Cheff v. Schnackenberg

PETITIONER:Cheff
RESPONDENT:Schnackenberg
LOCATION:Where Penn was killed

DOCKET NO.: 67
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 384 US 373 (1966)
ARGUED: Mar 03, 1966
DECIDED: Jun 06, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – March 03, 1966 in Cheff v. Schnackenberg

Earl Warren:

Paul Theodore Cheff, Petitioner, versus Elmer J. Schnackenberg et al.

Mr. Casey.

Joseph E. Casey:

Mr. Chief Justice, may it please the Court.

At the outset I would like to make a comment about rather trivial, but recent development.

Last night when I returned to my office about 4 o’clock, I found a bare copy of a letter from the Office of the Solicitor General unsigned which was addressed to the clerk of court saying, Dear Mr. Davis, the underlying decision of the Federal Trade Commission in this case which is officially reported at 55 F. T. C. 55 does not appear in the printed record.

For the convenience of the Court during oral argument, we had reproduced in a — transmitting sufficient copies for its distribution.

The petitioner is not a party to that proceeding.

The petitioner is here because he was sentenced to imprisonment for a violation of a court order.

And the — I’ve merely voice my objection because I think that it gives this document which can be based on different evidentiary rules from what we have in courts a prominence and the significance which it doesn’t deserve but I’m sure that the —

Earl Warren:

We’ll inquire of the Solicitor General on — when he makes his argument as to the propriety of it, Mr. Casey.

Joseph E. Casey:

This case arose out of a Federal Trade Commission cease and desist order against Holland Furnace Company.

The date was August 5th, 1959.

Holland Furnace Company was engaged in the business of selling furnaces, retailing them in what is known as the replacement of furnaces.

Their salesmen made house to house calls.

It was a company that was on the New York Stock Exchange at the time.

It did business in 44 different states.

It had 500 branch offices and 5000 salesmen.

And the — at that time was doing a gross business of $30 million a year.

The petitioner was president and chairman of the board.

The — after the cease and desist order of August 5th, 1959, the Holland Furnace Company initiated proceedings before the Seventh Circuit Court of Appeals to review the Commission’s cease and desist order.

It was during those proceedings that the Federal Trade Commission through its attorney asked for a pendente lite order against Holland Furnace Company, which was issued.

That was issued August 5th, 1959.

The cease and desist order of the Commission was dated July 7th, 1958, but the pendente lite order, August 5th, 1959 is the one which the petitioner is charged with having violated.

Now, I make a point of the fact that the Commission’s cease and desist order was against Holland Furnace Company.

The petitioner was not a party to it.

The cease and desist order of the Court of Appeals of August 5th, 1959 was against the Holland Furnace Company, not even reciting agents, representatives and so forth and the petitioner was not a party to it.

The pendente lite order against the Holland Furnace Company was made permanent on November 7th, 1961.

Now, the Holland Furnace Company on May 1962 had been taken over by a new management.

The new management on July 27th, 1962 discontinued business of replacing furnaces went out of that portion of the business wherein violations had been charged.

This is July 27th, 1962.

Joseph E. Casey:

On April 19th, 1963, the Federal Trade Commission petitioned the Court of Appeals to institute prosecutions of additional respondents, including the petitioner and 10 others, to institute prosecutions for criminal contempt of some 11 additional respondents.

These respondents were officers of the company, directors of the company, stockholders of the company.

This was a rather startling venture for the Federal Trade Commission to embark upon to petition for the institution of criminal contempt against officers, directors and stockholders of a company.

At a date some six months after there had been a complete compliance with this order, I say complete compliance because in July 27th, the new management, first of all, the petitioner resigned in May 1962.

The new management took over what was once a prosperous company but now a company that they took over I think for dissolution and discharged of the salesmen, discharged all of the branch salesmen, closed down the factory so that there was compliance complete and absolute as of July 27th, 1963.

And on April 19, when this petition for the first time was instituted to prosecute these individuals, officers, stockholders and directors of the company, there had been complete enforcement, in fact the company was not in that type of business in which the violations occurred.

Abe Fortas:

Mr. Casey, I’m a little confused about the dates.

Did you say that on July 7, 1962, Holland Furnace Company was taken over or was that 1963?

Joseph E. Casey:

No, the Holland Furnace Company was taken over in May 1962 and on July 27th, 1962, the Holland Furnace Company did all of these things, discharged the salesmen, the branch — the branch officers and so forth, on July 27th, 1962.

Abe Fortas:

And when did — did the petitioner continued with the new company for any period of time on new management?

Joseph E. Casey:

Well, the business continued under the new management and the Holland Furnace Company the petition for certiorari, which was denied, but stated that it had some furnaces on hand and some bills to collect, and so forth.

So it may have continued, but in any event, it did not continue in this field of utilizing salesmen to make house to house calls.

Abe Fortas:

I’m sorry to take your time but when did the petitioner’s connection with the company terminated, if it did?

Joseph E. Casey:

May 1962.

Abe Fortas:

May 1962 and did he then cease to be an officer, director — or director?

Joseph E. Casey:

That is correct Justice Fortas.

Abe Fortas:

Did he — was he a stockholder?

Joseph E. Casey:

I think he may have been a stockholder.

Abe Fortas:

Was he a large stockholder?

Does the record show?

Joseph E. Casey:

I don’t think the record show he was a large stockholder.

In fact I don’t know whether he owned any stock after the purchase.

I think probably the new management had purchased his stock and other stock in order to get control.

Now the petition for the institution of prosecution is interesting in the way that it is drawn up.

It says, “Comenoley attorneys appointed here and to prosecute on behalf of the court and respectfully petition the court to institute pursuant to Section 4013 of Title 18 of the United States Code, and in conformity with Rule 42 (b) of the Rules of Criminal Procedure for the United States District Courts”.

Prosecutions [Inaudible] and then it names all of the 11 individuals for criminal contempt of this Court and to adjudge them in — and to adjudge them to be in and punish them for criminal contempt by reason of their having severally and jointly, knowingly, willfully and intentionally caused negative impediment, the Holland Furnace Company to violate the order of the court entered on August 5th, 1959.

I call attention to the Court if I may that in that same petition for institution of prosecution, the charges that they fail and refuse to comply with the order of the court during the period from August 5th, 1959 until December 31st, 1961.

And the — may I say that that is a period 16 months.

There are 25 violations charged here.

This large company with 5000 salesmen during a period of 16 months, with salesmen at a minimum of 10 a week would bring the total number of calls to 3.5 million calls and only 25 violations out of this charge.

Joseph E. Casey:

The violations which appear on page 2 of the record are 8 in number and they prohibit the employees from representing — they are Government agencies, they have a — or but they are salesmen, or that they are heating con engineers.

In this connection I would like to note that in the respondent’s brief on page 4, I’m now taking the fourth prohibition in that order of the Court of Appeals.

And the fourth prohibition is the outstanding one.

The fourth prohibition is the one that got all the publicity.

The fourth prohibition is the trumpet that dropped the walls of Holland Furnace Company tumbling down.

It says tearing down or dismantling any furnace without the permission of the owner.

On page 4 — in the respondent’s brief, say 4 is dismantling furnaces without the — without the owner’s permission.

Now, there is a vast difference, dismantling is a gentle procedure of taking a part of furnace and keeping of the parts intact.

Tearing down is a smashing and destroying, and tearing down is not petty, it is not trivial, it is an offense punishable at common law.

Its punishable in the State of Ohio where it is alleged — had gone to whether this offense but some of these are supposed to have happened on four different occasions by a statute which punishes it by as much as 20 years imprisonment.

So, I don’t know whether the omission of tearing down from the respondent’s brief was due to a twinge of conscience or to inadvertence but I certainly wanted — understood that the fourth prohibition is tearing down which is a crime at common law, which is a felony, and which is punishable in —

William J. Brennan, Jr.:

Mr. Casey, am I looking at the right paragraph four at page 2?

Joseph E. Casey:

That’s Your Honor the transcript of the record?

William J. Brennan, Jr.:

Yes.

Now that’s — as I — I see here is the alternative, tearing down or smashing and destroying?

Joseph E. Casey:

That is right.

That is right but I submit that that includes some tearing down.

In any event —

William J. Brennan, Jr.:

May I ask [Inaudible]

Joseph E. Casey:

Yes Your Honor.

William J. Brennan, Jr.:

I thought you said earlier, the order was addressed — coming to the company by mail?

I know that this is an Examiner’s — what’s — this at page 2?

Is that the [Inaudible] — the reason I asked is that the paragraph 4 appears under a heading, addressed to the company and officers, agents, representatives and employees?

Joseph E. Casey:

That’s the Commission’s —

William J. Brennan, Jr.:

Go on.

Joseph E. Casey:

— cease and desist order.

William J. Brennan, Jr.:

Or the — are you making a distinction —

Joseph E. Casey:

That the Court of Appeals’ —

William J. Brennan, Jr.:

[Inaudible]

Joseph E. Casey:

— cease and desist order did not represent anything but the company.

William J. Brennan, Jr.:

With — where is that?

Is that the one on page 3?

The —

Joseph E. Casey:

That’s the August 5th, 1959 on page —

William J. Brennan, Jr.:

Page 3 and 4 —

Joseph E. Casey:

— three.

William J. Brennan, Jr.:

Yes.

This —

Joseph E. Casey:

Versus Holland Furnace Company, yes.

Yes Your Honor.

William J. Brennan, Jr.:

[Inaudible] that’s an order and your point is that the Commission sought enforcement, sought enforcement only as respect to the company, is that it?

Joseph E. Casey:

Yes Justice Brennan that’s exactly my position.

Now may I turn my attention to the contempt in administrative law cases because I believe that in these administrative cases, the contempt is civil not criminal.

Congress passed a great many acts creating these administrative agencies and providing for their enforcement by the Circuits Court of Appeals.

Now Congress knew that when it created these agencies for the National Labor Relation Board, the Federal Power Act, the federal trade, the interstate commerce, that it was dealing with businesses, that it was dealing with the particulars and the details of the business life of America.

Congress knew that it was not setting up any sort of a criminal estoppel.

It did not create these agencies in order to send individuals to jail.

It set these agencies up in order to regulate and bring order to do business and it was a modern invention of Congress.

In the hearings before these agencies for example, before these examiners which — any evidence is admitted, the rules of relevancy are suspended, proof by a fair preponderance or reasonable doubt is foreign to the hearings and so if Congress intended to put —

William J. Brennan, Jr.:

What kind of a hearing was held in [Inaudible]

Joseph E. Casey:

This hearing with respect to the petitioner and the 11 respondents, there was a hearing and —

William J. Brennan, Jr.:

I understand that you — you demanded a jury trial but was denied?

Joseph E. Casey:

There was a hearing and — but previous to that hearing, I would like to state —

William J. Brennan, Jr.:

[Inaudible]

Joseph E. Casey:

— state —

William J. Brennan, Jr.:

No, don’t interrupt your course of argument, [Inaudible]

Joseph E. Casey:

That there was a — that the petitioner filed a general denial and the attorneys for the Federal Trade Commission appointed by the Court to prosecute who initiated this proceeding were apparently disturbed by the fact that it was a general denial, because on page 12 of the report, the prosecution’s reply to answer says, “Come now the attorneys appointed to prosecute on behalf of the court” and by way of reply to the answer filed herein on August 26th, 1963 by respondent Paul Theodore Cheff, respectfully advised the court that said respondent has by said answer, denied each and all allegations in the petition filed herein by court appointed counsel on April 19th, 1963.

And otherwise has reserved his defense and that in the view of court appointed counsel, the evidence indicated in said petition and in other documents herein to be available with respect to this respondent is sufficient in fact and in law to establish that the has committed a criminal contempt of this Court as charged in the said petition.

Now it goes on and says — asked the Court to determine that respondent Cheff having been afforded an opportunity to make preliminary showing why he should not be adjudged in criminal contempt of this Court, has not so shown, but the Court after such further proceedings as it determines to be just and appropriate, adjudged respondent Paul Theodore Cheff in criminal contempt of this Court and punished him for such criminal contempt in such manner as this Court deems just and proper.

This proceeding has all the earmarks of a claim, criminal prosecution and I contend that in these administrative agencies the enforcement process is contempt, but that contempt is civil.

Joseph E. Casey:

For example, the Court of Appeals is not as free in its actions when it deals with one of these enforcement orders that come from the federal trade because they’re compelled.

They’re compelled to take over the enforcement of these — of the agency if there is any war in the record or reasonable basis involved because the agency’s attorneys who are appointed by the Court, the Court has no investigators, the Court doesn’t drop these petitions and orders.

There’s an overlooking and a complete cooperation between the agency and the court.

So, the evidence that is used in these cases is not the usual type of evidence before a court.

For example, in this particular case if you will notice that the opinion of the Court finding this respondent guilty of criminal contempt sets forth some reasons and as a basis upon which their decision is predicated that are very difficult to follow.

Now, I listened yesterday to the respondent, the Government attorney say that the difference between the contempt and a crime, an ordinary crime, is that contempt crimes are refined with great accuracy and the conduct that is proscribed is very definite, so that you know what is proscribed and you know what is required, what is forbidden and what is required.

Now, at — on the record at 18 — 15, you find that the Court bases its opinion on such things as — speaking about the petitioner, he did not travel about to meet with better business bureaus.

Now there is nothing in the cease and desist order that says he should travel about meeting with better business bureaus.

He didn’t take pains to see that his entire sales organization understood the seriousness of compliance as his successors did by bringing 2000 salesmen to Holland Michigan.

There’s nothing in the cease and desist order that would indicate they should do that.

That he worked on replacement of furnaces instead of original furnace market.

The cease and desist order doesn’t order them to go out of the replacement business.

That he hired salesmen on a commission basis.

The order could have forbade him to hire salesmen on a commission basis but it says nothing about it.

That he got higher prices for Holland Furnace than its competitors.

That he remained aloof from sales managers and salesmen and he is the president of this large company and the chairman of the board.

And the — with a conviction predicated upon this unforeseeable ex post facto expansion of the narrow requirements of the Court order.

Tom C. Clark:

What about the — at page 18 of the record where it says —

Joseph E. Casey:

That’s — in the record, page 18 Justice Clark?

Tom C. Clark:

Where —

Joseph E. Casey:

At 19, at page 19.

Tom C. Clark:

It’s not on the page, his answer to the petition Holland Furnace admits the conduct of its employees in 15 transactions, violating 25 different violations involving the following [Inaudible] violated the order of — 1959 order.

What about that?

Is that true?

Joseph E. Casey:

Justice Clark, what page were you reading from?

Tom C. Clark:

Page 18 of the record.

You were talking about these little nuisances around the exposition of the court, essentially calling on business bureaus as not being enjoined in the order, I wonder if that’s true — the admission here and the answer according to page 18 that there were 15 transactions that he admitted he violated the order.

Joseph E. Casey:

That is — the Holland Furnace Company admits.

Petitioner never admitted that and there is the — a great difference here.

It’s one thing that it was — to charge this furnace company with responsibility for a violation if any salesman makes a violation, but it’s another thing to charge an officer of the company or a stockholder of the company or a director of the company with causing that violation.

Joseph E. Casey:

There is a great gulf between the two.

There is that lack of the causative link between the two and the petitioner does not admit of course that he ever caused any violations.

William J. Brennan, Jr.:

Well, obviously the company could not have — the company has not [Inaudible] and I see at page 20, this conclusion of the Court of Appeals.

There is a pungent evidence in which he finds that Cheff has initiated it.

He’s a dominant metropolitan business in the period during which Holland sales [Inaudible] subject to cease and order, [Inaudible] dominant [Inaudible] from the Commission’s theory, which conducts the cease and desist order issued in August 5, 1959, an order filed in 1959 was entered.

Joseph E. Casey:

Oh, there’s no question about what they — they needn’t be abundant evidence.

We have always admitted that he was — he was the head of the Holland Furnace Company.

William J. Brennan, Jr.:

I just wonder, who could have made these admissions on behalf of Holland?

Joseph E. Casey:

I don’t think that was an admission.

I think that that comes from the Federal Trade Commission attorneys.

William J. Brennan, Jr.:

Well, if this is — as Justice Clark has referred to you, Holland Furnace Company admits the violation.

Who could have made that on behalf of Holland?

Joseph E. Casey:

Well, I have no idea who made those in behalf of Holland?

Tom C. Clark:

And the point is, you have Holland, according to the record, admitted 15 violations, but only have [Inaudible] about the board and the top [Inaudible] about the violations?

I suppose it’s the — what’s the — I’d like to know how he got into the case, the order of — on page 4 that’s says petitioner has demand it to the play, the petitioners owned the furnace company, how did it get Cheff in?

Was it — the petitioner bring him in?

Joseph E. Casey:

I think that petition by the Federal Trade Commission attorneys was instituted at a much later date.

The first time the petitioner comes in, it was — is on April 19th, 1963 when there is a petition asking the Court to prosecute Cheff for criminal contempt.

William J. Brennan, Jr.:

Is there anything in this Mr. Casey, I noticed at the top of page 17, the Court of Appeals said — Commission’s order was directed, was it not, aid as well as [Inaudible]

Joseph E. Casey:

That’s right Justice Brennan.

William J. Brennan, Jr.:

The Court of Appeals says, the Commission’s order is enforced by this Court’s August 5, 1959 order, remained in full force and effect and was made permanent by this Court’s affirmance of the Commission order of November 7, 1961.

So I gather that the Court at least thought, with its enforcement order that you point out, namely from the company, nevertheless, it’s intended to be at a doctrine of the form of the Commission’s order which painted the position of the company [Inaudible]

Joseph E. Casey:

That’s — that is correct Justice Brennan.

Although that August 5th —

William J. Brennan, Jr.:

Your point is that’s not enough of a ground of criminal contempt.

Joseph E. Casey:

The August 5th has not enough ground for criminal contempt and my point is that in all these administrative agency proceedings in National Labor Relation Board, it should be wholly civil.

I see time has expired.

Abe Fortas:

Mr. Casey, may I detain you a moment.

Mr. Casey at the time these admissions were made on behalf of the company, your petitioner — the petitioner was no longer president of the company, was he?

Joseph E. Casey:

That is correct, Justice Fortas.

Abe Fortas:

So that the admissions on behalf of the company may have been authorized by the new management.

Joseph E. Casey:

That is correct.

That is — that is absolutely correct because the petitioner was not in the company at the time the institution of these criminal proceedings.

Earl Warren:

Mr. Lewin.

Nathan Lewin:

Mr. Chief Justice, may it please the Court.

This case is here on a limited writ of certiorari presenting the single question whether it was constitutionally permissible for the Court of Appeals to sentence petitioner to six months imprisonment for criminal contempt of its order after having denied his request for a trial by jury.

Our view as to that single question presented and before the Court, is that the Court of Appeals judgment should be affirmed because criminal contempt is not a crime within the meaning of Article III, Section 2 of the Constitution, or a criminal proceeding within the meaning of the Sixth Amendment.

That proposition in turn is based on the historical premise that the constitutional draftsmen did not view contempt as a crime or a criminal prosecution and on our view that there are meaningful differences today between the ordinary criminal prosecution which involves the violation of a criminal statute in a contempt proceeding which involves violation of a court order.

Now, there is the —

William J. Brennan, Jr.:

Mr. Lewin, does that go so far as to suggest that the order should not give one notice to the fact that the — this conduct may come within its scope?

Nathan Lewin:

No Mr. Justice Brennan, we think that —

William J. Brennan, Jr.:

Then it has to go up [Inaudible]

Nathan Lewin:

The order certainly has to go that far and we think the order in this case certainly did go that far.

They —

William J. Brennan, Jr.:

The order the court [Inaudible]

Nathan Lewin:

Yes.

William J. Brennan, Jr.:

And that is the sentence — Mr. Casey is right about it, that that is at least in turn, that that’s only to the company, is that right?

Nathan Lewin:

The company was the only party at the — before the Court.

At that stage, the company was the only party before the Federal Trade Commission but of course, the Federal Trade Commission in its orders as the National Labor Relations Board and I think as courts do, recognize that corporations act through their dominant officers.

William J. Brennan, Jr.:

Well, for whatever its worth, the order that the petitioner is charged with having violated, therefore guilty of contempt, does not in turn — does not it turn [Inaudible]

Nathan Lewin:

The Court of Appeals’ order is not Mr. Justice Brennan.

William J. Brennan, Jr.:

That’s the one to which — with the contempt [Inaudible]

Nathan Lewin:

Well, we think though that there’s one distinction that should be borne in mind in this regard, and that is that the petitioner was convicted not of directly violating this order, but of aiding and abetting the corporation and of causing the corporation to violate the order.

William J. Brennan, Jr.:

Now where is aiding and abetting acts?

Nathan Lewin:

Well, not aiding and abetting in the sense necessarily —

William J. Brennan, Jr.:

It’s not a crime [Inaudible] —

Nathan Lewin:

Well, we think those who assist or who cause to violate — a violation of a court order are — have themselves committed contempt.

This Court recognized as much quite sometime ago back in 221 U.S. in Wilson versus United States which we quote at pages 16 and 17 of our brief where the Court specifically said that, “The command for the corporation is in effect a command to those who are officially responsible for the conduct of its affairs.

If they apprised of the writ directed to the corporation prevent compliance or fail to take appropriate action within their power to the performance of a corporate duty, they no less than the corporation itself are guilty of disobedience and may be punished for — ”

William J. Brennan, Jr.:

Is that a criminal contempt case?

Nathan Lewin:

I don’t think it was a criminal contempt case, no.

William J. Brennan, Jr.:

[Inaudible]

Nathan Lewin:

Yes, it was a criminal —

William J. Brennan, Jr.:

A crime [Inaudible]

Nathan Lewin:

Well, but — that the — that’s true Mr. Justice Brennan but we think that the Court did say that they may be punished contempt in that case.

And we think that the only meaningful way to interpret an order direct into a corporation and in the — to give effect would be to say that those who dominate the corporation who conduct its affairs and who are in effect responsible for what it does must be held responsible in contempt or liable for contempt punishment as well as the nominal corporation itself.

Abe Fortas:

Mr. Lewin, there is a (Voice Overlap) —

Earl Warren:

Mr. Lewin, (Voice Overlap) —

Abe Fortas:

I beg your pardon sir.

Earl Warren:

Go right ahead.

Abe Fortas:

There’s been a reference here to an order of the court, I take it of November, I guess November of 1959.

Was there such an order and it’s not in the record so far as I can see.

Nathan Lewin:

The order of which petitioner was convicted of having violated was a pendente lite order Mr. Justice Fortas, that was entered in April of 1959.

After review of the administrative proceedings and the order to the Federal Trade Commission, the Court of Appeals entered a second order in which it made permanent its earlier order.

Now that’s not in this record because that’s not the order which he was convicted of having violated.

Abe Fortas:

Well, I understand that but there is a claim —

Nathan Lewin:

I’m sorry, August 1959.

August (Voice Overlap) —

Nathan Lewin:

I meant August of 1959, I’m sorry.

Abe Fortas:

Which is the order, the August 1959?

Nathan Lewin:

The August 1959 order is the pendente lite order.

Abe Fortas:

I understand that.

Then you tell me that there was another order entered by the Court and the — did that order affirm the Commission’s order or confirm the Commission’s order?

Nathan Lewin:

It did.

Abe Fortas:

And the — I’m sorry, but that — that’s not in this record (Voice Overlap) —

Nathan Lewin:

That’s not in this record because it was committed.

It — that it was — petitioner was not — is — he was not convicted of having violated that second order.

All the acts of contempt that were committed and that were put into evidence in this case before the Court of Appeals were acts that were committed between the entry of the pendente lite order in August 1959 and the entry of the final order in November of 1961.

In other words, the contempt was limited to that period during which the pendente lite order was outstanding.

Abe Fortas:

I want to make sure I understand this that as of the time of the alleged violations, was there or was there not a court order generally confirming or affirming the Federal Trade Commission order?

Nathan Lewin:

No, there was not.

Abe Fortas:

There was not.

So that as of the time of the alleged violations, the only court order was the order of August 5, 1959 and that order merely denied the petition of the corporate respondent in the Federal Trade Commission?

Nathan Lewin:

No, Mr. Justice Fortas, that order was entered at the request of the Federal Trade Commission to enjoin this kind of conduct which it had found had been committed at some time previously pending the Seventh Circuit’s determination of the merits of the case.

Abe Fortas:

I see.

Nathan Lewin:

And the Seventh Circuit held that the harm to the public interest if this conduct continued in that interim was great enough to warrant entering a interlocutory or pendente lite order as of that time.

Abe Fortas:

I see but the case was before the Seventh Circuit.

Nathan Lewin:

Definitely before the Seventh Circuit —

Abe Fortas:

On the petition — on the petition of the furnace company.

Nathan Lewin:

Definitely before the Seventh Circuit, on the company’s petition to review.

Earl Warren:

Mr. Lewin, after all your statement that the — this is not a crime, you’re discussing that yesterday with Mr. Lewin in relation to a res opinion of the Attorney General’s office and I thought we would continue the discussion today perhaps, but the Government has waived 20 of its 30 minutes in that case and — so we haven’t the chance to do that, have you — did you bring that opinion?

Nathan Lewin:

I have the opinion Mr. Chief Justice.

Earl Warren:

Would you distribute it please?

Nathan Lewin:

We were — we are making copies of it at the Department of Justice and we’ll be delivering it to the Court this afternoon.

I hadn’t realized that the Court would want it for this morning’s argument and —

Earl Warren:

Is that consistent with your position here today?

Nathan Lewin:

Well, —

Earl Warren:

That it is not a crime?

Nathan Lewin:

We believe Mr. Chief Justice that that letter really turns on the construction of a particular regulation, which does define crime.

Earl Warren:

Well, does it — does it treat it as a crime or not?

Nathan Lewin:

It treats it as a crime for purposes of that regulation, Mr. Chief Justice.

Earl Warren:

And what is that regulation?

Nathan Lewin:

That regulation provided that — for purpose — that those who were convicted of any federal, state, or a crime before a court-martial and imprisoned for five years pursuant to such a — such convictions would — could not be in turned at Arlington or a national cemetery.

Earl Warren:

And you did add the three years for the substantive offense and the four years for the contempt to make five years so the man’s remains could not be — be buried in Arlington Cemetery, is that right?

Nathan Lewin:

According to that letter to the Attorney General, we did, yes sir, Mr. Chief Justice.

William J. Brennan, Jr.:

Oh, did that follow Mr. Lewin — what’s happening, the Government treats a criminal contempt when it suits its purposes as a crime and —

Nathan Lewin:

No, I —

William J. Brennan, Jr.:

— when it doesn’t (Voice Overlap), is that it?

Nathan Lewin:

I don’t think it does.

I think — let me say, let me say at the outset that of course we hadn’t — Mr. Spritzer yesterday, hadn’t seen that letter and (Voice Overlap) —

William J. Brennan, Jr.:

Oh, I know but the —

Nathan Lewin:

— there was no —

William J. Brennan, Jr.:

— it’s the Attorney General who issued the letter.

Nathan Lewin:

Yes.

But the —

William J. Brennan, Jr.:

And you’re — here’s the representative of the Attorney General.

Nathan Lewin:

That’s true Mr. Justice Brennan.

I think that there is a difference though between that regulation and the way it was framed and the usual constitutional definition of a crime because that regulation includes as well not merely federal and state crimes, but also convictions before court-martial.

Now, for example, that’s not a crime.

This Court has so held for Sixth Amendment purposes and yet the regulation is entirely clear in treating that as a crime for purposes of interment at a national cemetery.

Earl Warren:

Is this contempt by a court-martial —

Nathan Lewin:

No.

Earl Warren:

— within that case?

Nathan Lewin:

Oh, no.

The contempt was —

Earl Warren:

But it was — it was a clear contempt of court similar to those that we had in Shillitani and in the other case yesterday, wasn’t it?

Nathan Lewin:

It was — yes, it was a contempt —

Earl Warren:

And they did use — and they did use that contempt in the sense of it being a crime in order to deprive this man that right.

Nathan Lewin:

That — it was — the regulation was so construed Mr. Chief Justice, yes.

Earl Warren:

You say you have the opinion here?

Nathan Lewin:

I have one copy of the opinion.

Earl Warren:

May I see — may I see the one copy?

You may proceed.

Nathan Lewin:

Thank you.

Thank you Your Honor.

I — for purposes of my argument with the Court’s permission, I would like to skip over very quickly the historical inquiry which I think has been gone into at length yesterday and in Mr. Spritzer’s argument in the Shillitani and the Pappadio cases heard by this Court.

I would also — and before getting to the question of contemporary policy justifications between criminal contempt, violations of court orders, and violations of statutes, I would like to make it clear that our argument in this case as it was in Shillitani and Pappadio is directed to the kind of contempt which turns on violation of a court order not as you suggested yesterday Mr. Justice Fortas, misbehavior in a courtroom or misbehavior by court officials.

We think that the policy justification for treating those kind of contempt summarily are entirely different from the policy justifications which apply to disobedience of court orders.

And therefore to the extent that we make the policy argument in this case and in Shillitani and Pappadio, we’re really directing our attention to the third subsection of Section 401 of 18 U.S.C. which speaks in terms of disobedience of court orders and decrees and not of the kinds of conduct which may be necessity would have to be dealt with by a judge without jury and quite summarily.

This case concerns the violation of a judicial decree enforcing a cease and desist order of an administrative agency.

Nathan Lewin:

In that respect, we think it illustrates quite graphically the principal differences between a violation of a statute which we think is a crime in the constitutional sense and the violation of a court order which constitutes a contempt.

A statute imposes a legal duty on the world at large.

A court order imposes such a duty on particular person, in this case the corporation and of course its officers who were present and testified at the Commission hearing and had all opportunities there to participate in drafting or in the process in which the order which contained the legal duty to which they subjected was being determined.

Now, Congress delegated to the Federal Trade Commission the duty of enforcing by such cease and desist orders, the prohibition in Section 5 against unfair methods of competition in commerce and unfair or deceptive acts or practices.

These kinds of orders may be entered under the statutory scheme only after there’s been one violation by the party subject to the order.

Now, in this case, the Federal Trade Commission conducted extensive hearings to determine that question.

The testimony of 260 witnesses covering 85 hundred pages of transcript was taken in 14 cities and on the basis of that evidence, the Commission concluded that the corporation of which petitioner was the dominant head had engaged in the course of business dealings in the servicing and sale of home furnaces which operated to defraud consumers and to injure competitors.

Throughout the Commission proceedings, the corporation was represented by counsel.

They had the opportunity to cross-examine witness and to present evidence and it also had the opportunity to challenge the hearing examiners’ proposed findings of fact and the terms of the cease and desist order.

The Commission concluded on the basis of this extensive examination that the record and I quote, “Not only substantially but copiously supports the findings of the initial decision” and it directed the entry of an order which in very specific terms prohibited the corporation, its representatives, its employees and its agents from engaging in eight specific enumerated deceptive practices such as false representations that the salesman or government inspectors or heating engineers, that the furnaces manufactured by competitors were defective or dangerous, and various coercive sales techniques involving the dismantling of furnaces often against the will of the owners of the furnace.

Now, the Court of Appeals enforced this order pendente lite and on reviewing the record, it then sustained the Commission’s findings.

Now this case involves violation of the pendente lite order but the basic constitutional issue which is whether petitioner was required by Article III of the Sixth Amendment to have a jury trial would be presented if this were a violation of the final order of the court enforcing the agency’s — the agency determination.

So in effect, what petitioner is contending is that notwithstanding all of these preliminary stages at which the specific — at which he was a party or at least there was a corporation who was represented before the Commission, on which he had the opportunity to challenge prior to — in effect having to obey the order if this were for example, a final order entered after the court had reviewed the underlying findings.

He is saying that he is entitled to a jury trial to determine whether the violation of a court order committed which was entered after all of these preliminary proceedings was in fact committed.

Now, before considering this question, I’d like to make it clear that the proceeding that was held here before the Court of Appeals, the criminal contempt proceeding was a criminal action in every way other than the fact that there was no grand jury, there was no indictment in effect, and there was no petty jury, but in every other way it was of plenary criminal proceedings.

The court —

William J. Brennan, Jr.:

What actually — what kind of hearing was this (Voice Overlap) —

Nathan Lewin:

The court —

William J. Brennan, Jr.:

— apparently, there are a number of stipulations from what the record indicates at page 18, is that right?

Nathan Lewin:

The stipulations pertain I think principally to the corporation.

So far as the petitioner who is the only party present before the court, he had a ten day evidentiary trial, three judges of the Court of Appeals sat in the Court of Appeals courtroom and took testimony by live witnesses at which each one of the individual petitioners, each one of the individual — individuals who were charged with contempt was present in court, was represented by counsel, and each had an opportunity to examine each of the live witnesses who testified in the court.

William J. Brennan, Jr.:

Did they take the stand themselves?

Nathan Lewin:

Some did — some of them did, yes, petitioner did.

William J. Brennan, Jr.:

This petitioner?

Nathan Lewin:

This petitioner definitely did take the stand and made in the course of his testimony admissions which counsel who are appointed by the court to prosecute this case used —

William J. Brennan, Jr.:

Who were the counsels appointed?

Nathan Lewin:

Counsel prosecuting the case were attorneys who are Federal Trade Commission attorneys, but they did not act in that capacity in this case.

The court was very careful to appoint them to act on behalf of the court and not on behalf of the Federal Trade Commission.

The Federal Trade Commission was neither nominally, was with — or at least was not nominally, a party, or at least — these attorneys did represent the Court of Appeals’ interest in prosecuting the contempt.

So the question is whether following this substantial preliminary proceeding and despite the fact that the petitioners had this entirely plenary hearing, there was a constitutional requirement that a jury be empaneled to determine a guilt or innocence.

Abe Fortas:

Mr. Lewin, before you get to that, can you tell us whether this is customary that is to say on contempt proceedings, the violation of a court order following an administrative order, is it customary for those to be informed of criminal contempt?

What is the practice?

Nathan Lewin:

There have been a very limited number of those —

Abe Fortas:

I know.

Nathan Lewin:

— kind of cases Mr. Justice Fortas.

They — there are several Labor Board cases in which Labor Boards instituted or urged the court to institute both criminal and civil contempt and on — in some very few instances, I think maybe two Courts of Appeals did find defendants in criminal contempt.

By and large, the proceedings before the court have not usually been as full as they were in this case.

Principally, (Voice Overlap) —

Abe Fortas:

Is there any —

Nathan Lewin:

— [Inaudible]

Abe Fortas:

Is there any source [Inaudible] there is an analysis of what the practice has been in this respect?

That is to say, what the practices of various agencies in the various courts?

I realize that there aren’t many cases.

Nathan Lewin:

Well, the only agencies we’ve come, I have tried to survey as many cases as could be found, and the only cases we found have been orders of the Labor Board orders or the Federal Trade Commission in which this question has come up.

I think those orders are particularly suitable, if you will, for this kind of a proceeding because they usually, those are the agencies which usually have cease and desist orders at one kind or another and as I was intending to come to shortly, that’s precisely why the remedy of criminal contempt is so necessary and can’t be substituted by civil contempt in those areas, where the Federal Trade Commission or the National Labor Relations Board for example enter an order directing an employer or a corporation to cease a particular practice, obviously the employer or the corporation can’t or their officers can’t be thrown in jail until they cease.

They can only be proceeded against after they’d committed the violation of the order.

So that unlike orders which compel an affirmative act, or orders which direct the payment of money for example which some of the other agencies can do and they enter those kind of orders, these are the kinds of orders, Labor Board and Federal Trade Commission orders are the kinds of orders that if they are to be enforced, can only be enforced after the violation by a proceeding which will deter future violations by that very respondent and by others.

Abe Fortas:

Well there are certain types of orders certainly entered by the Federal Trade Commission in which that would not be quite so, wouldn’t it and that so, that is to say that the order of the Federal Trade Commission says cease and desist from a specified coercive conduct.

The respondent fails to do that and there is a civil contempt in which penalty is imposed, an imprisonment for whatnot until the prescribed course of conduct is effectively abandoned.

In other words —

Nathan Lewin:

Well —

Abe Fortas:

— I take it from what you’ve said a moment that you’re really arguing that civil contempt is not a suitable or effective remedy and I wonder if that is so.

It’s not a suitable or effective remedy when there is a one shot violation and you want to punish somebody and there, the question is, “Should there or should there not be a jury trial?”

But then you have other types of orders perhaps in which the respondent is commanded to cease a described course of conduct and he doesn’t do so, he is subjected to a sanction until he shows that he has complied.

Nathan Lewin:

Yes, but this — the usual sanction, the — it seems to me that the minute this was — let’s say the president of a corporation in this instance, if he were imprisoned until this practice is ceased and presumably they’d — they would cease or at least they would cease from the minute he’d been imprisoned, he could no longer go out and violate the order nor could he take the affirmative steps not needed to remedy the prior practice.

Abe Fortas:

Was not — I suggest that perhaps it’s not quite as simple as that, but are you in effect submitting to us the proposition that civil contempt is not suitable with respect to the Trade Commission orders?

Nathan Lewin:

I’m submitting that proposition as a general matter.

I agree that there are Trade Commission orders that could be proceeded against in a civil contempt.

But cease and desist by definition means, don’t do it and unless you’ve done it, you haven’t violated it.

And if you — if you’re imprisoned, then you certainly can’t take the steps to remedy what’s been done in the past, that that’s necessary nor can you repeat what you violated in the past.

Do you know where the terminology of the civil and criminal contempt, how did it — contempts, how did that created under the law, both kinds of contempts are violation of court orders, I’m leaving out the misbehavior in the courtroom and so forth.

Nathan Lewin:

I don’t know Mr. Justice Harlan —

Where did it come from?

Nathan Lewin:

— where it began.

I know that there are decisions of this Court pertaining that —

It’s used throughout the decisions, that I was wondering if you’d ever found out what its origin was?

Nathan Lewin:

No, we’ve never —

Described —

Nathan Lewin:

I’m afraid we never have.

Mr. Justice Harlan, I really wouldn’t (Voice Overlap) —

Sort of what gives rise to this whole jury trial question, isn’t it?

Why (Voice Overlap) —

Nathan Lewin:

I think —

— it’s called criminal.

Nathan Lewin:

I think the origin just lies in the fact that there were or that there are proceedings which are clearly retrospective and there are proceedings which are coercive or prospective and at some stage no doubt, a judge determined that that — that the way to draw the line between the two would be by saying those that were retrospective were like criminal sanctions for prior punishment.

Although we submit as these kind of cases show and as Labor Board cases in which an employer for example is instructed not to discharge employees because of union activity in the future.

Now that can only be enforced by punishing him when he does.

You can’t — you can’t imprison him until he does it.

William J. Brennan, Jr.:

Incidentally Mr. Lewin, you said that these proceedings had been rare, have others also resulted in jail sentences?

Nathan Lewin:

Other violations of administrative orders?

William J. Brennan, Jr.:

Yes.

You said that this has happened only rarely (Voice Overlap) —

Nathan Lewin:

Rarely.

I don’t know of any — of other violations of administrative orders —

William J. Brennan, Jr.:

This looks though as the first jail sentence in there?

Nathan Lewin:

I wouldn’t know of any and I — this maybe the first jail sentence for violation of an administrative order.

William J. Brennan, Jr.:

Yes.

Nathan Lewin:

Yes sir.

The limitation in — let me just briefly go to the limitation in the Barnett dictum.

We don’t think that to the extent that — a rule requiring criminal contempt proceedings with a jury and the danger of one unsympathetic juror in effect nullifying what is a — an agency order and/or after these substantial proceedings would be a proper — a proper remedy.

Nathan Lewin:

If in effect courts were limited to punishing only with petty offense sanctions, those who had violated administrative orders, if they chose to proceed without a jury, then corporations who are by and large the offenders in these sort of cases, certainly would not be suffering any serious damage at all by being found in contempt.

The limitation on a petty offense sanction is $500, limitation so far is fine is concerned.

Potter Stewart:

The corporation was fined here a hundred thousand dollars?

Nathan Lewin:

A hundred thousand dollars and this Court denied certiorari —

Potter Stewart:

Denied certiorari [Inaudible]

Nathan Lewin:

— on its petition which indicates — succinctly said, “You can impose sanctions going beyond the petty offense limitation when it’s the only effective sanction for a —

Abe Fortas:

That’s a pretty dangerous statement, isn’t it?

You don’t really mean that.

Nathan Lewin:

Well — alright —

Potter Stewart:

The Court of Appeals did and (Voice Overlap) —

Nathan Lewin:

The Court of Appeals did and its order has not been vacated.

And that — that is in effect the only effective sanction against the kind of corp — the kind of business entities that are involved in — generally, I think by and large in Trade Commission proceedings or possibly in Labor Board proceedings.

Would you mind stating again in — the brief encompass what the public policy argument is it — if you may, so leaving out the historical argument of course between the necessity for a jury and your punishment for a statutory violation and then the necessity for – lack of necessity for a jury in — when your punishing for past violations of a court order?

Nathan Lewin:

We think that the system of law as we have it in this country turns to a very large extent on obedience to court orders after they — there has been a full adjudication.

In other words, when a court looks at a particular instance, in particular circumstances and has before it, a defendant who will be subject to its order and he is able in that proceeding to present whatever mitigating factors he has, and the court then enters an order directing him to carry out, to act in a certain way or not to act in a certain way that it would be — it would undermine the principle that those orders should be obeyed if they could be submitted, if they would have to be submitted, or its vindication would have to be submitted to a jury of 12 men subsequent to the event.

In other words, we think that we, as a legislative command, which speaks at large, may and should under our constitutional protections, be submitted to a jury for its application of that legislative command to a particular set of facts.

The same is not true when a full proceeding has been entered and the court has — full proceeding has been conducted and the court has entered an order directed to an individual party who has had the full opportunity to litigate the merits and the extent of that order in the proceeding before the court.

We think those commands must — must be obeyed and the court should have the authority to act as this Court said in Gompers and Bucks Stove & Range promptly and independently to make sure that those orders are obeyed.

And that we think is a difference Mr. Justice Harlan, just that one case it’s properly submitted.

What is it, a matter of the dignity in the court?

Nathan Lewin:

No, it’s necessary we think —

Specificity of the acts of the defendants told to do, what?

Nathan Lewin:

Well, (Inaudible) — the specificity of the acts we think point the up the fact that in — in the last analysis, court orders which are directed to particular instances must under our rule of law be obeyed.

We can’t tolerate a system of law which would submit possibly to a jury of — where one man maybe hostile to the underlying order as in this case, let’s say to the Federal Trade Commission Act towards to the National Labor Relations Act that those kind of questions can’t after a full litigation be submitted to a jury of 12 men to determine whether the order will in fact be vindicated.

William J. Brennan, Jr.:

Well, if Congress of course have said though in some instances of that, they must given that kind of court order?

Nathan Lewin:

Yes.

William J. Brennan, Jr.:

Alleged violation must be submitted to a jury.

Nathan Lewin:

Yes, I mean — well, because in those cases we submit, once the legislative deter — legislative determination is made that it would be more desirable to submit that kind of vindication to a jury, then we think that that is perfectly appropriate that be done.

But we think in the absence of congressional legislation, our system of law really depends in the long run on court orders being effectively vindicated.

William J. Brennan, Jr.:

Well, I gather you’re also saying that the — if there must be a jury trial, alleged violations of an order like this and constitutionally that’s required, that that also would obtain as to all injunction orders of any kind, are you?

Nathan Lewin:

All, yes, yes sir.

Abe Fortas:

Mr. Lewin, I suppose this is a boiler plate Federal Trade Commission order, isn’t it?

Nathan Lewin:

I would hope not.

I — you mean — you mean a —

Abe Fortas:

Well, it’s not in (Voice Overlap) —

Nathan Lewin:

— you mean the preliminary —

Abe Fortas:

— but it’s got the general provisions in that statutory language, isn’t it, the Federal Trade Commission order here?

Nathan Lewin:

No, this — I think this order —

Abe Fortas:

I’m not talking about the order of the court in that — the moment —

Nathan Lewin:

No, the order the Federal Trade Commission is just as very specifically directed —

Abe Fortas:

Where is that?

Nathan Lewin:

It’s on pages 2 and 3 of the transcript of record and it is very specifically directed Mr. Justice Fortas to this conduct and no other.

There is no statement, catchall clause in there about not violating Section 5 or anything.

Abe Fortas:

Alright, well let’s take an order of the Federal Trade Commission that is in statutory terms, you’ve seen a lot of them and I have too, that’s in the general terms of the statute and let’s suppose that the court implements that with an enforcement order which is in general terms like the order here.

Now certainly, if there is a claim or violation, that raises questions of fact, doesn’t it?

Nathan Lewin:

Yes, it does.

Abe Fortas:

And the — and then the question arises as to how those facts should be determined for the purpose of punitive action resulting in somebody going to jail, would you agree with that?

Nathan Lewin:

That’s the —

Abe Fortas:

And it’s not as if we were talking about — perhaps it’s not ‘as if’, we were talking about a clear specific rifle shot court order.

Here we’re talking about a court order that enforces what I expect you’d agree is frequently a very general administrative order.

Nathan Lewin:

Right.

We think in those instances Mr. Justice Fortas, it would be a very perfectly proper and appropriate defense that the — the alleged contemnor could not have known or did not know that his conduct fell within the vio — fell within the confines of the order.

If —

Abe Fortas:

Well, can he make that defense to the jury, to a jury or does he — is he confined to making that defense to the judges, I think that’s our issue.

Nathan Lewin:

Well, that’s right.

Our position is that it — that it — that’s it made to a judge and that whatever this Court determines as to that part of the order Mr. Justice Fortas, applies as well to the very specific terms.

In this case, we have a specific order with very specific terms and there was abundant evidence before the Court of Appeals that those very specific terms had been violated by the petitioner.

Hugo L. Black:

By Cheff himself?

Nathan Lewin:

By Cheff himself, that he had, the Court of Appeals’ found, put up a — on a pretense of violate — of complying with this order but that — actually his instructions to subordinates were not to change the practices or not to change the prior practices and that he allowed them to continue and that he continued to profit from what had — what had been done in the past.

Hugo L. Black:

And he denied all of it?

Nathan Lewin:

He denied all of it.

William J. Brennan, Jr.:

Incidentally, this file I gather was before the judges whose order is claimed to be violated.

Nathan Lewin:

It was only — I think only one judge who was common or — there was only — only Judge Schnackenberg I think was — both signed to the order and tried —

William J. Brennan, Jr.:

I see.

Nathan Lewin:

— the proceeding.

I think (Voice Overlap) —

William J. Brennan, Jr.:

The other different panel [Inaudible] —

Nathan Lewin:

Pardon?

William J. Brennan, Jr.:

A different panel on the file —

Nathan Lewin:

I think there was a different panel at the —

William J. Brennan, Jr.:

Except for Judge Schnackenberg.

Nathan Lewin:

Except for Judge Schnackenberg, it was a different [Inaudible]

Earl Warren:

Mr. Lewin, I’m just speaking of the opinion which you handed me a few moments ago.

I notice that the Attorney General cites a relevant part of the regulation he is interpreting as follows, “A person otherwise eligible for burial in a national cemetery but who is convicted in a federal court of a crime or crimes result of which was a sentence to imprisonment for five years or more will not be buried in a national cemetery.”

Then he says, “In my judgment, it could reasonably be concluded that Thompson was within the meaning of that regulation, convicted in a federal — in a federal court of a crime or crimes the result of which was a sentence to imprisonment for five years or more.”

In a single proceeding before a federal court, he was convicted both of violating the Smith Act and a criminal contempt.

And then there is a significant footnote at that point in which he says, “Your interpretation of the word crime as used in the regulation as including criminal contempt punishable under 18 U.S.C. 401 is I believe fully justify criminal contempt is regarded as a crime.”

For most purposes, and citing Gompers versus United States and another, New Orleans versus Steamship Company, “And no reason is apparent, why for purposes of the interment regulations criminal contempt should be distinguished from any other infraction of law punishable by imprisonment.

Now, is that at all consistent with what you are arguing here in these cases?

Nathan Lewin:

We think the only way it could be consistent Mr. Chief Justice is that as that letter points out that the interment regulations incorporated substantially different policy for purposes of what — how they would define crime, then the Sixth Amendment or Article III line and the —

Earl Warren:

Well, is the —

Nathan Lewin:

I — that — there’s no doubt in our mind and the cases of this Court have made clear that for very many purposes, criminal contempt is a crime.

Earl Warren:

Have you argued that in any of these contempt cases?

Nathan Lewin:

We’ve argued that it’s not a crime for purposes (Voice Overlap) —

Earl Warren:

This is not a crime at all.

Nathan Lewin:

— Sixth Amendment or Article III.

Oh, we agree that it’s a crime for purposes of the burden of proof and the Court found that in this case that — let them prove beyond a reasonable doubt for purpose of the statute of limitations which is what Gompers versus United States involve and for various other procedural in — and possibly for various other substantive purposes.

The real — the question now is whether the constitution or the constitutional draftsmen in using the word crime intended to incorporate contempt and our argument in these cases is really devoted not to defining crime in general, but just to the fact or just to the limited proposition or purposes of Article III and for purposes of the Sixth Amendment and as it was in the minds of a constitutional draftsmen, contempt was sui generis.

It was not a crime and it was a civil penalty, it was contempt.

Earl Warren:

Well, I understood you to say in your opening statement, your opening — first sentence that criminal contempt is not a crime.

Earl Warren:

And the — I understood Mr. Spritzer to say that it has been so contended throughout history by the Department of Justice.

Nathan Lewin:

If I said so Mr. Chief Justice, I — I’m sorry, I must have misspoke myself.

I meant that it was a crime for purposes — for constitutional purposes and for purposes of Article III, and for purposes of the Sixth Amendment and not — as this Court has recognized and I say in a whole series of decisions in Gompers, in Cooke versus United States and various other decisions that criminal contempt is a crime and we don’t contest that at all.

We agree that criminal contempt is a crime for a variety of purposes.

The only question here and the question involved in this case is whether it’s a crime for purposes at trial by jury — for the trial by jury guarantee and certainly, the word crime can mean different things in different statutes or in different constitutional provisions.

And our argument limited to that proposition is that it’s not a crime for purposes of a jury trial guarantee and that’s all that I intend to argue Your Honors —

Earl Warren:

It would seem to me that when it’s considered a crime to pursue a man after his death, that it does have the consequences of crime in the same way as any other felony — any other felony does and that the distinction is well made.

That’s [Inaudible]

Nathan Lewin:

May I — right.

May I just take a minute to — I know Mr. Casey mentioned something about a letter that we had submitted in the opinion (Voice Overlap) —

Earl Warren:

Yes, that’s right.

I wish you would.

Nathan Lewin:

— to respond to them Mr. Chief Justice.

The opinion that we sent out to the court was the Federal Trade Commission opinion which is cited on the first page of our brief, is an opinion below which officially reported, Volume 55 of the Federal Trade Commission reports.

In preparing for oral argument, I discovered that it was no place in the very truncated record that the — this transcript of record that the court had here.

It’s of course an official document in the Federal Trade Commission reports, which this Court could look at in the one or two volumes of Volume 55 of the Federal Trade Commission reports it has in its library.

And in addition, it was definitely in the record in the Court of Appeals.

The Court of Appeals very expressly took judicial notice of that opinion that this Court could do and was certainly not sent up here in order to give it undue emphasis or notoriety, I submit that it’s Mr. Casey who has done that simply by raising the issue.