# Petition for Writ of Certiorari — Pendergast v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1943
- **Citation:** 317 U.S. 412

## Text

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‘Supreme Court oft the United BG ea oe |

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. .. OCTOBER TERM, 1942.

, 183. |

THOMAS J.’ PENDERGAST, PETITIONER,
ie ean VS. ners
g UNITED STATES OF AMERICA; RESPONDENT.

Oe ee
—

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:

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

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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.

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erie ORY Hie 2

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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
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0089%3A03. Public record. Not legal advice.