Petition for a Writ of Certiorari — MacNeil v. United States

Supreme Court brief1956

Ask Donna

What actually matters in this document.

Text

FTLDED™

SEP 15 1956

JOHN T. FEY, Cleth

Supreme Court of the United States

Octroser Term, 1956

No.4 25

ANGUS M. MacNEIL,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Anevus M. MacNetr

Petitioner

547 Somerville Avenue

Somerville, Massachusetts

Blanchard Printing Company, Boston, Mass. — Law Printers

EN I ee NAT ae Tg RE ar ie an agree DOES

| TABLE OF CONTENTS.

Page

B Petition for Writ of Certiorari 1

Citation to Opinion Below 1

Jurisdiction 2

Questions Presented 2

Constitutional Provisions, Statutes and Rules 3

Statement of the Case 5)

Reasons for Granting Writ $

Sufficiency of Notice 10

Denial of Assistance of Counsel 13

Appendix A,—Opinion of Court of Appeals 19

Appendix B,—Rule 24, Court of Appeals 31

Appendix C,—Cases 33

CITATIONS.

Cases.

Baltimore and Ohio R.R. v. U. S., 264 U.S. 258, 264, 265 15

Bowles Wa Bullock, Z F.R.D. 147 11

Bowman Dairy Co. v. U. S., 841 U.S, 214, 221 33

Butzman v. USS. 205 US. 348 13

Cammer v. UL S., 350 U.S. 399 9

Chambers v. Florida, 309 U.S. 227 34

Crain v. UL S., 162 U.S. 625, 644 15, 34

Crowe v. U. S., 200 F.2nd 526 14, 33

Edwards v. U. S., 312 U.S. 473, 482 15, 338

Federal Trade Commission v. Fairyfoot Products Co.,

{ 94 F.2nd S844 17

Glasser v. U. S., 316 U.S. 60, 70 13

Hawk v. Olson, 326 U.S. 271, 278 39

Hendry ve UL S., 233 FL 5 1p

Interstate Commerce Commission v, Louisville & Nash-

rille R.R., 227 U.S. 88, 91 15

Johnston v. Zerbst, 304 U.S. 458, 468 35

| Lewis v. U. S., 146 U.S, 3870, 372 14, 3:

MacNeil v. United States, 133 F.2nd 1,19

ENT Sk tN ITNT AINE AG ENO RE MN ARR Te ON ONE MEME CROAT PHO DE

il Table of Contents.

Page

McCarthy v. Zerbst, 85 F.2nd 640, 642 35, 36

Morgan v. U. S., 298 U.S, 468, 480 i 15

National Labor Relations Board v. Standard Trouser

Co., 162 F.2nd 1012 17

Oliver, In re, 3338 U.S. 257 3+

Shelp vo U.S. 81 FB. 694 15, 36

Tompkins v. Missouri, 323 U.S. 485 13

U.S. v. Abilene & Southern R.R., 265 U.S, 275, 288, 290) 15

U.S. v. Garden Momes (CLA, 1035) 0, 8,15

U. Sov. Hayman, 342 U.S. 205 13

U.S. v. Kroger Grocery and Baking Co., 7 Cir, 168

F.2nd 168 36

Van Moltke v. Gillies, 882 U.S. 708, 721, 722 13,15

Wade v. Hunter, 336 U.S. 689 10

Walker v. Johnson, 312 U.S. 275 3

White v. Regan, 324 U.S. 760, 764 30

Wilson v. Bell, 137 F.2nd 716 33

Hilson v. State of North Carolina, 169 U.S. 586, 600 10,85

Miscellaneous.

Constitution of the U. S.. Amendment 5 3

Amendment 6 % 14

Federal Rules of Criminal Procedure :

Rule 42 2, 6, 7, 8, 10, 12, 13,

Rule 42(b) 4

Rule 438 14

Rule 44

Rule 54 i

Rule 58 4

Rule 79(a) )

Rule 24, Court of Appeals, First Cireuit 31

18 U.S.C., Seetion 401(2) 1.23368, 2)

18 U.S.C., Seetion 401(3) 1,3,8,9,11

28 ULS.C., Seetion 1254(1) 2

or NE OR.

Supreme Court of the United States

OcroserR TERM, 1956

ANGUS M. MacNEIL,

PETITIONER,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The petitioner Angus M. MacNeil prays that a writ of

certiorari issue to review the judgment of the Court of

Appeals for the First Circuit entered os August 10, 1956

to the extent that said judgment affirmed the finding that

MacNeil is in violation of Title 18 U.S.C. 401(2)(8), and

the further action of said Court in denying of a petition

for rehearing on August 15, 1996.

Citation to Opinion Below

The opinion below has not as yet been published in the

law publications as yet but will be included in 133 F.2nd...

when published, A copy of the opinion is annexed hereto

teers»

eten een eA TC Cet es

and known as exhibit Appendix A. The opinion of the

Distriet Court is also included in R.A. 10.

Jurisdiction

Jurisdiction in this ease is conferred by U.S.C. Title 28

Sectien 1254.(1). The judgment of the Court of Appeals

was entered on August 10, 1956. The petitioner filed a

Petition for Rehearing en August 18, 1956. This Petition

was denied on August 15, 16.

Questions Presented

1.) Whether the Court could find and adjudicate as

guilty of contempt of Court under Title 18 section 401(2)

a person whose only office of court held was that of Attor-

ney at Law of other courts but not of the trial court and

who was not at the time practicing in said court.

2.) Whether the order of Court made on January 2,

1956 vacating the finding of December 30, 1955 of guilty

and the new finding of guilty made on January 4, 1956

constituted a subjection of the defendant to double jeopardy

in violation of the laws of the United States.

3.) Whether the ‘‘ Memorandum of Instructions"* ante is

a sufficient statement of essential facts upon which to base

a charge of criminal contempt, in accordance with Rule

42 of the Federal Rules of Criminal Procedure.

4.) Whether the Court of Appeals could properly con-

sider matter contained in the Appellees Record Appendix

which was not certified to the District Court nor filed with

him nor certified to the Court of Appeals nor filed with it.

5.) Whether a valid conviction could be had on a pro-

ceedings in which; 1) There was a motion to strike the

‘‘Memorandum of Instructions’? so called, which had not

CRONE US SEAR Ga BT SS

Sn ws Bae SEA . .

smmcncaeen mS

Ce Me ee ee een oe Coens

been acted upon by the Court; 2) There was filed a demand

for statement of fact under Rule 42 which had not been

acted upon by the Court; 3) Where the request of the de-

fendant for assistance of counsel was summarily denied;

4) There was docket* 1 a hearing on the return date in the

absence of the defendant; 5) There was no plea requested

or received by the court; 6) Where a finding of guilty of

‘eiyil and criminal contempt” made on December 30, 1959

and vacated by the court of its own motion followed by a

new finding of guilty of contempt by violation of Title 18,

U.S.C. see. 401(2) and (3), and finding the petitioner in

civil contempt, without previous notice of any such charges

being made against him personally ; 7) Where no evidence

was offered or charge made to prove any control of the

occurrences claimed to have been committed, in the peti-

tioner personally ; 8) There was no evidence offered of any

-alid order made against the defendant personally, by the

Court; 9) No valid order was made at any time to which

there was a failure of compliance.

Constitutional Provisions, Statutes and Rules

1.) Amendment to the United States Constitution, num-

bered 6 provides ‘Tn all criminal prosecutions the accused

shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and District wherein the crime

shall have been committed, which district shall have been

previously ascertained by law, 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, to have the Assistance of

Counsel for his defense.”

2.) Amendment 5 of said Constitution reads; ‘“No per-

son shall be held to answer for a capital or otherwise in-

famous crime, unless on a presentment or indictment of

itt AO Pe SA NARELLAN AIRE

CR RAE TAR a are

"dual vain ed Seen a

a Grand Jury, except in cases arising in the land or naval

forces, or in the militia, when in actual service in time of

war or public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or prop-

erty, without due process of law; nor shall private property

be taken for public use, without just compensation.”’

3.) Rule 42(b) Rules of Criminal Precedure, 18 U.S.C.

provides: Disposition’ upon notice and hearing. A crim-

inal 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 defence, and shall state the essen-

tial 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 defendant 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 defendant is entitled

to a trial by jury in any case in which an act of Congress

so provides. He is entitied to admission to bail as provided

by these rules. If the contempt charge involves disrespect

to or criticism of a judge, that judge is disqualified from

presiding at the trial or hearing execpt with the defendants

consent. Upon a verdict or finding of guilt the court shall

enter an order fixing the punishment.

Rule 44 of Rules of Criminal Procedure

Assignment of Counsel: If the defendant appears in

court without counsel, the Court shall advise him of his

right to counsel and assign counsel to represent him at

every stage of the proceeding unless he elects to proceed

without counsel or is able to obtain counsel.

Rule 58 of Rules of Civil Procedure

me The notation of judgment in the civil docket as

provided by Rule 79(a) constitutes the entry of the judg-

ment; and the judgment is not effective before such en-

bel

try. ...

Rule 54 of Rules of Civil Procedure

‘Definition; form; ‘‘ Judgment”? as used in these rules

includes a deeree and any order from which an appeal

Statement of the Case

On December 7, 1955 the Marshal of the District of Mas-

sachusetts served upon defendant, an attorney at law, at

Boston, Mass. a memorandum of Instructions so called

Appellants R.A. la. Said memorandum of instructions

read as follows:

Memorandum of Instructions to show cause why

Angus M. MacNeil should not be found in civil and

criminal contempt.

In the United States District Court for the District of

New Hampshire in civil action 1035 entitled United States

of America v. Garden Homes Inc., by an order on motion

of defendant for instructions under date of September 17,

1953, Honorable Aloysius J. Connor, United States Dis-

trict Judge, ordered ‘‘. . . that payment for maintenance,

care, and operation of the property of the Corporation are

to be paid by the receiver, upon presentation to him of

payroll accounts and outstanding bills .. .”’

At a further hearing in the same action on June 27, 1955

the receiver stated that funds sufficient to pay three certain

accounts had been paid by him to Garden Homes Inc.

against its voucher, but had not been paid by Garden Homes

Inc. to the creditors. The amounts and accounts were enu-

merated by the receiver as follows: Joseph Pepin, $44.64;

Sal Toscano, $59.12; J. J. Moreau & Sons, Inc., $309.33;

total $473.09.

Whereupon Judge Connor, in open court ordered Angus

M. MaeNeil, President of Garden Homes Inc., then present,

as follows: ‘tI am going to give you twenty days to pro-

duce that money or issue a citation for you to show cause

why you shouldn’t be cited for contempt.’’

At a further hearing in the same action on November 15,

1955 Judge Connor determined, by inquiry addressed to

Angus M. MacNeil, that the order of June 27, 1955 had

not been complied with. Whereupon Judge Connor, in open

Court notified Angus M. MacNeil to appear at the Court-

house in Concord, New Hampshire on December 12, 1955

at 11:00 o’clock in the forenoon to show cause why he

should not be held in civil and criminal contempt. At the

same time, in addition to giving Angus M. MacNeil notice

of the time and place of the hearing, Judge Connor orally

stated the essential facts constituting the contempt charged

which were in substance enumerated above.

Submitted by,

Maurice P. Bois,

: United States Attorney

x A true copy, certified this twenty-eighth day of November,

4 1955.

4 Elizabeth M. Hoyt

$ Chief Deputy Clerk

g United States District Court

A true copy attest.

: Michael H. Barry, Dep. U.S. Marshal.

8 There was no caption or seal of court or approval of

: court thereon.

: On December 9, 1955 he filed prose a motion to strike

said memorandum of instructions said motion is set forth

on R.A. 8. On December 14 he filed a demand under Rule

42 as set forth on R.A. 9. The defendant challenges com-

aU Satis B98 aed

Nip NEP. =

RR oh. MAK, “ME aS

SAI INNS LO ENS

plianee with rule 42 of the Rules of Criminal Procedure

for Criminal Contempt.

The Record on Appeal is put in issue by the fact that

appellee has caused a Record Appendix to its brief to con-

tain much matter not contained in any record filed with

the clerk of the District Court and transmitted by him to

the clerk of the Court of Appeals, nor certified by him as

being the record in the case. On motion made to the Court

of Appeals to strike the matters not properly included,

the said court took no action. The principal contents thereof

objected to are contained in pages 50(8) to 140(98). No

such original transcript has been certified to be filed with

either the clerk of the District Court nor the clerk of the

Court of Appeals.

No where in the record as certified and filed from the

District Court does it appear that any notice in complhi-

ance with Rule 42 of Rules of Criminal Procedure was

given to the defendant, nor was he ever apprized of the

charges being made against him. The memorandum of in-

structions purports merely to reduce to written form the

substance of a notice claimed to have been given in open

court, It is merely a recitation of alleged facts and does

not in affirmative terms allege that the petitioner did do

anything proscribed nor refuse to do anything ordered.

It will be noted that the said ‘‘memorandum of instrue-

tions’? is completely informal and not under the seal or

signature of court and was not captioned in any case in

court. It appears to be solely a memorandum, not a notice

in compliance with rule 42. Other than as contained in

said pages of the Appellees record appendix there appears

no evidence of substantial nature of action taken at any

hearing nor orders of June 27, 1955 nor of September 17,

1953 nor of November 15, 1955 nor of the statements al-

leged to have been made by Judge Connor on November

15, 1955. There appears nowhere in the record any proof

eA OE OEE TEP OCONEE AO ETE ETD CP Ce

oo a aia liiieeaaiindns ee ae

of any notice given by the Court of any charges except as

stated in the said pages not filed nor certified.

As the petitioner made timely motion for striking said

portions of the record before the Court of Appeals it is

contended that the court should not have permitted them

to remain therein even if it did not strike the entire Record

Appendix of the Appellee for failure of compliance with

rule of court. See certificate of clerk of District Court,

motion to strike, excerpt p. 12. All proceedings were dock-

eted in case No. 1035, U. 8. v. Garden Homes Inc. (R.A. 45).

For Court of Appeal rule excerpt see p. 31, infra.

The petitioner was never notified of any order that was

violated in which the court could charge him with liability

for performance. The petitioner questions the form and

contents of the notification so called under Rule 42 of Rules

of Civil Procedure. He denies that any order was issued

to which he violated, and further states that he violated

no order to which he was chargeable with compliance. No

arraignment was had and no plea taken. He requested

assignment of counsel and was summarily denied, without

investigation of ability to obtain counsel in other ways. He

claims he was subjected to double jeopardy by virtue of

the vacation of a finding of guilty of civil and criminal

contempt on December 30, 1955 and a new finding of guilty

of civil contempt and guilty of criminal contempt for vio-

lation of Title 18, see. 401 U.S.C. par. (2) and (3).

The finding of civil contempt was vacated by the Court

of Appeals.

Reasons for Granting Writ

| The defendant is an attorney at law of jurisdictions other

than that of the District Court for the United States for

the District of New Hampshire. He is of course an attorney

RAGES

at law and recognized as such in Massachusetts. But in

view of the recent case-decided by this court, Cammer v.

U. S., 350 U.S. 399, ‘*We hold that a lawyer is not the kind

of officer who can be summarily tried for contempt under

18 U.S.C. 401(2).’’ It appears from said decision that the

finding of guilty made against the defendant of criminal

contempt as an officer of court is error in the light of said

decision.

Il.

The District Court served notice upon the defendant that

he was obliged to appear and show cause why he should

not be held “tin civil and criminal contempt’’. There is

not a word to advise him that he was to stand trial on

charges of ‘‘Misbehavior of any officer of court in his

official transactions’’. The court found on December 30,

1955 the defendant guilty of criminal contempt, not viola-

tion of Title 18, see, 401(2) or of sec. 401(3). Not a word

was stated that he was obliged to defend against charges

of action in any official transaction. The Court in Decem-

ber found him guilty of an offense that may well not have

been criminal at all or punishable as a crime if guilty.

There was not a fact found identifying the crime except

the general phrase Contempt. It is well known there may

be contempts not punishable. The vacating of the finding

in December and the new finding in January 1956 was a

ease of double jeopardy and a violation of the defendant's

constitutional rights. See R.A. 40-41. As follows ‘*Now

taking the matter at hand, let the record show that the

verdicts of guilty in civil and criminal contempt of last

week December 30, are vacated and I am now making a

guilty finding in the criminal contempt and I am finding

you in civil contempt which is reflected by my findings this

Pier Wma ee Sle eae y Se Da a

dace er all

RV SRN A aS RE REE PLO PARE LILLE LODE REAL LLDLLLE IIL ERE LLL EE. LL ASE LILIA ALX LEAS, 7

day which have been reduced to an opinion and which |

will hand you a copy. =

On December 380, 1955 the finding of guilty of criminal

contempt was for an offense not designated. The memo-

randum of instructions so called did not set forth the essen-

tial facts constituting the offense claimed, No where could

there be a determination of what was specifically charged

from the pleadings or court records. The defendant had no

such knowledge after the trial nor before until the finding

of January 1956. See Wade v. Hunter, 386 U.S. 689,

Sufficiency of Notice

The Rules of Criminal Procedure state coneerning notice

of criminal contempt Rule 42. A eriminal contempt except

as provided in subsection (a) of this rule shall be pros-

ecuted on notice. The notice shall state the time and place

of hearing, allowing a reasonable time for 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 defendant or on application of the

United States attorney or of an attorney appointed by the

eourt for that purpose, by an order to show cause or an

order for arrest.

If the notice relied upon by the Government is the

memorandum of instructions referred to herein, p. 9.

There appears not a single statement of an essential

fact constituting an alleged criminal contempt by the

petitioner. The said document does not accuse the peti-

tioner of a thing either right or wrong. The first sentence

states the history of a motion for instructions and orders

given a receiver. The second, a statement of a representa-

tion of the receiver as to unpaid amounts and followed by

a list of them. The third is a statement of an order of the

Judge, The next is a statement of conclusion of the judge.

The fourth is a review of a statement of the judge. The

next and final is another recitation of the statement of

the jndge. Not a single allegation of any fact constituting

a criminal contempt by the petitioner. Moreover it does

not appear to be an order of court having no caption as

such and no allegation of any authority of the U.S, attorney

to set a hearing compelling petitioner to show cause for

anything. As there isn't a charge made against the peti-

tioner of a single fact there of course could be neither an

assent or a denial.

Now taking the statement made by the Court of Appeals

as having been the notice given in open court. There is

no reeord of sach in any record appendix filed in accordance

with the rules of the Court of Appeals. The clerk of the |

District Court has never certified that such statement Is |

part of the record of the Court nor has the stenographer

who was officially appointed so certified.

III.

Indictment which fails to distinetly and specifically de-

scribe the offense with which the accused is charged and

fails to advise him clearly of what he has to meet and give

him an opportunity to prepare his defense is defective as

violating Amendment 6 of the United States Constitution.

“Tn criminal proceedings papers must have the same spec-

ificity as an indictment or information.”’ Bowles v. Bul-

lock, 5 FRD 147.

1.) The holding of the Court of Appeals for the First

Cireuit that the petitioner was guilty of criminal contempt

by violation of Title 1S, see. 401(2) and (38) appears to vio-

late several well established laws as determined not only

by the Courts of Appeal of other Cireuits but many deter-

minations of the Supreme Court itself. It appears that

there have been violations of the Rules of the Courts so

substantial as to require that the conviction be set aside.

The Court of Appeals based its determination of the claim

that a proper notice under Rule 42 of the Federal Rules

of Criminal Procedure upon the oral notice claimed to

haveebeen given in open Court, rather than on the so called

Memorandum of instructions, shown in the record. How-

ever, that no such notice appears in the certified rec-

ord of the Court of Appeals. The Court of Appeals on

page 4 of its opinion sets forth that, ‘*The defendant was

apprized by the trial judge in open court as follows:"

R.A. 218. However, the quotation following said words

Was taken from the R.A. 116 (74). The said contents

of the R.A. from Pages 50 (8) to the upper section of

Page 140 (98) are not proper contents of the Appellees

Record Appendix never having been certified by a. sten-

ographer and filed with the clerk of the Court of Ap-

peals. The Rules of the Court of Appeals for the First

Cireuit as shown in part on P. 31 herein do not make

provision for uncertified and unfiled matter to be in-

cluded in the R.A, of either party. However the Ap-

pellant moved the Court for striking of said portions from

the R.A. of Appellee but no action was taken by the Court

of said motion, See copy of Supplemental Brief P. 3 con-

taining motion to strike which was as follows: ** Wherefore

your Appellant mores that so much of the Appellants Brief

as the Court finds not to be in conformity with the sub-

stantial requirements of the rules of this court be stricken

from the case.”* The allegation contained in said motion

are in part as follows: ‘*2) The Record of the ease printed

as his record appendix seems to be different than the ree-

ord filed at the clerk’s office. In many of its pages are

there matters not included in any filed record here. Neither

the Appellant nor the Court can cheek the accuracy of the

SF A CRETE a ep eR FO Baa ae cee

claim that the contents of the Appellees Record Appendix

are in conformity with the facts of the case itself.”’

Certified copy of Certificate of Transmission by clerk of

District Court is shown on P.

1.) Motion to Strike Memorandum of Instructions, R.A.

7. Lack of Action by Court appears R.A. la et seq.

2.) Demand under Rule 42 on R.A. 9 and Docket R.A. 1

et seq. 3.) Motion for Assignment of counsel R.A. 9 Denial

of Motion R.A. 40.

Denial of Assistance of Counsel

On January 4, 1956 the defendant having appeared with-

out counsel requested the court for assignment of counsel.

The reason is obvious from the statement of the Court on

Appellees R.A, 212 or 170 as originally filed. In response

to the request the answer given ‘‘you can protect yourself

in any way you see fit ‘‘after denying the said request”

clearly indicates the need for competent counsel. The

denial vitiated the finding, and sentence. As stated in

Glasser vo UL S., 315 U.S, 60, 70. **The fact Glasser is an

attorney is of course immaterial to a consideration of his

right to the protection of the sixth amendment.** Instead

of waiving counsel in the present case, counsel was specially

requested. The denial is error vitiating the judgment.

The aceused rights of effective assistance is too funda-

mental to permit a court to indulge in nice calculations as

to the amount of prejudice arising from its denial."’ Butz-

man v. U. S., 205 U.S. 348; Glasser v. U. S8., 315 U.S. 60;

U.S. v. Hayman, 342 U.S. 205. Van Moltke v. Gillies, 332

U.S. 708, 721. Tompkins v. Missouri, 323 U.S. 485, Motion

in the present case was made for assistance counsel. The

reply by the court was summary refusal followed soon

after by ‘*. . . you can proceed according *o the Rules of

Federal Criminal Procedure and protect yourself in any

OLE

way that you see fit. That is my last word on the subject.”

R.A. 41.

4.) Hearing in absence of defendant R.A. la. entry in

Docket dated December 12, 1955. The holding of hearings

in the absence of the defendant without his waiver seems

to vitiate the finding.

The Constitution Amendment 6 requires the presence of

the defendant before the court during the trial and hear-

ings. The docket shows that the defendant was not present

on December 12, 1955 in the forenoon and that hearings

were held at the time. The docket clearly shows that hear-

ing was held and the defendant missing. The extent of

the hearings is a matter to be determined from outside

sourees. The law makes such finding void in the absence

of defendant.

Accused though charged with a misdemeanor cannot be

tried in his absence, ‘‘and it appears well settled that where

the personal presence is necessary in point of law the record

must show the fact.’’ Lewis v. U. S., 146 U.S. 370, 372. A

leading principle that pervades the euties law of criminal

procedure is that after indictment found nothing shall be

done in the absence of prisoner. Crowe v. U. S., 200 F.2nd

526.

It appears from the record that the defendant was never

arraigned, Nor was any plea taken. The uncertainty of

the notice as to the essentials of the offense charged would

have been cleared if there had been arraignment. Rule 43

of the rules of Criminal procedure require the presence

of the defendant at arraignment. The failure to hold an

arraignment very seriously affected the rights of the de-

fendant. For on December 9, 1955 he had questioned the

sufficiency of the notice served upon him advising him of

the charges made. By failing to hold the arraignment the

defendant was deprived of his rights to obtain sufficient

information of the charges being made against him. See

ee ee ee OES Re PARE Re hn OL re CS I OR ITN Ta ULI Ne SN RAR

Appellants R.A. p. 8. ‘‘ Before a court of last resort affirms

a conviction of crime it must appear from the record that

aceused vas called upon to plead and did plead to the

indictment’? Crain v. U. S., 162 U.S. 625. The right of the

defendant to assert rights through pleadings and testimony

may not be infringed’* Edwards v, U. S., 312 U.S. 472.

Until dfendant has pleaded there is no issue to be deter-

mined and omission to plead is fatal to judgment in cases

of misdemeanors as well as infamous crimes. Shelpv.U.S

81 F. 694 A defendant cannot be charged with one crime

and conveted of another merely because the latter is de-

veloped eut of proof which fails to establish the crime

charged in the indictment, Hendry v. U. S., 233 F.

6.) For record of vacation of judgment and the oodles

of new fnding of guilty see R.A. 39. 7.) See R.A. and

Memorandum of Instructions ante. 8.) See No. 2 ante.

9.) Intert is also missing from the claim of contempt. As

is seen by Wilson v. North Carolina intent is an essential

jngrediert of criminal contempt. None is alleged nor proved

here. See page 33. .

It is cear from the record that the present proceeding

Was broight in the civil case of United States v. Garden

Homes lie, for foreclosure of a mortgage. See docket en-

tries, Nc separate criminal proceeding has been instituted

against the defendant petitioner. It appears that contrary

to the of quoted doctrine to the effect that findings of fact

made wihout evidence or proof and in a hearing at which

the party is excluded are arbitrary, baseless and ——

See Balamore and Ohio R.R. v. U. S., 264 U.S. 258, 264,

265, Mo-qan v. U. S., 298 U.S. 468, 480. U.S. v. Abilene &

Southeri R.R., 265 U.S, 275, 288, 290. Interstate Commerce

Commision v. Louisville & Nashville R.R., 227 U.S. 88, 91,

Howeve), the order entered by the court to which a charge

of violation of the criminal contempt section of the U.S.C.

are mack, was made under the following conditions easily

SO LINERS ERY Je

a eioadl

recognizable from the conversation with the court as fol-:

lows: ‘‘Mr. MacNeil: Your Honor, may I participate in

these hearings? The Court: You may not until you comply

with the rule I have laid down, You associate yourself with

local counsel, and you will be allowed to participate. . . .

The Court: Of course I won’t note any exception, you are

not here in any legal capacity, don’t interrupt here again

or I will have you ejected from this building.’’ R.A. 4.

No entry of the order claimed to have been violated entered

on June 27, 1955. See ‘‘Memorandum of Instructions”’

page 5 at the time of said statement of court was ever

docketed by the clerk. See docket R.A. 1. The petitioner

was appearing in his personal behalf at the time not for

client principally in pressing for allowance of claim against

a receiver which was being heard at said time. This was

not docketed as such but action was reserved on said peti-

tion and denied on August 26, 1955 and denial vacated on

November 15, 1955 and dismissed without prejudice on

January 27, 1956. See docket R.A. 1, 1a, and 2, and rule 54

which defines a judgment as including any decree from

which an appeal lies. The petitioner was not a party to

ease 1035 until the contempt issue was made in November

or December 1955.

Is the Memorandum of Instructions so called sufficient to

comply with the requirements of the laws. The Court did

not enter any order whatever that appears to have been

violated. There are two orders so called to be considered.

That of September 17, 1953, and that of June 27, 1955. As

to the second order no claim was made in the memorandum

of instructions to the effect that the defendant was accused

of failing to cause Garden Homes Ine. to do anything. The

District Court found on page 12 of the Appellants RA that

the defendant ‘‘may be held therefore although the obliga-

tion is not a personal one.’’ The Court of Appeals found

‘‘that the defendant was not personally liable for the pay-

ipa A ERE. AN PER a A ETRE td IT FM RED OR EN OD BENE EG Sank oe

ments ordered, this was apparently done out of an abun-

dance of caution since the verdict of December 30, 1955

did not in any way imply a personal obligation.’’ If the

defendant was only directed in the order of June 27, 1955

‘‘to produce the money’’ which order never became effec-

tive because it was never docketed, and as the both courts

found no personal liability upon him to produce the money

it seems that no case is made out. If the orders of June

27, 1955 were intended to mean that he was to cause Garden

Homes Ine. to do something it would seem fair to have said

so. Garden Homes Ine. is not in the contempt complaint at

all and the powers of the defendant to cause Garden Homes

Inc. to do anything are extremely limited. No claim was

made that the defendant failed to cause Garden Homes Inc.

to do anything prior to the finding. In fact the Court did

not find Garden Homes Ine. guilty of anything nor charge

it with any offense but merely found the defendant in-

dividually guilty of contempt. See Appellees R.A. p. 220.

As to the orders of September 17, 1953 there appear

no directions or orders to the defendant whatever that were

allegedly violated. The orders were solely to the Receiver

to pay under certain conditions. No request was made nor

was any payment made under other conditions. There could

be no violation of this order by the defendant as he was

not directed to do anything. As was stated in National

Labor Relations Board v. Standard Trouser Co., 162 F.2nd

1012. ‘‘Contempt of Court is a very grave thing and we

are not disposed to engage in strained construction to

spell out some theoretical and abstract violation of the

Courts order.’? As was stated in Federal Trade Commis-

sion v. Fairyfoot Products Co., 94 F.2nd 844; ‘It is

elementary that a court is without power to adjudge

one to be in contempt for violation of a court order or

decree unless the alleged contemnor has violated a judicial

decree or order, which by its coercive force acting directly

TN BPE oe,

0 TO «aide!

| BB PEL PR DLP OLDE AAPG ARIE EA ME OS AS §

a cat at Ait TRE Bia Page i hehe PEGS MR ich 4

;

upon the p :

I : I rson, lawfully restrains the alleged contemnor

from doing

: he acts complained of.’’? There is not any order

writ proces .

; rule decree or command which the defendant

is or has be ‘p , -

- som - accused of violating. The order of September

17, 1953 is

t J y- he running solely to the receiver and the one

or June 2/,,,-- oa sas . .

1 "1955 was not a responsibility of the defendant

versonally, ;

2 4] *~** Moreover what violation was there of the order

if there wa :

i di te an order. The receiver was the one ordered

and directe oe

: . 1 by the order of September 1953, only. There

Was no disc

bedience to said order, That of June 1955 was

not an ord¢ wip ae .

: _-r or determination in itself and not held to be

such by eit} . ;

: ier of the lower courts.

However.

but is ther, the slightest suggestion that the question of

the defend: ,

the charge suggests that there was a violation,

t’s ability to compel Garden Homes Ine. to

perform ce

that effect . Ds ;

5 et in the memorandum of instructions.

by ) ¢ » . oF -_- . .

The o1 le, of June 27, 1955 was not in law a valid order

for lack of qoake

rtain acts is in issue? There is not a word to

ting and so considered until November 1955.

CONCLUS ION

For the foreg,ing reasonsy this petition fore writ of

certiorari shoi14 be grantd.

Respectfully submitted

Angus M, MacNeil Petitioner

September 13 loc

2 x Ne ee FehEaws pas 2 PA Lad NR OE ORR A PEN STROM

pian pean x 1 Castes tan ase base < SOOO

Appendix A

United States Court of Appeals

For the First Circuit

No. 9094.

ANGUS M. MaeNEIL,

APPELLANT,

UNITED STATES OF AMERICA,

APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Before Macruper, Chief Judge, and Woopsury and

Hartican, Circuit Judges.

Angus M. MacNeil pro se.

Maurice P. Bois, United States Attorney, with whom William May-

nard, Assistant U. S. Attorney, was on brief, for appellee.

OPINION OF THE COURT

August 10, 1956.

Hartican, Circuit Judge, This is an appeal from a

judgment entered January 4, 1956, in the United States

District Court for the District of New Hampshire whereby

the defendant was adjudged in civil contempt and ordered

committed to custody until such time as he should comply

with the Court’s order to return to William H. Craig, Jr.,

Receiver, the sum of $473.09. The defendant was further

adjudged guilty of criminal contempt and ordered to pay

to the clerk of the court a fine of $400, together with costs

in the amount of $137.59, and to stand committed until

the sentence be performed.

The following quotation from the opinion of the trial

judge provides a convenient statement of most of the

relevant facts.

‘“‘This action was brought to foreclose a mortgage

upon a multiunit housing project situated in Man-

chester. Garden Homes, Inc., the mortgagor, remained

in possession of the premises pending adjudication

of the issues, and a receiver for rents and profits was

appointed, with authority to reimburse the mortgagor

for the necessary expenses incurred in the maintenance

and operation of the project. This procedure proved

unsatisfactory to Garden Homes, and, claiming it

was a hardship to require it to pay these expenses

in the first instance, it petitioned this court to instruct

the receiver to make payments to it for maintenance

upon presentation of proper vouchers retailing the

debts inesrred. On September 17, 1953, the following

order was entered: ‘Upon consideration of defendant’s

motion for instructions, filed August 10, 1953, the

receiver, William H. Craig, Jr., and counsel for de-

fendant are directed that payments for maintenance,

care, and operation of the property of the corporation

are to be paid by the receiver, upon presentation to

him of payroll accounts and outstanding bills, if it

appears to the receiver that such expenditures have

been incurred in the operation of the project and

receipts are furnished for all prior payments of similar

charges.’

‘It appears that Garden Homes, Inc. was justly

indebted to J. J. Moreau & Son, Ine. in the amount

of $369.33 for goods used in the maintenance of the

project, and to one Joseph Pepin in the sum of $44.64

and one Sal Toscano in the amount of $59.12 for

maintenance services. Upon receipt of a proper

SS AN Ne 5 FS ERIC ORL LORE BEM NE IM EMBO GI ME NER OEY LUBE MED aoe wath

voucher, signed and certified by Angus M. MacNeil,

the receiver, in accordance with the order of Septem-

ber 17, 1953, gave Garden Homes, Inc. sufficient funds

with which to satisfy the above debts. The attention

of the court was directed to the failure of Garden

Homes, Inc. to disburse these funds to the creditors

at a hearing held June 27, 1955, upon, inter alia, the

receiver’s final report. MacNeil was present at this

hearing and the court directed as follows: ‘I am going

to give you twenty days to produce that money or

issue a citation for you to show cause why you

shouldn’t be cited for contempt’ and Garden Homes,

Ine. was informed of this directive. On November

15, 1955, in open court, the court inquired of MacNeil

whether its directive had been complied with, and,

advised that it had not, gave him notice, pursuant

to Rule 42(b) of Federal Rules of Criminal Procedure,

that a hearing would be held to determine whether he

was guilty of civil and criminal contempt. The court

stated the essential facts constituting the offense

charged.”’

It further appears from the record that bad checks drawn

in favor of Pepin and Toscano in the amounts of $44.60

and $59.12 respectively and signed Somerville Milling

Company by Angus M. MacNeil were cashed for the

drawees by Champagne’s Super Market which at the time

of the trial had not attempted to obtain restitution from

the drawees and had been unable to collect from the drawer.

The record further shows that the defendant attempted

to elicit testimony to the effect that Garden Homes, Inc.

delivered merchandise to J. J. Moreau and Sons, Ine.

in excess of $369, it apparently being contended that the

bill in that amount had thereupon been paid,

Still further we think it should be noted that this entire

—_—__

proceeding in its civil as well as criminal aspect was initi-

ated by the trial judge entirely on his own motion without

application by any party to the original foreclosure action.

Defendant contends that there was no valid order which

was legally entered upon which a contempt could be

predicated. We do not agree. The order of September 13,

1953, although ostensibly directed toward the receiver,

clearly contemplated that all funds paid over would be

applied by the defendant to the payment of bills approved

by the receiver.

Defendant further contends that there was no notifi-

eation and information of the crime charged as required

by law. We find no merit in this contention. The defendant

was apprised by the trial judge in open court as follows:

‘‘T will correct that, I am going to give you plenty

of time for doing those things. I am going to have

the United States Attorney proceed under the process

for civil and criminal contempt, under Rule 42, Under

that rule, I will give you noticee—December 12th, at

11:00 a.m. You will have reasonable time for the

preparation of the defense which you say you have,

and the essential facts that are to be considered is

the order of June 27th—I think that is the date of

the order, isn’t it? June 27th, 1955. And your failure

to comply with the order of the Court, which was—

under date of September 17, 1953. I will read it to

you so that you will have full concept of what it was:

‘Upon consideration of the defendant’s motion for

instructions (that means, of course, Garden Homes)

filed August 10, 1953, the receiver, William H. Craig,

Jr. and counsel for the defendant, are directed that

payments for maintenance, care and operation of the

property of the corporation are to be paid by the

receiver upon presentation to him of payroll accounts

and outstanding bills, if it appears to the receiver that

such expenditures. have been incurred in the operation

of the project, and receipts are furnished for all prior

payments of similar charges.’ That is the order that

went out under my signature. Now, those are the

essential facts upon which you will be proceeded

against, Mr. MacNeil. Let me add parenthetically

that I have no desire to hold you in contempt—not

any. I do feel, however, that you should comply with

the agreement which you made with this court and

which you operated under for so many months with-

out any question, There is the picture. I want to

give you opportunity to prepare yourself and to take

up this matter. I would rather not have this un-

pleasantness arise, If you can establish that you are

not liable for those items, all well and good.”

This was a clear compliance with Rule 42(b), F.R.Cr.P.

which provides in part:

‘A criminal contempt except as provided in sub-

division (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 defendant or, on appli-

cation 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.” * 7"

Defendant's contention that hearings were held in his

absence is disproved by the record and merits no serious

consideration.

Likewise without merit is the contention that defendant

EARN SIE I OIE LIES CRETE EAL ALLEL ALLL NEN LENE ESE D AN A BENET rs ae aeRO Ree en

was subjected to double jeopardy in violation of law by

the court’s action in vacating the verdicts of December 30,

1955, wherein defendant was found guilty of civil and

criminal contempt, and the substitution therefor on Janu-

ary 4, 1956, of a sentence to the following effect:

‘***T am now making a guilty finding in criminal

contempt and I am finding you in civil contempt,

which is reflected by my findings this day which have

been reduced to an opinion, and which I will hand

you a copy.”’

This amounts to nothing more serious than changing the

date of the findings. No substantial changes were intro-

duced and the defendant has not been prejudiced. Al-

though the opinion of January 4, 1956, which was incorpo-

rated by reference into the judgment of the same date

emphasized that the defendant was not personally lable

for the payments ordered, this was apparently done out

of an abundance of caution since the verdict of December

30 did not in any way imply a personal obligation, Parker

v. United States, 126 F.2d 370 (1 Cir. 1942).

We defer momentarily our consideration of defendant's

contention that there was no loss complained of by the

plaintiff, preferring to treat it in conjunction with the addi-

tional contention that the court took a very interested

position and was the real prosecutor,

Accordingly we turn now to the contention that the de-

fendant was given no opportunity to plead to the charges

or to obtain copies of charges. It has already been estab-

lished that defendant was apprised of all charges against

him and that no written notice was required under Rule

—_ The proceeding is summary in character,

and technical pleadings are not required, but it is suffi-

cient that by petition, affidavit, or other showing it is made

to appear that there has been a willful violation of the

court’s order. To this pleading, whatever it may be, it

would be proper for defendants to file a formal answer,

it they so desire."* Hammond Lumber Co. v. Satlors’ Union

of the Pacific, 149 Fed. 577, 580 (C.C.N.D.Cal.1906), The

record in the instant case does not reveal that the de-

fendant attempted to make a formal answer or that he

was deprived of an opportunity to do so.

There is no merit in the further contention that the

finding and sentence were for matters not charged.

We turn finally to a consideration of the related con-

tentions that there was no loss complained of by the plain-

tiff and that the court took a very interested position and

was the real prosecutor. With respect to the criminal

aspect of this case these contentions are clearly without

merit. ‘It becomes the duty of the judge to take affirma-

tive action when the lawful commands of the court are

defied and it was not the purpose of Rule 42(b) to limit

the authority of the judge or to make the institution of

a contempt proceeding contingent upon the consent of

any attorney, but rather to aid the judge by providing

for the prosecution of the charge by an attorney rather

than by the court.". Jn Re Fletcher, 216 F.2d 915, 917

(4 Cir, 1954).

In Fletcher v. United States, 174 F.2d 373, 376 (4 Cir.

1949) the eourt said:

“*** Tt is expressly provided by statute that the

court shall have power to punish by fine or imprison-

ment the contempt involved in disobedience of its

orders, 18 U.S.C.A. § 401(3); and there is nothing

in the statute which limits the power of the court to

cases commenced by the complaint or affidavit of

another person. * * *”"

It becomes important in this connection to note the Al

fundamental distinction between criminal and civil con- auth

tempt. Zn Re Nevitt, 117 Fed. 448, 458 (8 C.C.A. 1902) exter

contains the following language: eivil

parti

‘**Proceedings for contempts are of two classes, —

those prosecuted to preserve the power and vindicate In

the dignity of the courts, and to punish for dis- tains

obedience of their orders, and those instituted to pre-

serve and enforce the rights of private parties to

suits, and to compel obedience to orders and decrees

made to enforce the rights and administer the re- i

medies to which the court has found them to be entitled.

The former are criminal and punitive in their nature,

and the government, the courts, and the people are

interested in their prosecution, The latter are civil, In

remedial, and coercive in their nature, and the parties JARS.

chiefly in interest in their conduct and prosecution

are the individuals whose private rights and remedies

they were instituted to proteet or enforce.* * *"

In Areplik v. Couch Patents Co. 190 Fed. 565, 569

(1 C.CLA, 1911) the court said:

**The courts of the United States recognize that the

process of contempt has two distinct aspects—one

criminal, to punish disobedience; and the other re-

medial and civil to enforce a decree of the court, and

to compensate private persons.* * * The court clearly

draws the vital distinction between proceedings for

civil contempt, which are between the original parties,

and proceedings at law for criminal contempt, which

are between the public and the defendant.* * *”

Although there does not appear to be much express

uthority on the point, we believe that logic, and to some

xtent precedent as well, supports the proposition that

ivil contempt proceedings may be instituted only by the

arties primarily in interest.

In Re Paleais, 296 Fed, 4038, 407 (2 C.CLA, 1924), con-

uins the following language:

‘The general rule is that a proceeding for contempt

to enforee a civil remedy can be instituted by an

aggrieved party, or by one who succeeds to his rights,

or by one who has a pecuniary interest in the right

to be protected.” sew ik:

In Secor v. Singleton, 35 Fed. 376, 378 (C.CLE.D. Mo.

S88), the court said:

**** When an injunction has been granted, as in

this instance, in a suit between individuals to protect

one of the parties in the enjoyment of some private

right, immunity, or franchise, it seems to be the rule

that no one can complain of a violation of the same,

unless it be some one who has a present interest in

maintaining the injunction, nor unless he was a party

to the suit in which the order was obtained, or for

some reason stands in privity with one who was a

party to the litigation. In eases where an injunction

has been granted to enforce or maintain a merely pri-

vate right, a proceeding instituted to punish a party

for violating the order is very generally regarded as

a proceeding to redress a private injury in which the

public have no concern, and for that reason the prose-

eutor or person filing the information must have an

interest in the proceeding differing from that of the

AA AS EY ETO RE RS IN LE ET REA SIRS EE REIN UT ee

general public; otherwise the courts will not enter-

tain the information.* * *”’

The following statement appears in an article entitled

Civil and Criminal Contempt in Federal Courts, 17 F.R.D.

167, 172:

‘‘An action for civil contempt can only be com-

menced by an aggrieved party or by someone who has

an interest in the right to be protected. Federal Trade

Commission v. A. McLean & Son, 7 Cir., 1938, 94 F.2d

802; Bowles v. Camillaci, D.C.W.D.N.Y. 1948, 53 F.

Supp. 976. A proceeding for criminal contempt, on

the other hand, can be commenced by the government,

on its own initiative or on the relation of an indi-

vidual who need not have an interest in the enforce-

ment of the orier violated, or by the court on its

own motion, Fed. R. Crim. P. 42(b).”’

It would appear from these authorities, and indeed from

the very nature of the judicial function, that the trial court

ean have only a public as distinguished from a_ private

interest in the enforcement of its own decrees. It seems

to us, therefore, that regardless of what label may be

appended to the proceedings by the court, any action of

contempt initiated by the court of its own motion must be

regarded as criminal in nature for the vindication of the

court’s authority and the punishment of the public wrong.

‘*A civil contempt proceeding is wholly remedial, to serve

only the purposes of the complainant, not to deter offenses

against the public or to vindicate the authority of the

court.’’ United States v. International Union, Etc., 190

F.2d 865, 873 (D.C. Cir. 1951).

SATE TO Sat ASE ON SENOS Cnt Ome SOT Pe ee WIEST — wate

We find support for this position in the language of

Title 18 U.S.C, ¢ 401:

‘‘A court of the United States shall have power to

punish by fine or imprisonment, at its discretion, such

contempt of its authority, 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 comma:d.’’

It is clear that in a criminal contempt proceeding both

a fine and imprisonment may not be imposed for a single

act of contempt. Carter v. United States, 135 F.2d 858

(9 Cir. 1943). It is equally clear that both may be imposed

where the same act constitutes civil and criminal contempt.

So long as civil contempts are restricted to those initiated

by the parties primarily in interest we see nothing objec-

tionable in the double sentence—one remedial, the other

punitive. We believe, however, that such a double sen-

tence is not proper where the parties primarily in interest

have not complained and where the trial judge, in effect,

seeks to turn the remedial sentence for civil contempt into

additional punishment for an offense to the publie in-

terest. If the court may accomplish this by merely adding

the word ‘‘civil’’ to his charge of criminal contempt then

the provisions of § 401 become meaningless.

Perhaps it should be noted that the language in United

States v. Mine Workers, 330 U.S. 258, 301, 302 (1947)

lends inferential support to our position:

“~

‘‘Apart from their contentions concerning the for-

mal aspects of the proceedings below, defendants in-

sist upon the inability of the United States to secure

relief by way of civil contempt in this case, and would

limit the right to proceed by civil contempt to situ-

ations in which the United States is enforcing a

statute expressly allowing resort to the courts for

enforcement of statutory orders. McCrone v. United

States, 307 U.S. 61 (1939), however, rests upon no

such narrow ground, for the Court there said that

‘Article 3, § 2, of the Constitution, expressly con-

templates the United States as a party to civil pro-

ceedings by extending the jurisdiction of the federal

judiciary ‘*to Controversies to which the United States

shall be a Party.*?* Id. at 68. The United States wa:

fully entitled to bring the present suit and to benefit

from orders entered in its behalf. We will not reduce

the practical value of the relief granted by limiting

the United States, when the orders have been dis-

obeyed, to a proceeding in criminal contempt, and by

denying to the Government the civil remedies en-

joyed by other litigants, including the opportunity to

demonstrate that disobedience has occasioned loss.’

We think this language implies that if the United States

were denied the civil remedies enjoyed by other litigants

there could be no civil aspect to that case—in other words

the language seems to exclude any possibility that the court

could initiate civil proceedings on its own motion,

The judgment of the district court finding that MacNeil

is in violation of Title 18 U.S.C. § 401 (2) and (3) is

affirmed and that part of the judgment finding MacNeil

to be in civil contempt is reversed.

Appendix B

Portion of Rule 24 of the Court of Appeals for the First

Cireuit.

1.) Reeord Appendices to Briefs. ... The Appellee or

respondent shall print as an appendix to his brief (which

appendix may be bound separately) such parts of the

record as he deems it essential for the judges of the Court

to read to decide the questions presented and as have not

been printed in the appendix to the brief of appellant or

petitioner. Those portions of the record printed in an

appendix shall be arranged therein in chronological order

. . reference to the pages of the typewritten transcript

of the testimony shall be made where the printed testimony

appears and the names of the witnesses shall be included.”

8.) Filing within thirty days after the record on appeal

or review is filed with the clerk of this court the appellant

or petitioner shall file twenty-five copies of his printed brief

and appendix thereto with proof of service. ... The ap-

pellant or petitioner may in like manner serve and file a

reply brief. ... No other briefs may be filed without special

leave of Court.

Reeord on Appeal from the District Courts

1.) Original papers to constitute record on appeal. Ap-

peals from the district courts in all cases, civil, criminal

including admiralt® cases, shall be heard on the orig-

inal papers, which papers shall constitute the record on

appeal (citations).

2.) Transmission of Record on Appeal. Promptly after

notice of appeal is filed in the district court and within the

time prescribed by the rules referred to in Rule 21, unless

the district court by order has fixed a shorter time, the

SS eee

rie at STA ie ek

clerk of the District Court shall transmit to the clerk of

this court all original papers in the file dealing with the

action or proceedings in which the appeal is taken, with

the exceptions of such omissions as are agreed upon by

written stipulation of the parties on file, and shall append

his certificate identifying the papers with reasonable defin-

iteness. If a transcript of the evidence is on file the clerk

shall transmit that also; otherwise the appellant shall file

with the clerk for transmission such transcript of the tes-

timony as he deems necessary for his appeal subject to

the right of an appellee either to file additional portions

or procure an order from the district court requiring the

appellant to do so, With the original papers the clerk of

the district court shall transmit a copy certified by him

of the relevant docket entries in the district court.

. Appendix C

Edwards v. U. S., 312 U.S. 473, 482.

The parties must be given an opportunity to plead and

prove their contentions otherwise the impression of the

judge arising from sources outside the record dominates

results. The requirement that allegations must be sup-

ported by evidence tested by cross examination protects

against falsehood. The opportunity to assert rights through

pleadings and testimony are essential to their successful

protection. Infringement of that opportunity is forbidden.

Cf. Walker v. Johnston, 312 U.S, 275.

Excerpt from Crowe v. U. S., 200 F.2nd 526

A leading principle that pervades the entire law of erim-

inal procedure is that after indictment is found, nothing

shall be done in the absence of the prisoner, Lewis v. U. S.,

146 U.S. 370, 372. The Supreme Court there stated, ‘‘ And

it appears to be well settled that where the personal pres-

ence is necessary in point of law, the record must show

the fact’? Wilson v. Bell, 137 F.2nd 716.

Bowman Dairy Co. v. U. S., 341 U.S. 214, 221.

Concerning a subpoena

One should not be held in contempt under a subpoena

that is part good and part bad. The burden is on the court

to see that the subpoena is good in its entirety and it is

not upon the person who faces punishment to cull the good

from the bad.

Crain v. U_S., 162 U.S. 625, 644.

It is true that the constitution does not in terms declare

that a person accused of crime cannot be tried until it be

demanded of him that he plead to the indictment. But it

does forbid the deprivation of liberty without due process

of law, requires that the aceused plead or be ordered to plead

or in proper cases that plea of not guilty be filed for him

before trial ean rightfully proceed and record of her con-

viction should show distinctly and not by inference merely

that every step involved in due process of law and essential

to valid trial was taken by the court otherwise the judg-

ment would be erroneous.

Crain v. U. S., 162 U.S. 620.

Until the defendant has pleaded to the indictment there

is no issue to be submitted to the jury and the omission to

plead is fatal to the judgment even after verdict. This

applies to cases of misdemeanors as to cases of felony. . .

The authorities are to the effect that while arraignment

may be waived the plea is absolutely essential... . Buta

trial without the entry of any plea by or on behalf of the

defendant is invalid.

In re Oliver, 333 U.S. 257.

As a minimum due process requires that an accused be

given reasonable notice of charges against him, the right

to examine witnesses against him, the right to testify in

his own behalf and the right to be represented by counsel.

Chambers v. Florida, 309 U.S. 227

It is ‘‘the law of the land’’ that no man’s life, liberty or

Ch REN we MO PERE APNE BPRS Die em.

property be forfeited as punishment until there have been

a charge fairly made and fairly tried in a public trial.

White v. Regan, 324 U.S. 760, 764.

The requirement of course contemplates that the accused

be so informed sufficiently in advance of trial of charge to

enable him to determine the nature of plea to be entered

and to prepare his defense if one is to be made.

JIWilson v. State of North Carolina, 169 U.S. 586, 600.

‘*No one can be punished for a criminal contempt unless

the evidence makes it clear that he intended to commit it.

To doubt is to be resolved in favor of respondent.”’

‘‘Past cases have decided that a defendant put to trial

before a jury may be subjected to the kind of jeopardy that

bases a second trial for the same offense even though first

trial is discontinued without a verdict. See Kemperv.U.S.,

195 U.S. 100, 128. Cf. Palko v. Connecticut, 302 U.S. 319,

322, 323.

Van Moltke v. Gillies, 332 U.S. 708, 722.

It is the solemn duty of a Federal judge before whom a

defendant appears without counsel to make a thorough in-

quiry and to take all steps necessary to insure the fullest

protection of his constitutional rights at every step of the

proceedings. Johnston v. Zerbst, 304 U.S. 458, 463; Hawk

v. Olson, 326 U.S. 271, 278.

The same may be true where a judge trying a case with-

out a jury fails for some reason to enter a judgment.

McCarthy v. Zerbst, 85 F.2nd 640, 642.

Where a ease is tried to a court without a jury, jeopardy

begins after aceused has been indicted and arraigned, has

Se Ry

LOEB A RNR THE a

pleaded and the court has begun to hear evidence. McCarthy

v. Zerbst, 85 F.2nd 640, 642.

Shelp v. U. 8., 81 F. 694.

Until the accused pleads to the indictment and thereby

indicates the issue submitted by him for trial there is

nothing for the jury to try and the fact that the defendant

did so plead should not left to be inferred from a general

recital in some order that the jury was sworn to try the

issues joined.

In the matter of intent that too is an essential element

of criminal contempt and must be established beyond a rea-

sonable doubt.

U.S. v. Kroger Grocery and Baking Co., 7 cir, 163

F.2nd 168.

INDEN

Opinions below

Jurisdiction

Question presented

Statute and rule involved

Statement

Argument

Conclusion

CITATIONS

Cases:

Cammer v. United States, 350 U.S. 89a

Hammond Lumber Co. v. Sailors’ Union of the Pacific.

149 Fed. 577

Co., 104 F. 2d 302

Parker v. United States, 126 F. 2d 370

Philippe v. Window Glass Cutters League of Av erica

90 F. Supp. 369

Rice, in re, 181 Fed. 218

United States v. Lederer, 140 F. 2d 186. certiorari

denied, 322 U.S. 73

Wilson v. North Carolina, 169 U.S. 586

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

Statute and rule involved:

18 U.S.C. 401 (2) (3).

Federal Rules of Criminal Procedure, Rule 42 (b)

F.R.C. P., Rule 75(h)

404259—56

National Labor Le lations lid \ Hopu ood Re faren na

eee ost ened

Gnthe Supreme Gourt of the Wnited States

OcToBER TERM, 1956

No. 425

Angus M. MacNelL, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. A.

19%-30; R. 215-226) has not yet been reported. The

opinion of the District Court appears at pages 10-13

of the record,

JURISDICTION

The judgment of the Court of Appeals was entered

on August 10, 1956 (R. 227). A petition for rehearing

was denied on Angust 15, 1956 (R. 227). On Septem-

ber 10, 1956, Mr. Justice Frankfurter extended the

time for filing a petition for a writ of certiorari to

September 28, 1956. The petition was filed Septem-

ber 14, 1956. The jursdiction of this Court is invoked

under 28 U.S. C. 1254 (1).

(1)

QUESTION PRESENTED

At the request of petitioner, as president of a cor-

poration the property of which was in receivership but

which was managing the property, the District Court

issued an order directing the receiver to turn over to

the corporation sufficient funds to pay bills submitted

by the corporation for operating expenses. When the

corporation, after receiving the money, failed to make

such payments, the court orally ordered petitioner,

on behalf of the corporation, to do so, but petitioner

failed to comply. The questions presented are:

1. Whether petitioner was properly held in con-

tempt of court for willful failure to obey the orders

of the court.

2. Whether the fact that the court also character-

ized the act of non-compliance as misbehavior of an

officer of the court requires reversal of the conviction.

3. Whether petitioner was accorded due process,

and his proper procedural rights, in the contempt

proceedings.

STATUTE AND RULE INVOLVED

18 U.S. C. 401 provides in pertinent part:

A court of the United States shall have power

to punish by fine or imprisonment, at its dis-

cretion, such contempt of its authority, and

none other, as—

* * * * *

(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 (b), F. R. Crim P. provides:

Disposition Upon Notice and Hearing—A

criminal contempt except as provided in subdi-

vision (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 erim-

inal contempt charged and describe it as such.

The notice shall be given orally by the judge in

open court in the presence of the defendant 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 defendant is entitled to a

trial by jury in any ease in which an act of

Congress so provides. He is entitled to ad-

mission 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 punishment.

STATEMENT

Petitioner seeks review of the judgment of the

Court of Appeals for the First Circuit which affirmed

that part of the judgment of the District Court for

the District of New Hampshire (R. 10-13) finding

petitioner guilty of criminal contempt in violation of

18 U. S. C. 401 (2) (3) (Pet. App. A. 19-30; R.

215-226). The basis of the contempt conviction was

petitioner’s failure to comply with orders of the

mT i tomy

Sater pect

Ss Pater

a =

SIT ELT ITNR

KEES EAT

ee Sean aeees

aoe

District Court issued on September 17, 1953, and

June 27, 1955 (R. 213).

An action had been commenced by the government

in the District Court to foreclose a mortgage upon

a multiunit housing project owned by Garden Homes

Inc., of which petitioner was president (R. 93, 199).

A receiver for rents and profits was appointed, with

authority to reimburse Garden Homes, which retained

possession of the premises pending final adjudication,

for necessary expenses incurred in maintenance and

operation of the project (R. 10). Petitioner, on behalf

of Garden Homes, complained that the procedure

whereby the corporation received reimbursement from

the receiver only after it had actually paid bills ere-

ated an undue financial burden on the corporation,

and that, in lieu thereof, the court should direct the

receiver to reimburse Garden Homes upon its sub-

mission of periodic vouchers setting forth the debts

incurred (R. 76-87). The court granted this motion

and issued an order on September 17, 1953, as fol-

lows (R. 62):

* * * Upon consideration of the defendant’s

motion for instructions filed August 10, 1953,

the receiver, William H. Craig, Jr., and counsel

for the defendant are directed that payments

for maintenance, care and operation of the

property of the corporation are to be paid by

the receiver upon presentation of him of pay-

roll accounts and outstanding bills, if it ap-

pears to the receiver that such expenditures

have been incurred in the operation of the

project and receipts are furnished for all prior

payments of administration charges. A. J,

Connor, United States District Judge. A true

copy certified this 12th day of December 1955,

Elizabeth M. Hoyt, Chief Deputy Clerk, Seal.

On June 27, 1955, the receiver, in the course of his

final report, notified the court that Garden Homes had

failed to pay a debt in the sum of $369.33 to J. J.

Moreau & Sons, and had issued bad checks, which bore

petitioner’s signature (R. 166), for salaries owing to

two employees, in the sums of $44.64 and $57.56 (R.

97, 112). The receiver reported that vouchers evi-

dencing these obligations had been honored by him,

and funds turned over to Garden Homes in May 1954

(R. 122). The court ordered petitioner, who was pres-

ent at the June 27 hearing, to produce the money

within 20 days or show cause why he should not be

punished for contempt (R. 93).

On November 25, 1955, petitioner advised the court

that he had not complied with the order of June 27.

1955 (R. 111). He stated that he did not recognize

“any order having been made’? (R. 111) and alleged

further that he had no personal obligation to comply

(R. 114-117). The court made it clear that peti-

tioner’s obligation was not personal, but in his capac-

itv as an officer of the corporation (R. 93, 116, 209).

The court then gave petitioner oral notice that a

proceeding would be had on December 12, 1955, to

determine whether petitioner was guilty of civil and

criminal contempt. The court stated that it was giving

petitioner ample time to prepare his defense; that the

issues would be whether petitioner had failed to com-

ply with the orders of September 17, 1953, and June

27, 1955 (R. 115-116). The court also said that the

Unit. States Attorney would prepare written

charg, but that he was stating the substance of the

charg (R. 116-117).

Atue subsequent contempt hearing, the receiver

testifil that he had received a letter dated May 10,

1954, gned by petitioner on behalf of Garden Homes,

enclong a voucher for over $1,600, which included

the dets in issue; that, after ascertaining that Garden

Homc had collected $1,200 for rents, he had for-

wardé $440.28 to Garden Homes to cover the balance

of thwoucher, and that the check had been returned

to hir cancelled (R. 121-123). The receiver’s check

for $40 was dated May 12, 1954, two days before the

forecisure sale of the premises, which had been widely

adveiised for May 14 (R. 160). The employees

testifid that the work for which the checks signed by

petitiner were received was performed for Garden

Home (R. 179, 183). The checks had been returned

to a .upermarket, where they had been cashed, as

draw? on insufficient funds (R. 163-164). The bill of

Moreu & Sons for merchandise delivered to em-

ployes of Garden Homes was not paid (R. 124-136).

Petitioner, although not availing himself of the op-

portuity to present evidence in his own defense

(R. 28), sought, by cross-examination of the govern-

ments witnesses and in summation, to exculpate him-

self by suggesting that the employees were not directly

emplyed by Garden Homes and had, in any event,

been paid since the supermarket had not pressed them

for pimbursement (R. 206); that the amounts the

receier still owed Garden Homes (apparently for

telephone bills which the receiver had found unsub-

stantiated (R. 132-133)) exceeded the amount of the

claims involved in the contempt proceeding (R. 200-

201); and that Garden Homes was not indebted to

Moreau, although he refused to clarify his position on

that item (R. 159).

On December 30, 1955, petitioner was found guilty

of civil and criminal contempt (R. 211). On Janu-

ary 4, 1956, the court ‘‘vacated”’ the verdicts of De-

cember 30, 1955, and substituted a similar verdict in

accordance with its written opinion handed to peti-

tioner (R. 212). At this point, petitioner requested

that he be assigned counsel, a request which was de-

nied (R. 212-213). Petitioner was then adjudged in

civil contempt and ordered to return $473.09 to the

receiver. He was further found guilty of criminal

contempt and ordered to pay a fine of $400.00, to-

gether with costs in the amount of $137.59, to the

clerk of the court (R. 213).

The Court of Appeals unanimously affirmed the

conviction for criminal contempt but reversed that for

civil contempt on the ground that civil proceedings

could not be initiated by the court itself (Pet. App. A.,

28-30).

ARGUMENT

1. Petitioner argues (Pet. 17) that he could not be

guilty of contempt because the order of September 17,

1953, was by its terms directed solely to the receiver.

The order, however, which was obtained at petition-

er’s request, manifestly contemplated that Garden

Homes would pay out the moneys for which it was

allowed to submit vouchers to, and receive funds from,

the receiver. By its terms, the order conditioned the

receiver’s duty to remit funds to Garden Homes on

the furnishing of receipts for payments by the cor-

poration to its creditors out of the funds previously

handed over by the receiver (see the Statement, supra,

pp. 45). The duty to make the payments did not

evaporate because the foreclosure sale terminated the

need for further vouchers. In any event, the court’s

further order of June 27, 1955, made it clear to peti-

tioner that he, as president of Garden Homes, was

obligated to make the payments for which money had

been turned over. Petitioner admittedly failed to

obey that order.

There is no substance to petitioner’s allegation that

wilfulness was not established (Pet. 15). The evi-

dence shows that the petitioner knew of the directive

and deliberately failed to comply with it. Cf. In re

Rice, 181 Fed. 217, 224 (M.D. Ala.). Wilson v. North

Carolina, 169 U. S. 586, cited by petitioner, IVA ppo-

site since it was not shown there that the alleged

contemnor had knowledge of the court’s directive.

Throughout the proceedings, the District Court made

it clear that the orders were directed to petitioner in

his capacity as representative of Garden Homes. As

such, he could properly be held liable for willful dis-

obedience since “‘[a] command to the corporation is in

effect a command to those who are officially respon-

sible for the conduct of its affairs”. Wilson v. United

States, 221 U. 8. 361, 376. See, in accord, National

Labor Relations Bd. v. Hopwood Retinning Co., 104

F. 2d 302, 305 (C. A. 2); Parker v. United States, 126

F. 2d 370, 374 (C. A. 1).

2. In finding petitioner guilty of criminal contempt

beeause of his willful disobedience of its orders, the

court specified the contempt as under 18 U.S. C. 401

(3) and (2) (supra, p. 2). Petitioner argues (Pet.

9) that, since this Court ruled in Cammer v. United

States, 350 U. S. 399, that a lawyer is not an officer

of the court under Section 401(2), his conviction

eannot stand. There was here, however, only one

charge—disobedience of the orders of the court—which

was amply proved. The fine imposed was approxi-

mately the amount of the money withheld. There

was Clearly only one penalty for the one offense; there

was no separate specification under Section 401(2),

and no sentence based thereon. Since the contempt

conviction is fully supported by Section 401(3), the

situation is no different than if the court had cited

two cases in support of its judgment, one of which

ras found not to apply.

3. Petitioner makes a number of assertions designed

to show that he was denied due process, or his proce-

dural rights, in the contempt proceeding. All are

without merit.

a. Petitioner was given ample notice and oppor-

tunity to defend. On June 27, 1955, he was told to

pay the bills or show cause why he should not be pun-

ished for contempt. On November 25, 1955, he was,

in open court, given formal notice that a contempt

hearing would commence on December 12, 1955, and

was given formal oral notice of the nature of the

charge (see the Statement, supra, p. 5)... This was

itself sufficient compliance with Rule 42(b), supra,

p. 3. In addition, written charges were prepared by

the United States Attorney. Rule 42(b) does not

contemplate formal arraignment procedure; it is suff-

cient that a defendant have notice of the charges and

opportunity to prepare his defense. United States v.

Lederer, 140 F. 2d 136 (C. A. 7), certiorari denied,

322 U.S. 734; Hammond Lumber Co. v. Sailors’ Union

of the Pacific, 149 Fed. 577, 580 (N. D. Cal.) ; Phillipe

v. Window Glass Cutters League of America, 99 F.,

Supp. 369 (W. D. Ark.).

b. Petitioner’s assertion that his request for assign-

ment of counsel was improperly denied (Pet. 13) is

refuted by the record. Petitioner, an attorney, rep-

resented himself and never requested counsel until

after conviction, immediately prior to imposition of

sentence on January 4 (the trial had concluded on

December 30) (R. 212-213). At this point, the court

properly denied the request. Moreover, petitioner

never alleged inability to obtain counsel for himself.

* Petitioner argues that this court cannot consider the oral

notice given by the district judge since that notice is contained in

the portion of the government’s record appendix which he ap-

parently claims was in some way inaccurate and never properly

certified (Pet. 10-11). This argument has more ingenuity than

merit. If petitioner really believed that the government's ap-

pendix contained inaccuracies or misstatements, he should have

sought relief by application to the District Court as provided by

Rule 75 (h) of the Federal Rules of Civil Procedure.

* The oral direction to petitioner on June 27, 1955, to pay the

bills was made in the course of the receiver’s report in the fore-

e. There is no foundation for petitioner’s conten-

tion (Pet. 9) that he was in double jeopardy because

the court, after orally finding him guilty of civil and

criminal contempt on December 30, 1955, stated on

January 4 that it was vacating the prior judgment

and making findings in accordance with its written

opinion. The January 4 pronouncement was merely

a rephrasing of the December 30th finding. As noted

by the court below, its chief effect was to change the

date of the findings (Pet. App. A. 24; R. 220).

d. The record refutes petitioner’s claim (Pet. 14)

that hearings were held on December 12, 1955, in his

absence; the hearings scheduled for that date were

delayed because of petitioner’s late arrival (R. 43-46).

In short, petitioner was given every opportunity to

explain his willful disobedience of the orders of the

court. His failure to do so does not show a lack of due

process.

closure action, at a hearing at which petitioner was present but

not as an attorney. Thereafter, the following colloquy occurred

(R. 94) :

“Mr. MacNem. Your Honor, may I participate in these hear-

ings?

“The Covrr. You may not until you have complied with the

rule that I have laid down. You associate yourself with local

counsel and you will be allowed to participate.”

The court refused to note an exception since petitioner was not

there in a legal capacity (R. 94).

Petitioner’s right, as an individual, to participate in the receiver-

ship proceedings manifestly has no relation to the contempt hear-

ing where petitioner was given every right to present his defense.

To the extent that petitioner seems to be arguing (Pet. 16) that this

shows he was not a party to the order, it is merely a reiteration of

the position discussed in the text, supra, pp. 7-9, that he was not

bound by the order.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

J. Lee Rankin,

Solicitor General.

WARREN OLNEY IIT,

Assistant Attorney General.

BEATRICE ROSENBERG,

JEROME M. Fert,

Attorneys.

OcrToBER 1956.

S GOVERNMENT PRINTING OFFICE 1986

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.