# Petition for Writ of Certiorari — Pendergast v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0089%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1943 - **Citation:** 317 U.S. 412 ## Text Office - Supreme Court, U. 8. Bx. LP ‘FILE COPY JUN 29 1342 . | | euaaiss SLMaRE GAQPLEY Supreme Court of the Un o A OCTOBER TERM, 1942 wo 18 | ROBERT EMMET O’MALLEY, PETITIONER, een te. ae UNITED STATES OF AMERICA, RESPONDENT. - PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT COURT OF APPEALS | FOR THE EIGHTH CIRCUIT, AND BRIEF _IN_ SUPPORT THEREOF. Bae] — s JAMES P. AYLWARD, Commerce Building, | -Kansas City, Missouri, Georce V. AYLWARD, Commerce Building, : Kansas City, Missouri, ° Ra.pu M. RuSSELL,. : Commerce Building, — Phe Kansas City,.Missouri, Counsel, for Petitioner. OME: 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. "The insurance rate litigation... EERE Soa The transactions between Street and Pendergast, j O'Malley and McCormack in 1935 and 1936." The grand jury investigation of Péndergast and - O'Malley in March, 1939 on charges of income. tax evasion, the agreement of Pendergast with | the United States, and the stale of guilty en-. tered pursuant thereto -__. The reopening of the insurance rate ; litigation _ ai The conviction and subsequent proceedings... ces B. Statement of the jurisdiction of this court__ . (1) Statutory provision believed to sustain the jurisdiction ; - (2) The'date of the judginent t to be reviewed. (3) Statement of the nature of the case and the _ Tulings of the circuit court of appeals bring- | - ing the case within the acincaantanl of this court . onan (4) Cases believed t to sustain the fe jurisdiction « of _. this court.2. Rigeh iain Chari -C. The questions presented _ Dv Reasons onan on for the allowance of the writ” — Conclusion _ srionereiceednvenenyentfctoom Pte hr is ne Brief in Support of Petition for Writ of Certiorari— - A. Opinions of the courts below... B. Grounds on which the jurisdiction of this-c ‘coat; is invoked_.. C Statement. of the-c enbe Se ae 5 soto CEO /D. Specification’ of errors intended to be -- _ E. Summary of the argument. I INDEX F. Argument— ; , | Point I. The conduct of 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-' - 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 II. 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, or, 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. ae Point Il.” The ciition halow ai iS re- versed, and further proceedings stayed, for the - reason that the prosecution of petitioner under the information is in violation of his agreement _ .with the United States; and the majority opin- ‘ion below, in refusing to give effect to such agreement, has — .a federal question ina | ‘way, “probably in confl Hagel me OICY de- cisions of this court or, me is not thus in conflict, as wea pore the majority opinion has decided an.important question of © federal law whith has not been,. but should be, settled by this court. _ — ‘ - a INDEX i III Point IV. The court below was without juris- diction to entertain this proceeding; and the majority opinion below, in holding that' the pur- _ ported statutory court was vested with such jurisdiction, and in further holding that the convictjon of petitioner was in any event vali- dated by the fact that one of the members of such court, as then district judge for the Cen- tral Division of the Western Ditrict of Mis- souri, issued the original restraining order in the insurance rate litigation, has decided a fed- eral question in'a way probably in conflict with applicable decisions of this court... 40 — Conclusion Oe ee ss: 43 - TABLE or CASES Aetna Insurance Co. vs. O’Malley, 342 Mo: S. W. (2d) 3,1. ¢. 9,10. 2 hie = Appeal of Marks, 144 Pa. Sup. Ct. R. 586, 20 Atl. G ; (Pa.) 242 - : = 2 -& _ Beattie vs. People; 33 TL. App. 651. ae Boyd vs. Glucklich, 116 Fed. 131... Ss Ss*, 28 . Brewer vs. . State, 176 Miss. 803, 170 So. (Miss.) 540 ae aah DN aS ND Oe ~~ cwineasin thy DO OO Brown vs. State, 178 Okla. 506, 62 Pac. (2d)-1208 35 Craig vs. Hecht, 263 U. S. 255, I. c. 280, 68 L. Ed.:293. 24 Ex parte Bransford, 310 U. S. 354, 84 L. Ed. 1249. 13, 16, 40 Ex parte Grossman, 267 U. S. 87, 69 L. Ed.:527_. ne PER es 12, 13, 15, 32, 37, 39 Ex parte Poulson, ‘19. Fed. ‘Cases 1205, ‘Gase No. 11350.11, 23 Ex parte Robinson, 86 U. S. 505, 221. Ed. 205... 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. 797. : 3 a a 13, 16, 40, 41 ee ve. United States, 233 U. S. 604, 58 L. Ed. 1115 +A i lr RE ER Re a SA 12, 15, 32, 33, 34, 36, 37 Sata vs. marae INDEX Gerdon vs. Commenwealth, 141 Ky. 461, 133 S. W. 206 - - enaneome : © fi. Hart vs. Oil Co,, 27 Fed. Supp. 713. 12,32; 36 In re Cary, 165 Minn. 203, 206 N. W. (Minn. ) 402 35, 37 In re Foote, 76 Cal. 543, 18 Pac. (Cal.) ye 3 In re Fox, 96 Fed. (2d) 23, 1. c. 25 ie | at In re Jibb, 123 N. J. Eq. 251, 197 Atl. 12........_.___.12, 38 In re Maury, 205 Fed. 626... igh Reaerrdre Michaelson vs. United States, 66 U. S. 42 1, c. 64, 69 L. Ed. 162 1. c. 167 : See ween oom ES Middiebrook vs. State, 43 Conn. 257, 1. c. 269 35 Millinocket Theatre vs. Kurson, 39 Fed. Supp. 979 11,30 '* Morgan vs. United States, 95 Fed. (2d). (8th Circuit) - $30 ists | ” ye: va. Celie States, 31 U. S. 33, 85 L. Ed. 1172 11, 15, 20, 21, 23, 24, 26, 27,28, 29 Pate vs. Toler, 190 Ark. 465, 79 S. W. (2d) (Ark.) 444 cade, OO Phillips vs. United States, 312 U. S. 246, 85 L. Ed. 800 aoe 13,16 ,40 Public Service Commission VS. Brashear Freight Lines, 312 U. S. 621, 85 L. Ed. 1082". “13, 16, 40 Russeil’'Vs.. United States, 86 Fed. (2d) 389, i. c. 392 _ 13, 40 State vs. Guild, 149 Mo. 370, 1. ¢. 376, 50 S. W. 909 39 State vs. Phipps, A74 Wash. 443, 24 Pac, ®: tou. 1073 + ie Robert Emmet OMalley vs. United st es, 314 U. “‘ 574, 86 L. Ed. 55. 8, 13, 16, 42 _ Toledo NewspaperTo.. vs. United States, 247 U.S. 402; .-. 62 L- Ed. 1186 . __:....}.. 8; 28, 34, 28, 26, 27,3033 - United States vs. Bittner, 1] Fed. (2d) 93 1. 95. 41° United States vs. Ford, 99 U. S. 593, 25 L. Ed. 399 - 12, 16, 39, 40 United States \ vs. Goldman, 217 U. S. 229, 72 L. Ed. ~~ ay wcaetiams oe ee ‘United States vs. Jose, 63 Fed. 951,1.¢. 954... 30 Warring vs. Cae. 122: Fed. (2a) (C. A. D.C) : 642 a 20, Wimberly Vs. United States, 119 ‘Fed. (2a) (5th Cir- eh) 1: SE OES ER | 11, 15, 36. v ‘ ‘ 3 j INDEX me ov STATUTES ° __R.S. Sec. 1044, 18 U. S.C. A., Sec. 582-11, 15; 18, 31, 32 Section 135} Criminal Code, 18 U. S. C. A’, Sec. 241._:21, 23°” Section 240(a), Judicial Code, as amended by the Act | of February 13, 1925, c. 229, Section’ 1, 43 Stat. 938 (28 U. S. C. A. 347(a)), and under same Act, c. 229, . Section 8, 24 Stat. 940 (28 U.S. C. A. 350). “lee _ . Section 266 of the Judicial Code (28 U. a. (28 U. Ss. ¢. A). Sec. 385. a 9, 10, 11, 15, -™ 20, 22 4ULS. Statutes at Large 487, SRE ee oie a eee AT 21 Supreme Cowt of | the United States . * OCTOBER TERM, 1942. ‘No. | ROBERT EMMET O'MALLEY, PETITIONER, , ‘Statutory provision believed to sustain the —_ . diction. The jurisdiction of this Court is beveled under Section. 240(a) of the Judicial Code, as amended by the Act of February, 13, 1925, c. 229, Section 1, 43 Stat. 938 (28 U. _ S.C. A. 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 — _ CR, 1218). This petition, with supporting brief, and the. a ” 9 _ certified record, 2 are filed within thirty deys't next me final judgment. (3) a ell the teatmve off the ante aust Ole redid: of the Circui ak ereeate Neteag Sha an es en ; jurisdiction of court. . The nature of the case (a prosecution for. criminal: con- tenet), has been heretofore stated. The Circuit Court of © ——— al Appeals ruled: (1) that,’ although no. act of. petitioner occurred in the presence of the court or in any geograph- ical 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 upof 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) t the trial court was wested with jurisdiction (R. 1205). ch of such rulings is reviewable by this ‘court under a =e statutory provisions noted. . (4) Cases believed to ‘eustelin the jurisdicilen of thie This court is vested with jurisdiction under the. statu- tory provisioris heretofore specified. The cases submitted by petitioner as the ‘basis. for the exercise of such juris- ‘diction, to review the. judgment below, are ‘cited here- after in connection with petitioner's reasons for the al- lowance, of the writ of certigrari. | - ~ Western District of Missouri? - \ 10 a. c. THE QUESTIONS PRESENTED. >; (1) Di pe itioner constitute nllehs: havior or 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), and thereby render him — for contempt upon information? : (2) . Was prosecution of petitioner under the intone ‘tion barred by lathes-and the statute of limitations in view of the admitted fact that any and all acts of alleged contempt (i. é., misbehavi ior 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? _ (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 viclatie : of his agreement with the United States? Bs (4) . Was the purported statutory court vested. with ju- risdiction to entertain this independent criminal prosecution at law for alleged contempt or to impose 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 that one - - 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 " | REASONS RELIED ON FOR THE ALLOWANCE OF THE WRIT. ‘() 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 meaning 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 actually interrupted the court. in the conduct of its business, the Cireuit 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. \ $05, 22 L. Ed. 205, Nye: v. United -States, 313 U. S. 33, Bi L. Ed. 1172; and has rendered a decisien in conflict with decisions of other-Circuit Courts of. Appeals on the ‘same matten, viz: Wimberly v.-United States, 119 Fed. . (2d) (Sth 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, Case No. 11350; Ex parte Schulenburg, 25 Fed. 21};__ | Boyd v. Glucklich, 116 Fed. 131; Millinocket. Theatre v. Kurson, 39 Fed. Supp. 979. - (2) In Tuling that the prosecut i ion of petifianer under the information was not barred by the statute of limi- tations or laches, despite the admitted fact that all acts of alleged contempt (i. e., alleged misbehavior in the pres- ence of the court or so near thereto as to obstruct ‘the administration of justice) 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 U. S.C. A.,’Sec. 582) was lnnpplicable either . ‘ ~~~ weight of authority (e. g., Beattie v. People, 33 Ill; App. + 4 : ae s SPS a 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 L. Ed. 527, or, if the ruling below is not in conflict with the foregoing decisions of this . Court, as petitioner. 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 rujing 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., $# Fed. Supp. 713),.and with the - 651, Goodall: v. Superior Ct., 37 Cal. App. 723, 174 Pac. 924, Gordon Vv. 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.) 1073); hence if, contrary to the contention -of petitioner, _ the ruling below is not literally in conflict with the Gcempers Case, it-presents .an important question of fed- eral law which should be settled by this court. a (3) In Tuling that the somcelabiaee, Velivis should not be reversed gr further proceedings stayed, by reason of the _ fact that the prosecution of petitiorier under the informa- tion is in violation 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 ' decisien of this court, viz: -United States v. Ford, 9 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 agreement, pending application for executive clemency, which, in the instant case; the Executive is empowered to grant — Lee sad othe gs . ie enite Grossman; 267 U. S. 87, 69 L. Ed. 527); or, if uch ruling is not thus in. conflict, as petitioner contends, the Circuit Court of Appeals has decided: an iniportant _. _ question of federal law which has not been, but should be,. settled by this court: .(4) In ruling that the sisuiitials ‘ainads court ’ -was vested with jurisdiction ‘to entertain this independent criminal prosecution at law, = in finally ruling that the conviction of petitioner was injany event validated by. the - fact that one of the members ‘of such court, as then ' District Judge for the Central Division of the Western District of Missouri, issued the original res‘raining order ‘in the insurance rate litigation, when, under the rules of. the District Court for the Western District of Missouri, no member of the purported statutory court was, at the of the institution of this prosecution, judge of or r the Central .Division of ‘the Western District of- Mis- souri, the Circuit -Court of Appeals decided a federal question (i. e., the jurisdiction of a statutory court to _- entertain a criminal proceeding at law for contempt) in away probably in conflict with. applicable decisions of this court, viz: Robert Emmet O’Malley 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 ' ¥, 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, l. 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- | tempt er arose. | 2 - Bach of the caniien 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 . ' conformity — law. 14. the offense and. the question of limitations, will be left in confusion.. Prosecutions for contempt are increasing _in number, and the conflicts with this Court and between. circuits are unmistakabie. The effect of an agreement with the United States: and the jurisdicticn of a statutory court: to. eritertain a criminal proceeding for conternpt are equally questions of fundamental importance which wie ‘the public interest should be determined. Whérefore, your petitioner prays ‘that a Writ of Cer-™ tiorari issue under the Seal of this Court, directed to the 7 - United States Circuit Court of Appeals for the Eighth Circuit, commanding said Court ta 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 case numbered and entitled on its docket — Nos. 12067,and 12116, criminal, Robert Emmet O’Malley,: appellant, vs. United § America, appellee, tothe end . tht this cause may be reviewed and determined by this - _ Court as-provided for by the statutes of the United States; . _ 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 | ‘APnited States Circuit: Court of Appeals for the Eighth .° Circuit, filed with this petition, may be treated as a re: turn to Said Writ of Certicrari; and your petitiqner prays that he may have such other and further remedies in the’ premises as to the Court-may seem epgeyetate and 2 a Robert Emmet epee cs we Supreme Court of the Ruited States OCTOBER TERM, 1942: ROBERT EMMET O'MALLEY, PETITIONER, Ss bls VS, ane UNITED STATES OF AMERICA, RESPONDENT. BRIEF IN SUPPORT OF PETITION FOR WRIT OF : ; i _CERTIORARL A. ° oy _,. OPINIONS OF THE COURTS BELOW. . The snpadin of the Circuit Court of Appeats for 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, Ped. Supp. 189. * | = 3 eee : ? _GROUNDS ON WHICH THE JURISDICTION or THIS COURT / 18 IRVOKED. -. The staternent 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- . ok ” | % A 4 16 diction of this Court, supra, p. 9 et seq.), and | is perety adopted and made a a 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. ds and is p: adopted and made ca ‘part of this brief. - - ee t 5 SPECIFICATION OF ERRORS INTENDED ) TO BE ‘URGED. (i): 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 o of' justice, - within the meaning of Section 268 of the Judicial Code (28 3 U.S.C. A,, Sec. 385). (2) The Circuit Court ‘of Appeals, wid the. trial court, erred in holding that the acts ¢harged 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 ‘c Section 268 of the Judicial Cote (28.U. S.C. A., Sec. i 2 3) ‘The Circuit Court © Aes: and the trial court, "erred in holding'that the acts shown in evidence constituted _ - misbehavior, on ‘the part | { petitionef in the- presence of © the court or so near thereto as to obstruct the administra- tion df justice, within the meaning of Section 268 of: the Judicial Code’ (28 U. SCA, Sec. 385). : (4). “The Circuit Court of. Appeals, and the trial court, erred. in. holding that the prosecution under the informa- os . tion of petitioner-was not barred by the statute ‘of limita- rites e., R. S.° Sec. (1044; 18°'U.'S. C. A., ~~ 582) ol ie ee ae “a . Pe ft _ by the fact that the information was .not filed within ‘three years next after the allegedtontemptuous acta (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 jit _was agreed} that, if petitioner entered a plea of guilty to . an indictitent charging income tax evasion, he would not ‘be ited for alleged contempt; “hy reason of ‘such © agreement the instant prosecution should either have been _ abated ‘or stayed pending an’ application for executive ti clemency and | appropriate action thereon - ~~ the Execu- am Cees ey : ; * Pad The| Circuit Court of Appeals, and the trial court, in holding that the latter was vested with juris- a nto en ertain this proceeding for criminal contempt, vand to im therein a -punitive sentence. Es (7)—The Cjreuit, 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 tp 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 cease ied such aed 18 : E. —— SUMMARY OF THE ARGUMENT/~_ ns ae ’ POINT I. uct of petitiqner 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 ~ upon information. Petitioner at.no time was in the presence of the court or in geographical proximity thereto. No mis- behavior thére occurred. No claimed misconduct disrupted order or decorum or 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- ence 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, therefore. 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; Warring v. Colpoys, 122 Fed. (2d) 642). POINT IY. Prosecutign of petitioner under the information was sbarred by the statute of limitations, and laches, since -all acts of alleged misconduct occurred more than. three years next before the filing of the information.” Under controlling. decisions of this court this prosecution was subject to the three-yeat statute of limitations (R. S. Sec. 1044; 18 U. S. C. A., Sec. 582) relating to offenses {not capital) against the United States. The majority opinion below, however, ruled. that the criminal contempt here sought to be charged was not an offense withih the meaning of that statute, and that no statute of limitations was applicable thereto either _ : by, enactment or analogy. Therein that opinion is in con- flict with Gompers v. United States, 233 U.S. 604, 58 L. Ed. | V115, United States v. Goldman, 277 U. S. 229, 72 L. Ed. 862, and Ex Parte Grossman, 267 U. S. 87, 69 L. Ed. 527. 19 POINT IIL. . The conviction below sheuld 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 an 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. 399, 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 contest with the foregoing -decision of Laas court. a a IV. The trial court was without jurisdiction to entertain this — _ proceeding. 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- . +.quire ner exercise jurisdiction thereover. In holding that © the instant proceeding was incidental to the original equitable litigation pending before the trial court, the deci- © ' sion of the majority opinion below is in -conflict with Gompers y. Stove Company, 221 U. S. 418, 55 L. Ed. 797, and Michaelson v. United States. 266 U. S. 42, 69 L..Ed. 162, L. c. 167, and, in further holding that the trial court was, vested with jurisdiction herein, such decision is in. . conflict with the decision of this court in this case (O’Malley v. 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- lie Service Commission v. Brashear Freight Lines, 312 U. S. 621, 85 L. Ed. 1082, and Ex Parte Bransford, 310 U. S. 354, 84 L. Ed. 1249. When the trial court was thus without jurisdiction, its action could not be validated by the cir- cumstance that on¢ of its members, at the time of the in- stitution.of the original rate litigation, was judge of the ‘Central Division of the Western District of Missouri. The trial court conceded that at the time of the institution of . this proceeding no member thereof. was judge of such Central Division. Saar é = PQINT I. _ The conduct of petitioner 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 meaning 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., 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: sanie matter. ‘Petitioner contends. that the majority ‘opinion below upon this issue is in plain conflict with the tmambiguous 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. . §.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 foregoing . Statute declares that, before petitioner can be punished eS for contempt upon information or .cther 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 misbehavidk elséwhere 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- o ——_— 2 havior must, at the time thereof, have been inthe pres- — ~ ence of the court or in the required: proximity thereto. For prosecution of a given person for contempt upon in- formation there must appear misbehavior on the part of that “person in -their presence,.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- a 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 cof the cour?, he can be prosecuted only by indictment... Section. 135, Criminal Code, 18 U. S. C. A; See. 341: As .«. -_acqrollary 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 essential that. the misbehavior of the. person 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, |..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 geagraphical proximity thereto; (b) disruptive misbehav- -ior on his part when thus present. ees prerequisite - appears in the instant case. The present law of contempt stems from the statute _.of March 2, 1831 (4 U. 8. Statutes at Large 487): - : “Statute ae R . March 2, 1831. “An Act declaratory of the law concerning contempts of court._ Be it enacted by the Senate and’ House of Repre- ‘sentatives of the United States of America, in Congress ‘assembled, That the power of the several courts of.the | “ eae Ng e 3 : - 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 presence 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. any lawful writ, process, order, rule .de- cree or command of the. said courts. , fer. Sec. 2. And be it further enacted, That if any person’ ment. or persons shall, corruptly, or by threats or force, en- deavour to influence, intimidate, or impede any juror, witnéss, 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 administi therein, every person or persons, so offending, shall be. lidble to prosecution therefor, by indictmerit, and -shall, on conviction thereof,.-be punished, by fine not exceed-- ing five hundred dojlars, or by imprisonment, not ex- ceeding three months; or both, according to. the nature and aggravation of the offence. - : : Approved, March 2, 1931. 9 The first section of the foregoing Act is now | of the Judicial Code (28°U. S. C. *"A., Sec. “Sec. 385. (Judicial Code, Section 5 ‘tration of oaths; contempts. The said courts shall have power to impose and-administer‘all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority. Such power to punish contempts shall.not be construed to extend to any cases except the misbehavior of apy person in their presence, or near thtreto as to obstruct the administratiorr of justice, the misbehavior cf 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. 3, 1911, Ch. 23i,-Sec.. . 268, 36 Stat. 1163). ‘hos Si —: Se + | The second section of the 1831 Act is now Section 135 of the Criminal Code (18 U. S:C.A., Sec. 241): ’ “Sec. 241. (Criminal Code, Séction, 135). Attempt- ing to influence witness; juror, or officer. Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede arty witnéss, 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 ky threats or force, or by ariy threatening letter or . “communication, shall influence, dbstruct, 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, _— Ch. 321, Sec. 135, 35 Stat. 1113). ptt 995 This court has pointed wut (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. Casés 1205; case No. 11350... l. c. 1208; Ex parte Schulenburg; 25 Fed. 211, 1. c. 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 New paper 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 . 4 eo. 7 | a. | gia and decorum ws disregarded. The test adopted was one of obstru@tive 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. _ upon the power to punish on information or other ~ summary process were judicially eliminated. - By the 6 26. ’ a matter of law, misbehavior must be held to occur where it takes effect. The trial court thus reverted to -or-. per- sisted in following the exploded Toledo Case doctrine of causal effect 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 were an obstruction in the administration o \ justice, such intended effect brought such mihi consi _ into the presence of the court, the opposite result had _ been reached by this court in the Nye opinion a month before (1. c. 52). It will be recalled that in the Nye Case, as in the instant case, the “effect” or “reasonakle tend- ency” theory was relied upon by the court below\to sus- tain the contempt charged. Nye v. United States; 113 Fed. : (2d) 1006, l. ec. 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 45% constructively where the intended result occurred, in the presence of. the court. This Court, reese held that the words “‘so neal - : thereto” had a geographical and not a causal connotation (1. ¢. 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. as ESSN rece . The Nye Case and the instant case are precisely parallel. In the Nye Case the misconduct’ occurréd, 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 thegmisconduct occurred ‘inte the rtroom by the argument that the. misconduct there had i § 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 _ : ‘courtroom. 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 . eompromise 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 ease 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 - Nenstructive presence doctrivie of 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 « .: ‘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 pofht 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 the hearing im ‘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 js not a ‘single fact » of circumstance in the.instant case, treated as. significant by the majority: opinion below, which: was hot pam: in the Nye case. The majotity opinion below finally argues that in the instant case the court was. deceived, while,’ in the Nwe Case Elmore alone was deceived.: This attempted dis- . tinction is completely answered in tne dissenting opinion — (R. 1211, 1212). It is plain that the contempt sought - te be charged in the Nye Case was not the overreaching © of Elmore any more than was the contempt sought to be charged in the instant case the bribery of O'Malley; the: contempt sought to be. charged equally in doth cases was the seeking of judicial action to carry into ‘effect a previously trated fraud. This is plainly recognized by the majority 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 do not go beyond the inevitable implica- tion of good faith arising from the mere filing of the Te- ‘spective motions in both cases. Whether the representa- - tion of good faith be express or implied is immaterial. * The dissenting opinion so held (R. 1211): Misbehavior . . { j P : . oe / / | ae 3 . , : 5 lie : ae - ” a* | in the presence of the court is a. plain, ‘simple, unambigu- ous term which, as pointed out in t¥e 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 anti 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 ethical and in every respect irfeproachable. How, then, unless we extend the term “misbehavior” be- yond its normal acceptation, can it be said that their con- duct constituted misbehavior? Petitioner admittedly was _ not present at any time in the vicinity of the court. The: - .amajority 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 © . 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 _ cation of the. accused. and of the occurrence of particular 4 ior. _The innocent: emissaries did not misbehave . — in the presence of the court; petitioner did not misbehave - in the presence of the court’ ~~ We submit that the dissenting ne. scciinasiee declares /® (R.. 1211): Se “I perceive no distinction between the Nye. case and this case. None is drawn by the ee opinion.” . ° The majority opinion below is in. conflict. with the’ Nye Case not only in that it reverts to the Tolede doctrine of Petitioner's constructive presence before the-court, if his 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 coriduct of its business” (I. -c. 52). In both respects it is ee equally in conflict with. Wimberly _ v. United States, 119 | Fed. (2d) (5th Circuit) 713, i. c. 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. ‘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 justige within the meaning of the second section of the _ Act: of 1831; they cannot justify summary punishment ‘upon information within’ the reasonablé intendment ‘o! the restrictive provision is 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 actual interference; but as a means of post- - poned retribution for past acts. The action of the court | below was not necéssary “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 required proximity - thereto. No misbehavior on. his part either occurred in the vicinity of the eourt or ‘disrupted its quiet, order and decorum oF actually interrupted the court in the conduct of its busi- 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 oss sgeahrosatg (R 1207), Further (R. 1212): ; “The questi of the power of a federal court to act in any case is lways a question of importance. ‘It is _-never, as intimated in the opinion of the district ‘court, - a meré technicality. But in cases in which the questior is of the power of the court to punish a criminal sur: 31 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. “9 (Italics ours). : It is submitted that, unless the maiority opinion is reviewed by this Court, the substantive law of contempt in courts of the United States will be left in a state ‘of - - chaotic confusion. fa: or eas aa The’ prosecution of petitioner under the Gtenition 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 cpinion below, in holding that the prosecution was not thus _ barred, and in further ruling that the appropriate statute: of limitations (R. S., Sec. 1044; 18 U. S. C. A., Sec. 582) was’ inapplicable to this proceeding either by analogy or enact- ment, is in conflict with applicable decisions of this court, or, if the ruling below-is hot 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. © ; Since misbehavior alone is the offense. prosecuted, then | that ‘offense became complete if and when thé misbe- havior occurred; -Misbehavior, in any normal 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 before the filing of the jnformation. The majority opinion pro- ceeds upon the theory that the mishehavior in question _was the ‘presentation to the court for its approval of a fraydulent compromise. The motig@§for decree, . reciting the fact of the compromise, was filed on June 18, 1935 . A(R... 603). The ua of settlement was filed on - June 19, 1935 (R. 607). The actual compromise was con- . -° Summated by an retuamnn fag May 18, 1935. The ap- pearances of counsel occurréd shortly after the: filing of the motion for decree and the stipulation of settlement. -On.February 1, 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 _than three -yeats thereafter, until on May 29, 1939 the | successor Superintendent of Insurance filed a motion to - : cite the-insurance companies to show cause why the de- cree of February 1, 1936 should not be vacated (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 coritempt charged, with the result that the appro- spriate statute of limitations (R. S., Sec. 10%; 18 S. C. A., Sec. 582) is applicable: __ “No person shall be prosecuted, tried, or punished fe any offensé, not capital, * .* * unless the indictment is found, or the information is instituted, within three years next after such offense shali nave been wees * * Beg : This is a prosecution for criminal 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 criminal con- tempt is not an offense within the meaning of the statute. ' That criminal contempt is such.an offense was specifically . determined by this court in Gompers v. United States, 233. U. S. 604, }. 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) - 33 compel, it_is submitted, the application of the foregoing statute of limitations to ghe instant. prosecution. If it is . applied, there can be no puenttom but that the prosecution - is barred. | 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- simption, however, ‘such- opinion proceeds upon the. - theory that-the statute of limitations is applicable to every form-of criminal contempt except that occurring in the presence of the court. By that reasoning prosecution for contémptuous 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 obstruct the administration of justice, would be barred by: limitations; but by 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 cari rule that one. form of criminal contempt is an offensé while another ' form is not. It is difficult to understand upon what theory it can be argued that a criminal contempt constituted of the procurement of an order is subject to no statute of - limitations, while a criminal 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 iictinmec in 34 ‘ eee ax the name of the United States. That information is being . prosecuted by the United States concededly for criminal contempt.. It; therefore, ‘appears that the status of the instant’ proceeding as a prosecution for an. offense within- the meaning of the statute of limitations, supra, is ‘elearer than in the Gomper$ Case. The’ majority opinion does. ngt seek to justify the distinction made upon grinciple; not be thus justified; it rests the claimed distine- solely upon the following statement in the Gonipers | ‘Cage (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 the future; and to avoid repetition it will be understood that all that we have to say concerns proceedings of this sort only, and further, only: ‘proceedings for such con- _tempt not committed in the presence of the court.” In thus stressing the foregoing excerpt the court eee ignored the following sweeping declaration of policy in the same opinion (1. c. 612): “The power to punish for contempt must have some. limit in time, and in defining that limjt we should. have regard to what has been the policy of the law from - ‘the foundation of the government.” ° _ Also disyegarded is the excerpt from the opinion of Chief - Justice Marshall, quoted by Mr. Justice Holmes 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 the 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 prosécution of such contempts but, te the contrary, intended that prosecution of such direct con- tempts should be more restrictively limited in time than 35 6. the type of. contempt 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, evidence, hearing or ‘trial. See Ex parte Terry, 128 U. S. 289, 32 L. Ed.. 405, wherein the court intimated (1: c. 314) that there was a grave. question whether that type of procedure could be - approved -either at a subsequent term or even upon a . subsequent day of the same term. Clearly Mr. Justice ~ Holmes did not intend his opinion (and such was the . purpose of his exception) to be misconstrued as authoriz- ing procedure ofthat character 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 v. State, 43 Conn. 257, l. c. 269; In re Foote,-76 Cal. 543, 18 Pac. (Cal.)+678; Brown v. State, 178 Okla. 506, 62 Pac. (2d) 1208. It thus appears that: direct contempts in the presence or oe face of the court, in the sense that term is used, would | require substantially instant and immediate action, qr. punishment (by that anomalous procedure) is barred. . Constructive contempts, on the other hand, are uniformly . barred by the application thereto of the general statute of limitations for criminal offenses. Hence under’ the gen- eral law there is no justification for the suggestion of the court below that the time for prosecutioh of contempts committed in the presence of the court is unlimited; as . has been seen, stich time (if punishment is to be assessed _ 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 Hmitations, supra, is applicable thereto and. bars that pros- 36 es 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 Gomipers Case is as well supported by the weight . of authority. -Beattie v. People, 33 Ill. App. 651; Goodall v. Superior Court, 37 Cal. App. 723, 174 Pac. 924; Gordon _v. Commonwealth, 141 Ky. 461, 183 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.) 1073. _ If a distinction is to be drawn between direct and con- structive contempts, the’ coritempt sought to.be charged in the instant.case is plainly constructive. No one would argue that the trial court, as ‘in the case of direct con-. tempt, could. have proceedéd upon its own knowledge ‘without information, 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 settlement, the statutory .court in the insurance rate litigation on February 1, 1936 dismissed— _ the cause (R. 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 4s 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 - 37 could ever be barred so long as the cause femaiied pend- ing in the sense aforesaid. In fadt sense the cause would continue to pend in perpetuity since it is a matter of common knowledge. that all policyholders .could syiever 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 su rted by au- thority from no jurisdiction. It would com letely 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, 128 U. S. 289; In re Maury, 205 Fed.° 629; In re Cary, 165 Minn. 203,.206 N..W. (Minn.) 402) do not sustain — the proposition advanced by the court; they hold merely | that, where punishnient is ‘sought to be imposed for & 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. vestize 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 issué 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 is not the law. The ruling below is in plain. conflict. with the Gompers, Goldman, 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 ought to. be. charged is plainly a federal — which hould be settled by. this okt © 4 : oh . 38 | POINT III. | 2 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; and the majority opgnion 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 not thus in conflict, as petitioner contends, the majority cpinion 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. Supro, Summary Statement of the Matter Involved, 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 question-but that the. present prosecution has been initiated and is being conducted by the United States. ‘It originated 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 petitioner upon the other, and is neither ; incidental nor ancillary to the civil insurance rate. litiga- tion. It is- an independent criminal proceeding at law. It has been under the control of the United States in every respect from its inception. An agreement of the character SERS ere 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, i? the words of this Court in the authority~ cited infrd, ”. “public policy afid 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 Grossman, 267 U. S. 87, 69 L. Ed.: 527. See/also: State v. Guild, 149 Mo. 370, 1. «. 376, 50 S. W. 909. There can, be no distinction beitaiene the hesattiibie right flowing from an agreement between the United States 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 pleads 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 disre- gard requires reversal with a ‘stay of further proceedings. The issue is not, as suggested by the majority opinion, whether the United States Attorney bourd or attempted to bind the statutory court; the issue is that the United States Attorney did bind the United States. This isa 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 federal law which has not been, but should be, settled by this court. c x § ‘ 4 i constituted in accdfdance with the provisions of Section ._ eae ‘3 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 holding that the conviction of petitioner was in any event validated by the fact, that one of the members 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 litigs- tion, has decided a federal question in a way probably in conflict-with applicable decisions of this court. “ ~ The court below purported to act as a statutory cour 266 of the Judicial Code (28 U. S. C. A., Se€. 380): With out waiving other jurisdictional defects, petitioner points out at this time that the jurisdiction of a statutory cour is of an extremely limited equitable character, and is restricted to the granting or denial of injunctive relie 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, 3! U. S. 621, 85 L. Ed. 1082; Ex parte Bransford, 310 U.S - 354, 84 L.. Ed. 1249. That limited ‘statutory equitable ju risdiction.could not extend to entertaining a prosecution by the United States at law for criminal contempt. Th -latter is a prosecution for an: offense against the United States. It is between the public and the defendants. ! is neither a part of nor incidental or ancillary to th cause out of which the contempt originally arose.. Gom- pers v. Stove Co., 221 U. S. 418, 55 L.. Ed. 797; Russell ¢ United States, 86 Fed. (2d)-389, 1. c. 392; Michaelson \ United States, 266 U: S. 42, 1. c. 64, 69 L. Ed. 162, 1.¢ _ 167. Under*the foregoing. authorities a prosecution - criminal contempt is “a separate and independent ceeding at: law” (Gompers: Case,.1. c. 451; Michae Case, 1. c. 64). As‘was pointed out in the Gompers C (1. ¢..444), if this was not a proceeding at law for crimin® 41° 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 ig 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 haw for criminal contempt. Here the proceedings began upon information filed by the United States ‘as a prone be iaw for criminal contempt, and at the time of final judgment the trial court sought to convert it int ’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 mere restyling ‘of pleadings already filed, sought to con- vert this proceeding into one incidental to the insurance could exercise. jurisdiction in that type of proceeding, it nevertheless attempted to impose punitive sentences for- bidden in ‘an incidental or ancillary proceeding. Gom- 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 act$, it cannot be incidental to any litigation arid is an independent prosecution Le. 25; United States v. Bittner, 11 Fed. (2d) 93,1: c: 95. scarcely need be argued that the Statutory court pos- no criminal jurisdiction at law over such a pro- ng. Hence we are confronted with this situation: sa criminal prosecution at law, but if the statutory d sentence cannot stand;’in either event the majority rate litigation, upon the theory that the statutory court .. pers v. Stove Co., supra. The character of such a proceed-. was right in. styling it as incidental to equitable © , that court was without authority to impose a. itive sentence. In either event petitioner’s conviction _ - \ Gompers v. Stove Co., ‘supra; In re Fox, 96 Fed. (247-38. statutory court was without jurisdiction since this . é 4 33 42 | opinion is in conflict with rapplicable decisions’ of this’ Court. Sass * 2 The trial court in its opinion ruled (R. 22): “It is contended that this court ‘is a a statutory tri- bunal. of: limited jurisdiction and ‘that it is without ‘ . jurisdiction in this’ proceedng.’ The icici of coun- sel is this:. : This three-judge court is a. three-judge court “ the Central Division. of the Western District of Missouri, and is ‘A separate and distinct tribunal’ of that division 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, ‘therefore, and he alone, has jurisdiction of offenses committed against any~ federal districf# court (three judge court or otherwise) sitting in and for the Central Division, ‘provided the offense is an independent pro- ceeding’ and not incidenfal to the original litigation — before the three-judge court. ‘The reasoning is sound. The last mentioned hypoth- esis is: error.’ It will be noted. that tie: trial court conceded that thé reasoning was sound, but argued that the hypothesis, 1, ¢.,, 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 with jurisdiction over this proceed- ing was Judge Collet who 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 _ O'Malley 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-. out ertadiction, its action could not. be validated by the ” * “43. circumstance that one of its members, at the time of the institution of the original insurance rate litigation, was judge of the Central Division of the Western District of : Missouri. . The question presented is whether the statu- tory court was vested with jurisdiction Over this proceed- - “ing at the time this proceeding was instituted. Juris- diction was plainly lacking. . . There were other issues presented to the’Circuit Court ’ of Appeals which could be here presented. Petitioner has, - ny. ' however, confined his application to questions of grave _ public importance.: The dissenting opinion below properly “recognizes the importance-of the issues here involved. The orderly administration of justice, particularly in con- tempt proceedings, can only be subserved by the review eught by petitioner. : Respectfully submitted, JAMEs P. AyLWarp, Grorce V. AyLWarb, ° Ra.pu M. RusseELL, Counsel for Petitioner. “ a. » ‘ a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0089%3A04. Public record. Not legal advice.