Petition for Writ of Certiorari — Levine v. United States

Ottice-Supreme Court, U.S.

riGteeo

JUL 1 1959

JAMES R. BROWNING, Clerk

Supreme Court of the United States

OCTOBER TERM, fe 7

No. 164

—

LIBRARY :

SUPREME Courr, U. &

Morry Levine,

Petitioner,

—against—

Unrrep States or AMERICA

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Myron L. Snarmo and J. Bertram WeoMan,

Counsel for Petitioner,

Office & P. O. Address,

60 Wall Street,

New York 5, N. Y.

Dated June 24, 1959

PAGE

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Questions Presented for Reviggg 2

Constitutional Proyisions, Statutes and Regulations

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Argument

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Opinion of Court of Appeals ....... „ 29

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Cases

D ˖ %% WA A ( 25

Cammer v. United States, 350 U. S. 399 14

Clark v. United States, 289 U. S. 11 3. 18, 20, 21

Curcio v. United States, 354 U. S. 112222. 24

E. W. Scripps Company v. Fulton, 100 Ohio App.

DOF Suu eet ĩͤ vc ĩ tes 16

Gompers v. Buck’s Stove d Range Co., 221 U. S. 418 14

rc / 24

PAGE

Jencks v. United States, 353 U. S. G57 ............. 14

Lopiparo v. United States, 216 F. 2d 87 ............ 25

I ED (SS . . 14

Michaelson v. United States, 266 U.S. 12 14

Moore v. United States, 150 F. 2d 323 (C. A. 10) .... 28

Nye v. United States, 313 U. S. 3. 14

r ũ Voc . . 0 11, 12. 14

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e . 16

People ex rel. Hackley v. Kelly, 24 N. Y. 711. 25

People ex rel. Phelps v. Fancher, 4 Thompson & Cook

— cine gacewnresceeees 25

Rogers v. United States, 340 U. S. 367 ............. 24, 25

Sacher v. United States, 343 U. S. ..........-...- 14

State v. Hensley, 75 Ohio St. 2). 15

State v. Delzoppo, 86 Ohio App. 381111 16

United States v. Andolschek, 142 F. 2d 503 ......... 14

United States v. Brewster, 154 F. Supp. 126 [reversed

on other grounds, 255 F. 2d 899 (C. A., D. C.) .. 19

United States v. Brown, 359 U. S. 41,

2. 3. 6, 11. 13, 17, 18, 19, 20

21, 22, 23, 24, 25, 26, 27, 28

United States v. Collins, 146 Fed. 553 ............... 23

United States v. Norris, 300 U. S. 564 ............. 20, 21

United States v. Shipp, 203 U. S. 56333. 19

United States v. Weinberg, 65 F. 2d 394 ........... 25

Wilson v. United States, 65 F. 2d 621 (C. C. A.) 3 ..23, 24

Wilson v. United States, 221 U. S. 361 ............ 24

Yates v. United States, 355 U. S. 66 ............ 22, 26, 27

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Statutes and Rules

PAGE

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Federal Rules of Criminal Procedure:

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United States Constitution, Amendments

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Supreme Court of the United States

OCTOBER TERM, 1958 g

Morry Levine,

Petitioner,

—against—

Unirep States or AMERICA

*

*

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Morry Levine, respectfully prays that this

Court issue its Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Second

Circuit affirming the judgment of the United States District

Court for the Southern District of New York, convicting

petitioner of criminal contempt for petitioner’s refusal to

answer questions put to him by the Court in the presence

of the grand jury. The sentence imposed was 12 months.

Petitioner was enlarged on bail of $5,000. pending appeal.

The Court of Appeals has granted a stay of its mandate

pending final disposition by this Court.

Opinion Below

The per curiam opinion of the Court of Appeals has not

been officially reported and is printed infra at page 29.

The District Court’s decision on the questions of law is

not officially printed but appears infra at page 8.

Jurisdiction

The judgment of the Court of Appeals was dated and

entered on June 2, 1959.

Jurisdiction to review such judgment by the Writ

prayed for is conferred on this Court by §1254, Title 28,

U. S. C. and is invoked pursuant thereto and Rule 37(b)

of the Federal Rules of Criminal Procedure.

Questions Presented For Review

1. Whether the secrecy of the proceedings, includ-

ing the adjudication and sentence for contempt under

Rule 42(a) of the Federal Rules of Criminal Pro-

cedure, deprived petitioner of Due Process of Law

in violation of the Fifth Amendment to the United

States Constitution.

2. Whether the secrecy of the proceedings and of

the adjudication and sentence of petitioner for crimi-

nal contempt under Rule 42(a) of the Federal Rules

of Criminal Procedure deprived petitioner of a public

trial as required by the Sixth Amendment to the

United States Constitution.

3. Whether the denial by the District Court of

compulsory process violated petitioner’s rights under

the Sixth Amendment to the United States Constitu-

tion.

4. Whether, notwithstanding the decision of this

Court in United States v. Brown, 359 U. S. 41, the

procedure followed herein resulting in petitioner’s

conviction of criminal contempt under Rule 42(a),

Federal Rules of Criminal Procedure, deprived peti-

tioner of Due Process, constituted the proceedings

abhorrent to the concepts of the fundamental fairness

requisite in Federal criminal proceedings and emascu-

lated the scope and force of Rule 42(b) of the Federal

Rules of Criminal Procedure.

3

5. Whether, notwithstanding the decision of this

Court in United States v. Brown, supra, because of

its direct conflict with the decision of this Court in

Clark v. United States, 289 U. S. 1, the revival of

purgation by oath, as exemplified by the proceedings

in United States v. Brown, supra, and in this case,

ought to be reconsidered and rejected and the Gov-

ernment remitted in this case and similar cases to

proceedings under Rule 42(b) of the Federal Rules of

Criminal Procedure.

6. Whether the sentence of 12 months imposed

upon petitioner constituted cruel and unusual punish-

ment or an abuse of the District Court’s discretion.

Constitutional Provisions, Statutes —

and Regulations Involved

The pertinent Constitutional Provisions, Statutes and

Regulations being lengthy are set forth as an appendix

to this petition infra, p. 52, ef seq. and their citations

follow: United States Constitution, Amendments V, VI

and VIII; Federal Rules of Criminal Procedure, Rules

42(a) and 42(b).

Statement of the Case

Petitioner is a principal in interest of Young Tempo,

Inc., a New York dress manufacturer and of Acme Dress

Company, located in Midvale, New Jersey (20a, 24a).*

T. & R. Trucking Company has transported dresses for

Young Tempo, Inc. and Acme Dress Company between

New York City and Midvale, New Jersey (23a, 24a).

John Diogua di is, according to the government’s in-

formation, the actual owner of T. & R. Trucking Company,

although Theodore Rij is the nominal proprietor. In the

References thus are to the Appendix to Petitioner’s Brief in the

Court of Appeals, copies of which are being filed herewith.

4

Southern District grand juries are conducting a general

racketeering investigation, as well as an investigation of

the Victor Riesel obstruction of justice case. The subjects

of these investigations are Dioguardi and Rij (also known

as Ray) and possibly others (42a).

Petitioner appeared on numerous times before two of

these other grand juries pursuant to subpoena (32a). Peti-

tioner’s first appearance related to the Riesel obstruction

of justice case and the location of Rij. Petitioner’s sub-

sequent appearances were before a grand jury investigat-

ing alleged racketeering in the garment trucking industry.

At the time of the proceedings below, petitioner was still

subject to the subpoena under which he appeared before

the other grand juries, his further appearance pursuant

thereto having been adjourned.

Before the other grand juries, petitioner was told by

the prosecutor that he was to be indicted (10a, 32a) for

a violation of the Internal Revenue laws. Other business

associates of petitioner, also witnesses before the same

grand jury were told by the same prosecutor that they

were going to be indicted for violation of the Internal

Revenue laws.

On or about March 25th petitioner’s counsel, at the

prosecutor’s request, attended at his office (15a, 21a)

and was told that the government was about to institute

an investigation under the Interstate Commerce Act, that

petitioner would be subpoenaed to appear before the grand

jury conducting this investigation and that the immunity

statute contained in the Interstate Commerce Act (Section

46, Title 49, U. S. C. A.) would apply and that the Fifth

Amendment plea could not be interposed.

Thereafter petitioner was served with a subpoena re-

quiring his personal appearance before the April, 1957

grand jury “to testify all and everything which you may

—

9

know in regard to an alleged violation of Sections 309,

322, Title 49 United States Code“ (19a, 20a).

Petitioner’s counsel was present in the anteroom and

petitioner was advised that he could on reasonable request

consult with hs attorney (18a).

Petitioner, after the preliminaries were disposed of was

asked (20a): “Mr. Levine, are you associated with Young

Tempo, Inc.”?

Petitioner requested and received permission to consult

with his attorney (20a). After such consultation, peti-

tioner returned to the grand jury room, the question was

read to him again and he answered “I must refuse to

answer that question on the grounds that it may tend to

incriminate me” (20a).

The prosecutor then advised petitioner “that this

Grand Jury is conducting an investigation into possible

violation of the Interstate Commerce Laws“ more spe-

cifically, the sections of the United States Code that were

specified on the subpoena served upon you * * *” and “that

in Title 49, United States Code, Section 305(d), the Con-

gress has provided that any witness who is compelled

to give testimony as to any matter arising under the Motor

Carrier Part * * shall, by virtue of his testimony, be

given full and complete immunity * * *” and that he did

“not have any privilege to plead the Fifth Amendment

before this Grand Jury in this inquiry” (20a, 21a).

The grand jury foreman then directed petitioner to

answer the questions previously asked by the prosecutor.

Petitioner again refused to answer on the ground of pos-

sible self-incrimination (22a).

Petitioner again consulted with his counsel and once

more refused to answer the question on the ground of

possible self-incrimination (22a, 23a). Thereafter five

more questions were put to petitioner by the prosecutor,

6

all of which petitioner refused to answer on the ground of

possible self-incrimination (23a, 25a).

The questions which petitioner refused to answer, be-

cause of possible self-incrimination, are:

“], Mr. Levine, are you associated with Young

Tempo, Inc.? (20a). 2. Mr. Levine, does Young

Tempo, Inc. use a trucking company known as the T.

& R. Cutting Company or the T. & R. Trucking Co.?

(23a). 3. Mr. Levine, who do you know to be the

owner or owners or the principal in interest or

principals in interest of the T. & R. Cutting or the

T. & R. Trucking Company? (23a). 4. Mr. Levine,

are you associated with Acme Dress Co. in Midvale,

New Jersey? (24a). 5. Mr. Levine, does the T. & R.

Trucking Co. provide trucking services between Young

Tempo, Inc. in New York City and the Acme Dress Co.

in Midvale, New Jersey? (24a). 6. Mr. Levine, do

you know if the T. & R. Trucking Co. or the T. & R.

Cutting Company has applied for or obtained a per-

mit from the Interstate Commerce Commission to

operate as a contract trucker between New York, New

York and Midvale, New Jersey?” (24a, 25a).

After the refusal of petitioner to answer the above ques-

tions, the grand jury, prosecutor and petitioner and his

counsel proceeded to District Judge Levet's court-

room (7a).

The prosecutor outlined the procedure requested by

the government to be followed and on behalf of the grand

jury requested the aid and assistance of the court in a

direction to petitioner to answer the questions (7a, 8a).

The courtroom was cleared. ;

The prosecutor stated that the government requested

that the court follow the identical procedure followed in

the case of Emanuel Brown v. United States, then on ap-

peal and subsequently decided by this Court, 359 U. S. 41.

In essence that procedure was, as outlined by the

prosecutor and followed by the court, a determination pre-

U

liminarily by the court as to whether the witness had to

answer the questions and, if so, a direction that he answer

the questions, the return of the witness to the grand jury

room and upon his further refusal to answer the questions

before the grand jury, the return of the grand jury to the

court with the secend request that the same questions be

put by the court to the witness and, if the witness then

refused to answer, the government would ask that he be

held summarily in contempt in accordance with Rule

42(a), Federal Rules of Criminal Procedure.

Petitioner’s counsel requested (8a, 9a) an adjourn-

ment, notice under Rule 42(b) of the Federal Rules of

Criminal Procedure, a specification of charges and an

opportunity to prepare for trial.

Petitioner’s counsel also requested the Court (9a) to

grant petitioner compulsory process to require the produc-

tion and attendance of witnesses so that the issues of fact

on the hearing could be met. Compulsory process was re-

quested by petitioner's counsel for the United States

Attorney in the Southern District, the minutes of the

grand jury in this investigation, the Interstate Commerce

Commission and Justice Department, as well for the pro-

duction of the charge by the court to this grand jury and

the voir dire of this grand jury at the time of its empanel-

ling (9a, 10a).

The court denied the motion for adjournment, for com-

pliance with Rule 42(b) of the Federal Rules of Grand

Jury and for compulsory process (1la-17a).

The grand jury stenographers were then called by

the government (17a, 18a, 19a, et seq.). They read their

transcribed minutes of the proceedings in the grand jury

room (17a, et seq.). Thereupon petitioner’s counsel re-

newed his prior motions and applications, which were

again denied (26a, 27a).

8

Argument was then had on the applicability of the

Immunity Sections of the Motor Carriers Act [Title 49,

U. S. C. A. $305(d)] (29a, et seq.)

The court rendered its decision as follows (35a):

“Now under the circumstances and upon all the

facts and upon all the record, and for the reason

which I set forth at the time of the disposition of

a similar matter, in the matter of the witness

Emanuel Brown, I am forced to conclude that the

immunity is there, that the witness must answer,

and I therefore direct him to answer the questions

which were set forth by the witnesses from the Grand

Jury who testify today.”

The grand jury was then recessed by the court until

Monday, April 22, 1957 at 10:30 A.M. with a direction

to the petitioner to attend (36a).

Pursuant to the court’s direction petitioner returned

to the grand jury room at the time appointed and there

the prosecutor put to him the six questions directed to be

answered (45a, et seq.), which petitioner refused to answer

on the claim of his privilege against self-incrimination.

The grand jury, petitioner and counsel then proceeded

to the courtroom of District Judge Levet (36a).

The courtroom was cleared at the direction of the

court (36a, 37a) and the proceedings were thenceforth

held in secret.

At that tine the prosecutor stated to the court that

“the April 1957 regular Grand Jury once again requested

the assistance of the court in regard to the witness Morry

Levine (petitioner)” (37a).

Application was then made by petitioner’s counsel that

the court follow the requirements of Rule 42(b) of the

Federal Rules of Criminal Procedure and due process

and that petitioner be furnished with notice of the charges

and an opportunity to prepare and to frame the defenses

9

to the charges (37a-43a). The court overruled the appli-

cation (40a-43a).

Petitioner’s counsel also requested an adjournment so

that he might subpoena witnesses and apply for com-

pulsory process ang renewed all the motions and applica-

tions which he had made at the prior session (40a-43a).

These motions and applications were overruled by the

court (40a-43a).

The grand jury stenographer read her untranscribed

minutes (44a, ef seq.) which disclosed that petitioner had

once more refused in the grand jury room to answer the

six questions set forth above on the ground of possible

self-incrimination.

The prosecutor then requested that the court put to

petitioner the questions refused by him to be answered

and to direct him to answer the same (46a).

Over petitioner’s objection the court directed him to

take the stand in the courtroom (46a, 47a).

The court did not swear petitioner but stated that he

was “still under oath * * * with respect to what is said

here, and with respect to any testimony ° * “ (47a).

On inquiry by his counsel as to whether the proceeding

was “the grand jury proceeding”, or “a contempt pro-

ceeding” the court stated that it was “the Court and the

Grand Jury” (47a) and that it was a “proceeding in

accordance with Rule 42(a)” (47a).

Petitioner’s counsel objected to the procedure, re-

quested that the court proceed in accordance with Rule

42(b) and objected to petitioner “being put on the stand

in a proceeding in which he is in jeopardy and which

involves the possibility of a criminal contempt and being

required to testify in a proceeding in which he is in

jeopardy in violation of his constitutional rights” (47a).

The court overruled the applications and objections

(48a).

10

The court then put to petitioner the same six ques-

tions (supra, p. 6) over the specific objection of peti-

tioner’s counsel to each question and to each direction

(48a-5la), and as to each such question he refused to

answer on the ground of possible self-incrimination

(48a-5la). .

The court then at the request of the prosecutor in-

quired of petitioner whether, if he returned to the grand

jury room, he would still decline to answer (50a). The

court overruled petitioner’s counsel’s objection to this

question and petitioner answered that he “must decline to

answer these questions on the ground that they may

tend to incriminate him before the grand jury” (51a).

The prosecutor then requested the court to “adjudi-

cate” petitioner “in contempt of this court for a violation

of the lawful order and.direction of the court for

a contempt committed in the physical presence of the

Judge” (15a).

After listening to petitioner’s counsel’s reasons (5la,

52a) why petitioner should not be adjudicated in con-

tempt, the court stated that he was forced by reason of

petitioner’s conduct and failure to answer to adjudicate

him in contempt (52a).

Counsel for the government was then heard by the

court on the question of sentence and in that regard he

said, among other things, the following (52a, 53a):

“Now the Government for these reasons feels that

a substantial sentence, and I would use the term

again, is called for and it is not for its punitive effect

but for a coercive effect upon this witness.

“The Government again will ask that in pronouncing

sentence this Court should not include what is com-

monly referred to as a purge clause.”

After hearing petitioner’s counsel on the question of

the quantum of sentence, the court sentenced petitioner

11

to be confined for a period of one years and admitted him

to bail pending appeal (54a).

ARGUMENT

The reasons relied on by petitioner for the allowance

of the writ are these:

1. The decision below is in conflict with the deci-

sions of other Courts of Appeals on the same matter;

2. The Court below has rendered a decision in

conflict with applicable decisions of this Court;

3. The Court below has so far departed from

the accepted and usual course of judicial proceedings,

and has so far sanctioned such a departure by the

Trial Court as ta call for an exercise of this Court’s

power of supervision ;

4. The Court below has decided important ques-

tions of Federal law which have not been, but should

be, settled by this Court.

I.

This case presents to this Court for review an aspect

of the proceedings in the Second Circuit for the handling

of recalcitrant grand jury witnesses which was not decided

in United States v. Brown, 359 U. S. 41.

In the Brown case, supra, as indicated in footnote 11,

this Court did not consider petitioner’s claim that “the

District Court proceeding was conducted in ‘secrecy’, be-

cause the record does not show this to be the fact”.

In- this case, however, the record is unmistakably clear

that the proceedings throughout were secret (36a, 37a).

Consequently in contravention of this Court’s decision

in Re Oliver, 333 U. S. 257, not only the proceedings

leading up to the summary conviction for criminal con-

tempt, but also the actual adjudication and sentence were

held in camera.

— — —— —— — —U4J — —

12

The factual situation in this case is particularly appo-

site to that of the Oliver case, supra.

In the Oliver case a Michigan Circuit Judge sat as a

one man grand jury thereby constituting in one person a

“Judge-Grand Jury” and this bi-morphic entity put the

questions to the witness and upon his allegedly contuma-

cious conduct before it held the witness guilty of criminal

contempt and sentenced him to jail.

In this case similarly the federal grand jury of 23

persons and the judge were converted into a “Judge-Grand

Jury” and as a bi-morphie entity, put the questions to

petitioner and on his refusal to answer held petitioner in

contempt and sentenced him to jail.

Indeed the District Court was asked (47a) when the

petitioner was called to the stand in the courtroom “What

is this proceeding now? -Is this the Grand Jury proceed-

ing, or is this a contempt proceeding?” The Court replied

“The Court and the Grand Jury”.

The secrecy of such proceedings was condemned by

this Court in the Oliver case, supra. Mr. Justice Black in

that case at page 264 clearly pointed out the reasons why

the requirements of grand jury secrecy cannot apply to

contempt proceedings for the witness’s alleged misbe-

havior before the grand jury.

Mr. Justice Black said:

„It has long been recognized in this coun-

try however that the traditional 12 to 23-member

grand juries may examine witnesses in secret sessions.

„» Many reasons have been advanced to support

grand * * But those reasons have never

been thought to justify secrecy in the trial of an ac-

cused charged with violation of law for which he may

be fined or sent to jail. Grand juries investigate,

and the

report, a ‘no-bill’ or an indictment. They do not

try and they do not convict. They render no judg-

1

b

13

ment. When their work is finished by the return of an

indictment, it cannot be used as evidence against the

person indicte’. Nor may he be fined or sentenced to

jail until he has been tried and convicted after having

been afforded ,the procedural safeguards required by

due process of law. Even when witnesses before grand

juries refuse to answer proper questions, the grand

juries do not adjudge the witnesses guilty of contempt

of court im secret or in public or at all. Witnesses

who refuse to testify before grand juries are tried on

contempt charges before judges sitting in open court.

* * * the due process clause may apply with one

effect on the judge’s grand jury investigation, but with

quite a different effect when the judge-grand jury

suddenly makes a witness before it a defendant in a

contempt case.

“Here we are concerned, not with petitioner's rights

as a witness in a secret grand jury session, but with

his rights as a defendant in a contempt proceeding.

The powers of the judge-grand jury who tried and con-

victed him in secret and sentenced him to jail on a

charge of false and evasive swearing must likewise be

measured not by the limitations applicable to grand

jury proceedings, but by the constitutional standards

applicable to court proceedings in which an accused

may be sentenced to fine or imprisonment or both.”

{Emphasis supplied]

While it is true that petitioner’s counsel was present

throughout the proceedings in the courtroom, it is never-

theless also true that a “secret proceeding is no less

secret because the defendant is allowed to have counsel”

(Warren, Ch. J., Brown v. United States, supra, fn. 15).

The evils inherent in a secret proceeding are not

lessened or eradicated by the fact that counsel for the

accused is also present. The opportunity for intimidation

or persecution and the consequent possible abuse of

judicial power remain. The advocate militant in such in

camera proceedings may indeed merely be another candi-

14

date for a contempt adjudication. Compare Sacher v.

United States, 343 U. S. 1, especially dissenting opinions

at pp. 14, et seq.

The necessity of restraint upon the judiciary based

upon other than their self control has been recognized

by this Court and the most potent force in this regard is

publicity, because as Mr. Justice Black said in the Oliver

case at page 270 the “knowledge that every criminal trial

is subject to contemporaneous review in the forum of

public opinion is an effective restraint on possible abuse

of judicial power.”

Indeed, even if it may be said that requiring publicity

for proceedings such as these involving a grand jury

investigation may impair the investigative powers of the

inquest, the choice must be made in favor of Due Process

and fair play as against secret inquisition. This Court

made a comparable choice in Jencks v. United States,

353 U. S. 657, as did the Second Circuit Court of Ap-

peals in United States v. Andolschek, 142 F. 2d 503.

Il.

The imposition of secrecy in this proceeding violated

the Sixth Amendment to the United States Constitution

which guarantees a public trial in all criminal prosecu-

tions.

This Court has held that in proceedings which result

in a judgment of criminal contempt, the defendant is

entitled to the rights accorded to the defendant in crim-

inal cases. Cammer v. U. S., 350 U. S. 399, 403; Re

Michael, 326 U. S. 224; Nye v. U. S., 313 U S. 33; Michael-

son v. U. S., 266 U. S. 42, 66; Gompers v Buck’s Stove

E Range Co., 221 U. S. 418, 444.

The defendant in a criminal contempt case should be

held to be entitled also to the guarantee of a public trial.

15

The rationale of the requirement of a public trial is

grounded on firm principles—adherence to which has

always been thought to be vital to a free democratic

society.

As pointed out“ by Mr. Justice Black in the Oliver

case, supra, at page 268:

“The traditional Anglo-American distrust for secret

trials has been variously ascribed to the notorious

use of this practice by the Spanish Inquisition, to

the excesses of the English Court of Star Chamber,

and to the French monarchy’s abuse of the lettre de

cachet. All of these institutions obviously symbolized

a menace to liberty. In the hands of despotic groups

each of them had become an instrument for the sup-

pression of political and religious heresies in ruthless

disregard of the right of an accused to a fair trial.

Whatever other benefits the guarantee to an accused

that his trial be conducted in public may confer upon

our society, the guarantee has always been recognized

as a safeguard against any attempt to employ our

courts as instruments of persecution. The knowl-

edge that every criminal trial is subject to contem-

poraneous review in the forum of public opinion is

an effective restraint on possible abuse of judicial

power.”

While it has been held that in the absence of objection

the accused in a criminal case subjected to a trial in

camera will be deemed to have waived the guarantee of

a public trial, there are cases which in their holdings

are more consonant and consistent with the preservation

of this basic right and which should be followed here.

Thus, in State v. Hensley, 75 Ohio St. 255, the Court

held against the waiver by silence of the guarantee of

a public trial saying:

“It is, however, insisted by counsel for the state

that, because no specific objection or exception was

16

entered by the defendant at the time the order was

made or was being enforced, the error, if any was

committed, cannot now be taken advantage of. This

objection ignores the force and effect of the constitu-

tional provision. The right to a public trial is guar-

anteed. It is of the same high order of right as

the other guaranties embodied in the section,—that

to appear and defend in person and with counsel,

that to meet the witnesses face to face and have

compulsory process, and that to a trial by jury.

The right cannot be waived by silence any more than

can the right to be tried by jury where the accusation

is a felony and the plea is not guilty. This right

should not be confused with a claim, sometimes

made, that a reversal should be ordered where a

jury has been obtained in a way not strictly con-

forming to the statute. The manner of selecting

the jury is matter of procedure only; and this court

has often held that objection to the mode must be

made at the time, but that an impartial jury must be

obtained, and, if that result is reached, the accused

is not harmed.”

See also State v. Delzoppo, 86 Ohio App. 381; E. W.

Scripps Company v. Fulton, 100 Ohio App. 157 ; People

v. Jelke, 308 N. Y. 56.

Hence, in view of the denial of Due Process and the

violation of the guarantee in the Sixth Amendment to a

public trial which occurred in this case serious questions

are presented for consideration by this Court and certiorari

should be granted to review the same.

III.

In this case petitioner's counsel requested that the

court grant the witness compulsory process to require

the production of evidence and the — of wit-

nesses (9a).

The government argued that, since petitioner’s counsel

\

17

had been in the Brown case, supra, he should have had

his subpoenas out prior to then (15a) but, as pointed out

to the court, there was no case, no proceeding involving

this petitioner before he was actually brought before the

grand jury. It was not and is not possible in the absence

of a case to go to the clerk of the District Court and

request subpoenas in a case which is not pending. It

“would have no caption. There would be no jurisdiction

to issue them. It was only, as petitioner’s counsel pointed

out, when petitioner was for the first time brought before

the court that there was some proceeding pending in which

compulsory process might have been requested.

It was also argued to the court that the evidence sought

te be obtained by the compulsory process would be in-

admissible, but assuming arguendo that to be so, the

simple answer is that the court can rule on the evidence,

when it is offered, but it cannot prevent a defendant's

counsel from obtaining and using the compulsory process

of the court to obtain evidence. It is elementary that

inadmissibility is determined when evidence is offered

(15a, 16a).

The court, however, refused (16a) to issue compulsory

process then, as well as when the petitioner was once

more brought before the court (40a-43a).

Not only was the issuance of compulsory process es-

sential on the issues of fact inherent in the case, but

also on the question of possible extenuation of the con-

tempt. By the denial of compulsory process petitioner

was denied the opportunity to “demonstrate extenuating

circumstances”, Brown v. United States, supra, dissent-

ing opinion. And as Mr. Chief Justice Warren pointed out

in the Brown case, supra, the assertion that only a legal

issue was involved here “overlooks the right of petitioner

to presént evidence in extenuation.”

18

Consequently petitioner has been deprived of a basic

constitutional right guaranteed to him by the Sixth Amend-

ment to the Constitution and the intervention of this Court

is required to redeem this constitutional right.

IV.

While in Brown v. United States, supra, this Court

decided the procedural questions presented here adversely

to that petitioner, this petitioner urges that that decision

is one which ought to be reconsidered and redecided, as

otherwise, were it to remain unassailed, it would be not

only a blow but a continuing threat to Due Process and

that fundamental fairness so devoutly espoused in the judi-

cial administration of our criminal law.

It is believed that it is unnecesssary at this point to

restate the arguments made te this Court in the Brown

case, supra, or to cemind the Court of the cogent and per-

suasive reasoning set forth in the dissenting opinion in

the Brown case. Suffice it to say that on all the points

urged in the Brown case and in that dissenting opinion

the holdings in Brown on the procedural questions should

be once more considered by this Court and that this peti-

tioner should be permitted by means of a writ of certiorari

to reargue these points to the Court.

It is necessary, however, to point out certain matters

which were obviously not apparent until after the deter-

mination of the Brown case.

The Brown case, supra, in substance and in effect, re-

vived the doctrine of “purgation by oath” finally and effec-

tively rejected by this Court in Clark v. United States,

289 U. S. 1, 19. There Mr. Justice Cardozo said that

“little was left of that defense after the decision of this

Court in United States v. Shipp, 203 U. S. 563, 574” that

the doctrine “has even lost the title to respect that

comes of a long historical succession” and that “the time

19

has come, we think, to renounce the doctrine altogether

and stamp out its dying embers”.

In spite of this unequivocal and decisive renunciation

of “this intrusion or perversion of the canon law” [Holmes,

J., United States v. Shipp, 203 U. S. 563, 574], this Court

in the Brown case, supra, breathed a smouldering life into

its embers, long ago thought to have been extinguished in

the Federal courts. See 41 Harv. L. Rev. 61; People v.

Gholson, 412 III. 294.

Simple analysis of this Court’s opinion in Brown demon-

strates that it created a life after death for “purgation by

oath.”

In this Court’s opinion in Brown it is stated that that

petitioner “was for the first time guilty of contempt” when

he again refused to answer the grand jury’s questions

“upon his return to the grand jury room after the District

Court had ruled on the question of immunity.” Thus, then

and there was a complete crime prosecutable by notice

and hearing under Rule 42(b). (See this petitioner’s

Appendix, 39a, 40a).

But, this Court went on to hold that the District Court

could then put a recalcitrant witness on the stand and

afford him the opportunity to purge this completed crime

of contempt by answering the grand jury’s question before

the Judge—clearly, purgation by oath and that, if he

refused, as this petitioner did, to purge himself, he was

guilty of contempt summarily punishable under Rule

42(a).

In United States v. Brewster, 154 F. Supp. 126 [re-

versed on other grounds, 255 F. 2d 899 (C. A., D. C.)]

the defendant on an indictment for contempt of the United

States Senate argued that, even if he had been in con-

tempt in refusing to answer certain questions before a

subcommittee, he had nevertheless “purged” himself by

subsequently furnishing the required information to the

20

Select Committee. The District Court, holding that the

contempt was criminal, stated that “the defense of purg-

ing in criminal contempt has been abolished” and that

“this defense is no longer valid.”

If Clark v. United States, supra, is still the ane then

the decision in this case and Brown v. United States,

supra, is in direct conflict therewith. If the Clark case

had been followed in Brown, this Court could not have

concluded that, if that witness had answered the grand

jury’s questions before the Judge, he would have purged

himself of his contempt before the grand jury.

Particularly apposite here, because its conflict in prin-

ciple with this case is so clear, is this Court’s decision

in United States v. Norris, 300 U. S. 564. There, in a

trial for perjury the defense was urged that before the

same tribunal the witness had retracted and corrected

his falsehoods and thus his crime was purged. This Court

gave the perjurer no locus poenitentiae—it held the per-

jury complete when uttered and hence indictable and not

subject to purgation.

So here, too, as in Brown, there is and was no real

place of penitence for petitioner for his overt refusal to

answer in the grand jury room— unless the Norris and

Clark cases, supra, are to be deemed overruled by Brown,

supra.

Nor is the impact of the Clark and Norris cases, supra,

overcome or even blunted by the theory adopted by the

Court in Brown, supra, of a “continuing contempt”—

more accurately to be described as an “open-end” crime.

The Court in holding in Brown, supra, that a witness's

refusal to answer before the Judge was an act “con-

tinuing his contempt” necessarily overlooked (1) that it

had held he could have been prose:uted under Rule 42(b)

for criminal contempt for his refusal to answer in the

grand jury room after the Court’s direction to answer

21

and (2) that under the Clark and Norris cases, supra,

a recalcitrant witness can still be so prosecuted.

It cannot be said that the crime of criminal contempt

was not complete when done in the grand jury room (see

39a, 40a). If thaf were so, this Court could not say, as

it did in Brown, supra, that that petitioner could be prose-

cuted for the refusal in the grand jury room. The crime

could not be both complete and incomplete.

In Brown, as here, there necessarily had to be two con-

tempts—the one before the grand jury and the one before

the court (if that be a contempt). The contempt before

the grand jury was an entirely separate crime from the

contempt before the court, of which he was convicted.

But petitioner by reason of the affirmance in the Brown

case, supra, on the theory of continuing contempt also

stands convicted of a crime other than either one of the

two which he may have committed.

The certificates of the Trial Judge in both cases make

this indisputable. As in Brown, the certificate here in

no way shows that petitioner was convicted below for

continuing before the Court his overt refusals before the

grand jury (4a-6a).

This certificate too makes no reference whatsoever to

the proceedings before the grand jury, after the Court's

direction to petitioner to answer the questions. I! also

recites merely that petitioner was brought before the

Judge and that in the presence of the grand jury, the

Judge put the questions to him, that he refused to answer

after having been directed to do so, that he failed to

state any valid reason why he should not be held in con-

tempt, and that accordingly petitioner was summarily

found to be in contempt of court under Rule 42(a).

In Brown, this Court, in order to avoid the problem

of multiplication of contempts clearly inhereut in that

and this case, described the crime as a continuing con-

22

tempt. But for this so-called continuing contempt neither

witness was convicted. If either had been convicted of

this continuing contempt, then the certificate would have

had to recite the proceedings before the grand jury. This

each very carefully does not do. The Assistant United

States Attorney who prepared each certificate and the

District Court Judge who signed both were undoubtedly

well aware of the fact that to include the grand jury

proceedings in the certificate would necessarily invali-

date it, because then, as pointed out by this Court in

Brown, there would have had to be proceedings under

Rule 42(b) and the error would appear plainly on the

face of the certificate.

Accordingly, if this Court meant in Brown to supply

the defect in the Rule 42(a) procedure here by adding to

the certificate the matter contained in the Record as to

the proceedings before the grand jury, then the certifi-

cate as so amended ad hoc would be invalid and the con-

viction should fall. There would seem to have been no

diss greement in this Court about this basic rule that, if

the proceedings resulting in a contempt took place before

a grand jury in its room, then Rule 42(b) must be applied.

And this is a basic distinction between Brown and

this case and Yates, 355 U. S. 66. There the continuing

contempt occurred before the same tribunal. Here, while

the grand jury concededly is an appendage of the court,

proceedings before it are not the same as proceedings

before the court, and for the court to take cognizance of

contumacious conduct before the grand jury, proceedings

under Rule 42(b) must be instituted. By the device of

labeling the petitioner’s refusal to answer before the

District Judge as a continuation of the contempt before

the grand jury, this basic difference cannot be obscured.

Even if this Court, by describing Brown’s refusals as

a continuing contempt, intended to imply that such pro-

23

ceedings, as in this case, before the court are a continua-

tion of the grand jury proceedings, the error is not cured

thereby, because what transpires before the grand jury

takes place outside of the presence of the court, and in

this phase of the’ contempt the witness is certainly en-

tit'sd to notice and hearing. Thus, the “rollup” or merger

of the refusal before the grand jury into the alleged

contempt before the court which is implied in Brown in

this Court’s phrase “finally adjudicating” (Op., p. 11) is

impossible. .

In sum, this Court held in Brown that the conviction

of a witness in the posture of petitioner can stand, be-

cause he refused to purge himself, when as matter of

law long settled by this Court, he could not have purged

himself of his contempt in the grand jury room. By

answering before the Court he could at the most only

avoid a coercive sentence or mitigate his punishment for

his contempt before the grand jury. Wilson v. United

States, 65 F. 2d 621 (C. C. A.) 3; United States v. Collins,

146 Fed. 553, 554.

Consequently for all of the above and upon the argu-

ments and dissenting opinion in Brown, the Court should

grant certiorari to review this conviction.

V.

In holding in Brown that a witness’s refusal before the

District Judge to answer the grand jury's questions “left

the Court no choice” but to convict him of criminal con-

tempt under Rule 42(a), this Court overlooked, it is

respectfully submitted, the power of the District Court to

commit recalcitrant witnesses, such as this petitioner until

he make answer to these questions.

While for the contempt committed in the grand jury

room petitioner could only be prosecuted and punished

24

under Rule 42(b), the District Court, for the purpose of

obtaining his answers to the questions and aiding and

assisting the grand jury to that end, could commit him

until he should make answer thereto. Petitioner does not

deny the District Court’s cvercive power to commit him

until he make answer. Petitioner does contend that he

could not and should not be convicted summarily of crim-

inal contempt under Rule 42(a) for not having answered

the grand jury's questions before the District Court.

This Court in Brown, to justify its upholding of this

abuse of the summary contempt power, cited a number of

decisions of this Court and the Courts of Appeals as “at

least sub silentio” approving “such a procedure” which

its opinion described as “stemming * from usages of

the common law.”

Of the cited cases decided in this Court, not one, openly

or silently, furnishes such approval of such summary

procedures culminating in punitive sentences for contempt.

In Hale v. Henkel, 201 U. 8. 43, 46, the coercive order

of the Cireuit Judge committed Hale “to the custody of

the Marshal uutil he should answer the questions and

produce the papers.” Similarly, in Wilson v. United

States, 221 U. 8. 361, 369, 371, the commitment was to the

custody of the Marshal until the witness shall perform the

required acts. In Curcio v. United States, 354 U. S. 118,

this Court did not approve the procedure there followed

and necessarily did not consider that issue, because its

sustaining of the Fifth Amendment plea disposed finally

of the case. Besides there the six months sentence con-

tained a blanket purge provision.

Much was attempted to be made of Rogers v. United

States, 340 U. S. 367, in the Court's opinion in Brown.

All that was presented on the procedural questions in that

case was whether that petitioner had a right to counsel

in a Rule 42(a) proceeding and whether that right to

95

—

counsel had been infringed by the summary proceedings

there followed. The fundamental questions presented in

Brown or in this case were not at all submitted to the

Court in the Rogers case. To show that only the right to

counsel was involved in the Rogers case, it is necessary

only to quote from the next to last sentence of that petition

for rehearing, at page 11. This sentence is, “We hope

and trust that this court will listen to our plea against

this apparent denial by the trial court of so basic a right

as the right to be heard by counsel before pronouncement

of judgment.”

Lopiparo v. United States, 216 F. 2d 87, is one of the

Courts of Appeals cases cited by this Court in Brown

as representing approval of the summary contempt pro-

cedure followed there and here. There, however, sentence

was not to the penitentiary, but to the custody of the

Marshal for 18 months or until the further order of

the Court should the contemnor produce before the grand

jury the required records before the expiration of the

sentence or the discharge of the grand jury—in effect, a

coercive sentence. In United States v. Weinberg, 65 F.

2d 394, while the sentence was for a determinate period,

the contemnor unlike this petitioner was prosecuted on

presentment by the grand jury.

As to the earlier practice at common law, the cited

case of People ex rel. Phelps v. Fancher, 4 Thompson &

Cook 467, involved a commitment until the witness should

answer. People ex rel. Hackley v. Kelly, 24 N. Y. 74,

is also to be distinguished because it is quite clear that

the Court of Appeals held on the record there that the

relator had waived all procedural issues “in order to

have a prompt determination of the constitutional ques-

tion involved.” In Re Belle Harris, 4 Utah 5, the Court

there exercised the power of coercion by committing the

witness until she should answer the questions. Besides,

26

this case arose under the Utah Territory statute and not

at common law.

In overlooking this clear and unmistakable power of

the court to commit the petitioner until he make answer

to the grand jury's questions, this Court in Brown was

led into the error of sanctioning a procedure wholly

violative of due process and totally inconsistent with its

statement of the purpose of summary proceedings before

the Court.

In its opinion in Brown, this Court says that a “judge

more intent upon punishing the witness than aiding the

grand jury in its investigation might well have taken”

the course of instituting prosecution of petitioner for

criminal contempt under Rule 42(b), but instead the Dis-

trict Court “made another effort to induce the petitioner

to testify.”

While it would seem that this statement by the Court

is intended to be a rephrasing in the terms of the Brown

ease of certain language in Yates v. United States, 355

U. 8. 66, 75, the proceedings in the Brown and this case

do not at all accord with the phraseology of Yates. There,

Mr. Justice Clark said, “The more salutary procedure

would appear to be that the court should first apply

coercive remedies in an effort to persuade a party to

obey its orders and only make use of the more drastic

criminal sanctions when the disobedience continues.” In

Brown and here, however, there was no imposition of

coercive remedies, only a substitution of the more drastic

criminal sanctions for the coercive remedies.

If the District Court had applied the coercive remedies

and no answers resulted within a reasonable time, it still

remained open to commence a prosecution of the peti-

tioner under Rule 42(b) for his overt refusal in the grand

jury room. But the District Court did not apply any,

coercive remedies, and thus in reality proceedings incon-

27

sistent with this Court’s expression in the Yates case,

supra, have been here sanctioned.

: VI.

The sentence of one year constituted cruel and unusual

punishment and an abuse of the court’s discretion. While

the question of sentence was primarily for the District

Court, there is still a right of review of the quantum of

the sentence as 1 by this Court in / viel States

v. Brown, 359 U. 8 *

Here petitioner 3 to answer questions concededly

incriminatory on grounds which had substantial legal

basis (viz., United States v. Brown, 359 U. S. 41) and

was then necessarily in a quandary because of the un-

certainty at least as to the legal situation confronting

him as to his rights under the Fifth Amendment and the

purported immunity statute; yet the District Court im-

posed a cruel and unusual punishment of one year im-

prisonment.

In Section #22, Motor Carriers Act, Title 49 U. S. C.,

the section under which investigation was being had by

the grand jury, there is no offense for which a jail ser-

tence may be imposed except in a case under subdivision

(d) which applies only to certain employees of the Com-

mission. All other violations are punishable only by fine.

Section 309, Title 49 U. S. C., the other section involved

in this grand jury investigation, contains no punitive

provision.

Thus even if petitioner or any other person incriminated

by him were prosecuted for violations of these sections

of the Interstate Commerce Act, there could be no jail

sentence but the District Court nonetheless imposed the

sentence of one year for refusal to answer questions

claimed to concern possible violations of this statute.

28

Attention is called to Moore v. United States, 150 F.

2d 323 (C. A. 10). There it was held that the penalty

attached to the substantive criminal offenses and its

seriousner is an element to be considered in determin-

ing the 1 easonablencss.and oppressiveness of the pun-

ishment _ posed in the contempt proceedings.

Nor the alleged contempt here be analogized to a

violati of the provisions of the Criminal Code con-

cernir obstruction of justice, Title 18, U. S. C. 551501,

et se . If, as stated in United States v. Brown, supra,

it may be so analogized, then under 6402, Title 18 U. S. C.

the sentence could not exceed six months.

The abuse of discretion inherent in this twelve months

sentence is readily apparent from the study and analysis

of sentences given in comparable cases contained in

Footnotes 11 and 12 of Mr. Chief Justice Warren’s dis-

senting opinion in United States v. Brown, supra.

Wurnxronx, it is respectfully prayed that a writ of

certiorari issue to the Court of Appeals for the Second

Citenit to review petitioner’s conviction here.

Respectfully submitted,

Myron L. Snarmo and J. Bertram Weoman,

Counsel for Petitioner,

Office & P. O. Address,

60 Wall Street,

New York 5, N. Y.

Dated June 24, 1959

8

APPENDIX

Per Curiam Opinion of Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

No. 2—October Term, 1958.

(Argued May 4, 1959 Decided June 2, 1959.)

Docket No. 24669

——ů—

Unrrep Srates or America,

Appellee,

88

Morry Levixe,

Defendant-Appellant.

_—

Before:

CLanx, Chief Judge,

Waterman, Circuit Judge, and

Gatstox, District Judge.

Appeal from the United States District Court for the

Southern District of New York, Richard H. Levet, Judge.

Morry Levine appeals from a conviction of criminal

contempt for refusing to answer certain questions put

30

Per Curiam Opinion of Court of Appeals

to him by the court in the presence of the grand jury.

Affirmed.

Myron L. Suarmo, New York City, for defendant-

appellant.

Mark F. Hveues, Jr., Asst. U. S. Atty., S. D. N. V.,

New York City (Paul W. Williams, U. S. Atty.,

and Album C. Martin and Arthur B. Kramer,

Asst. U. S. Attys. New York City, on the

brief), for appellee.

Per Curiam:

Having refused to answer questions before a federal

grand jury despite the direction of the district court

that he do so, appellant was again brought before the

district judge, who in the presence of the grand jury

addressed the same questions to him, explicitly directed

him to answer them, and; upon his refusal to do so,

adjudged him guilty of criminal contempt and sentenced

him to one year’s imprisonment. The propriety of

Levine’s sentence and of the procedures below leading to

his conviction has been recently approved in Brown v.

United States, 359 U. S. 41, affirming United States v.

Brown, 2 Cir., 247 F. 2d 332, as was the efficacy of the

immunity from prosecution granted him under 6205 (e)

of the Motor Carrier Act, 49 U. S. C. §305(d). Hence

the errors assigned as to them must be overruled.

Similarly, there is no merit in appellant’s contention that

he was improperly denied compulsory process to prove

before the district judge that the grand jury was not

31

Per Curiam Opinion of Court of Appeals

in fact investigating violations of the Motor Carrier

Act. We know of no decision allowing a witness before

a grand jury to probe into the purposes of its investiga-

tion or suggesting that the immunity from prosecution

granted him would not be valid unless he did so. Levine

appeared before the district court as a witness, not a

party, Brown v. United States, supra, 359 U. S. 41; as

such his claim of a right to compulsory process is as

much without basis as his contention that the Court’s

very act of propounding the questions to him violated |

his privilege against self-incrimination. 359 U. S. 41, 50

n. 10. He raises no other points of merit on this appeal.

Affirmed...

85

Relevant Statutes

FeperaL RuLxs or Criminal Procepvure:

Nule 42. Criminal Contempt

(a) Summary Disposition. A criminal contempt may

be punished summarily if the judge certifies that he saw

or heard the conduct constituting the contempt and that

it was committed in the actual presence of the court. The

order of contempt shall recite the fact and shall be signed

by the judge and entered of record.

(b) Disposition Upon Notice and Hearing. A criminal

contempt except as provided in subdivision (a) of this

rule shall be prosecuted on notice. The notice shall state

the time and place of hearing, allowing a reasonable time

for the preparation of the defense, and shall state the

essential facts constituting the criminal contempt charged

and describe it as such. The notice shall be given orally

by the judge in open court in the presence of the defend-

ant or, on application of the United States attorney or of

an attorney appointed by the court for that purpose, by

an order to show cause or an order of arrest. The defend-

ant is entitled to a trial by jury in any case in which an

act of Congress so provides. He is entitled to admission

to bail as provided in these rules. If the contempt charged

involves disrespect to or criticism of a judge, that judge

is disqualified from presiding at the trial or hearing except

with the defendant’s consent. Upon a verdict or finding

of guilt the court shall enter an order fixing the punish-

ment.

33

Relevant Statutes

United States Constitution, Amendments V, VI and

VIII.

: L

“No person * * shall be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law ;”

VI

“In all criminal prosecutions, the accused shall en-

joy the right to a speedy and public trial, by an im-

partial jury * and to be informed of the nature

and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process

for obtaining Witnesses in his favor, and to have the

Assistance of Counsel for his defense ;”

VIII

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments in-

flicted.”