Petition for Writ of Certiorari — Margoles v. United States (No. 473)
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OCT 5 1961
JAMES R. BROWNING, CLERK
IN THE
Supreme Court of the United States
OctToser TERM, 1961
No. 473
MILTON MARGOLES,
Petitioner,
vB.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari tou the United States Court of
Appeals for the Seventh Circuit ‘
Petition for Writ of Certiorari
CHARLES A. BELLOWS
10 South La Salle Street
Chicago, Illinois
Attorney for Petitioner
JASON ERNEST BELLOWS
SHERMAN C. MAGIDSON
Chicago, Illinois
On the Brief
EES
UNITED STATES LAW PRINTING CO., CHICAGO 18, ILL. LA keview 5-6581
INDEX.
eae PAGE
Opinions of the Courts Below .00..0....2...0000.cceceeeeeeeeeees 1
Statement of Jurisdiction ............-eecescseceeseseeseceeeee 2
i scceddneaei 2
a eisccesidcimiaiiieinneans 2
NN cores dudainegionvsernisincidcions 3
Basis for Federal Jurisdiction -.............0........ceeeeeeee 10
Mmmm Te Ge UE ns 11
a albsinihathions 30
Appendix I—Opinion rendered by Swygert, District
SSSR nae owe hs re OTe la
Appendix II—Opinion of the Court of Appeals ........ 9a
Appendix III—Judgn ~nt Order of the United States
I We I acces eeneiicettnisenririniresion 13a
Appendix [V—Chart Showing the Development of
Section 1503 Title 18, United States Code
and Related Statutes 20... lda
il
CITATIONS OF AUTHORITY.
| PAGE
Anderson v. Dunn, 6 Wheat. 204 20.02.0220... 21
Bramblett v. United States, D.C. Cir. 1956, 231 F. 2d
aa sat nscwapcndedieicdanuasiaaae 29
Cammer v. United States, 359 U.S. 399 000... 19, 20, 21, 22
Dunn v. United States, 284 U.S. 390 ........ 11, 12, 13, 14, 15, 16
Ex Parte McLeod, D.C.N.D. Ala. 1903, 120 Fed. 130... 29
Hoag v. New Jersey, 356 U.S. 464 000... 14, 15, 16
Holloway v. United States, D.C. Cir. 1945, 148 F. 2d
ag RRR SSREIS) ts lesa TAGE Clan et re oo eo oO Oe 13
Sampsell v. Straub, 9 Cir. 1951, 194 F. 2d 228 ............ 23
Schooler v. United States, 8 Cir. 1956, 231 F. 2d 560... 23
Sealfon v. United States, 332 U.S. 575 00. 15, 16
Sherman v. United States, 356 U.S. 369 000. 18
Sorrells v. United States, 287 U.S. 435 ow... 13, 18
Tatum v. United States, D.C. Cir. 1951, 190 F. 2d 612 .. 12
United States v. Bittinger, 24 Fed. Cas. 1149, Case
Si SEE snicinebeclainiiagasneainenesseabitubsiitstlbisituiicnsienitsssiciabiniies 26, 27, 28
United States v. De Angelo, 3 Cir., 138 F. 2d 466 ........ 16 .
United States v. Gertz, 9 Cir., 249 F. 2d 662 ...,............ 23
United States v. Klosterman, 3 Cir. 1957, 248 F.2d 191 19
United States v. Markham, 7 Cir. 1951, 191 F. 2d 936 .. 12
United States v. Maybury, 2 Cir. 1960, 274 F. 2d 899... 12
United States v. Montgomery Ward & Co., Inc., 7 Cir.
NS I Me ME MD antes ckcsnsteeaseeancecstetstascntivcsncsivansoianscn 26
United States v. Pisano, 7 Cir. 1951, 193 F. 2d 355 ..... 12
United States v. Universal U.I.T. Credit Corp., 344
SN haat aneeiciaaeatad acter dahessccelcadehinaaadicipiieindaincatn 29
ili
Statutory Provisions
PAGE
Act of March 2, 1831 (2 Stat. 487) 000. 20, 21, 24
Act of June 10, 1872 (17 Stat. 378) occcccccccccccccccceeeen 24
Section 135, Criminal Code, 1909 (35 Stat. 1113) ........ 23
Title 18 United States Code, Section 401 ....19, 20, 21, 22, 23
Title 18 United States Code, Section 1503 ....19, 20, 21, 22, 23
24, 25, 29
Title 18 United States Code, Section 206 2.000000... 29
Title 18 United States Code, Section 207 -000....0000000.... 23
Title 18 United States Code, Section 208 0.000000. 0... 23
Title 18 United States Code, Section 1507 ..000..00000000... 23
Rev. Stat. 1873-74, Section 5399 0002020... 24, 25, 26, 27, 28
Rev. Stat. 1873-74, Section 5404 0 .. 24, 25, 27
Rev. Stat. 1678, Section S399 ....................-..ceseeerccseasem .25
Meee. Btat. WOTE, Bectie BAG anna ccccsccsccsccccsccceececse 23
Title 28 United States Code, Sections 601-963 ............ 22
Miscellaneous
House Journal, 21st Cong., 2nd Sess., Feb. 1, 1831 p. w.,
er ee ee eS i 29721
Frankfurter and Landis, ‘‘Power of Congress over”
Procedure in Criminal Contempts in ‘Inferior’ Fed-
eral Courts—A Study in Separation of Powers,’’ _
20-21
f
IN THE
Supreme Court of the United States
OcToser TERM, 1961
No.
MILTON MARGOLES,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
On Petition for Writ of Certiorari to the United States Court of
Appeals for the Seven:h Circuit
Petition for Writ of Certiorari
Petitioner, Milton Margoles, prays that a writ of cer-
tiorari issue to review the judgment of the United States
Court of Appeals for the Seventh Circuit, entered in the
above entitled case on June 29, 1961.
Opinions of the Courts Below
The memorandum opinion of the District Court is un-
reported and is printed in Appendix I hereto, infra, p. 1a.
The opinion of the Court of Appeals is as yet unreported,
but is printed in Appendix IT hereto, infra, p. 9a.
9
Sl
STATEMENT OF JURISDICTION
The judgment of the Court of Appeals was entered on
_ June 29, 1961. A timely Petition for Rehearing by the
court was filed and was denied on September 7, 1961. The
jurisdiction of this Court is invoked under 28 U.S.C. See-
tion 1254(1).
QUESTIONS PRESENTED
1. Whether the rule previously announred by this Court
in Dunn v. Umted States, 284 U.S. 390, ought, in the ex-
ercise of the Court’s supervisory power over the adminis-
tracion of zriminal justice by the lower Federal courts, t«
be re-examined; and more partievlarly, whether the verdict
of the jury acquitting the petitioner of the charge of
bribery and their verdict finding the petitioner guilty of
the crimes of endeavoring to influence an officer of a United
States Court, and obstructing justice were repugnant and
inconsistent and required the trial court to grant the peti-
tioner’s post trial motions for a new trial and in arrest of
judgment.
2. Whether the evidence introduced at the trial showed
that, as a matter of law, the petitioner was entrapped into
committing the offenses charged in the indictments and
those offenses of which he was found guilty by the jury.
3. Whether a judge of a United States District Court
is an ‘‘officer in or of a United States Court,’’ within the
meaning of 18 U.S.C. §1503; and, if not, whether that por-
tion of Section 1503 punishing endeavors to obstruct
justice expands the first portion of the act so as to bring
the petitioner herein within its ambit.
STATUTES INVOLVED
The statutory provisions involved are the Act of March
2, 1831, 4 Stat. 487; The Act of June 10, 1872, 17 Stat. 378;
Title 70, ch. 4, §$ 5399, 5404, 5405 (Rev. Stat. 1873-74;
1878) ; Section 135 of the Criminal Code of 1509, 35 Stat.
1113; and 18 U.S.C. §s 401, 1503. They are printed in
Appendix IV, infra, p. lia.
Pm STATEMEN™ OF THE CAS®.
The petitioner, Doctor Milton Margoles, was charged, in
two indictments which were consolidated for trial, with
violations of Sections 206 and 1503 of Title 18 of the
United States Code. Indictment number 60 CR 83 con-
tained one count and charged the petitioner with indirectly
offering a thing of value to the Honorable Robert E. Tehan,
Judge of the United States District Court for the Eastern
District of Wisconsin with the intent to influence the
Judge’s judicial decision in a matter then pending before
him, contrary to 18 U.S.C. § 206. The second indict-
ment contained two counts, the first of which charged the
petitioner with endeavoring to influence an officer in and
of a United States Court, to-wit: the Honorable Robert E.
Tehan, Judge of the United States District Court for the
Eastern District of Wisconsin, by delivering a thing of
value indirectly to the Judge, with an intent to influence
his jucicia] decision in a matter then pending before
him, contrary to 18 U.S.C. §1503. Count Two charged
an endeavor to obstruct or impede the due administration
of justice by the same acts charged in Count One, con-
trary to 18 U.S.C. §1503. Both indictments arose out of
the same conduct by the petitioner. (App. 2, 3, 17 and 18)
The indictments were tried in the United States District
Court for the Eastern District of Wisconsin, before the
Horforable Luther M. Swygert, District Judge, and a jury.
The defendant interposed the defense of entrapment. The
jury returned two verdicts, one finding the petitioner not _
guilty of the charge of bribery, (App. 19), and anotiner find-
ing the petitioner guilty of the charges ef endeavoring to
influence an officer and endeavoring to obstruct justice.
4
(App. 2) The trial court, in substance, sentenced the peti-
tioner to two concurrent terms of five years on each of the
latter charges; the petitioner was also sentenced to pay a
fine on these charges. :
The acts constituting the offenses which are before the
Court on this Petition arise from a matter heard by the
Honorable Robert E. Tehan during the years 1959 and
1960. In March of the former year the Petitioner was in-
dicted by the United States Grand Jury for the East-
ern District of Wisconsin for a criminal offense aris-
ing out of an alleged violation of the Internal Revenue
Code. The case was assigned to Judge Tehan. In
March of 1960, following a year’s negotiations, the trial
court accepted the petitioner’s plea of nolo contendre and
ordered a pre-sentence investigation. On June 3, 1960, the
court sentenced the petitioner to one year in prison and to
pay a fine. Execution of the sentence was stayed for 90
days. (App. 20-21)
Sometime during this month Karl Villmow, a Milwau-
kee city fireman and a local politician, who was in need of
financial assistance, asked Peter Pikofsky, a 71 year old
friend who was also active in the local political organiza-
tion, to aid him in obtaining a second mortgage on his
home. Pikofsky later informed Villmow that he was un-
able to help him. On June 28, Villmow went to Pikofsky’s
home and the two had a further conversation concerning
Villmow’s finances. During this conversation Pikofsky
asked Villmow if he were friendly with Bob Tehan, Jr., the
judge’s son, and if he would speak to Bob Tehan, Jr.,
about the petitioner and see if he could do something for
him. (App. 45) Villmow left Pikofsky’s home, called Bob
Tehan, Jr., and asked him to meet him at his house. Vill-
mow told Bob Tehan, when he arrived, of the conversa-
tion which he had had with Pikofsky. Bob Tehan then
5
made an appointment for Villmow to speak to his father
aud both men went to the judge’s home. ‘There Villmow
told he Judge about his conversation with Pikofsky. (App.
24) The Judge told Villmow to keep the matter confi-
dential.
On July 2nd Bob Tehan informed Villmow that his
father had said that the FBI had told him that nothing was
expected to come of the matter which Villmow had dis-
cussed with Pikofsky. At this time, however, Villmow
and Bob Tehan, Jr., devised a plan whereby Villmow was
to impress Pikofsky with his friendship with the judge.
He was to indicate to Pikofsky that he would not do any-
thing for friendship alone, and that he wanted to know
what was in it for him; he was also to draw a firm proposal
from Pikofsky. (App. 47-49) Villmow then went to Pikof-
sky’s home. The latter asked Villmow if he had talked
to Bob Tehan, Jr., and Villmow replied that he had not.
He told Pikofsky that Bob was such a good friend that he
might be sacrificing his friendship if nothing came of it.
(App. 56) Pikofsky told Villmow not to worry, that he
would see Milt and would give him $1,000 to give to Vill-
mow. (App. 25) Pikofsky then called the petitioner and
urged him to come to his home, saying that he wanted to
see him about helping him. He told the petitioner that he
could not travel to his office because of his blindness. (App.
50)
Villmow left Pikofsky’s home and went directly to Bob
Tehan’s home where he related to Tehan the conversation
which he had had with Pikofsky and the fact that Pikof-
sky had talked to the petitioner on the telephone while he
was present. Judge Tehan was called and Villmow re-
peated to him what had happened at Pikofsky’s that after-
noon. He did not tell the Judge the part that his son and
he had played in the matter, however. (App. 51)
6
Peter Pikofsky, who was a friend of both Villmow and
the petitioner, was called as a witness for the defendant. .
Pikofsky testified that when he first suggested to Villmow
that he could aid himself by intervening between Doctor
Margoles and Bob Tehan, Jr., neither Doctor Margoles nor
anyone else on his behalf had talked to him about Doctor
Margoles’ tax case. (App. 102) Pikofsky testified that
the petitioner never authorized him to speak to anyone on
his behalf, and that Margoles did not know anything about
it when he first spoke to Villmow. Pikofsky admitted
starting the entire matter by himself by telling Villmow
to speak to Bob Tehan, Jr., (App. 102) The first time
that the petitioner knew anything about the matter was
when Pikofsky called him at his office on July 2nd. The
petitioner responded to Pikofsky’s urging and visited him.
(App. 104) Pikofsky told him about, Villmow and said
that Villmow would call the petitioner. After Pikofsky
called Villmow on July 4th he never again had anything
to do with the matter except that he was questioned twice:
by the FBI in San Deigo, and two or three times by the
government attorney in Milwaukee, and he had testified
before the grand jury.
Judge Tehan called the Internal Revenue Intelligence
Service and the FBI after Villmow informed him on
July 2 of the events which had taken place at Pikofsky’s
home earlier that day. (App. 22) The next‘day he was
visited by two agents of the FBI, and while they were at
his home they called Bob Tehan and had a conversation
with him. Later that day the agents called upon Villmow,
took a statement from him, and asked him if he intended
to contact Doctor Margoles. When Villmow replied that
he did not, the agents inquired if he would cooperate with
them by contacting Doctor Margoles. Villmow replied
that he would and the agents told him not to do anything
until they told him. (App. 51, 52)
7
The FBI agents called Vilimow on the morning of July
4th and instructed him not to call the petitioner until he
heard from them. (App. 53) Pikofsky then called Villmow,
asked him if he had ealled Doctor Margoles, and upon
being to!d no, asked him why not. Villmow gave Pikofsky
an excuse, and called the agents of the FBI. Thompson, ©
one of the FBI agents, instructed Villmow to eall Doctor
Margoles and gave him further instructions. (App. 26)
Following this Villmow made his first contact with the
petitioner, calling and introducing himself by saying that
Pikofsky had told him to call. He suggested, in accordance
with the instructions given by the FBI, that he and the
Doctor meet the following evening at Estabrook Park. He
rejected the Capitol Hospital, the Elks Club or the peti-
tioner’s home as possible meeting places and arranged to
call the Doctor later that afternoon. Villmow then called
the FBI and reported to them what had happened. (App.
26-27) The two FBI agents came to Viilmow’s home, and
at one o’clock that afternoon Villmow placed a second eall
t: Doctor Margoles. Thompson monitored this eall by
listening at the receiver with Villmow. During this eall
Villmow arranged to meet with Doctor Margoles the fol-
lowing evening in Estabrook Park. (App. 53)
The next day, July 5th, Villmow and the FBI agents
went to Estabrook Park to select a meeting spot. They
returned to Villmow’s home and Villmow again called
Doctor Margoles and instructed him where to meet him
that evening. Villmow testified that prior to this meeting
the FBI agents told him to see what the Doctor wanted
to tell him; that under no circumstances was he to sug-
gest anything to the Doctor; and that if there was any
offer of money made he was not to take it. (App. 29)
Villmow and the Doctor met that night as arranged.
During this meeting Doctor Margoles told Villmow about
8
his efforts to get help in his case before Judge Tehan. He
told him about the people he had seen and about the places
that he had gone to try and get help. Villmow said that
the Doctor told him that terrific pressure had been brought
to bear on the Judge and that he had used every approach
imaginable, but with no success. (App. 30, 31) The doctor
also told Villmow that were he forced to serve one year
in jail Capitol Hospital would be closed and the community
would be deprived of its services. In response to a query
from Villmow as to what the petitioner expected him to do,
the doctor told him that he should talk to Bob Tehan and
Bob could talk to his father. Doctor Margoles said, ‘*‘ You
can tell young Bob to tell his father that I should have
received a suspended sentence.’’ (App. 31) The doctor
gave Villmow his reasons for this request, saying that he
felt that the Judge had dealt harshly with him, and that
other doctors in the community who were charged with
similar offenses had not received prison sentences. (App.
32) According to Villmow’s testimony before the jury,
when the Doctor asked him if he thought that he could do
anything for him, Villmow asked if the doctor wanted him
to prevail on Bob Tehan to do this on a friendship basis.
The doctor answered no, that there would be a financial
consideration involved. He told Villmow that he would
place $5,000 in escrow and that he would pay another
$5,000 within ten days after he received a suspended ;
sentence. According to Villmow he then asked the Doctor
if this were just intended for Bob Tehan, Jr., and the
Doctor replied that it was not, that he had gone right to
the top. (App. 32) On cross examination, however, Vill-
mow admitted that when he asked the petitioner if the
$10,000 was just for Bob Tehan he did not wait for an
answer, but he continued by saying: ‘‘ You know there are
also the Judge and myself.’ (App. 59) Villmow also ad-
9
mitted that he testified before the Grand Jury that -the
following conversation took place in his car on July oth:
‘DT ashed the Judge—or the doctor, if this, first, if
this $10,000 was intended for Bob Tehan, Jr., and I
said, *Do vou know that there is the Judge and myself
involved here.’ He says, ‘No.’ He was under the im-
pression that this was—he said he gave me the top
price right away, $10,000." (App. 60, 144)
Villmow protested that $10,000 was not enough to take care
of so many persons. (App. 61) Doctor Margoles then offered
~7to pay another $10,000 if Bob Tehan would handle his
civil tax matter. Villmow indicated this was not enough
(App. 61). Doctor Margoles was also alleged to have made
various statements coneerning favors that he would have
done for Bob Tehan if the latter would represent him.
Villmow told the doctor that he would see Bob Tehan and
arrange another meeting with him the following week.
(App. 33)
Villmow called Margoles on the afternoon of July 8th and
arranged to meet the doctor that night at a street corner.
The two FBI agents were again present when Villmow
made these arrangements. When Villmow and Margoles
met on the 8th Villmow told Margoles that Bob Tehan had
assured him that Margoles would get a suspended sentence.
He also told Margoles that he would have to put $5,000
up to show good faith. (pp. 64, 65) Margoles said that
a lawyer by the name of Best could handle the legal pro-
eedures and that Bob Tehan could pull the strings. Mar-
goles said that he was ready to put up the $5,000 but that
he did not want to give it to Villmow. He suggested putting
the money in a safety deposit box and each of them taking
a key; he also suggested giving the money either to Pikof-
sky or toa man by the name of Hartman at the bank and
that they hold it as an escrowee. Villmow rejected all of
these methods. (App. 35)
10
Margoles called Villmow later that night and said that
a Hyman Herschman could turn the money over to the
judge. Margoles also said that he would like to have the
matter settled that evening. (App. 36)
Villmow called Margoles back early the following morn-
ing and told him that he had spoken to Bob Tekan and
that Bob Tehan had said to wait until he talked with his
father. (App. 36) Villmow called Margoles again, later
that morning, and told him that Bob insisted that Villmow
be the third party. Doctor Margoles then said that if Bob
Tehan would handle the tax exempt matter of the hospital
he would pay him another $10,000. (App. 37)
Villmow calied Doctor Margoles early in the morning
of July 12th. During this conversation Villmow informed
the doctor that he would have to deposit $5,000 with him
in order to be assured of the suspended sentence. The
petitioner indicated that he would do as instructed and
that he understood that the money was going to Judge
Tehan in return for a suspended sentence. (App. 38) The
parties arranged for the delivery of the money that even-
ing in Estabrook Park.
Margoles and Villmow met as arranged that evening and
Margoles gave Villmow a $5,000 United States Treasury
Bond to give to Judge Tehan. He asked Villmow to sign
a receipt for the bond, but Villmow refused. (App. 43)
Doctor Margoles was arrested on July 15th on the basis of
an indictment charging him with the bribery of Judge
Tehan. The second indictment, charging him with en-
deavoring to influence Judge Tehan and endeavoring to
obstruct justice was returned later the next month.
BASIS FOR FEDERAL JURISDICTION
This case was instituted in the District Court by indict-
ment by the Grand Jury of the Eastern District of Wiscon-
sin for violations of 18 U.S.C. Secs. 206 and 1503.
11
REASONS FOR GRANTING WRIT
1. As specified in the Statement of the Case, two in-
dictments charging various crimes arising out of the peti-
tioner’s alleged endeavor to influence the Honorable Robert
EK. Tehan, Judge of the United States District Court for
the Eastern District of Wisconsin were returned by the
United States Grand Jury for that District. Both indict-
ments were consolidated for trial. The jury returned two
verdicts, one finding the petitioner not guilty of the charge
of indirectly offering a bribe to Judge Tehan with intent
to influence his decision in a pending matter, (App. 19),
and another finding the petitioner guilty of the charges
of endeavoring to influence Judge Tehan by offering him
a thing of value, and endeavoring to obstruct justice also
by offering a thing of value to Judge Tehan. (App. 2
Upon the trial of this case the petitioner admitted that
he knew that the bond which he gave to Villmow was in-
tended for Judge Tehan. (App. 119) He also admitted
that at the time he gave the bond to Villmow he intended
that it be given to Judge Tehan to influence him. (App.
119,121) There was no contest of the general issue. The
only contest was whether the petitioner had heen en-
trapped by Villmow and the FBI agents. Based upon
these facts, and more specifically the fact that the sole
issue posed for the jury’s determination was the petition-
er’s affirmative defense of entrapment, the argumert was
made to the Court of Appeals for the Seventh Cireuit that
6@ © © the jury is not possessed of the right to act capri-
ciously and action should be taken by the trial judge
fupon the return of an ‘inconsistent’ verdict’] to correct
any inconsistency in the verdict.’’ (Brief and Argument
for Defendant-Appellant Milton Margoles, p. 54) Relying
on the opinion of this Court in Dunn v. United States, 284
U.S. 390, and on the further explanation contained in
12
United States v. Maybury, 2 Cir., 274 F. 2d 899, the Court
of Appeals rejected the petitioner’s contentions, ruling
that ‘‘[T]he jury’s action may have been prompted by
leniency or other factors * *° * or by its conception of the
difference in the elements embodied in each offense and
determination that there was a lack of proof of some factor
requisite to establish the offense charged in the first in-
dictment.’’ (Appendix II, p. 11a) |
This Court should re-examine, in the light of the facts
in this case, the previous holding in Dunn v. United States,
284 U.S. 390, as an adjunct of its supervisory control over
the administration of criminal justice in the lower federal
courts. Two important elements distinguish this case from
the Dunn case. Unlike Dunn, or any of the succeeding
cases from the lower federal courts which have applied
the rule announced in Dunn, the petitioner herein inter-
posed an affirmative defense. See United States v. Mark-
ham, 7 Cir. 1951, 191 F. 2d 936, 937; United States v.
Pisano, 7 Cir. 1951, 193 F. 2d 355, 361. As far as research
can discover, no case in the federal or state courts have
applicd the strict rule laid down in Dunn to a situation
where the only possible basis for the jury’s acquittal on
the one charge was a belief in and acceptance of the de-
fendant’s affirmative defense. With the increasing use by
prosecutors of ‘‘multi-count’’ indictments, and the result-
ant increased possibility of ‘‘inconsistent verdicts’’ being
returned by juries, there is a need for an authoritative re-
appraisal of the Dumn rule, especially in the situation where
an affirmative defense is interposed bv the defendant.
The Court of Appeals was referred to the example of
the incongruous situation which would arise were the af-
firmative defense of insanity, (See Tatum v. United States,
D.C. Cir. 1951, 190 F. 2d 612, 615) interposed at the trial
of this cause. The analogy between the defenses of in-
13
sanity and entrapment is not inappropriate. The defense of
entrapment ‘‘is available, not in the view that the accused
though guilty may go free, but that the government can-
not be permitted to contend that he is guilty of a crime
where the government officials are the instigators of his
conduct.’’ Sorrells v. United States, 287 U.S. 435, 452. The
rationale of the defense of insanity has been succinctly
stated by the Court of Appeals for the District of Colum-
bia: ‘‘A man who cannot reason cannot be subject to
blame. Our collective conscience does not allow punish-
ment where it cannot impose blame.’’ Iolloway v. United
States, D.C. Cir. 1945, 148 F. 2d 665, 666-67. Both defenses
generally assume that the acts charged were committed;
they challenge, however, the accused’s responsibility for
committing the acts. On the one hand the issue of the
accused’s predisposition to commit the acts absent the
inducement and enticement of a government agent is raised.
On the other hand, the issue of the acecused’s ability to
reason in conjunction with the commission of the acts is
presented.
If this analogy is extended to its logical conclusion the
necessity of a re-appraisal of the rule announced in Dunn
v. Umated States, 284 U.S. 390, can be fully appreciated. Had
the petitioner herein interposed the defense of insanity
at the.time of the alleged offense, and, had the jury re-
turned the same verdicts as were returned herein, the
incongruity of the Dunn rule would be patent, and some
action hy this Court would be necessary to clarify the
rule and correct the manifest injustice done by its applica-
tion. The situation is no different in the present case
where the only basis for the jury’s acquittal of the petition-
er on the bribery charge was an acceptance of and belief in
the defense of entrapment as shown hy the evidence.
14
It was said in Dunn v. United States, 284 U.S. 390, that
the rationale behind the rule that consistency in criminal
verdicts is not necessary is that
‘‘{EJach count in an indictment is regarded as if
it was a separate indictment. * * * If separate indict-
ments had been presented against the defendant for
possession and for maintenance of a nuisance, and
had been separately tried, the same evidence being
offered in support of each, an acquittal on one could
not be pleaded as res judicata of the other. Where
the offenses are separately charged in the counts of
a single indictment the same rule must hold.’’ Dunn
v. United States, 284 U.S. 390, 393.
This is the second element which distinguishes the present
case from the Dunn case, for, under the facts of this case,
the doctrines of collateral estoppel and res judicata would
preclude the conviction of the petitioner were separate
trials to have been had and the acquittal on the bribery
charge first obtained. In Hoag v. State of New Jersey,
356 U.S. 464, this Court, considering the collective claims
of a state defendant that he had been denied due process
because he had been twice placed in jeopardy by succes-
sive trials for robbery which arose out of the same acts
and that his second trial and conviction after an acquittal
‘ at the first trial was foreclosed by the doctrine of col-
lateral estoppel, defined the doctrine as it is applied in
criminal cases:
‘*A common statement of the rule of collateral es-
toppel is that ‘where a question of fact essential to
the judgment is actually litigated and determined by
a valid and final judgment, the determination is con-
clusive between the parties in a subsequent action on
a different cause of action.’ * * * As an aspect of the
broader doctrine of res judicata, collateral estoppel is
designed to eliminate the expense, vexation, waste,
15
and possible inconsistent results of duplicatory liti-
, gation. * * * Although the rule was originally de-
veloped in connection with civil litigation, it has been
widely employed in criminal cases in both state and
federal courts.’’ /loag v. State of New Jersey, 356
U.S. 464, 470-71. (Emphasis added).
One of the cases cited by this Court in support of the fore-
going statement, Sealfon v. United States, 332 U.S. 575,
held that, contrary to the assertion in Dunn, ‘‘Res judicata
may be a defense in a second prosecution. That doctrine
applies to criminal as wel: as civil proceedings * * * and
operates to conclude those matters in issue which the ver-
dict determined though tg offenses be different.’’ 332
U.S. at 578. The Sealfon case, as well as the discussion
in Hoag concerning this Court’s lack of jurisdiction to
overturn the prior determination of the New Jersey court
that ‘‘the trial of the first three indictments involved sev-
eral questions, not just [petitioner’s] identity, and there
is no way of knowing upon which question the jury’s ver-
dict turned,’’ (356 U.S. at 471) destroy the rationale of
the Dunn rule where the question of fact decided in the
defendant’s favor by the jury is clear cut and capable of
determination.
As shown by the record the question of fact decided by
the jury in the indictment charging bribery was clear cut.
Based upon the testimony of the petitioner, in which he
admitted all of the essential elements of the crime of
bribery, but alleged that he had been enticed and induced
by the agents of the government into committing this of-
fense, and under the instructions given by the court, the
jury could not have acquitted the defendant unless they
decided the issue of entrapment in his favor. Certainly,
had this verdict been returned in a separate trial before
the trial of the charges under Section 1503 the doctrines
16
of res judicata and collateral estoppel ‘would have pre-
cluded entry of a judgment of conviction on the latter
charges. Sealfon v. United States, 332 U.S. 575;. United
States v. De Angelo, 3 Cir., 138 F. 2d 466; Hoag v. State
of New Jersey, 356 U.S. 464, 475-76 (dissent). And yet
the possibility of separate trials of these charges serves
as the purported basis for the decision in Dunn v. United
States, 284 U.S. 390, a decision which if allowed to stand
by this Court would rest upon a foundation since decided
by this Court not to have application in this type of a
ease. In view of this anomalous situation, certain to be-
come more prevalent because of the increasing practice
of prosecutors to utilize the ‘‘multi-count’’ indictment, an
authoritative reappraisal of the rule in the Dunn case is
needed.
2. The petitioner contended, both in the trial court and
in the Court of Appeals, that the defense of entrapment
was established by the evidence as a matter of law and
that, as a result, it was error for the trial judge to submit
the cause to the jury. The trial judge decided that there
was Sufficient evidence to submit the case to the jury, and,
instructed it as to the defense of entrapment and its ap-
plication to the facts of the case.. As shown, the jury re-
turned two verdicts, one finding the défendant not guilty
of the charge of bribery, and a second finding the defend-
ant guilty of both counts of the charge of obstructing
justice. We have argued in the point preceding this, that
it is evident that the jury believed, to some undefined
extent, the defendant’s claim that he had been entrapped
into committing the offenses charged.
The Court of Appeals, in ruling on the petitioner’s con-
tention that it was error to submit the case to the jury,
decided that,
‘‘The testimony contains conflicts as to who initiated
the proposal which culminated in the delivery of a
17
$5,000.00 bond on July 12, to be turned over to Judge
Tehan for the purpose of obtaining a suspended sen-
tence. But there is evidence from which the jury
properly could have concluded that Pikofsky suggested
to Villmow on June 28, that Villmow utilize his friend-
ship with Judge Tehan’s son to see if something
couldn’t be done for Margoles—and that there would
be a financial reward for Villmow, and that Villmow,
after disclosing this to Judge Tehan, and following
the instructions of FBI agents who were called in on™
the matter, did nothing -to further developments and
refrained from contacting the defendant until July 9,
when after being urged by Pikofsky to telephone Mar-
gules, who, Pikofsky said, wanted to talk with Vill-
mow, he telephoned Margoles and under instruction
of the agents merely arranged to meet with Margoles
at a site selected by the agents, and that the overtures
which followed concerning the payment of money to
the judge’s son, or to the judge through his son, in
return for a suspendec sentence, were made by the
defendant.’’ (Appendix II, pp. 10a-11a.)
This recitation of facts is neither accurate nor complete,
and ignores a great deal of testimony which was given by
Villmow himself, and also the unimpeached testimony of -
Pikofsky. There is no actual conflict in the testimony as
to who initiated the proposal to pay money to Judge
Tehan. Villmow admitted that he testified before the
grand jury that it was he who first said that Judge Tehan
was to be paid. And he also said that the petitioner’s
response to this statement indicated that until that time he
did not know about this. (App. 60) Nor does the opin-
ion of the Court of Appeals indicate that all of Pikofsky’s
and Villmow’s negotiations were done without the knowl-
edge or assent of the petitioner. (App. 102) As a matter
of fact the petitioner had been hospitalized at the Mayo
clinie for a period of 8 days prior to fhe time that Pikofsky
18
cox.:_cted him on the 2nd of July. (App. 108) The opinion
also neglects to reflect that Villmow admitted on cross
examination that prior to the time that he called the peti-
tioner at the request of the FBI he and Bob Tehan, Jr.,
agreed that Villmow was to impress Pikofsky with his
friendship with the Judge, and further imply that Pikof-
sky’s suggestion to help Margoles could be effectuated if
they were to receive a financial consideration. (App. 48,
49, 56)
The evidence also clearly shows that the petitioner did
not enter the picture until after Villmow had done all of
this, and then his entrance was merely in the form
ot a response to Pikofsky’s telephone call. Even then
the petitioner did nothing except agree to receive a call
from a friend of Pikofsky’s who allegedly could help him.
(App. 104, 110)
The evidence also shows that once again the petitioner
did nothing until he was called by Villmow who was then
acting under the specific directions of the FBI. He agreed
to meet Villmow, an old friend of Pikofsky’s, as he had
promised Pikofsky he would do. Villmow dictated the
place to meet, as he had been instructed by the FBI to
do; he rejected the petitioner’s home, office, or the Elks
Club as possible meeting places. (App. 52-53) When Vill-
mow and the petitioner met on the 5th the conversation
already related took place.
The questions raised under this point are all inherent
in the defense of entrapment. This Court has, in broad
terms, indicated the nature of the defense in its decisions
in Sorrells v. United States, 287 U.S. 435, and Sherman v.
United States, 356 U.S. 369. The issues now raised are
as to the breadth of the defense. Did the FBI adopt as its
own the efforts of Villmow and Bob Tehan to entice Pikof-
19
sky prior to its entry into the case? Is the petitioner
responsible for the activities of Pikofsky? Does not the
lack of any evidence showing a predisposition on the part
of the petitioner to commit the crimes charged in the in-
dictments conclusively establish, as a matter of law, that
he was entrapped into committing the offenses charged?
Is not weight to be given the fact that during the fifteen
month period intervening between his indictment for a
violation of the Internal Revenue Code and the date of
the judgment and sentence of the court in that case no
illegal efforts to obstruct justice were made? See United
States v. Klosterman, 3 Cir., 248 F. 2d 191.) The answers
to these questions, it is submitted, will determine the
breadth of the defense of entrapment.
3. The construction given Section 1503 of Title 18 of
the United States Code by both the trial court and the
Court of Appeals (Appendix I, p. la; Appendix II, p. 9a),
that the acts charged in the indictment constitute a viola-
tion of both the ‘‘endeavoring to influence an officer’? and
the ‘‘obstructing justice’? portions of that section conflict
with the legislative history of the act and well-settled prin-
ciples of statutory construction. Section 1503 has never
been construed by this Court; the constructions given it
by the Courts of Appeal are few and inapplicable insofar
es the problems herein raised are concerned. On the other
hand, Section 401 of Title 18 has been construed by this
Court in Cammer vy. United States, 350 U.S. 399, and that
construction, which is at the base of the defendant’s con-
tention, ix directly at odds with the construction placed
upon Section 1503 by the Court of Appeals for the Seventh
Circuit in the present case. For these reasons it is im-
yortant that this Court define and delimit the scope of
operation of Section 1503.
20
Section 1503, which is fully set forth in the chart ap-
pended herein (Appendix IV, p. 15a), proscribes corrupt
endeavors to influence any ‘‘officer in or of any court of
the United States’’; it also punishes corrupt endeavors
‘‘to influence, obstruct, or impede, the due administration
of justice’’ therein. It is the petitioner’s contention that
under the allegations of the indictment and the proof
adduced in support thereof, there was no violation of
Section 1503. This contention is based upon the position
that a judge of the United States District Court is not an
‘‘officer in or of any court of the United States’’ within
the meaning and ambit of the section, and that, likewise,
the ‘‘obstructing justice’’ provision of the section does not
enlarge the meaning of the original provision so as to apply
to the situation at hand.
This position is based upon an historical analysis of
Section 1503 and related sections. A ‘‘Chart Showing the
Development of Section 1503 Title 18, United States Code
and Related Statutes’’ is appended herewith (Appendix IV,
p. 15a), in order that the Court might appreciate fully the
relation of Section 1503 to other sections of the Code. The
Act of March 2, 1831 (4 Stat. 487-88), the direct and orig-
inal descendent of the present Sections 401 and 1503 of
Title 18 (Cammer v. United States, 350 U.S. 399, 407), was
designed to limit the contempt power of a federal judge
to ‘‘the least possible power to the end proposed.’’ Ander-
son v. Dunn, 6 Wheat. 204, 231; see also, Cammer v. United
States, 350 U.S. 399, 404. The purpose of the Act was to
define, ‘‘by statute, all offenses which may be punishable
as contempts of the courts of the United States, and to
«so limit the punishment of the same.’’ House Journal,
21st Cong., 2nd Sess., Feb. 1, 1831, p. 245. (Cited in
Frankfurter and Landis, ‘‘Power of Congress over pro-
cedure in Criminal Contempts in ‘Inferior’ Federal Courts
21
—A. Study in Separation of Powers,’’ 37 Harv. L. Rev.
1010, 1026 (1924).) The Act was divided into two sections:
section 1 enumerated the contempt powers of a federal
judge and provided for those instances in which a sum-
mary proceeding was authorized; section 2 provided for
offenses to be prosecuted by indictment only. Section 401
of Title 18 is the present recodified form of section 1 of
the Act of 1831 (4 Stat. 487); Section 1503 of Title 18 is
the present recodified form of the old section 2 (4 Stat.
488). Cammer vy. United States, 350 U.S. 399, 407. The
two sections of the Act of 1831 were mutially exclusive:
acts punishable under section 2, by definition, could not be
punished under section 1. Cf. Anderson v. Dunn, 6 Wheat.
204. Although the question was never litigated, it is pre
sumable that the converse rule also applied. At least that
was the expressed intention of Congress. House Journal,
21st Cong., 2nd Sess., Feb. 1, 1831, p. 245.
Through the course of years section 2 of the Act of
1831 was recodified in various forms, never, however,
changing its basic form of purpose. (See Appendix IV,
p. 15a.) Section 1, as noted, became, finally, Section 401
of the present Title 18. In 1956 this Court decided that
an attorney who had filed his appearance in a case in the
United States District Court for the District of Columbia
was not an ‘‘officer’’ of court who was subject to summary
contempt proceedings under subsection 2 of Section 401.
That section provides that:
‘*A court of the United States shall have power to
punish by fine or imprisonment, at his discretion, such
contempt of its authority, and none other, as—
(2) Misbehavior of any of its officers in their official
transactions;’’ (18 U.S.C. §401)
22
This Court did not limit its consideration to attorneys,
however. The Court further said:
‘“We see no reason why the category of ‘officers’
subject to summary jurisdiction of a court under
§401(2) should be expanded beyond the group of per-
sons who serve as conventional court officers and are
regularly treated as such in the laws. See 28 U.S.C.
§s601-963, $$28 U.S.C.A. 601-963.’’ Cammer v. United
States, 350 U.S. 399, 405.
An examination of the sections of the Judicial article
referred to by the Court reveals that those particular sec-
tions in no way establish, treat, or otherwise define any
of the Justices or Judges of the courts which are regulated
therein. The sections deal with administrative personnel,
clerks, bailiffs, reporters and the like. And it is clear that
these were the ‘‘officers’’ against whom summary punish-
ment was authorized by Section 401(2). Were a judge to
be regarded as an ‘‘officer’’ within the meaning of Section
401(2) the act would have no meaning, for surely no judge
would ever be the subject of a contempt proceeding in his
own court. This Court also said, in the Cammer case, how-
ever,
‘‘Certainly nothing that was said in Ex Parte Gar-
land [4 Wall. 333] or in any other case decided by
this Court places attorneys in the same category as
marshals, bailiffs, court clerks or judges.’’ 350 U.S.
at 405 (Emphasis added).
We respectfully submit that the emphasized portion of this
dicta has no meaning, for as we have stressed above no
judge would ever be the subject of a contempt proceeding
in his own court, and that is precisely the situation that
Section 401(2) deals with when it refers to ‘‘officers.’’ The
term ‘‘officer in or of any court of the United States’’ ap-
pearing in Section 1503 must be given the same construction
that the term ‘‘officer’’ has in Section 401(2).
23
Qae of the cardinal rules of statutory construction re-
quires this solution:
‘¢# * * where the same word or phrase is used in
different parts of a statute, it will be presumed, in the
absence of anything clearly indicating a contrary in-
tent, that the word or phrase is used in the same sense
throughout. Under circumstances giving application
to this rule, there is a corollary that, where the mean-
ing of the word or phrase in one instance is clear, this
meaning will be attached to it elsewhere.’’ United
States v. Gertz, 9 Cir., 249 F. 2d 662, 665; see also
Sampsell v. Straub, 9 Cir., 194 F. 2d 228, 230; Schooler
v. United States, 8 Cir., 231 F. 2d 560, 563; 82 C.J.S.
Statutes, §348 (1953).
It cannot be fairly said that anything in the legislative
history or context of the Act of March 2, 1831, indicates
an intent to have the term ‘‘officers’’ have one meaning in
section 1 and a different meaning in section 2. The mean-
ing of the term ‘‘officers’’ in section 1 is clear; as this
Court has said, it encompasses a ‘‘group of persons who
serve as conventional court officers and are regularly
treated as such in the laws.’’ The term was certainly in-
tended to have the same ineaning in section 2 of the Act
of 1831.
It should also be noted that Congress has otherwise
regularly adopted the practice of differentiating between
a judge and an officer in similar sections of the United
States Code. For instance, in Section 1507 (18 U.S.C.
$1507), there ix a distinct differentiation made between a
judge and a court officer. (Congress has also made a dis-
tinction between a judge and a judicial officer in Sections
207 and 208. (18 U.S.C. $$ 207, 208)
The trial court and Court of Appeals further held, assum-
ing arguendo that Count One of the indictment, based
on the first part of Section 1503, was invalid because of
24
the fact that a judge is not included within the meaning
of the term ‘‘officers’’, that the second count based on the
obstructing justice provision in Section 1503 validly
charged a crime. But the obstructing justice provi-
sion in Section 1503 is limited to crimes of the same
general nature as are proscribed by the prior provisions
of Section 1503. If a judge does not fall within the class
protected by the earlier provisions of the statute he is not
protected by the obstructing justice provisions.
This view is supported by a further historical analysis
of the act. Congress reenacted Section 2 of the Act of
March 2, 1831, as Section 5399 of Title 70 in 1873-74. It
should be noted that the act provided that every person
who,
‘c# * * corruptly, or by threats or’ foree, obstructs
or impedes, or endeavors to obstruct or impede, the
due administration of justice therein, shall be punished
by a fine of not more than five hundred dollars, or by
imprisonment not more than three months, or both.’’
Significantly enough, Congress at the same time reenacted
the first one-half of the Act of June 10, 1872 (17 Stat. 578),
as Section 5404 of Title 70. (Title 79, Ch. 4, §5404, Rev.
Stat. 1873-74, p. 1052.) That act provided, in part, that
every person who, —
‘e* * * corruptly, or by threats or force, or by threat-
ening letters or any threatening communications, in-
fluences, obstructs, or impedes, or endeavors to influ-
ence, obstruct, or impede, the due administration of
justice therein, shall be punished by a fine of not more
than one thousand dollars, or by imprisonment not
more than one year, or by both such fine and impris-
onment.”’
The sole significant difference between the two sections
was that Section 5399 pertained to ‘‘any witness or officer
25
in any court of the United States,’’ while Section 5404
pertained to ‘‘any grand or petit juror of any court of the
United States.’’ To accept the rationale of the lower
court that the obstructing justice provision encompasses
a greater scope of criminality than the influencing provi-
sion, in that it protects a larger class of persons, requires
the conclusion that in 1878, when both of these statutes were
in existence, Congress provided for two obstructing justice
statutes, each with a different penalty. Manifestly this is
not so. It is patently obvious that what Congress intended
by the two statutes was that each obstructing justice provi-
sion was to be an extention of the scope of its initial provi-
sion proscribing conduct or actions deemed by Congress to
be violative of good order and justice, but limited to the
specific classes of persons which Congress deemed neces-
sary to protect from this conduct by the specifie words of
the statute. If this interpretation is given to the acts,
then, and only then, can they be given a rational meaning. |
, 3 7 ~
Section 5399 was intended to protect ‘tany witness, or
officer in any court of the United States,’ from any conduet
which would impair the administration of justice in the
courts. As an adjunct to this seetion, Section 5404 was
intended to protect ‘‘grand or petit jurors of any court
of the United States,’’ from the same conduct. The two
obstructing justice provisions broadened the scope of con-
duct prohibited by Congress, but they did not enlarge upon
the class of persons protected.
Sections 5399 and 5404 were combined, in 1909, into one
section, Section 135 of the Criminal Code. (35 Stat. 1113)
Subsequently, and with a few miner changes in phrascolo-
gy, Section 135 became the present Section 1503 of Title
18. (18 U.S.C. §1508.) But it cannot be inferred frorn
these recodifications that Congress intended to enlarge up-
on the class of persons against whom certain conduct was
26
prohibited by these statutes. The terms used must be
interpreted to have the same meaning as they did prior to
the recodification. See, United States v. Montgomery Ward
€ Co., Inc., 7 Cir., 150 F. 2d 369, 376. Thus the question still
revolves about one central issue; who were the officers
against whom certain conduct was prohibited by Congress.
It is submitted that this issue has been resolved by the
preceding argument in this point.
This brief historical study, is also helpful in gauging
the effect of United States v. Bittinger, 24 Fed. Cas. 1149
(1876), Case No. 14,598, which was cited by the trial judge.
The case is not a decision, but the charge to the jury given
by the United States District Court for the Western Dis-
trict of Missouri. The defendant was charged in a five
count indictment, with endeavoring to influence a witness
and with obstructing justice. The charge was brought
under Section 5399, referred . above. The court, in its
charge to the Jury, interpreted the obstructing justice por-
tion of the statute as follows:
‘“*The second class of offenses which the section of
the law cited denounces, is ‘corruptly, or by threats
or force, obstructs or impedes, or endeavors to obstruct
or impede, the due administration of justice.’ No
particular class of persons are named in this last
clause. The words ‘influence and = intimidate,’ em-
ployed in the first clause, are dropped, and ‘due ad-
ministration of justice in court’ added, showing an
intention to extend the application of the statute.’’
24 Fed. Cas. 1149.
The trial court in the present case concluded that the
extended application of the statute, to which the judge
in the Bittinger case referred, meant application beyond
the class of persons named in the first section of the stat-
ute. We submit that the judge’s charge is susceptible to a
more accurate interpretation, for it is clear that what he
27
a
intended was that the provision extended the application
of the statute insofar as actions were concerned. This
is made clear by two distinct factors.
Section 5404 of Title 70, about which we have already
commented, was, at the time of this prosecution, still in
effect. The penalty for the violation of this section was a
fine not exceeding one thousand dollars, or imprisonment
for a period not exceeding one year, or both. (Title 70,
ch. 4 §5404, Rev. Stat. 1873-74, p. 1052) The specific
language of the act proscribed endeavors to influence grand
or petit jurors. Again, to assume that the language in
the Bittinger case meant that any obstruction of justice
was to be punished under Section 5399 would be to further
assume that the obstructing justice provision of Section
0404 was to be wholly ignored. Clearly, cach statute was
to have effect in relation to the class of persons deseribed
in its first provision. *
The second factor to which we have referred lies in the
remainder of the charge to the jury in the Bittinger case.
The judge told the jury that, in considering the obstructing
justice counts of the statute,
+6 & @
it will be necessary for vou to find that the
defendant Bittinger, did some act or aets which ob-
structed or impeded the due administration of justice.
We have seen so far as a witness who had a duty in
the United States court to discharge is concerned, the
offense comes within the first subdivision of the act.
This being the case, the defendant, in order to be
found guilty of obstructing the due administration of
justice incany court of the United States, must have
done, if not more, at least some act or acts in addition
to those specified in the first subdivision of the statute
we are considering, in order to find him quilty of hav-
ing corruptly obstructed the due administration of
justice. There seems to be no other act of the de-
28
fendant interfering with the due administration of
justice testified to, than his interference with the wit-
ness Rendelman, and unless this interference ean be
construed into an obstruction of the due administra-
tion of justice, there would seem to be no evidence
supporting the last four counts of the indictment. It
would be, to say the least, a very doubtful construc-
tion, to seek to bring the offense from under the first
and more definite description, for the purpose of ap-
plying the more general provision to the second class
of offenses * * * *’’ 24 Fed. Cas. 1149, 1150. (Em-
phasis added.)
The trial judge, by this charge, did not mean that the
jury was to find the defendant guilty of the last four
counts only if they found that he had done some other
acts to other persons, not charged in count one which was
based on the specific provisions of Section 5399. It is far
more consonant with reason and the evidence in the case
to conclude that what the judge did mean was that the
jury were to find the defendant guilty of the charges con-
tained in the last four counts only if they found that he
obstructed justice by some other interference with the wit-
ness Rendelman not charged in the first count.
In conclusion it is not inappropriate to consider some
further prominent aids in statutory construction which
have application herein. It is important at this juncture
to keep in mind the fact that the defendant was indicted,
tried and acquitted of indirectly offering a thing of value
to Judge Tehan for the purpose of influencing his judicial
action. (App. 19) As noted, there is no doubt that the
thing of value was given and that it was given for the
purpose alleged. (App. 119, 121) Despite his acquittal of
this charge, however, the defendant was convicted of en-
deavoring to influence an officer and eudeavoring to ob-
struct justice. Both of these charges were based upon
29
~~.
the same facts as the bribery charge. (App. 2-3) Although
we are aware of the distinction between the completed of-
fense and the offense of endeavoring to complete a similar
offense, we submit that in this case the distinction is with-
out a difference. Practically speaking, the defendant was
acquitted then twice convicted by reason of a single unified
pattern of behavior and action. We believe that such cir-
cumstances are proper for this Court to take into considera-
tion in attempting to construe the meaning of both provi-
sions of Section 1503. The United States Court of Ap-
peals for the District of Columbia Circuit has formulated
the rule of construction thusly:
‘‘Tn construing a eriminal statute doubts should be
resolved in favor of a coustruetion that avoids subject-
ing an offender to multiple convictions by reason of a
single unified pattern of behavior even though the
behavior continues over a period of time.’’? See, Bram-
blett v. United States, D.C. Cir. 1956, 231 F. 2d 489,
491. See also, United States v. Universal C.1.T. Credit
Corp., 344 U.S. 218 (1952).
For his conduct, the defendant was liable’ to prosecu-
tion, and was prosecuted, under Section 206 of Title 18.
For any other conduct directed at the Judge he presumably
would be liable to prosecution under Section .401 of Title
18. See, Ex Parte McLeod, D.C.N.D. Ala. 1903, 120 Fed.
130. Thus we feel that the Court should adopt a construc-
tion of Section 1503 which would avoid subjecting the de-
fendant to prosecutions for offenses for which he has al-
ready been acquitted. Nor would such construction as
proposed by the defendant place an undue strain upon the
meaning of the words in the statute, for, as we have
demonstrated, history and reason support that construc-
tion.
30
CONCLUSION.
For the above and foregoing reasons it is prayed that
a writ of certiorari issue from this Court to review the
judgment of the United States Court of Appeals for the
Seventh Circuit in this case.
Respectfully submitted,
CuHarRLEs A. BELLOws
Chicago, Illinois
Attorney for Petitioner
Jason Ernest BELLOws
SHERMAN C. Macmson
Chicago, Lllinois
On the Brief
APPENDIX I.
Opinion Rendered by the Honorable Luther M. Swygert
on the Hearing on Appellant’s Post-trial Motions (Tr.
35-46).
I have attempted to listen carefully to the arguments
this morning, and ] think I am ready to rule now on the
matters that have been presented by these motions.
Let me say that in regard to my consideration of these
questions, first I had the motions in front of me shortly
after they were filed on October the 18th. Some of the
questions that are raised in these motions, as counsel have
indicated, were raised during the trial, so I had considered
them at that time; and some of the questions, of course,
-were not raised until after verdict. But those that were
raised in the motion that pertained to matters with regard
to the verdict all received my thought and consideration
after 1 had received these motions, particularly the one
that was raised at the time of the verdict, the inconsistency
—the question of whether or not these verdicts were in-
consistent.
Also, after I received Mr. Bellows’ memorandum of law
a few days ago, and which I now just handed to the Clerk
for filing, that went to the construction that ought to be
put on 1503, Title 18 of the United States Code, upon re-
ceiving that memo I spent a great deal of time—at least
the last part of last week and also several hours yesterday.
Furthermore, I read and reread pertinent parts of the
testimony. I had the Clerk send me the official transcript
and I read and reread the parts of the transcript relating
to some of the matters that have been argued this morning.
So I feel that I have given this matter the thought and
consideration that is required and suffgient to make up
2a
my mind finally on the matters. If I thought there was
anything that was brought out in the arguments this morn-
ing that I hadn't considered that I should consider further,
I would feel that I ought to postpone my decision on these
matters, but I can’t say—while these arguments have been
helpful, I can’t say that they have raised any questions in
my mind which I feel ought to be given further consider-
ation than I have already given these matters. So, for
that reason, I am going to announce my decision.
Now, on the question of the construction of 1503, Title
18, I have, as I say, given this a great amount of thought
and I have concluded that, despite the, I think, not only
able but logical, historical argument that Mr. Bellows
makes with regard to this statute and his contention that
it ought not to include United States judges. I am com-
pelled to come to a different conclusion. First, it seems
to me logically—not necessarily historically, but logically,
while he says that a judge, of course, would not find him-
self in contempt of court, which was $ 1 of the 1831 statute
dealing with direct contempts—does net include United
States judges—and therefore he argues that the second
section, which eventually became 1503, should not include
judges when § 1503 mentions officers of the court.
It seems to me that the question of corruptly influencing
or, using other words of the statute, ‘‘or by threats or
foree . . . endeavors to influence, intimidate, or impede’’
any juror, witness, or officer in any court of the United
States, has to do with third party’s action with regard to
these various named persons, jurors, witnesses or officer.
Now, jurors and witnesses perhaps would not be in-
cluded as officers, but ‘‘officer’’ is not otherwise defined.
So, while § 1 might logically be said not to include the
judge himself as to whether or not he would have the
power, or that he would not find himself in contempt of
3a
court, and therefore what is now § 401 of Title 18 does
not include judges, I do not believe that what was then
S 20f the 1831 Act and now 1503 thereby logically pre-
cludes the judge as an officer of the court in the meaning
of this statute, and I think that some of the words that
are used and language used in the Cammer case, to which
Mr. Bellows referred, bears that out.
These are some of the additional quotes in the Cammer
case:
‘*Certainly nothing that was said in Ez parte Gar-
land or in any other case decided by this court places
attorneys in the same category as marshals, bailiffs,
court clerks or judges. Unlike these officials a lawyer
is engaged in a private profession, important though
it be to our system of justice ... The word ‘officer’
as it has always been applied to lawyers conveys quite
a different meaning from the word ‘officer’ as applied
to people serving as officers within the conventional
meaning of that term. We see no reason why the
category of ‘officers’ subject to summary jurisdiction
of a court under § 401 (2) should be expanded beyond
the group of persons who serve as conventional court
officers and are regularly treated as such in the laws.”’’
So it seems to me that the Cammer case is authority, per-
haps by way of dicta, for the position or the view that I
have finally taken on this matter.
There is another aspect about the construction of this
statute, however, that 1 want to next treat, and that is
that assuming, arguendo, that a judge of the United States
Court is not included within the definition of or meaning
of the term ‘‘officers,’? another part of this § 1503 reads:
‘*.,. or corruptly or by threats or force, or by any
threatening letter or communication, influences, ob-
structs, or impedes, or endeavors to influence, obstruct,
or impede, the due administration of justice, shall be
fined’’ and ‘‘or imprisoned ... or both.’
4a
This section has given me some additional thought, and
I have come to the conclusion that since there are two
counts in this indictment, and since I charges that the
defendant corruptly influenced an officer of the United
States, and the second count of that indictment under
§1503 charges that he corruptly endeavored to obstruct the
due administration of justice; that it defines two separate
offenses and that this statute defines two separate offenses
—they may be the same act, maybe the same act or acts,
may apply to both sections—but in this instance there are
two charges and, as I say, it is my view that even though
the first section in the first count of the indictment, the
part of 1503 on which the first count is based; even though
we assume, arguendo, that defense counsel’s argument is
the one that should be taken, it would nevertheless in my
opinion not—his argument would not affect the validity of
the charge based on the last part of that section; namely,
the corruptly impeding, obstructing the due administration
of justice.
There are some cases, I think, that support that view.
One is an early case, United States v. Bittinger, 14 Fed-
eral Cases, 1149, decided in 1876. I will read only three
sentences of the opinion:
‘‘The second classes of offenses which the section of
the law cited denounces, is ‘corruptly, or by; threats or
force, obstructs or impedes, or endeavors to obstruct
or impede, the due administration of justice.’ No
particular class of persons are named in this last
clause. The words ‘influence and intimidate’ “em-
ployed in the first clause, are dropped, and ‘due ad-
ministration of justice in court’ added, showing an
intention to extend the application of the statute.’’
Furthermore, in Pettibone v. United States, 148 Supreme
Court, page 196, page 204 the court says:
‘‘The construction that applies to the first branch
of section 5399 must be applied to the second, and if
da
-
‘it were essential that the person accused should know
that the witness or officer was a witness or officer in
serder to conviction of the charge of influencing, in-
timidating, or impeding such witness or officer in the
discharge of his duty, so it must be necessary for the
accused to have knowledge or notice or information
of the pendency of proceedings in the United States
court, or the progress of the administration of justice
therein, before he can be found guilty of obstruction,
or impeding, or endeavoring to obstruct or impede the
same.”’
There is one other case which I would refer to in this
connection, and that is Cantrino v. United States, 176 F.
2d, 884. On page 887:
‘‘The obstruction of justice statute is an outgrowt!
of Congressional recognition of the variety of corrupt
methods by which the proper administration of justice
may be impeded or thwarted, a variety limited onl)
by the imagination of the criminally inclined. The
concept of ‘justice’ upon which the foundations of our
society rest and which courts and judges are sworn
to uphold encompasses not only the right of an accused
to a fair trial, but it also calls for punishment if the
accused is found guilty. This concept merely recog-
nizes the inherent right of society tu protect itself and
its innocent members from vicious acts which imperil
one of the most vital safeguards of our system of law.’’
%
These three cases that I have referred to I believe, as I
say, support the final conclusion that I have come to with
regard to the second count of the indictment under § 1503.
Now, going to the question of inconsistency of the ver-
dicts, I think there is no question but that that has been
settled by Dunn v. the United States as late as a recent
ease, United States v. Maybury, 274 F. 2d 899, the Second
Circuit. There it was confronted with the question of
whether or not there were inconsistent verdicts when the
judge tried the case. They came to the conclusion that
while the court might be confronted with a serious ques-
6a
tion with regard to inconsistency where the judge tried
the facts and the case, that the law was settled with regard
to jury verdicts in so far as inconsistency or alleged in-
consistency.
Going to the question of the entrapment defense, I heard
the evidence. The motion was argued at the end of the
Government’s case. I felt then that I could not as a mat-
ter of law rule that there was an unlawful entrapment.
As I said, I reviewed the evidence again within the last
few days, even hours, and I am convinced that I cannot.
hold that as a matter of law there was an unlawful en-
trapment. I think it was a jury question and that the jury
decided that question under instructions from the court:
On that phase of the case the evidence shows that it was
not until July 3, 1960 that the officers of the Federal Bureau
of Investigation contacted Villmow, and prior to that time
Pikofsky had talked to the defendant by telephone and the
defendant had come to Pikofsky’s home. Without review-
ing all of the testimony as to the events that happened on
July 2, 3, and 4, it is my opinion that the evidence is to
the effect that the jury could find that the defendant was
in that frame of mind that he was willing by corrupt means
to attempt to get his sentence suspended, and that the jury
could find that Villmow did not place in the defendant’s
mind the ideas that eventually led to the other events that
were testified to on the trial.
The defendant admitted his endeavor in other directions
to accomplish this suspension prior to his meeting with
Pikofsky. I think that is evidence of what was his frame
of mind, his willingness to enter into this pian or scheme.
The jury could consider that and the jury could consider
the telephone conversation that Villmow had with the de-
fendant—in the first conversation he had with him over
the telephone when he said words to this effect, This is
7a
Villmow; and the defendant said, Oh, yes; I have been
wanting to talk to you. I don’t know that those were the
exact words, but words to that effect.
So it is my opinion, after carefully reviewing this evi-
dence, that it was a jury question and that as a matter of
law the court cannot rule that there was unlawful entrap-
ment. a
I have in mind the statements of the United States Su-
preme Court in the Sorrells case, and in the United States
v. Sherman which is the latest pronouncement on the ques-
tion of entrapment, that if there is a conflict in the testi-
mony that it is a matter that must be submitted to the
jury.
In United States v. Wallace, a recent case—1959 case,
Third Circuit, 269 F. 2d 394, the court said:
‘‘Admittedly there was a sharp conflict between the
theory of the government and that of the defense. The
government testimony if believed established a ‘ready
complaisance’ in fulfilling the agent’s request. Lend-
ing important support to the government’s theory was
Wallace’s own story that he was taking heroin at the
time and that when he obtained (from a person named
Wardlow) the heroin which he later gave Hill, Ward-
low gave him some heroin for himself. If the defense
had been accepted by the jury, Wallace’s motivation
would have been resolved as sympathetic friendship.
Whatever way it was decided the problem was for the
jury.’’
And they cite the case of Sherman v. the United States
356 U.S. 369.
On the question of instructions, I have in mind what
Mr. Bellows said at the time he took objections to the
question of circumstantial evidence and his failure to give
his request on the cautionary instruction with regard to
+
S
8a
Villmow. I considered his requests thoroughly at that
time, and I felt that they should be denied; and I feel that
way now, that there is nothing that I didn’t consider then
that I want to consider further in that respect.
Finally, on the questions of whether or not there was
anything that happened in the proceedings of the trial
with regard to communications to the jury that should
require this trial to be set aside and a new trial granted,
let me say again that I considered that question very
thoroughly at the time it happened. I tried to ascertain
from the jury as best I could whether or not there was
anything that havpened because of that incident which
- would influence them in any way in this case. They were
given opportunity after opportunity to say that it would,
or that there was any such possibility. They indicated at
that time, in response to my questions, that they could go
ahead and not permit anything with regard to that inci-
dent to influence them, that they would not permit that
in any way to have anything to bear upon their decision
in this case. I think safeguards were taken not only to
establish that fact but to bring home to them that they
should not in any way permit that to have any influence
on them, not only at that time but throughout the trial.
And I come to the conclusion that the procedur. was fol-
lowed not, as I said, in the same context in another case
that was decided by the Seventh Circuit Court of Appeals
and which [ cited when I ruled on the motion for new trial,
but that the response that the court received from the jury
dispelled any conclusion that that matter had any bearing,
any influence upon their decision.
For the reasons stated, defendant's motion for judgment
of acquittal is denied;
Defendant’s motion in arrest of judgment is denied; and
Defendant’s motion for a new trial is denied.
APPENDIX IIL
Opinion of the United States Court of Appeals
for the Seventh Circuit.
United States v. Margoles, Case Number 13198.
Before ScHNACKENBERG, Ksocn and CasTLeE, Circuit
Judges.
Castle, Circuit Judge. Milton Margoles, defendant-
appellant, was tried on two indietments consolidated for
jury trial. Defendant was acquitted on the first. indict-
ment which contained but one count and charged defend-
ant violated 18 U.S.CLA. $206 by indirectly offering a thing
of value to a judge of a United States Court with intent
to influence the judge's deeision in a pending matter.
The jury returned a verdict of guilty on both counts of
the second indictment which charged (Count 1) defendant
corruptly endeavored to influence an officer in and of a
United States Court in the discharge of his duty, and
(Count Il) that defendant corruptly endeavored to in-
fluence, obstruct or impede the due administration of jus-
tice, in violation of 18 U.S.CLA. $1508. Defendant was
sentenced for a term of five years on each count to run
concurrently, but conseeutive to a one-year sentence previ-
ously imposed for violations of the Internal Revenue Laws,
and fined $5,000.00. Defendant appealed.
It is coneeded that defendant turned over a $5,000.00
United States Treasury Bond to one Villmow for delivery
to Hon. Robert EF. Tehan, senior judge of the United States
District Court for the Eastern District of Wisconsin, with
the intent and purpose of endeavoring to influence Judge
Tehan to suspend the one-year sentence’ he had imposed
1 Previously referred to and which is to be served prior to the con-
current terms imposed by the judgment appealed from.
/
10a
on defendant following a nolo contendere plea to an indict-
ment charging criminal violations of the Internal Revenue
Laws.
The issues presented by defendant’s appeal are:
(1) Whether the record required a finding of en-
trapment as a matter of law.
(2) Whether the court erred in denying defendant’s
motion for acquittal based on inconsistent verdicts.
(3) Whether the indictment on which defendant was
convicted charges acts which constitute a violation
of 18 U.S.C.A. $1503.
Defendant was sentenced June 3, 1960 for the Internal
Revenue Laws violations and granted a stay of execution |
for a period of ninety days. The court had jurisdiction
for a period of sixty days to reduce the sentence. Rule 38,
Federal Rules of Criminal Procedure, 18 U.S.C.A. It ap-
pears that prior to their telephone conversations and
meetings between July 4 und July 12, 1960, Margoles and
Villmow had not been acquainted. A mutual acquaintance,
Pikofsky, who was friendly toward each, afforded the link
which brought the defendant and Villmow together—sepa-
rate conversations Pikofsky had with each. The testimony
contains conflicts as to who initiated the proposal which
culminated in the delivery of the $5,000.00 hond on July
12, to be turned over to Judge Tehan for the purpose of
obtaining a suspended sentence. But there is evidence
from which the jury properly could have concluded that
Pikofsky suggested to Villmow on June 28, that Villmow
utilize his friendship with Judge Tehan’s son to see if
something couldn’t be done for Margoles—and that there
would be financial reward for Villmow. And, that Vill-
mow, after disclosing this to Judge Tehan, and following
the instructions of FBI agents who were called in on
the matter, did nothing to further developments and re-
frained from contacting the defendant until July 5, when
lla
after being urged by Pikofsky to telephone Margoles,
WhopPikofsky said, wanted to talk with Villmow, he tele-
phoned Margoles and under instruction of the agents mere-
ly arranged to mect with Margoles at a site selected by
the agents, and that the overtures which followed concern-
ing the payment of money to the judge’s son, or to the
judge through his son in return for a suspended sentence,
were made by the defendant.
We have carefully reviewed the record and conclude that
we cannot say that the facts establish entrapment as
a matter of law. That the case presents a substantial
question of fact on this issue is not enough—the factual
issue was properly considered and resolved by the jury.
United States v. Stocker, 7 Cir., 273 F. 2d 754, cert. den.
363 U.S. 963; Hattem v. United States, 9 Cir., 283 F. 2d
339. There was testimony from which the jury could con-
clude that the criminal design did not originate with the
officials of the government or others—but with the defend-
ant. Defendant’s reliance upon Sorrells v. United States,
287 U.S. 435 and Sherman v. United States, 356 U.S. 365,
is misplaced.
Defendant’s contention that inconsistency between the
verdicts on the two indictments requires a reversal is not
persuasive. Consistency in verdicts is not necessary. Dunn
v. United States, 284 U.S. 390. Defendant argues that
this general rule is not applicable to the instant ease be-
cause the jury must have acquitted defendant on the first
indictment because it concluded that he was entrapped.
But this is sheer speculation. The jury's action may have
been prompted by leniency or other factors. (Cf. United
States v. Maybury, 2 Cir., 274 F. 2d 899, 902) or by its
conception of the difference in the elements embodied in
each offense and determination that there was a lack of
proof of some factor requisite to establish the offense
charged in the first indictment. In any event the ‘‘why”’
12a
of jury action is a subjective element but the propriety
of that action is to be tested by. objective factors con-
sidered in the light of controlling legal principles.
This issue as to whether the indictment under which de-
fendant was convicted charges acts which constitute a
violation of 18 U.S.C.A. $1503 is premised on defendant’s
contention that a judge of a United States District Court
is not an ‘‘officer in or of any court of the United States”’
within the meaning of that language as used in $1503.
We have considered the historical derivation of the section
and related provisions, the inferences defendant seeks to
draw therefrom, as well as the other arguments advanced
by defendant, but find them unconvincing. We perceive
no reason why Congress would have intended to exclude
a corrupt endeavor to influence the judge from the scope
of $1503 and rely upon the more limited sphere of the
contempt section (18 U.S.C.A. §401) to reach such offenses.
And, a district judge is a judicial officer of the United
States and as such an officer indispensable to the court’s
performance of its judicial functions. We are of the opin-
ion that the judge is an ‘‘officer in or of’’ the court within
the meaning of §1503.
Moreover, the infirmity urged as to Count I does not
affect the separate offense charged in Count II which is
not dependent upon the status of the judge as an ‘‘officer
in or of’’ the court. Count II charges a violation of §1503
by a corrupt endeavor to influence, obstruct or impede
the administration of justice. The sentences imposed were
- eoncurrent and although a fine of $5,000.00 was assessed
on each count the judgment limited the total fine to $5,-
000.00. And, it is settled that where one count of an in-
dictment is sustained, it becomes unnecessary to consider
any other on which the sentence is concurrent. United
States v. Cioffi, 2 Cir., 253 F. 2d 494; 496,
. The judgment order of the District Court is affirmed.
13a
APPENDIX III.
JUDGMENT ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT EN-
TERED JUNE 29, 1961, IN THE CASE OF THE
UNITED STATES OF AMERICA vs. MILTON MAR.
GOLES, NUMBER 13198.
This cause came on to be heard on the transcript of the
record from the United States District Court for the
Eastern District of Wisconsin, and was argued by counsel.
On consideration whereof, it is ordered and adjudged
by this Court that the judgment order of the said District
Court in this cause appealed from be, and the same is here-
by, AFFIRMED, in accordance with the opinion of this
Court filed this day.
March 2, 1831
4 Stat. 487
An Act declaratory of the law concerning contempts of court.
§1. That the. power of the several courts of the United States to
issue attachments and inflict summary punishments for contempts
IV
CHART SHOWING THE DEVELOPMENT
7 OF SECTION 1503 TITLE 18, UNITED STATES
June 10, 1872
AND RELATED STATUTES
1873-1874 -
of court, shall not be construed to extend to any cases except the
misbehaviour of any person or persons in the presence of said
courts, or 80 hear thereto as to obstruct the administration of
justice, the misbehaviour of any of the officers of the said courts
in their official transactions, and the disobedience or resistance
by any officer of the said courts, party, Juror, witness, or any
other person or persons, to any lawful writ, process, order, rule,
decree, or command of the said courts.
§2. That if any person or persons shall, corruptly, or by threats
or force, endeavor to influence, intimidate, or impede any juror
witness, or officer, in any court of the United States, in the dis-
charge of his duty, or shall, corruptly, or by threats or force,
obstruct, or impede, or endeavor to obstruct or impede, the due
administration of justice therein, every person or persons, 80
offending, shall be liable to prosecution therefor, by indictment.
and shall, on conviction thereof, he punished, hy fine not exceed
ing five hundred dollars, or hy imprisonment not exceeding three
months, or both, according to the nature and aggravation of the
offense.
Tithe 70, ch 4, $ 5399, Rev Stat S73: 74 po lool
Every person who corruptly, or by threats or feree. endeavors
to influence, intimidate, or impede any witness. or offieer in any
17 Stat. 378
An Act to prevent and punish the Obstruction of the Admunistra-
tion of Justice in the Courts of the United States.
Tha’ if any person or persons shall corruptiy, or by threats or
court of the United States, in the discharge of his duty. of coi
ruptly, or by threats or force, obstracta or impedes, or endeavors
to obstruct or impede, the due administration of justice therein.
shall be punished by a tine of net more than five hundred dollars
or by atiprisen. vent net inere than three menths or beth
Tithe TO eh 4: DAO Rev Stat TSTe 7a op Woe
Every person whe corruptly, or by threats or teres
threatening letters or any threatering communications en
deavors to influence. intimidate. or impede any grand or petit
Juror of any court of the United States in the diseharge of his
duty, or who corruptly. or by threats or force. or ba threatening
letters, or any threatening communications, influences. obstructs
force, or by threatening letters, or ay threatening communica-——$——$$$— yr impedes. or endeavors te influence obstruct. or impede the
tions, endeavor to infuenee, intimidate, or impede any grand
or petit gury or juror of any court of the United States, in the
discharge of his or their duty, or shall corruptly, or by threats
or force, or by threatening letters. or any threatening eommuni-
cations, influence, obstruct, or impede, the due administration of
justice therein, such person or persons so offending shall be
hable to prosecution therefor by indictment, and shall, on con-
vietion thereof, be punished by fine not exceeding one thousand
dollars, or by imprisonment not exceeding one year, or by both,
according to the aggravation of the offense.
And if any person or persons shall attempt to influence the ac-
tion or decision of any grand or petit Juror upon any issue or
matter pending before such juror, or before the jury of which
he is a member of pertaining to his or their duties, by writink
or sending te him any letter or letters, or any communication, in
print or writing i relation to such issne or matter, without the
order previously obtained of the court before which the said
juror is summoned, such person or persons so offending shall be
deemed guilty of a misdemeanor, and shall be liable to prosecu-
tion therefor by indictment or information, and shall, on convie-
tion thereof, be punished by fine not exceeding one thousand dol-
lars, or by imprisonment not exceeding six months, or by both
such fine and imprisonment, according to the aggravation of the
offense
due administration of justice therein shall be purashatle by a
fine of not mote than one thousand dellars, or by imprisonment
net more than one vear or by beth such fue and imprisonment
Tithe TO, eh 4. sy 3405, “Rev Stat IST3 74, po laae
Every person who attempts to influence the action or decision
of any grand or petit juror upen ony issue or matter pending
before such guror oor before the jury of whieb he is a member
or pertaming to his aluties: by writing or sending: te him ans
letter or aly commumeation. im printoer writin. in relation te
such issue er matter. without the order previously obtained of
the court before wiaeh the gurer is summoned shaci be pamish
able by oa fine ef net more than one thousand dellars oor hy
MMprisomment not mere than ses menths, or by beth sueh tare
ond imprisonment
IV
CHART SHOWING THE DEVELOPMENT
* SECTION 1503 TITLE 18, UNITED STATES CODE
AND RELATED STATUTES
1873-1874 1909
Present
Ik USC) $401
Power of Court
A court of the United States shall have power to punish by fine
or imprisonment, at its discretion, such coutempt of its authority,
and none other, as—
(1) Misbehavior of any person in its presence or so near
Title 70, ch. 4, § 5399, Rev. Stat. 1873-74, p. 1051.
Every person who corruptly, or by threats or force, endeavors 35 Stat. 1113
to influence, intimidate, or impede any witness, or officer in any
a ; 3 : Crimi ; . $135)
—_—court of the United States, in the discharge of his duty, or cor- Coes Seer, See)
ruptly, or by threats or force, obstructs or impedes, or endeavors Whoever corruptly, or by threats or force, or by any threaten-
to obstruct or impede, the due administration of justice therein, ing letter or communication, shall endeavor to influence, intimi-
shall be punished by a fine of not more than five hundred dollars, late, or impede any witness, in any court of the United States or
or by imprisonment net more than three months, or both. before any United States commissioner or officer acting as such
commissioner, or any grand or petit juror, or officer in or of any
thereto as to obstruct the administration of justice,
(2) Misbehavior of any of its officers in their official transac:
tions;
(3) Disobedience or resistance to its lawful writ, process,
order, ruie, decree, or command.
WwW US. $1503
Influencing or injuring officer. juror or witness generally
Whoever corruptly, or by threats or force, or by any threaten-
ing letter or communication, endeavors to influence, intimidate,
or impede any witness, in any court of the United States or
before any United States commissioner or other committing mag-
istrate, or any grand or petit juror, or officer in or of any court
Title 70, ch. 4, § S404, Rev. Stat. 1873-74, p. 1052. court of the United States, or officer who may be serving at any———————of the United States, or officer who may be serving at any
examination or other proceeding before any United States com-
missioner or officer acting as such commissioner, in the discharge
_of his duty, or whe corruptly or by threats or force, or by any
threatening letter or communication, shall influence, obstruct, or
imped: . or endeavor to influence, obstruct, or impede, the due
administration of justice therein, shall be fined not more than
one thousand dollars, ur imprisoned not more than one year, or
both.
Every person who, corruptiy, or by threats or force, or by
threatening letters, or any threatening communications, en-
deavors to influence, intimidate, or impede any grand or petit
juror of any court of the United States in the discharge of his
duty, or who corruptiy, or by threats or fore> or by threatening
letters, or any threatening communications, influences, obstructs,
or impedes, or endeavors to influence, obstruct, or impede, the
due administration of justice therein, shall be punishable by a
fine of not more than one thousaad dollars, or by imprisonment
not more than one vear, oer by both such fine and imprisonment.
35 Stat. 1113
(Criminal Code, $137)
Whoever shall attempt to influence the action or decision of
any grand or petit juror of any court of the United States upon
any issue or matter pending before such juror. or before the jury
of which he is a member, or pertaining to his duties, by writing or
sending to him any letter or any communication, in print or writ-
ing, in relation to such issue or matter, shall be fined not more
Title 70, ch. 4. ¢ 5405, Rev. Stat. 1873-74, p. 1052 ae acuaee dollars, of imprixoned not more than six
Every person wio attempts to influence the action or decision
of any grand or petit jaror upon any issue or matter pending
befure sueh juror, or befure the jury of which he is a member,
or pertaining to his cuties, by writing or sending to him any
letter or any communieatic. im print or writing. in relation to
such issue or matter, without the order previously obtained of
the court before which the juror is summoned, shall be punish-
able by a fine of not more than one thousand dollars, or by
imprisonment not more than six months, or by both such fine
‘ml imprisonment
examination or other proceeding before any Unite: States com-
missioner or other cotamitting magistrate. in the discharge of his
duty, or injures any party or witness in his person or property on
account of his attending or having attended such court or ex-
amination before such officer, commissioner, or other committing
magistrate, or on account of his testifying or having testified to
any matter pending therein, or injures any such grand or petit
juror in his person or property on account of any verdict or in-
diectment assented to by him, or on account of his being or having
been such juror, or injures any such officer, commissioner, or other
committing magistrate in his person or property on account of
the performance ot his official duties. or corruptly or by threats
or force, or by any. threatening letter or communication, in-
fluences, obstructs, or impedes, or endeavors to influence, ob-
struct, or impede. the due administration of justice, shall be fined
not more than $5,000 or imprisoned not more than five years or
both.
USC. $1504
Influencing juror by writing
Whoever attempts to influence the action or decision of any
grand or petit juror of any court of the United States upon any
issue or matter pending before such jurer, or before the jury
of which he is a member, or pertaining to lis duties, by writing
or sending to him any written communication, in relation to such
issue or matter, shall be fined not more than $1,000 or imprisoned
not more than six months, or both.
Nothing in this section shall be construed to prohilat the com-
munication of a request te appear before the grand jury
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.