Petition for Writ of Certiorari — Hall v. United States

INDEX

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Statement of the Matter Involved

Jurisdiction

Opinions Below

Statutes and Rules Involved

Statement of the Case

Questions Presented

Specifications of Error

Reasons for Allowance of Writ

Prayer

CASES CITED

Cooke v. United States, 267 U. 8. 517

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

Grosjean v. American Press Publishing Co., 297 U. 8S.

233

Hood v. United States, 23 F. 2d 472

Nye v. United States, 313 U. S. 33

Pendergast v. United States, 317 U. S. 412

People v. Pirfenbrink, 96 Ill. 68

State ex rel. Grebstein vy. Lehrman, 129 So. 818

Toledo Newspaper Co. v. United States, 247 U. S. 402_

Tumey v. Ohio, 273 U. S. 510

United States v. Dachis, 36 F. 2d 601

United States v. Rice, 192 Fed. 720

United States v. William Z. Foster et al., C 128-87.

Wilson v. United States, 65 F. “d 621

Wright v. Henkel, 190 U. S. 40

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STATUTES CITED

PAGE

Advisory Commission Note, 18 U.S. C., App. p. 308.

13 Corpus Juris 85 8

Federal Rules of Criminal Procedure, Rule 42(a) 7

Judicial Code, Section 240(a) 3

18 U.S. C., Section 401 4

28 U.S. C., Section 1254(1) 3

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7

9

Rule of Criminal Procedure, Section 46(a)

Rule of Criminal Procedure, Section 32(a) SS

U. S. Constitution, Fifth and Sixth Amendments

-

Supreme Court of the United Stairs

October Term, 1949 — Nos. 255, 256, 257, 258

Gus HALL

Petitioner;

vs.

Tue Unitep STATES OF AMERICA.

Henry WINSTON,

Petitioner,

vs.

Tre Unitep STATES OF AMERICA,

Tue Unitep STATES oF AMERICA, ex rel. Gus HALt, —

Petitioner,

vs.

James MutcaBy, United States Marshal.

THe UNITED STATES OF AMERICA, ex rel. HENRY —

etitioner,

vs.

James MuLcARY, United States Marshal.

Petition for Writs of Certiorari to the United States

Court of Appeals for the Second Circuit

To the Honorable, the Chief Justice of the United States

and the Associate Justices of the Supreme Court of

the United States: ;

Petitioners, Gus Hall and Henry Winston, pray that a

writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Second Circuit

made July 14, 1949 (R. 202),° affirming orders of the

District Court for the Southern District of New York,

which (a) held petitioners in contempt of court, and

(b) dismissed writs of habeas corpus, directed to their

imprisonment therefor.

* Though there were separate records in the Hall and Winston

cases, their pagination is, for our purposes, identical. The habeas

corpus record also was separate for each petitioner. Though sub-

mitted, no citations are made therefrom.

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Statement of the Matter Involved

Petitioners are defendants in United States v. William

Z. Foster et al., C 128-87, now on trial in the Southern Dis-

trict of New York, before Judge Harold R. Medina. They

had each been enlarged on bail of $5,000 following their

arrest on return of the indictments July 28, 1948. The

indictments were laid under 18 U. S. C. A., Section 10,

commonly known as the. Smith Act.

On June 3, 1949, Judge Medina, in course of the trial,

remanded petitioners “for the remainder of the trial” fol-

lowing a courtroom incident (R. 19). Jn thus remanding

petitioners, the Trial Judge neither found nor certified

that any contempt had been committed by them. The only

order then made was a bare entry dated June 3, 1949, re-

manding petitioners to custody of the United States Mar-

shal (R. 51). On June 6th, petitioners obtained writs of

habeas corpus from Judge Leibell of the same Court, re-

turnable before him. On June 7th, the writs were heard.

On June 8th, the writs still pending, Judge Leibell sub-

mitted to Judge Medina this question: “Was the remand-

ing of the defendants, Hall and Winston on June 3, 1949,

intended as a form of punishment for any misbehavior on

their parts in the presence of the Court, constituting a

contempt of court under Tit. 18, U. S. C., Sec, 401(a)?”

(R. 114).

Then for the first time (after petitioners had already

been remanded and in custody for five days) Judge

Medina, in his answer to Judge Leibell’s query, assigned

contempt as a ground for his action of June 3rd: “My

answer is that the remanding of the defendants, Hall and

Winston on June 3rd, 1949, was intended, first, as an ex-

ercise of my plenary powers to remand the defendants or

any of them at any time and as a form of punishment for

misbehavior on their parts, constituting a contempt of court

ander Tit. 18, U.S. C., Sec. 401(a)” (R. 114).

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3

The same day, June 8th, Judge Medina issued judgments

and commitments as prescribed by Rule 42(a) of the Rules

of Criminal Procedure finding and certifying that peti-

tioners were each guilty of contempt by reason of the oc-

eurrence on June 3rd, and directing their “imprisonment

for the remainder of the trial” (R. 116).

Judge Leibell thereupon held that these judgments of

June Sth superseded the proceedings of June 3rd and ac-

cordingly dismissed the writs. Appeals were then taken

to the Court of Appeals from both the dismissal of the

writs and the judgments of contempt (R. 161). Argument

was had June 17th. On July 14th the Court of Appeals

unanimously affirmed both determinations. Petitioners

have joined their respective petitions for a writ of cer-

tiorari pursuant to Rule 48 of the Rules of this Court.

Thereafter, on August 4, 1949, application was made

to Judge Medina, pursuant to Federal Rule of Criminal

Procedure 35 for a reduction of their sentence to the time

then served. After argument, this application was denied

without opinion.

Jurisdiction

The Court of Appeal’s judgment was entered July 14,

1949 (R. 214). Jurisdiction of this Court is invoked under

Section 240(a) of the Judicial Code as amended by the

Act of February 13, 1925; 28 U, S. C., See. 1254(1).

Opinions Below

Neither the Court of Appeals nor District Judge Lei-

bell’s opinion has yet been officially reported. The former

appears at R. 202; the latter at R. 132. Judge Medina

rendered no opinion.

Statutes and Rules Involved

The following sections of 18 U. S. Code:

“401. Power of Court

A Court of the United States shall have power to

punish by fine or imprisonment, at its discretion, such

contempt of its auchority, and none other, as

(1) Misbehavior of any person in its presence or

so near thereto as to obstruct the administration of

justice ;

(2) Misbehavior of any of its officers in their official

transactions;

(3) Disobedience or resistance to its lawful writ,

process, order, rule, decree or command.

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

ure:

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 con-

tempt and that it was committed in the actual pres-

ence of the Court. The order of contempt shall recite

the facts and shall be signed by the Judge and entered

of record.”

Statement of the Case

The case is stated above under the heading “Statement

of the Matter Involved”.

Questions Presented

(1) Whether the remand action of Judge Medina, taken

June 3rd, was lawful and within his.authority.

(2) Whether the judgments of June 8th may retroac

tively cure any defect in the remand action of June 3rd.

(3) Whether the judgments of June 8th may be retroac-

tively effective respecting the remand action of June 3rd

since (a) petitioners had already been imprisoned for five

days when such judgments were made, and (b) neither in

the remand action of June 3rd nor at any time prior to

June 8th was contempt of court specified or otherwise sug-

gested as a ground of their imprisonment.

(4) Whether the sentence of imprisonment here im-

posed, i.e., “for the remainder of the trial”, considered in

the circumstances of this trial, possesses the definiteness

and certainty of duration and character required by law.

(5) Whether such sentence imposes upon petitioners a

quality and degree of pressure and compulsion which so

curtails the full, free and unobstructed presentation of

their defense as to deprive them of their constitutional

rights under the Fifth and Sixth Amendments.

Specifications of Error |

The Court of Appeals erred in

1. Affirming the orders (a) dismissing the writs of

habeas corpus and (b) adjudging petitioners in contempt

of court.

2. Failing to hold that petitioners’ remand of June 3rd

and revocation of their bail on that date were in excess of

the Trial Court’s authority.

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3. Holding that the judgment of June 8, 1949, was

retroactively effective to June 3, 1949.

4, Holding that the sentences here imposed were law-

fully authorized.

5. Holding that petitioners’ sentence and imprisonment

were in compliance with the requirements prescribed by

Rule 42(a) of the Rules of Criminal Procedure

Reasons for Allowance of Writ

This petition presents several important questions of

federal law decided by the Court of Appeals which have

not, but should be, settled by this Court or which were

decided in conflict with applicable decisions of this Court.

The Court of Appeals has so decided them as to sanction

a drastic departure from the accepted and usual course of

judicial proceedings and to call for an exercise of this

Court’s supervisory power. The questions referred to, the

decisions thereon and other considerations related thereto

are more particularly the following:

1. Was Judge Medina acting within his lawful authority

in revoking petitioners’ bail on June 3rd and remanding

them to custody? We contend that he was not. The Court

of Appeals, by reason of its erroneous determination, failed

to reach this question. No “plenary” power exists for any

such action either to punish for contempt or otberwise.

Petitioners’ right to bail before conviction, subject to cer-

tain exceptions not here applicable, is absolute. Rule of

Criminal Procedure 46(a) ; ef. Advisory Commission Note,

18 U. S. C., Appendix p. 308; Wright v. Henkel, 190 U. 8.

40. The limited power of revocation allowed does not

cover this case. Hood v. U. S., 23 F. 2d 472; U. S, v. Rice,

192 Fed. 720, These holdings are rooted in the principle

that punishment before conviction is abhorrent to the law

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Wright v. Henkel, supra. Petitioners’ remand on June

rd was a clear violation of their basic right to bail under

Rule 46(a) as thus construed and applied. To sanction

such a procedure would subordinate this right to the arbi-

trary power of a trial judge. No authority has been cited

for such a result. The sense of those cited above for-

pf it.

2. Do the judgments of June 8th validate the remand

action of June 3rd? For the reasons stated and the au-

thorities cited in paragraph 1 above, the impressment of

a contempt judgment upon the unauthorized revocation of

bail five days earlier cannot be said to change the intrinsic

character of the action originally taken.

3. Were the judgments of June 8th retroactively effec-

tive to June 3rd, so as to make the remand action in effect

a judgment for contempt? The Court of Appeals decided

they were, erroneously, we contend. Neither the record

nor the law applicable thereto sustains such a result. It

rather appears here that contempt was an afterthought

first suggested in the answer to Judge Leibell’s query of

June Sth and only then cast ints logal judgment form the

same day (R. 116). The order previously made June 3rd

(R. 51) upon the oral direction in the minutes (R. 19)

makes no reference whatever to contempt and certainly

cannot be seriously urged as a compliance with Rule of

Criminal Procedure 42(a) which requires a factual recital

and certification of the contumacious conduct in the Court’s

rresence and entry of an order thereon reciting the same

facts. The returns filed in the habeas corpus proceedings

allege the order of remand as the reason for detention (R.

56). Nor can these judgments of June 8th be said to

comply with Rule of Criminal Procedure 32(a) which re-

quires here that “Sentence shall be imposed without un-

reasonable delay”.

These defects and omissions may not be dismissed as

mere irregularities. The safeguards prescribed by Rule

42(a) which they violate, are in consonance with the cau-

— , a

tion and scrutiny that this Court has repeatedly applied

in reviewing exercises of the contempt power. See Cooke

v. U. S., 267 U. S. 517, 539; Nye v. U. S., 313 U.S, 33,

approving dissent by Holmes, J., in Toledo Newspaper Co,

v. U. S., 247 U. S. 402, 423; Pendergast v. U. 8., 317 U. 8.

412, 420.

4. Was the imprisonment here imposed, i.e., “for the

remainder of the trial”, a sentence definite and certain as

required by law? The Court of Appeals decided it was,

erroneously, we contend. The requirement of definiteness

in punitive, as distinct from coercive, contempt is well

established. Gompers v. Buck’s Stove & Range Co., 221

U. S. 418; Wilson v. U. S8., 65 F. 2d 621; U. 8. v. Dachis,

36 F. 2d 601. The contempt sentence “must name a definite

period of imprisonment”. 13 Corpus Juris 85 and cases

there cited. This sentence being punitive is not definite

according to the intent of the cases just cited.* Its dura-

tion depends.upon a whole series of factors so imponderable

and unpredictable as to deprive it of all lawful and rational

relation to the offense for which it was purportedly im-

posed. The illness of a juror or witness, protracted re-

buttal by the Government, the time other co-defendants

consume in presentation of their defense, and many other

contingencies not difficult to imagine must thus determine

the duration of petitioners’ imprisonment.

Indeed, by thus making the term of this sentence co-

extensive with the Government’s own rebuttal and cross-

examination of the defense witnesses, the Court has, in

effect, delegated his judicial sentencing power to the Gov-

ernment prosecutor and has thereby run afoul of this

Court’s decision in Tumey v. Ohio, 273 U. S. 510.

Nor is this sentence much different from an imprison-

ment “until further order of the Court” held to be invalid

for want of definiteness in State ex rel, Grebstein v. Lehr-

man, 129 So. 818, and People v. Pirfenbrink, 96 Ill. 68.

* Neither Government counsel nor we have been able to locate a

single prior case in which such a sentence has ever been imposed.

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The “indeterminate sentence” cases cited by the Court

of Appeals do not alter the above result. There, the

mathematical maximum satisfied the requirement of defi-

niteness. Again, unlike here, the indefiniteness was there

occasioned by a purpose to rehabilitate, not to punish.

5. Does this sentence compel such a curtailment of the

free and unobstructed presentation of petitioners’ defense

as to be an unconstitutional deprivation under the Fifth

and Sixth Amendments? Whether or not intended, the

effect of such a sentence is to pressure petitioners, on pain

of continued imprisonment, to hurry their defense to a

close. Their access to and consultation with counsel and

their co-defendants are and have been seriously curtailed.

This is particularly so where, as here, petitioners and their

co-defendants are on trial for their views and advocacy

and opportunity for unobstructed consultation is indis-

pensable to preparation of an effective defense. Thus,

this sentence is not only inherently indefinite but its

duration is in effect limited upon petitioners’ involuntary

surrender or, at least, serious impairment of constitu-

tional rights which are indispensable to anyone under trial,

as they are, for so serious a crime. We submit that no

sentence should be permitted to stand whose duration,

aside from its quantitative uncertainty, is conditioned upon

consequences of such a character. In the circumstances,

we believe that the principle of “undue burden” upon the

free exercise of a constitutional right is applicable. Gros-

jean v. American Press Publishing Co., 297 U. S. 233.

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Prayer

For the foregoing reasons, your petitioners pray that a.

writ of certiorari issue out of this Court to the United

States Court of Appeals for the Second Circuit to the end ©

that this cause may be reviewed and determined by this ~

Court and that the judgments and decision of the Court

of Appeals may be reversed and your petitioners granted

such other and further relief as may be just and Propet

Dated, August 11, 1949.

Grorce W. Crockett, JR.,

Ricuarp GLADSTEIN,

AsraHaM J. IsSERMAN,

Louis F. McCasg,

Harry SacHEr,

Attorneys,

401 Broadway, Room 1602,

New York 12, N. Y,

Special Counsel:

Pau J. Kern,

11 West 42nd Street,

New York City.

Cuaries H. Houston,

615 F Street N. W.,

Washington, D. C.

Waurer F. Dopp,

30 N. LaSalle Street,

Chicago, Il.