proceedings violative of the se Teeecgt

pending application for executive clemency, ‘which,

the instant case, the -Executive is empowered to “ait

a. ne ;

yo amped

FO etme

a

ees Ss Sag

(Ex parte Grossman, 267 U. S. 87, 69 L. Ed. 527); or, if

such ruling is not thus in conflict, as ‘petitioner contends,

the Circuit ,Court -of Appeals has decided an important

question of federal law which has not been, but should

«be, settled by ‘this court. i

(4) In -fuling that - the — statutory. court

was vested with jurisdiction to entertain this independent

criminal prosecution at jaw, and in finally ruling that the

conviction. of petitioner -vas in any’ event validated by the

fact that one of the ~.embers of such court, as then

District Judge. for the Central Division of the Western

District of Missouri, issued the original restraining order

in the insurance rate litigation, when, under thé rules of

the District Court for the Western District of Missouri,

no member ‘of the purported. statutory court was, at the”

time of the institution of this prosecution, judge of or —

_° for the Central Division of the Western District of Mis-

souri, the Ciréuit Court’ of Appeals decided a federal

question (i. e., the jurisdictidén of a statutory court -to

entertain a‘criminal proceeding at law for contempt) in |

‘a way probably in conflict: with: applicable decisions of

_ this court, viz: Thomas J, Pendergast v. United States,

314 U. S. 574, 86 L. Ed. 55, Phillips v. United States,

312 U. S. 246, 85 L. Ed. 800, Public Service Commission

v. Brashear Freight Lines, 312 U. 'S. 621, 85 L. Ed. 1082,

Ex parte Bransford, 310 U. S. 354, 84 L. Ed. 1249. ‘Com-

pare: Gompers v. Stove ‘Co., 221 U. S. 418, 55 L: Ed.

797, Michaelson v. United States, 66 U.S. 42, 1. c. 64,69

‘L. Ed. 162, 1. c. 167, and Russell’ v. United States, 86.

Fed. (2d) 389, 1. c. 392, declaring the rule that a criminal

proceeding for contempt is an action at law, a separate

and independent proceeding, and neither a part of nor

incidental or ancillary to the cause out of which the con-

benseis —* arose.

Each of the questions presented is of grave public im-

-. portance. Unless the majority ruling below is reviewed,

the law relating to. contempt, both as to the substance of

14

.

‘the offense and the question of ‘limitations, will be left —

in confusich. ~Pfosecutions for. contempt are increasing,

in number, and the conflicts with this Court and between

’ cireuits—are unmistakable. The effect of an agreement

with the United States and the jurisdigtion of a statutory

court +o entertain a criminal proceeding for contempt

are equally questions of fundamental importance which. in

_ the public interest should be determined. |

Wherefore, your petitioner prays that a Writ of Cer-

tiorari issue under the Seal of this Court, directed to the

United States Circuit Court’ of Appeals for the Eighth

Cireuit, commanding said Court \to certify and send to

this.Court a full .and complete transcript of the record

. and of the proceedings of said United States Circuit Court

of Appeals in the éase numbered and entitled on its docket

- Nos. 12075 and 12117, criminal, Thomas J. Pendergast, ap-

pellant, vs. United States. of America, appellee, ta the end

that this cause may be reviewed ‘and determined by this

Court as provided for by the statutes of the United tates;

_. and that the judgment of said Circuit Court of Appeals

- be reversed by this court; and your petitioner prays’ that

_the certified, copy .of the record and proceedings of ‘said

United States’ Circuit Court of Appeals for the’ Eighth

Circuit, filed With this petition, may be treated as a re- ;

turn to said Writ of Ceftiorari; and your petitioner prays

’ that he may have'such other and further remedies in \the

“ premises as to the Court may seem eupregrintt and ‘in

conformity with law. . :

Thomas J _ Pendergast,

Petitioner.

- Joun G. MappEN, -

Fidelity Building,

Kansas City, Missouri,

° _*R. R. Brewster,

Federal Reserve Bank Building,

Kansas City, Missouri, |

JAMES E. BurRKE,

Fidelity Building,

_. Kansas City, Missouri,

‘Counsel Sor Petitioner. .

©

15

e Supreme Court of the United States

a

_ OCTOBER TERM, 1942, ,

5 I alaeeonleg ca

a c i — : o.

=

THOMAS VJ. PENDERGAST, PETITIONER,

| ue VS. , |

UNITED STATES OF AMERICA, RESPONDENT.

BRIEF IN SUPPORT OF PETITION FOR WRIT. OF

CERTIORARI. —

A..

‘ OPINIONS OF THE COURTS BELOW.

The opinion of the Circuit Court of Appeals re the

Eighth Circuit, filed June 1, 1942,. is not as yet officially

reported (R. 1188}. A dissenting opinion was filed (¢R.

1206). The opinions of the trial court, both on motion

* - to quash (R. 21) and on final judgment (R. 50, 65), are

reported. 35 Fed. Supp. 593; 39 Fed. Supp. 189.

. B.. |

GROUNDS ON WHICH THE. JURISDICTION OF THIS. COURT

: ‘ Is DNVORED.. :

The statement of the grounds on which the jurisdiction

| of. this Court is invoked appears ‘as part of the foregoing

Petition for Writ of Certiorari (Statement of the Juris-

—_

(16

diction of this Court, supra, p. 9 et seq.), and is hereby

adopted and made a part of this brief.

C.

STATEMENT OF THE CASE.

The statement appears as part of the foregoing Petition

for Writ of Certiorari (Summary Statement.of the Matter

Involved, supra, p. 1 et seq.)', and is adopted. and made

a part of this brief.

D.

(1) The Circuit Court of Appeals, and the trial court,

erred in holding, deciding and finding petitioner guilty of.

contempt, i. e., misbehavior in the presence of the court or -

so near thereto as to obstruct. the administration of justice, . ”

wit... the meaning of Section 268 of the Judicial = (28 |

U. S. C.'A., Sec. 385).

(2). The Circuit Court of Appeals, and the trial sian

erred in holding that the acts charged! against petitioner

constituted misbehavior on his part in the presence of the

_ court or so near'thereto as to obstruct the administration of

justice, within the meaning of Section 268 of the Judicial

Code (28 U.S. C. A., Sec. 385). |

(3) The Circuit Court of Appeals, and the trial court,

erred in holding that the acts shown in evidence constituted »

misbehavior on* the part petitioner in the. presence of ~

the court-or so near thereto as to obstruct the administra-

tion of justice, within the meaning of Section 268 of the .

_ Judicial Code (28 U.S. C.’A., Sec, 385).

(4) The Circuit Court of Appeals, and the trial court,

erred in holding that the prosecution undtr the informa-

- tion of petitioner was not barred by the statute of limita- .

tions (i. e., R. S., Sec. 1044; 18 U. S. C. A., Sec. 582). or

| °

oo

‘by the fact that the information was not ‘filed within

three years next after the alleged contemptuous acts.

(5) The Circuit Court of Appeals, and the trial court,

erred in refusing to give effect, to the agreement be-

_ tween the United States and petitioner whereunder it

was agreed that, if petitioner entered a plea of guilty to

an indictment charging ‘income tax evasiofi, he would not

. be prosecuted for alleged contempt; by reason of such ©

agreement the instant prosecution should either have been

abated or stayed pending an application for’ executive

clemency and —— action thereon. by the Execu-

tive. -

(6) The Cireuit Court of Appeals, and the trial court, |

erred in holding that the latter was vested with juris-

diction to entertain this proceeding. for criminal contempt,

and to impose therein’a punitive sentence. .

( 7) The Circuit Court of Appeals, and the trial court,

... erred in holding that, if the trial court was without juris-

diction in. this proceeding, its judgment. convicting peti-

‘ tioner was -validated by the fact that one of its members,

as then District Judge for the Central. Division of the —

Western District of Missouri, issued the original restrain+

ing order in the insurance rate litigation.

(8) ‘ The trial. court.erred in refusing to sustain pe- -

titioner’s motion to declare him not guilty and to dismiss

the proceeding (R. 876), and the Circuit Court of Appeals .

erred in affirming such ruling.

S *

18

a

"SUMMARY. OF THE ARGUMENT.

Pies . ‘POINT L-

_ The conduct of petltianen did not constitute: misbehavior

on his part in the presence of the court or so near thereto

as to obstruct the administration of justice within the mean-

ing of Section 268 of the Judicial. Code (28.U. S. C. A;

Sec. /385) and did not render him punishable for contempt

_-wpon information. ‘Petitioner at no time was in the presence

_ of the court or in geographical proximity thereto. No mis-

behavior there occurred. No claimed misconduct disrupted

’ order or decorum cr actually interrupted. the court in the ©

conduct of its business. The majority opinion below (Rid-

dick J., dissenting) reverts to the doctrines of the-Toledo —

Case (247 U.S. 402, 62 L. ‘Ed. 1186) in holding that the mis-

‘conduct of petitioner occurred constructively in the-pres-

- enee of the court, although actually occurring at points

geographically remote therefrom, upon the theory that by

a chain of causation it. took effect there. The decision,

therehoga: | is in conflict with Nye v. United States, 313 U. S.

33, 85 L. Ed. 1172, and with decisions of other Circuit Courts |

of Appeals (Wimberly v. United States, 119 Fed. (2d) 713;

_—. v. ers, 122 Fed. (2d) 642). .

WN Se |

Prosecution of petitioner under the. information was .

berrcd by the statute of limitations, and laches, since all

acts of alleged misconduct occurred more than three years

next before the filirig of the information. Under controlling

"> decisions of this court this prosecution was subject to the

three-year statute of limitations (R. S. Sec. 1044; 18 U..S.

C. A., Sec. 582) relating to offenses (not capital) against

the "nited States. The majority opinion below, however,

ruled that the criminal coritempt here sought to be charged

' was not. an offénée within the meaning of that statute, and

_ that no statute of limitations was applicable thereto either -

* by enactment or analegy. Therein that opinion is in con- —

flict with Gompers v. United States, 233 U. S. 604, 58 L. Ed.

1115, United States +. Goldman, 277 U. S. 229, 72:L. Ed.

862, and Ex Parte Grossman, 267 U. S. 87, 69 L. Ed. 527.

19

POINT III.

The conviction below should be reversed, and further

proceedings stayed, for the reason that the prosecution of

petitioner under the information is in violation of his agree-

_ ment with the United States that, if he entered a plea of

guilty to en indictment charging income tax evasion, he

would not be prosecuted for alleged contempt. Petitioner

performed that agreement. Under the rule declared by .

‘ this court in United States v. Ford, 99 U. S. 593, 24 L. Ed.

299, such agreement vested in petitioner an equitable right ©

to have any prosecution for contempt stayed pending an

application for executive clemency. The majority opinion.

below, in refusing to give effect to the agreement, is in

conflict with: the foregoing decision of this court.

.

a

’ POINT IV.

| The trial court was without jurisdiction to entertain’ this

preceeding. It was at most a statutory court of limited

equitable jurisdiction. This proceeding is an independent |

prosecution at law for criminal contempt, and is neither

incidental nor ancillary to the original equitable litigation ..

before the statutory court. That court could neither ac-

cuire nor exercise jurisdiction thereover. In holding that

the instant preceeding was incidental to the original

equitable litigation pending before the trial court, the deci- -

sien of the~majority opinion below is in ‘conflict: with

Gompers v. Stove Company, 221 U. S. 418, 55 L.. Ed. 797,

end Michaelson v. United States, 266 U. S. 42, 69 L. Ed.

162, 1. c. 167, and, in further holding that the trial court

wes vested with jurisdiction herein, such decision: is in

cenflict with the decision of this court in this case (Pender-

gast y. United States, 314 U. S. 574, 86 L. Ed. 55) and with

Phillips v. United States, 312 U. S. 246, 85 L. Ed. 800, Pub-

lic Service Commission v. Brashear Freight Lines, 312

U. S.-621, 85 L. Ed. 1082, and Ex Parte Bransford, 310 U. S.

254, 84 L. Ed. 1249. When the trial court was thus without

jurisdiction, its action could not be validated by the cir-

cumstance that one of its members, at the time of the in-

’ stitution of the original rate litigation, was judge of the

Central Divisiori of the Western District of Missouri. The

fria] court ‘conceded that at the time of the institution of -

this preceeding no member thereof | ee judge cf such

Central Division. acs : 1 aes

20

F..

ARGUMENT.

POINT ‘I.

The conduct of petitioner did. not TE mishchavier

_ on hi. part in the presence of the court or so near thereto |

as to. obstruct the administration of. justice, within the

meaning of Section 268 of the Judicial Code (28 U. 8.C. A,

Sec. 385), and did not render him punishable for contempt

upon information; the majority opinion below (Riddick, J., .

dissenting), in holding him thus punishable therefor, is in

"conflict with applicable decisions of this Court and with

decisions of other Circuit. Courts of Appeals on the same

matter. fa ;

Petitioner contends,’that the majority opinion below ©

upon this issue is in plain conflict with the unambiguous

terms’ of the statute under which the prosecution has

_ been conducted, and, as well, with the last controlling

decision of this Court. Section 268, Judicial Code, 28 U.

S. C. A., Sec. 385; Nye v. United States, 313 U. S. 33, 85 L.

Ed..1172. That plain conflict is strikingly demonstrated |

by the dissenting opinion (R. 1206-1212).

‘The position of petitioner briefly is this: the forégoing

statute declares that, before petitioner can be punished

for contempt upon information or other form of sum--

“mary proceeding, it must appear that he, at the time of _

the misbehavior relied upon as constituting the contempt, .

was in the presence of the court or so near thereto~as to

obstruct the administration of justice; his presence be-

fore the court,-or in the proximity indicated, must have

been ‘actual and not constructive; and if he was not thus

‘in the actual presence of the court or in such proximity,:

it is’ immaterial: whether his misbehavior elsewhere by

any chain of causation eventually took effect in. the pres-

ence of the court. The misbehavior charged must -have.

occurred in the presence of the court _or in the required

proximity thereto; the. person charged with the misbe-

21 -

_ havior must, at the time thereof, have been in the pres--

‘ that “person in their

ence ‘of the court or in the required proximity thereto.

For presecution of a given person for contempt upon in-

formation there must gppear misbehavior on the part of

—_aneieg or so near thereto as to

obstruct the administration of justice’. If the person

charged was not thus present, if at the time of misbe-

havior he was geographically removed from the presence -

of the court, then, however obstructive to the adminis-

tration of justice his misbehavior should prove, irrespec- .

. tive of the circumstance that such misbehavior *by its

_ resulting consequences took effect in the actual presence

. of the court, he can be prosecuted only by indictment.

‘Section 135, Criminal Code, 18 U. S. C. A., Sec. 241. As

‘a corollary to the foregoing proposition, authoritative con-

struction of the contempt section above cited has attached.

the further condition that, for summary prosecution upon

information, it is esséntial that the misbehavior of the

persoh. charged in the vicinity of the court must be of a

character “disrupting its quiet and order or actually in-

terrupting the court in the conduct of its business”. Nye

v. United States, supra, 1. c. 52. There are, therefore, two

prerequisites to prosecution for contempt upon informa-

tion: (a) the actual presence of the person charged at

_ . the’ time of misbehavior before the court or in immediate

a geographical proximity thereto; (b) disruptive misbehav-

ior on his part when thus present. Neither - prerequisite

appears. in the instant case.

- The present law of contempt stems from the statute ©

_ of March 2, 1831 (4 U. S. Statutes at Large 487):

| “Statute II.

a March 2, 1831.

-

“An Actteclaratory of the law oacerning contempts

of court.

Be it etinicted: by the Sénate and House of Repre-

sentatives of the United States of America, in Congress

' assembled, That the power of the several courts. of the’

2

United States to issue attachments and inflict summary

punishments. for contempts of court, shall not be con-

_strued to extend to any cases except the misbehaviour

of any person or persons in the’ presente of the said

courts, ‘or so near thereto as to obstruct the administra-

tion of justice, the misbehaviour of any .of the officers.

of the said courts in their official transactions, and the

disobedience |or resistance -by any officer ‘of the said

courts, party] juror, witness, or, any other ‘person or

persons, to ahy lawful writ, process, order, rule de-

‘cree or comm nd of. the said courts.

Sec. 2.. And be it further enacted, That if any person

or persons shall,-corruptly, or by threats or force, en-

deavour to influence, intimidate, or impede any juror,

‘witness, or officer, in any court of the United States,

in the discharge of his duty, or shall, corruptly, or by

threats or force, obstruct, or impede, or endeavour to

obstruct or impede, the due administration of justice

therein; every person or persons, so offending, shall be.

liable:to prosecution therefor, by indictment, and shall,

on*conviction thereof, ‘he punished, by fine not exceed-

ing five hundred dollars, or by imprisonment, not ex- -

ceeding three months, or both, according to the nature

and aggravation of the offence.

Approved, March 2,1931." is” ie

. The first section of the foregoing Act is now Sectiore 268

of the Judicial Code (28 U. S. C. A., Sec. 385):

“Sec. 385. (Judicial Code, Section 268.) Adminis-~

tration ef oaths;.contempts. ‘The said courts ‘shall have

‘power to impose and administer all necessary oaths, and

to -~punish, by fine or impfisonment, at the discretion

of the court, ‘contempts of their authority. Such power

‘to punfsh contempts shall not be*construed to extend

to any cases except the misbehavior of any person in‘

-their presence, or so near’ thereto as to obstruct the

administration of justice, the misbehavior of any of the

officers of said courts in their official transactions, and

the disobedience or resistance by any such officer,-or by

any party, juror, witness, or other person to-any lawful

writ, process, order, rule, decree, or command of the

said courts (R. S., Sec. 725; Mar. 8, 1911, Ch. 231, Sec.

268, 36 Stat. 1163).”

23

The secand section of the 183I Act is now Section 135 ot °

- the Criminal Code (18 U. S. C. A., Sec. 241):

“Sec..241. (Criminal Code, Section 135). ‘Attempt-

ing to influence witness, juror, or officer. Whoever -

-corruptly, or by threats ‘or force,-or by any threatening a

letter or. communication, shall erideavor to infiuence;

. intimidate, or impede any witness, in any court of the

United States or before any United States commissioner

_ or officer acting as such ‘commissioner, or any grand

or petit juror, ‘or officer in or of any court of. the

_ United States, or officer who may be serving at any

. examination or other proceeding before any United’:

- States commissioner or officer acting as such. commis-

sioner, in the discharge of his duty, or who corruptly

or by threats or force, or by any threatening letter or

communication, shall influence, obstruct, or impede, or

_ endeavor to influence, obstruct, or impede, the due

administration of justice therein, shall be, fined not

more than $1,000; or imprisoned not more than one year,

or both (R. S., Secs. 5399, 5404; Mar.’ 4, 1909, Ch. 321,

Sec. 135, 35. Stat. 1113).”

This court has pointed cut (Nye v. United States, supra)

that for nearly a century following the 1831 Act authorita-

tive construction accepted its plain, natural interpretation.

_Ex parte Poulson, 19- Fed, Cases 1205, case No. 11350,

l. c. 1208; Ex parte Schulenburg, 25 Fed. 211, 1. ¢. 214;

Boyd v. Glucklich, 116 Fed. 131, 1. c. 136; Ex parte Robin-

. Son, 86 U. S. 505, 22 L. Ed. 205. The controlling effect of °

the foregoing authorities was recently recognized by the

court below. ‘Morgan v. United States, 95 F, 2d 830, 1. c.

835. As pointed out by this Court in the Nye Case, ar-

tificiality first crept into the construction of the Act of

1831 in Toledo Newspaper Co. v. United States, 247 U. S.

402, 62 L. Ed. 1186. By the majority opinion in that case

the distinction between Sections:1 and -2 of the Act of

1831 was destroyed. The requirement that the offender

must be in the presence of the court or in the geographical

vicinity thereof was abrogated. The further requirement

that the misbehavior charged must not only be in the

vicinity of the court but must also be disruptive of its

*

court concerned inthe oftense. Under the second section,

O24 .

order and decorum was disregarded. The test adopted was

one of obstructive effect upon the administration of justice. .

Under that, doctrine any act punishable under the second

section of the Act of 1831. was equally punishable under. -

the first section, and the restrictions imposed by the Act

upom the power to punish on information or other

.summary process were. judicially ‘eliminated. By the

Act of 1831 Congress curtailed the power to. punish for

contempt by summary process; the majority’ opinion in

the Toledo Case ignored the curtailment. Before the

recent Nye Case, this. was pointed out strikingly in the

dissenting opinions’ of Mr. Justice Holmes, who con-.

tinued to adhere strictly to the natural construction of |

the Act. Toledo Newspaper Co.-v. United States, supra,

1. ¢. 422; Craig v. Hecht, 263 U. S. 255, 1. ¢. 280, 68 L. Ed. |

293. The Toledo Case, obliterating the distinction’ be-

tween the first and second sections of the Act, in @ffect con-

ferred, in the event of an alleged contempt, an election

of remedies. The result was grotesque. Under the first

section of the Act the power to punish by fine or im- .

prisonment was unlimited except by the discretion ef the -

however, the maximum. penalty was a nominal fine or

imprisonment for a period of three months, or both. It is

inconceivable that Congress, in thus limiting the penalty.

under the second section, intended that by the Toledo Case

doctrine of ‘ultimate effect the offense could also be |

punished under the first section by an unlimited penalty:

' The fundamental fallacy, of course, in the Toledo Case

was its denial that the first section of the Act rigidly

limited the power of.the courts to punish for contempt

upon information or summary process; thereafter, as Mr.

Justice Holmes pointed out, the court could only by such

process take action where necessary “in a.strict sense

- * * * to enable him to go on with his work”. Craig v.

- Hecht, supra. We stress the artificiality of the Toledo

- Case doctrine because the instant proceeding was. initiated

and- prosecuted under the theory of that authority. Thus

ee Ss 3

the trial court declated that “if the tendency of the mis-

- behavior. is ‘to affect ‘the administration’ of justice, it’ is

contempt” (R. 25). In that opinion it was. stated that

a letter mailed in London could” constitute*contempt of a

United States court in ee it takes effect

in the presence of the court’“6r ‘‘at any rate it is so near ~

‘to the presence as to obstruct the administration of justice”

(R. 26). Although the trial court. considered the Nye

€ase,.it adhered to its former views upon final judgment.

Thus the trial ccurt remarked (R. 57):

“The misbehavior of these defendants was committed

| en” it took effect and. where it. was intended to take

e Ree i /

The miijority opinion’ below cae upon the same

theory that the misbehavior occurred in contemplation of

law wherever its consequences occurred (R. 1195). That

is the Toledo doctrine. Any act of. misbehavior, in order

to violaté either the first or second -sections of : ‘the Act ©

of 1831, must take effect in the presence of the court;

otherwise it could not be contemptuous within the con-

templation of either section; the distinction between the

misbehavior specified in the two sections lies ‘not in the

place where the misbehavior takes effect but in the place

where the misbehavior ‘occurs. .The fallacy of the Toledo .

doctrine. was that constructive presence before the court -.

was substituted for the statutory requirement of actual

presence before the court; the person charged was held

under the doctrine of causal effect to have been present,

_and there to have committed misbehavior, when he was

actually abgent and committed his alleged. misbehavior —

elsewhere. The same fallacy permeates the majority opin-

ion below. Petitioner has been found constructively. in the

presence of the court when he was actually absent; his

misbehavior has been held to have occurred constructively

_ in the presence of the court when .it actually occurred

elsewhere; and, as in the Toledo Case, these judicial re-

sults have been accornplished under the doctrine that, as

. 26

: 2e ePRehe eee

& matter of law, misbehavior must be held to occur where

' it takes effect. The:trial court thus reverted to or per-

- $isted in following the exploded Toledo Case doctrine of

causal eet in the month following its condemnation by

this Court. .

We.apprehend that in the Nye Case this Court plainly

rejected the Toledo Case test of the place where .the mis-

behavior eventually took effect,’ the “tendency to obstruct

the administration of justice’’ doctrine, in favor of the

test plainly required under the Act of ‘the geographical

‘location of the misbehavior and of the accused. In the

Nye opinion it.was freely conceded that the misconduct .

‘had as its purpose and effect the obstruction of the ad-

ministration of justice (1. c. 52). Although the trial court

_ in the instant case clung 'to the view that misbehavior _ .

- took place where it took effect, and was intended to take

effect, to the doctrine -that obstructive misbehavior could

only take, effect in the presence of the court, and that,

therefore,. if the purpose and effect of the misconduct

‘vere an obstruction in the administration of justice, such

‘intended effect brought such misbehavior constructively

into the presence of the court, the opposite result had °

been reached by this court in the N¥e opinion a month

before (1. c.'52). “It will be recalled that in the Nye Case,

as 1n the instant case, the “effect” ‘or “reasonable tend-

ency” theory was relied upon by the court below to sus-

tain the-contempt charged. Nye v. United States, 113 Fed..

(2d)}- 1006, 1. c. 1008: In both cases the Circuit Court of

Appeals argued that the misbehavior ‘had the effect, and

was intended to have the effect, of interfering with the -

- court in the performance of its functions, and that, there- -

fore, the misbehavior took ay constructively where the

intended ‘result occurred, i. €:, in. the presence of the

court.. =nie Court, however, “held that: the words “‘so near

thereto’ ’ had a: geographical and not a causal connotatian

(1. c. 48), and that the place where the misbehavior took

effect could not “in any normal meaning of the term”.

alter the admitted fact that such misbehavior actually oc-

curred elsewhere.

27

The N ye Case and the instant case are precisely parallel. .

In the Nye Case the misconduct occurred, the “evil in-

fluence” was brought to bear, at a point remote from the

court;'in the instant case equally the misconduct occurred,

. the “evil influence” was brought to bear, at a point remote

from the court. In the Nye Case the court below sought

to bring the remote point where the misconduct occurred

into the courtroom by the argument that the misconduct |

there had its intended effect; in the instant case, similarly,

the court below seeks-to transport into the courtroom points

.in Chicago, St.’Louis and Kansas City by the argument that

misconduct there occurring had its intended effect in that -

courfroom. In the Nye Case the defendants personally °

mailed the motion for dismissal (in the form of a letter) .

to the court; in the instant case the insurance companies

filed a motion for decree, supported by a stipulation exe-

cuted by counsel for petitioner’s codefendant O'Malley. .

The court below,- however, argues that the motion for

decree, with the supporting stipulation, was filed or trans-

mitted to the court through counsel as innocent emis-_ .

saries (R. 1194), and that the latter represented that the |

‘compromise was honest and ‘not fraudulent. As the dis-,

senting opinion. points out (R. 1211}, the statements of .

counsel added nothing to the mere filing of the motion.

.__The parallel with the Nye Case is, nevertheless, inescap- ©

able. In that case the innocent emissary was the mail-

man; in the ‘instant case the innocent emissary was a

lawyer. In neither case has. any misbehavior occurred in

', the presence or vicinity of the court; the innocent emis- ;

sary has not been-guilty of misbehavior by reason of his

innocence; he who sent ‘the innocent emissary has not

_ been guilty of misbehavior in the vicinity of the court

- because he has not been there. The innocent emissary

theory of the court below is but another variant of the .

constructive presence doctrine of f the Toledo Case.

_ Again, moreover, the parallel does not end. As pointed

out in the dissenting opinion below. (R. 1211), every act

of counsel, relied upon by the majority opinion to support

28

? the theory .of misbehavior in the presence of the court,

occurred equally in the Nye Case. There,.as in the in-

stant case, the misconduct,at a point- remote from the

courtroom was sought to be carried into. effect’ :in the

courtroom by the filing of motions and the appearance

of counsel in their support. Thus it appears from’ the

petition for certiorari (p. 2) in the Nye Case that ‘the

occasion for the citation for contempt was thé hearing

in. open court. of a motion to dismiss based upon the ~

fraudulent discharge of Elmore -as administrator. This

statement is supported by the official record in, that pro-.

ceeding (pp. 155, 156). Hence there is not a single fact —

or circumstance in the instant case, treated as significant -

by. the majority opinicn nalow, which was not present in

the Nye case. “

The majority’ opinion telene finally argues that in the

instant: case the court was deceived, while, in the Nye .

Case Elmore alone was degeived. This attempted dis-

- tinction"is completely answered in the dissenting opinion. ©

(R. 1211, 1212). It is plain, that the contempt sought

to be charged in the Nye Case was not the overreaching

of Elmore any-more than was the contemipt sought to be

charged in the instant case the bribery of. O'Malley; the

contempt .sought to be charged equally in both cases

‘ was the seeking of judicial action to carry into effect >

previously perpetrated fraud. This. is plainly recognized —

by the majorify opinion: at another point (R. 1194). .

We have mentioned supra that if any person transmits

to the court a motion invoking judicial action,,he irre

sistibly implies thereby a representation that his action.is ©

in good faith: and not’a ‘fraud upon the court. ‘Verbal .

representations to the same effect add nothing thereto.

. Hence any representations by counsel in the Nye Case or

the instant case dé not go beyond the inevitable implica- ~

tion of good faith arising from the mere filing of the re- |

‘spective motions in both cases. Whether the representa-

tion of good faith be express or implied is immaterial.

The dissenting opinion so held (R.. (21h). Misbehavicr

‘ in the presence of the court is a plain, simple, unambigu-

ous term which, as pointed out in the Nye opinion, must

be construed in its normal meaning (1. c. 52). It cannot

be extended by construction or interpretation. ‘Realisti-

cally viewed, taking. the term in its normal meaning,

where did the misconduct, the misbehavior, of petitioner

occur? Is it not plain, that it occurred in Chicago, St.

_ Louis and Kansas City, at’ points remote from the court-

room? There was no misbehavior by any person in the .

presence or vicinity ‘of the court. The conduct of counsel .

was entirely et ! and in every respect 7S -caNUEAER

How, then, unless we extend the term “misbehavior” be

yond its normal acceptation, can it be said that their. con- .

* duct we misbehavior? Petitioner admittedly ‘was

not present at any time in the vicinity of the court. The

majority opinion below seeks to twist. the . issue into.

' whether, if the charge were’a conspiracy to perpetrate a.

fraud upon the court,.the act of an innocent emissary could.

x

\3

be chargeable to a person then elsewhere. , That is not _

the issue; if it were, the act of the mailman, of counsel,

_in the Nye Case would have been charged to Nye. The

true issue is much narrower, namely, whether the proof

establishes misbehavior of petitioner in the presence of

the court. The issue is not one of criminal responsibility —

for the act of another, but one simply of the geographical

location of the accused and of the occurrence of particular. .

misbehavior. The innocent emissaries did not misbehave

in the. presence of the court; petitioner did not misbehave

in the presenice of the court,

. We submit that the dissenting opinion properly declares

‘(R. 1211):

“ perceive no distinction heteidiee the Nye case 2 and

this case. None is-drawn by the majority opinion.”’

The -majority opinion below is in conflict with ‘the Nye

. Case not only in that it reverts to the. Toledo doctrine of -

petitioner’s constructive presence before the court, if his

Y

7

\

\

\

° \

\

. 30

misbehavior eventually took effect there, but as well in

its disregard of the further requirement that the misbe-

havior “charged must be of -a character “disrupting its ©

quiet and order or actually interrupting the court:in the

- conduct of its business” (1. ¢. 52). In both respects it is

‘equally in conflict with Wimberly ‘v. United States, 119

Fed. (2d) (5th Circuit) 713, 1. ¢, 714 and Warring v.

Colpoys, 122 Fed. (2d) (C. A. D.C.) 642. See also:

Millinocket Theatre v. Kurson, 39 Fed. Supp. 979, 1. c. 980.

_ Petitioner was not a'party to the insurance rate litiga-

tion and is not shown to have been connected, directly

or indirectly, with any court procedure followed. He ‘is

not shown to-have had any notice or-knowledge of any

proce¢ 1ral steps intended to be taken. A layman may be -

charged with knowledge of the substantive. law; he is not

charged with knowledge of procedural law. The method

pursued by the companies to obtain judicial approval of

the. proposed distribution was entirely unnecessary. ‘The

companies ‘had an. absolute right to dismiss; and, upon

dismissal, under the controlling: decisions of the Missouri

Supreme Court (Aetna Insurance Co. v. O'Malley, 342 Mo.

800,118 S. W. (2d) 3, lc. 9, 10), the court was under the

mandatory. jurisdictional duty of turning over impounded

funds to the Superintendent of Insurance. for distribution.

Under such circumstances, without evidence that peti-

tioner had any. notice of the extrajurisdictional proceed-

ings ,taken, recognizing that a criminal intent is as es-

sential in a contempt proceeding as in any other offense

‘(United States v. Jose; 63 Fed. 951, }. c. 954), the argu-

ment that Pendergast either knew, intended, or should

have anticipated, that any act of his would the effect. in

the presence of the court becomes absurd.. .

Acts of misconduct occurring at points remote from the:

. vicinity of. the court may justify indictment under the

“effect” or “reasonable tendency” theory for obstruction

of justice within the meaning of the second section of the

Act .of 1831; they cannot justify summary punishment

upon information within the teasonable intendment of

i =

. the restrictive ‘provisions of. the first section of that Act. .

In the phraseology of Mr. Justice Holmes, this proceed-

.ing was not initiated for the present protection of the

court from actizal interference, but as a.means of post-—

poned retribution for past acts.. The action of the court — -

below was not necessary “in a strict sense in order to

enable (them). to go on with (their) work’, Petitioner,

at»the time of misconduct, was neither in the presence

' of the court nor in the requirec proximity, thereto. No ,

misbehavior on his part ‘either occurred in the yicinity

‘of the court or disrupted its quiet, order and decorum or

actually interrupted the court ‘in the conduct of:its basi-

ness. Under all authorities, save only the overruled opin-—

ion in the Toledo.Case, the’ acts in question do not con-

stitute contempt punishable upon information. The dis-

senting. opinion below very properly points out that this

proceeding ‘ ‘raises ‘matters of grave importance” “(R.

1207). Further (R.. 1212): :

“The question of the power of a federal dsourt to act

in any case is always a question of importance. It is

- néver, as intimated: in the opinion of the district court, —

@mere technicality. But in cases in which the question

. is of the power of the court to. punish a -criminal ‘sum-

marily in.a manner different from that commonly and:

ordinarily provided for criminal trials, the question of

_the court’s power must be of the gravest importance.

. The gravity of the crime only adds to the gravity of

the question with which the court - is confronted.”

(Italics ours).

Tt is. submitted that, unless. the majority opinion is

"reviewed by this Court, the substantive law of contempt .

‘in courts of* the United States will be left i in a state of

chaotic confusion.

= | : » \

‘, | .

>. = % |

* :

~ ° ‘ >

%, .

% } nf 32

erie ORY Hie 2

4

/

The prosecution of petitioner under the information. was

. -horred by thesstatute of limitations, and laches, since any

and-all acts of alleged contempt occurred more than three

years next before the<filing of the information; the majority

- opinion below, i in holding. that the prosecution was not thus

barred, and in further ruliitg. that the appropriate statute

of limitations (R. S., Sec. 1044; T8-LJ. S. C. A., Sec. 582) was

“inapplicable to this proceeding either hy analogy or enact-

ment; is in confict with applicable decisions of this court,

or, if the ruling below is not in conflict with. decisions of

een this court, as petitioner contends, such majority opinion

has decided an. important question of federal law which has

* not been, but should be, settled by this court.

Since misbehavior alone is the offense prosecuted, then .

that-offense became complete if and when the’ misbe-

havior occurred,, Misbehavior, in any norma] sense of

‘ the word, means. ‘improper.acts. Acts must have specific

time ‘and place. The specific time of the acts charged

_ - against petitioner was more than three years next .befare

"the filing of ‘the information. The majority opinion pro-

ceeds. upon the theory that the misbehavi ior in question

was the- presentation | to the court for its. _approval of-a

audulent compromise. The motion for decree, reciting |

é@ fact. of the ‘compromise,’ was filed.en June 18, 1935"

(R. 603). The stipulation of/ settlement was filed’-on

June: 19; 1935°(R. 607). The actual: compromise was con-

" ~ summated by an agreemu:it of: May 18, 1935.-°, The ap- }

‘pearances of counsel occurred ‘shortly after the filing of

N

. than three ‘years. thereafter, until on May 29, 1939 the _

the motion for. decree and the. stipulation of-settlement-- °

On February i, 1936 the court entered its decree, pursu- |

: ant to the motion filed, dismissing the causes’ and direct-" ~

ing the distribution of the impounded funds (R. 617). |

Nothing. occurred in the insurance rate litigation for more ©

successor Superintendent. of Insurance filed a motion to

\cite the insurance companies to ‘show cause. why the de-

' 33

cree of February 1, 1936 should not be iuatadl (R. 746).

_ The information in the instant’ proceeding was filed on

July 13, 1940 (R. 1). Hence it is undisputed that the in-

formation was not filed within three years next after the

alleged contempt charged, with the result that the appro-

priate statute of* limitations (R. S., Sec. 1044; 18 Uz. $.z

C. A., Sec. 582) is applicable:

““No person shall be prosecuted, tried, or onntived for

‘ any offense, not capital, *:* * unless the, indictment. is

found,’ or the information is instituted, within three

. years next after such offense shall have been committed

oe * +) ”

This is a, prosecution for crifninal contempt initiated by

-. an information in the name of the United States and. pro-

secuted by the United States. A sentence of two years in.

the penitentiary has been ‘imposed; punishment by fine

or imprisonment in such | a proceeding is unlimited. It °

can scarcely. be argued, therefore, that this ¢riminal con-

‘tempt is not an offense within the meaning of the statute. |

_ That criminal éontempt i€ such an offense was specifically

determined by this court in Gompers v. United States,

233 U.:S: 604, 1. c. 610, 58 L. Ed. 1115, United States v.

* Goldman, 277 U. S. 229, 72.L.°Ed. 862, and Ex parte Gross-

‘man, 267 U..S.°87, 69 L. Ed. 527. See also: Hart In-

vestment Co, v. Oil Co.,; 27 Fed. Supp.’ 713. The reason-

ing and language in the Gompers Case (1.'c. 612, 613)

compel, #t is submitted, the application of the foregoing

.Statutesof. limitations to the instant prosecution. If it is

_ applied, there canfbe no question but that the prosecution

_.is barred. . Pie “

The majority opinion” below holds that’ the ‘contempt

here charged is contempt in'the presence of the court, and

“that the statute of limitations. is applicable neither by

analogy nor enactment. We have noted under the assign-

‘ment next preceding that the majority opinion brings

the misbehavior charged, into’the presence of the court

only constructively, and not actually, by resort to the

causal effect doctrine of the Toledo Case. Upon that as-

"34

sumption, however, such opinion proceeds upon the °

theory that’ the statute of limitations:is applicable to

every form of criminal centempt except that occurring in.

the presence of the court. By that reasoning prosecution

far contemptuous violation of a judicial decree would be |

barred by limitations; by that reasoning prosecution. for

misbehavior, not in the presence of the court, but ‘so

near thereto as to obstryct the administration: of justice,

would ‘be barred by lin itations; but bf that reasoning,

‘however, prosecution for misbehavior in the presence of ©

the court would never be barred by any statute of limita-

tions. We submit that, for purposes of limitations, no-

such distinction’ can be created between different forms.

of the same offense. The pertinent matter is that any

criminal contempt is an offense, as-this court clearly ruled

in the authorities cited; and it is difficult to understand.

upon what theory the majority opinion can rule that one

form. of criminal contempt is an uffense while another

form is not. It is difficult to understand upon what theory

it can be angued that a criminal contempt constituted of

, the procurement of an order is subject to no statute of

limitations, while a crimina] contempt constituted of dis-

obedience to an order is subject to such limitations. In

' the Gompers Case there was no formal information; in ©

the instant case there was a formal information upon

the official oath of the acting United States Attorney in

.the name of the United States.’ That information‘is being —

prosecuted by the United States concededly for -criminal -

contempt. It, therefore, appears thet the status of ‘the

instant proceeding as a‘prosecution for an offense within. —

the meaning of the statute of limitations, supra, is clearer

than in the Gompers Case. The majority opinion does

not. seek to justify the distinction made upon principle;

_it could not be thus justified; it rests the claimed distinc-

tion solely upon the following statement in the Gompers

Case (233 U. S. 604, 1. c 606, 58 L. Ed. 1115):

“The inquiry was: directed solely, with a view to

punishment for past acts, not to secure obedience for

35

the wate and to avoid repetition it will be understood

that-all that we have to say concerns proceedings of this

sort gnly, and further, only proceedings for such con- ,

tempt not-committed: in the presence of the court.”

In thus stressing the furegoing excerpt the court below

ignored the following sweeping declaration of — in the

same opinion: a. c. 612):

- “The power to punish for contempt must have some

limit in time, and in defining that limit we should have

regard to what has been, the policy of the law from

the foundation of the government.”

Also disregarded is the excerpt from the opinion of Chief

” Justice Marshall, quoted by ‘Mr. Justice Holrhes in the

_Gompers Case, Wherein it is pointed out that not even

treason can be prosecuted after a lapse of three years,

and intimating.that it would be manifestly incongruous —

for there to be no limitation upon the prosecution of a

lesser offense.

The fallacy of thé argument advanced below is .that

Mr. Justice Holmes, in excepting from the opinion in the

Gompers Case contempts committed in the presence of the —

court, did not intend thereby that there should be no

limitation upon prosecution of such contempts but, to the

contrary, intended ‘that prosecution of such direct con-

tempts should be more restricfively limited’ in time than

_ the'type of cofitempt there under consideration. An analy- |

sis of the Gompers opinion will reveal that Mr. Justice .

_Holmes used the phrase contempt committed “in the pres-

ence of the court” in the usual accepted sense of direct

contempt, of contempt in the face of the court, which can

be punished, upon the personal knowledge of the judicial

officer, without notice, information, Ags pn hearing or

‘ trial. See Ex parte Terry, 128 U: S.- 289, 32 L. Ed. 405,

_ .wherein.the court intimated (1. c. ro that there.was a

grave question whether that type of procedure could be

3 _approved either at a subsequent term or even upon a

subsequent day‘of the same term. Clearly Mr. Justice

36

Hoimes did not intend his opinion (and such: was the

purpose of his exception) to,be misconstrued as authoriz-

ing procedure of that characvér at any time within three

years next after the occurrence of' the misbehavior

charged. .Such‘is the general law. Brewer v. State, 176 .—

Miss. 803, 170 So. (Miss.) 540; In re Cary, 165 Minn. 203,

_ 206 N. W. (Minn.) 402; In re Maury, 205 Fed. 626; Mid-

dlebrook y. State, $3 Conn. 257, .1. c. 269; In re Foote, 76

‘Cal. 543,°18 Pac. -(Cal.) 678; Broiwn v. State, 178 Okla.

506, 62. Pac. (2d) 1208.

It thus appears that direct contempts in ‘he presence or .

face of the court, in the sense that term is used, would

require substantially instant and immediate action, or

punishment (by that anomalous procedure) is barred.

Constructive contempts, on the other hand, are uniformly

barréd“by the application thereto of the general statute of

limitations for criminal offenses. Hence under the geii-

eral law there is.no justification for the suggestion of the

court below that the time for prosecution of contempts

‘committed in, the presence of the. court is unlimited; as

has been seen, such time (if punishment is to be assesséd

*

upon +the personal knowledge of the court) is more rigidly .

limited than in the case of other contempts., Where the.

prosecution, however, is initiated by information, for

. criminal contempt, as in the instant’ case, the statute of

limitations, supra, is applicabte thereto and bars that. pros-

ecution. .Such. has been the consistent construction of-the —

Gompers Case. Appeal of Marks, 144 Pa. Sup. Ct. R. 556,

20 Atl. (2d) (Pa.) 242; In re Jibb, 123 N. J. Eq. 251, 197

Atl. 12; Hart v. Oil Co., 27 Fed. Supp. 713. The doctrine

of the Gompers Case is as well supported by the weight’

of authority. Beattie v. People, 33 Ill. App. 651; Goodall

-™. ae cre Court, 37 Cal. App. 723, 174 Pac. 924; Gordon

. Commonwealth; 141 Ky. 461, 133 S. W. -206;- Brewer

" y, State, 176 Miss. 803, 170 So. (Miss.) 540; Rate v. Toler/

_ 190 Ark. 465, 79 S. W. (2d) (Ark.) 444; State v: Phipps..

74 Wash. 443, 24 Pac. (2d) (Wash.) 1073... ~~

ok ‘ a 37

_ -If a distinction is to be drawn-between diréct and con-

structive contempts, the contempt sought: to be charged

in the instant case is plainly constructive. No one would

argue that the trial court, as in the ease of direct con-

tempt, could have proceeded. upon its own knowledge

without infarmation, hearing or trial.- If. petitioner was.

in the presence of the court, that presence was construc-

tive and not actual. Whether a.given contempt is con-

stituted of the procurement of an order or of disobedience

to an order, whether the misbehavior is constructively

‘in the presence of the court or merely.in its vicinity, it

remains a criminal contempt, subject to. the same doc--

trines, rules and limitations, prosecuted in the same man-

. ner, punished in the same way.. Neither upon principle

nor upon authority can the controlling effect of the Gom-

pers Case be avoided. In the words of Mr. Justice Holmes,

the power to punish for contempt must have some limit

in time; this doctrine the majority opinion below ignored.

After the filing of the motion for decree, supported. by

the stipulation of settiement, the statutory court in*the

insurance rate litigation on February 1, 1936 dismissed

the cause (RB. 617). It-reserved jurisdiction solely for,

‘the purpose of effectuating its then decree (R. 623). The

majority opinion, by way of dictum, holds that’ so long as

such reservation of jurisdiction continued the cause re-

mained pending before the statutory court, and that no

‘prosecution for any contempt prior to February 1, 1936

could ever be barred so long as the cause remained pend-

ing in the sense aforesaid. In that sense the cause would

continue to pend in perpetuity since it is a. matter of

‘ common. knowledge that all. policyholders could never be

-found and hence the decree could never be completely ef- —

fectuated. In all deference to the’ court below, we sub-

mit that such a doctrine is novel and supported by au-

thority from no jurisdiction, It would completely nullify

the doctrine of the Gompers Case, and render nugatory

- the effect of any ‘applicable statute of limitations. The

authorities cited in the majority opinion (Ex parte Terry, -

38

- 128 U. S. 289; In re Maury, 205 Fed. 629; In re Cary,

165 Minn. 203, 206 N.'W. (Minn.) 402). do hot sustain

the proposition advanced by the court; they hold merely.

that, where punishment is sought to be imposed fora

. direct contempt. committed in the face of the court, with-

out information or trial, upon the’ basis of the personal

knowledge of the judicial officer, the action. taken must.

be substantially immediate. but may on occasion ‘be de-

ferred until the end of actual trial to-avoid the disloca-

tion of trial processes. They do not purport to authorize

_ such punishment at any time, however long deferred,

\after the offense, merely because the court retained some

vestige of jurisdiction in the cause. As pointed out supra,

with authorities cited, the rule as to direct contempt and

its punishment restricts rather than extends the time for —

action. This issue need not be further discussed since we

- understand the opinion below so to hold only upon the

assumption that no statute of limitations applies to this.

contempt proceeding.- Such ts not the law. .

The ruling below is in plain conflict with the Gompers,

Goeidman;: and Grossman Cases cited supra. If it is not -

literally thus in conflict, the- applicability of the statute

of limitations to criminal contempts of the type here

sought to be charged is plainly a federal — which

should be settled by this*court.

POINT III. :

“The conviction below should be reversed, and further |

proceedings stayed, for the reason that the tion of

petitioner under the information is in violation @f his agree-

ment with the United ‘States; and the opinion

below, in refusing to give effect to such agreement, has

. decided a federal question in a way probably in conflict

with applicable decisions of this court or, if such ruling is

’ ndt thus ‘in conflict, as petitioner contends, the majority

_epinion has decided an important question of federal law

which has not been, but should be, settled by this court.

The facts’ relating to the agreement of petitioner with

the United States have been heretofore reviewed. Supra,

39

ninety Statement of the Matter eitiiek Pp. 6 et seq.

It is\clear that petitioner has the right in the instant pro-

ceeding to invoke the benefit of -this agreement ‘under

which it was particularly covenanted by the United

States that there would -be no prosecution ‘for ‘contempt.

There can be no quesfion but that the present prosecution .

has been initiated and is being conducted by the United

StateS. riginated in an information upon the official

oath of the acting United States Attorney in the name of

. the United States. It is prosecuted by the United States.

Punishment has been imposed by sentence to be served

. in a*penitentiary of the United States. The proceeding is

one for criminal contempt between the United States on —

the one hand and omega upon - other, and is neither

ey

tion. It is an independent eriminad proceeding at law.

It has been under the control of the United States in ev ery .

respect from its inception.

An agreement of. the character ‘described concededly

creates no legal rights which justify ‘at law.a plea in bar.

It does, however, confer upon the accused an unmistak-

“able equitable right which will be judicially enforced.

That. right is the right to executive clemency because, in

the words of this Court in the authority -cited infra,

“public policy and the great ends of justice’’ require that

the United States keep: faith. The benefit of the agree-

ment is preserved procedurally by: staying further pro-

ceedings indefinitely until executive clemency can be had.

United States v. Ford, 99 U. S. 593, 25 L, Ed. 399. The stay

granted is indefinite in. duration because no‘ court will

. assume that the Executive will deny the pardon to which

the accused is equitably entitled. The power of the Ex-

ecutive to extend clemency for the offense- charged is un-

-questioned. _Ex parte Grassman, 267 U. ‘S. 87, 69 L. Ed.

527. See also: State v. Guild, a. 370, l. c. 376, 50

S. W..909. : 6

There can be no distinction Between the settable right

flowing from an agreement between the United States .

¢-

?

*

\ 40

_ and an accomplice, in consideration whereof the latter

testifies, and the equitable right flowing from an agree-

ment between the United States and an accused, in con- .

sideration whereof the latter pléads guilty to one offense

under a Stipulation on the part of the United States that

he will not be prosecuted for other related offenses. This:

equitable right was duly pleaded (R. 35), and its disrex

gard requires reversal with a stay of further proceedings. i

The issue is not, as suggested by the majority opinion, -

whether the United States Attorney bound or attempted

to bind the statutory court; the issue is that the United.

States Attorney did bind the United States. This is a

prosecution by the United States and under its control,

and not a prosecution by the trial court initiated by cita-

tion. If the court had proceeded independently of the —

United States, a different question, academic here, might

be presented. It did not do so. The United States prose-

cuted, and, prosecuting, violated its agreement. We submit

that plainly the. ruling below is either in conflict with

United States v. Ford, supra, or, if not in literal conflict.

presents an important question of federat} which has.

not been, but should be, settled by this court

_ POINT IV.

The court below was without jurisdiction to entertain

this proceeding; and the majority opinion below, in holding

that the purported statutory court was vested? with such

* “jurisdiction, and in further helding that the conviction of

petitiongr was in any event validated by the fact that one

of ihe members of such court, as then district judge for the

. Central Division of the Western District of Missouri, issued -

_ the original festraining order in- the insurance rate litiga-

~ tion, has d ided a federal question in a way probably in

, conflict \ applicable decisions of this court.

‘The colirt below purported to act as a statutory court

constituted in accordance with the provisions of Section

41.

266 of the Judicial Code (28 U.S. C..A.-Sec. 380). With-

out waiving other jurisdictional defects, petitioner points —

out at this time that the jurisdiction of a statutory court

is of an extremely limited equitable character, and is

‘restricted to the granting or denial of injunctive relief

against the enforcement of unconstitutional statutes.

Phillips v. United States, 312 U. S. 246, 85.L. Ed. 800;

Public Service Commission v. Brashear Freight Lines, 312

U. S. 621; 85 L. Ed. 1082; Ex parte Bransford,.310-U..S. .

354, 84h. Ed. 1249. That limited statutory equitable ju-

ae

: fisdi¢tion could not extend ‘to entertaining a prosecution

“by the United: States at law for criminal contempt. The

Jatter is a prosecution for an’offense against the United

States. It is between the public and the.defendants. It

is neither a part of nor incidental or ancillary to the

cause’ out of which the contempt originally arose. Gom-

pers v. Stove Co:, 221 U. S. 418, 55 L. Ed. 797; Russell vy.

United. States, 86 Fed. (2d) 389, 1. c.°392; Michaelson v. ~

United: States, 266 U. S: 42, 1. -c: 64, .69 L. Ed. 162, 1. ¢.

167. Under the foregoing authorities a prosecution for .

criminal contempt is “a separate and indepéndent pro-

ceeding at law”: (Gompers Case, 1. c. 451; Michaelson

Case, 1. c. 64). As was pointed out in the Gompers Case

(1. c.. 444); if this was not a proceeding at law for criminal

- contempt, but. was incidental to the original: equitable

litigation, the court below was without authority to im-.

pose a punitive sentence. In point of fact, the instant

-proceeding in its course from origin to final—judgment | -

is the converse of the Gompers Case. There the proceed-

ing began as incidental to equitable litigation and, upon. .

final judgment, was sought to be converted into an ac-

tion at law for criminal contempt. Here the proceedings

began upon information filed by the United States. as a

proceeding at law for criminal contempt, and at the time’

of final judgment the trial court sought to convert it into

a proceeding incidental-to the original equitable litigation

(R. 66, 1184). Neither attempt can be approved under

the Gompers opinion. Although the trial court, by the

< fe ‘ |

-mere restyling of pleadings already filed, sought to con- —

vert this proceeding into one incidental to the insurance

rate litigation, upon the theory that the statutory court

could exercise jurisdiction in that type of proceeding, it

_ nevertheless attempted to impose punitive sentences for- _

bidden in an incidental or ancillary proceeding. Gom- .

__ pers v. Stove Co., supra.. The character of such a proceed-

ing, moreover, is not tested by any artificial standard

such as the styling of the cause. If it is initiated by in-

formation by the United States, and is designed for puni-

tive: purposes for past acts, it cannot be incidental to any

other litigation and is an independent prosecution. |

= Gompers.v. Stoye Co., supra; In re Fox, 96 Fed. (2d) 23, .

1]. ¢. 25; United States v. Bittner, 11 Fed. (2d) 93, 1. c. 95. .

It scarcely need be argued that the statutory court: pos- -

sessed no criminal jurisdiction at law over such a /pro-.

ceeding. Hence we are confronted with this situation: —

the ' statutory. court was without jurisdiction since this

us a criminal prosecution at law, but if the statutory |

court was right in styling it ds incidental to equitable

litigation, that court.was. without authority to impose a

punitive sentence. In either event petitioner’s conviction

and sentence cannot stand; in either event the majority

opinion is in conflict with applicable decisions of this

Court. : ,

*

.

The trial court in ‘jts opinion ruled (R.-22):

“It is contended that this court ‘is a statutory tri-

bunal of limited jurisdiction and that it is without

~jurisdiction in this proceedng.’ The reasoning of coun-

sel is this: / e. "eee a y

This three-judge court is a three-judge court of the:

Central Division of the Western District of Missour/

and is ‘A Separate and jistinct tribunal’ of that divisiog. :

Steers v. U. S., (C. C. A. Mo.) 297 Fed. 116, 118. BY

_ rule of court made pursuant to’ statute (Title 28, Sec.

27, U. S.C.) Judge Collet now is the federal district

judge assigned to the Central Division. Judge Collet, i

therefore, and he alone, has jurisdiction of offenses -

ac rs

Mics ae 3

committed against any federal district court (three-

- judge court or otherwise) sitting in and for the Central

-Division, -provided the offense is an independent pro- - —

ceeding and not incidental to ws original litigation ~

pending before the sound. The lst

The reasoning is =" The last mentioned, hypoth-

esis is error.’

It will be noted that the trial court pooner te that the .

reasoning was sound, but argued that the hypothesis, i. e., _

that this prosecution for criminal contempt is an inde-

pendent proceeding, was error. It is plain under the

authorities that the hypothesis is not error but the law.

Hence the only court withéjurisdiction over this proceed-

ing was Judge Collet whe by rule of court made pursuant

to statute was the federal district judge .assigned to the .

Central Division. This Court. clearly indicated that the

purported statutory court was without jurisdiction. .

Pendergast v. United States, 314 U. S. 574, 86 L. Ed. 55.

The majority opinion, in holding .that the statutory _

court was vested with jurisdiction in this proceeding, was |

in conflict not only with the \decisions.of this Court cited» .

supra but as well with the decision of this Court ,(supra).

in this particular case. When the trial court was with-

ut jurisdiction, its action could not be validated by the

circumstance that one of its members, at the time of the

institution of the original -insurance tate: litigation, was

judge of the Central Division of the-Western District of

Missouri. The question presented is whether the statu-

lory court was ‘vested with jurisdiction over this procéed-. |

mg at the time this proceeding was instituted. Juris- »

liction was plainly lacking.

. ae Conclusion. |

There were other issues presented-to the Circuit Court: -

of Appeals which could be here presented. Petitioner has,

1owever, confined his application to questions of grave

ublic importance. The.dissenting opinion below properly

ecugnizes the importance of the issues here involved. .

~~"

44

The orderly administration of justice, particularly it

tempt proceedings, can only be subserved. by the re\ i

— by petitioner.

Respectfully submitted,

Joun G. Mappen,

_ R.R. Brewster,

* TNs JAMES E. BURKE,

‘ Counsel for Petitioner.

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