Green v. United States Essay Example

PETITIONER:Green
RESPONDENT:United States
LOCATION:Shotwell Manufacturing Co.

DOCKET NO.: 100
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 356 US 165 (1958)
ARGUED: Oct 21, 1957
DECIDED: Mar 31, 1958

Facts of the case

Question

  • Oral Argument – October 21, 1957 (Part 1)
  • Audio Transcription for Oral Argument – October 21, 1957 (Part 1) in Green v. United States

    Audio Transcription for Oral Argument – October 21, 1957 (Part 2) in Green v. United States

    Earl Warren:

    Mr. Abt, you may proceed.

    John J. Abt:

    May it please the Court.

    At the recess, I was making the point that the finding of the trial court that petitioners had knowingly violated the order for their surrender was without support in the evidence as I recited it or indeed in the facts as found by the trial court itself.

    All of the evidence established was that petitioners knew that they were to be in Court on July 2nd.

    Knew that in all probability, they would be committed on that day and that they fled in order to avoid service of sentences which they knew were in store for them.

    But petitioners were not charged and could not have been convicted of contempt merely because a jump-bail and were fugitives from justice.

    They were charged with and convicted of knowing disobedience of a specific order for their surrender which they well knew to the outstanding.

    Proof that they had knowledge of the existence of that order was therefore required and there was no such proof.

    Apparently, the trial judge himself recognized the vulnerable — vulnerability of this finding that petitioners have knowledge of the surrender order.

    For he made the further finding in the Green case that Green had and I quote —

    William O. Douglas:

    What — where are you reading from?

    John J. Abt:

    Record page 67, Mr. Justice Douglas.

    In his written opinion that’s — the written opinion on the Green case, the trial court made the further finding that Green had notice of the order and willfully disobeyed it.

    In support of this finding that is that Green have notice of the order, the Court cited United States versus Hall, a Second Circuit decision in which the majority of the Court sustained the contempt conviction of another absconding Dennis defendant.

    It is — it is true, however, isn’t it that in this case, the Green case, the trial court made a specific finding that he had knowledge of the order.

    John J. Abt:

    Made both findings, Your Honor.

    The point I’m making is that there would have been no necessity for a finding of notice that the judge had been fully satisfied that the evidence established knowledge.

    And the very fact that he went on to find notice is at least an indication that he had some doubt as — as to the validity of his findings (Voice Overlap) —

    But where is it — where in the Green case, where is this, his finding — where is his finding as to notice?

    John J. Abt:

    As to the the notice?

    Record 67, I believe, Your Honor.

    But isn’t that in the Green case — isn’t that in the other case?

    John J. Abt:

    In — in which case, in the Winston case?

    Yes.

    John J. Abt:

    No.

    There was — there was no written opinion on the Winston case.

    And —

    I see.

    John J. Abt:

    — in his oral opinion in the Winston case —

    I see.

    John J. Abt:

    — the judge made no finding as to notice —

    I see it.

    John J. Abt:

    — had rested entirely on knowledge.

    However, of the — when he got to write the opinion and he only wrote only one, he made the finding of notice.

    And as I say, in support of that finding, he cited United States versus Hall and that brings me necessarily to a consideration of the Second Circuit decision in that case.

    The charge against Hall was identical with that on which the petitioners were tried and the evidence was substantially the same as in the present cases except that Hall was apprehended — file of petitioners here voluntarily surrendered.

    Now, unlike the trial judge in these cases, the Court of Appeals in the Hall case did not find that Hall had actual knowledge of the surrender order.

    Instead, it sustained the conviction on a theory that Hall was chargeable with notice of the order because it found from the evidence that he had knowledge of the fact that an application for the order would be made.

    In other words, it held that knowledge of the application for the order was notice of the order itself and sufficient to hold Hall in that case, criminally liable for disobedience of the order once it was entered.

    Now, it seems to me quite clear that there are three errors in this theory of guilt which I shall refer to as the notice theory.

    In the first place, a person may not be convicted of criminal contempt of an order merely on proof that he knew that the order would be applied for and disobeyed it after it was issued.

    Proof of actual knowledge of the issuance of the order is required to sustain a conviction for criminal contempt.

    The majority involved relied in a dictum in Pettibone versus the United States cited by this Court, 148 United States, to support its notice theory.

    I quote the passage from Hall from Pettibone at page 15 of my brief, it’s very brief, perhaps I should take a moment to read it to the Court.

    In Pettibone, the Court said and as I say the statement was clearly dictum.

    “In matters of contempt, persons are not held liable for the breach of a restraining order or injunction unless they know or have notice or a chargeable with notice — with knowledge or notice that the writ has been issued”, and then follows the important phrase, “or the order entered or at least that application is to be made.”

    I think it’s plain that the Court did not intend this statement to apply to criminal contempt.

    For the three authorities which it cites at the inclusion of the statement and which are quoted at pages 17 and 18 of my brief, all hold unequivocally that actual notice or knowledge of the making of an order is a prerequisite to conviction for criminal contempt.

    The only exception and it isn’t a true exception at all as stated by Daniell in his chancery pleading and practice as follows.

    If the party remains in Court until the order is about to be made, he cannot by leaving at that instant, avoid its consequences.

    Now, a situation that Daniell described was of course not the situation here.

    The petitioners were not in Court on July 2nd when the order was about to be made nor did they leave at that instance.

    The notice theory of the Hall case is not only contrary to the authorities cited in the Pettibone case but as wholly unprecedented.

    For as Judge Biggs stated in his dissent, the doctrine of constructive notice and that’s what this really comes down to as I see it and as Judge Biggs did, has never before been substituted for proof of knowledge in a criminal contempt proceeding or in any other criminal case.

    And in the case of In re Lennon decided by this Court in 166 United States and cited by the respondent in its brief, the Court flatly stated that proof of actual notice of an order is a prerequisite to a conviction for criminal contempt of the provisions of the order.

    Moreover, as I show in my brief and as Judge Biggs pointed out in his dissent in the Hall case, the notice there is not only contrary to authority but denies the accused, the presumption of innocence and violates due process.

    The second error in the notice theory of guilt is that the charge against petitioners was not that they had notice of the order as a matter of law but that they had actual knowledge of its existence.

    Having been tried on the latter charge, their convictions cannot be sustained on an entirely different theory of guilt.

    And finally, the notice theory is untenable because while petitioners, as it appear in the evidence, were told to appear in the court on July 2nd.

    There was no evidence that they were informed or knew that application for a surrender order would be made on that day.

    John J. Abt:

    And there was therefore, no proof that they had knowledge of the application.

    Indeed, as appears from the written opinion in the Green case, again in the record 67, the trial judge made no — made no finding that the petitioners had knowledge that an application for the surrender order would be made.

    All that he found was that petitioners were told to be in Court on July 2nd.

    The Government in its brief, deliberately, I think confuses the knowledge and notice theories of guilt and argues as there were no distinction either in fact or in law between them.

    It contends that the evidence shows that on June 29, 1951, petitioners knew that the entry of an order for their surrender — and I quote from the Government’s brief was both “certain and imminent.”

    From this, the Government argues that on July 2nd, petitioners must have known, and again I quote from their brief, “that the order they had every reason in the world to expect had in fact issued.”

    Thus, the Government’s contention is that petitioners had actual knowledge of the issuance of the order of July 2nd because prior to July 2nd, they knew with certainty that it would issue.

    Now, it seems to me that this argument revolves an obvious logical uncertainty for it is impossible to prove that petitioners knew that an order had been entered on the basis of evidence of what they knew or did before it wasn’t.

    Moreover, as the Government concedes, the Dennis fugitives appeared to be the only person in the whole course of our law against whom a surrender order was issued after they had absconded.

    Accordingly, nothing had occurred prior to July 2nd could possibly have conveyed to them the knowledge that on that day, the Court would invoke a unique procedure which no judge or prosecutor had ever in the history of our law thought of before.

    To use the Government’s phrase, they had every reason in the world to expect that they’d be treated like all other absconders.

    That is to say that their bail would be forfeited and a bench warrant issued for their arrest and that’s all.

    Now, obviously, if that’s all that had occurred, they could not have been convicted of contempt.

    Could they have been convicted of anything?

    John J. Abt:

    They couldn’t been convicted of anything, Your Honor.

    As of that time — as of today, they could have been convicted under 18 United States Code 3146 adopted or passed by Congress in 1954 which makes a bail jumping a crime.

    William O. Douglas:

    What is that?

    18 U.S. —

    John J. Abt:

    Yes.

    3146, Your Honor.

    More than that, it follows from the Government’s own logic that the petitioners must have known of the existence of the order upon its issuance on July 2nd.

    Yet the Government makes no such claim.

    It says only that petitioners must have learned of the order and I quote from their brief at page 24, “At some point during the long period when they were in hiding.”

    But the Solicitor General cites no evidence and there is none as to when or how petitioners acquired this information.

    It is reduced to suggesting that petitioners must have read newspaper reports of the entry of the order and that the Court should take judicial notice that they did so.

    That’s the best that the Government can order — offer in the satisfaction of its burden of proof of knowledge.

    Hugo L. Black:

    Does the new statute thread on the subject of notice or knowledge?

    John J. Abt:

    No, Your Honor.

    It provides simply that anyone who — a defendant who is obliged on bail and who jumps bail is criminally liable.

    Makes — makes simply makes bail jumping as such a crime irrespective of the issuance of any order for declaratory —

    Hugo L. Black:

    (Voice Overlap)

    John J. Abt:

    Pardon?

    Hugo L. Black:

    (Inaudible)

    Thats all right.

    John J. Abt:

    Knowledge as in the statute, anyone who knowingly fails to appear on his appearance (Inaudible) on bail.

    All that is stated, the Government’s position is that the petitioners, two Communist committed an obstruction of justice so flagrant that they are to be punished without regard for the presumption of the innocence or requirement of proof beyond a reasonable doubt and the guarantees of due process.

    Now, certainly, petitioners conduct was reprehensible but the violation of fundamental procedural rights on which their contempt — convictions were based does not indicate the majesty of the law but defiles it, I submit.

    My second point is that disobedience of an order for the appearance or surrender of a defendant enlarged on bail is not punishable as a contempt.

    Exhibit A in support of this proposition is the fact that the four Dennis fugitives are the first and to date the only absconders in the entire history of Anglo-American law who have been prosecuted for contempt of an order for their appearance or surrender.

    In all other cases, absent a statute making bail jumping a crime, the practice in this country has been simply to forfeit the defendant’s bail and issue a bench warrant for his arrest.

    As I shall attempt to show the use of the contempt power to punish the petitioners and the other Dennis absconders is not only unprecedented but it is also unauthorized.

    First, as this Court has held and as the Government acknowledges, the contempt jurisdiction of the federal courts under Section 17 of the Judiciary Act of 1789 was utmost coextensive with the contempt jurisdiction that existed as common law.

    But the common law did not punish absconding as a contempt.

    Instead, it employed a process of outlawry which became final only upon the failure of the fugitive to appear after his presence had been demanded in five successive county courts.

    If he surrendered before the fifth demand for his appearance, he was not held in contempt for disobedience of the prior demands but suffered no punishment whatsoever.

    Since absconding in violation of an order for the appearance or surrender of a defendant was not a contempt to common law, it was not punishable as such under Section 7 of the Judiciary Act, the first Judiciary Act.

    I demonstrate in my brief, pages 23 and 24.

    I can’t repeat the demonstration here that neither the Act of March 2nd, 1831, nor Section 401 of Title 18 under which the petitioners here were prosecuted, enlarged the categories of orders for disobedience of which the contempt power was available under the first Judiciary Act.

    Accordingly, disobedience of a surrender order, if it couldn’t have been punished as a contempt under the first Judiciary Act, is not punishable under Section 401.

    The Government argues that since disobedience of a subpoena is punishable as a contempt, the same remedy should be available for disobedience of an order for appearance for surrender.

    Thus, the two orders — the two kinds of main process are very much alike.

    But there are two crucial differences between the two.

    In the first place, disobedience of a subpoena was always punished as a contempt of common law, the file as I have shown, disobedience of his surrender order was not.

    In the second place, contempt is the only remedy for a violation of the subpoena in the absence of a statute of course, making it a crime.

    While there has always been other means of indicating the authority of the Court against absconders, that is to say the process outlawry until the Government’s disuse and today a forfeiture of bail and arrest.

    Have you any early cases where an attempt was made to use the contempt power for the failure to surrender and refuse —

    John J. Abt:

    Yes.

    — or it’s simply the absence of cases, is that what you —

    John J. Abt:

    Simply the absence of cases, sir.

    Absence of a case.

    John J. Abt:

    Never — no reported case of such of a prosecution.

    There are two state cases cited in my brief in which a contempt proceeding was instituted against a defendant who failed to appear but of course no order for the appearance had been made.

    The Court — courts in both those state cases held that — obviously there was no contempt because there — there was no order if — no disobedience to any order.

    But there never has been a case, Your Honor, reported case anywhere in England or in this country, of a prosecution of this character.

    And since as I say other remedies have been available or violations for bail jumping or for violation of an order for appearance or surrender, there is no foundation and necessity for the unprecedented use of the contempt power against the Dennis fugitives.

    Finally, this judicial innovation and it’s surely was that has been employed, I think, in a discriminatory and indicative manner which should condemn it.

    For it was invoked for the first and the last time at the height of the anti-communist hysteria against four communists as a device for keeping additional punishment upon them over and above their sentences for a political crime.

    The third and the final point that I shall argue is that the trial court was without power to sentence petitioners to prison terms in excess of one year.

    The point presents a question which this Court has never had occasioned to consider, that is, do the federal courts have unlimited power to punish criminal contempts by penitentiary sentences or any term whatsoever including 99 years or life time?

    Petitioners believe that this question must be answered in the negative.

    It is our position that the power of the federal courts to punish criminal contempts is restricted to the imposition of sentence as in the case of offenses which are not infamous.

    Now, since 1885, an infamous offense, as been defined by this Court as one which may be punished by confinement in a penitentiary.

    That was first held in Mackin versus United States.

    Section 4083 of Title 18, authorizes confinement in a penitentiary where the term is for more than one year.

    It follows that all of offenses that may be punished by imprisonment or a term of more than a year are infamous.

    Hence, if contempt is not an infamous offense, it may not be punished by a sentence in excess of a year.

    To put my position in other words, it is that a criminal contempt as misdemeanor and not a felony as these two terms are defined in Section 1 of Title 18.

    The conclusion that criminal contempt is not subject to infamous punishment is required, I believe, by Section 401 of Title 18.

    By Section 24 of the Clayton Act, now Section 402 of Title 18 and by Rule 7 (a) of the criminal rules.

    Moreover, a contrary conclusion should be avoided that that is possible and I think it is, because such a conclusion would violate the requirement of the Fifth Amendment that infamous crimes must be prosecuted by indictment.

    I first consider Section 401.

    That Section in language derived from the Section 17 of the first Judiciary Act, authorizes a court to punish contempts by fine or imprisonment at its discretion.

    Now, the Government, like the court below, argues that the phrase “at its discretion” answers the question how long a term of imprisonment which is normally answered to — in a criminal statute by a specific number of years and answers that question, how long a term of imprisonment by leaving the length of a sentence to the discretion of the Court.

    However, the relevant question to which an answer must be sought from Section 401 is not as to the length of the sentence but as to its character, that is to say whether or not the section authorizes infamous punishment.

    Now, when the reference to discretion was written into Section 17 of the first Judiciary Act in 1789, there was no statute on the books like Section 4083 of Title 18 which determined the character of a sentence by reference to its language.

    Indeed, the first Judiciary Act antedated by almost a century, the emergence of the concept that confinement in a penitentiary constitutes infamous punishment while a confinement in a common jail does not.

    In 1789, it was not the place or the term of the confinement but such super added incidence of the imprisonment as hard labor or the pillory which determined the infamous character of the sentence — of the punishment rather.

    Since none of this incidence was authorized by the Act of 1789, that Act did not authorize infamous punishment for contempt as infamous punishment was conceived of at that time.

    Hence, in historical context, the phrase imprisonment at its discretion that now appears in Section 401, does not authorize infamous punishment for contempt even if it’s to be said to give the Court discretion over the length of the sentence.

    The very best I think that can be said of the punishment provisions of Section 401 is that they’re ambiguous.

    John J. Abt:

    That would be true under the rule of strict constructions, the punishment may not be infamous.

    My brief cites a long line of state court decisions to that effect including one that arose under a contempt statute, an Oklahoma statute substantially identical with Section 401 which it was held that the statute for the reasons I’ve indicated didn’t authorize infamous punishment.

    Furthermore, the fact is that the limitation on the power to punish which as I’ve tried to show was inherent in Section 401 and its predecessors was adhered to in practice from 1789 until 1916.

    During that entire period, there was not a single reported incidence of infamous punishment for contempt in either the federal or the state courts.

    This century in the quarter of undeviating practice even if it is not required by Section 17 of the Act of 1789 and its successors, was frozen into law by Section 24 of the Clayton Act of 1914 to which I now turn.

    Sections 21 and 22 of the Clayton Act, they’re set forth at pages 84 and 85 of the respondent’s brief, required jury trials and limit imprisonment to a maximum of six months for contemptuous conduct and disobedience of a court order provided that such conduct also constitutes a crime under federal or state law.

    That’s Section 21 and Section 22.

    Section 24 of the same Act, accomplishes two purposes.

    First, it provides at the jury trial and maximum punishment provisions of Section 22 shall not apply to contempts committed in the presence of the Court or so near as to obstruct justice or to contempts like those about here of orders entered in suits brought by the United States.

    That’s the first thing that Section 24 does.

    But Section 24 does something else.

    It further provides that contempts of the kinds that I have just described and I quote, “May be punished in conformity to the usages and equity and law now prevailing”.

    The legislative history contains no discussion of the second clause which I call the prevailing usage clause of Section 24.

    But it finally provides that contempts of the kinds described in Section 24, shall be punished in accordance with the usage that prevailed in 1914 when the Clayton Act was passed.

    As I have shown, the usage that prevailed without exception from 1789 until 1916, two years after the Clayton Act, was to punish contempt as an offense not infamous.

    Hence, even were the court to hold that this limitation on the power to punish is not inherent in Section 401 and its predecessors, it was given the force of law by the prevailing usage clause of the Clayton Act.

    The sub —

    Felix Frankfurter:

    Do you — you argue that there’s a negative showing?

    That it wasn’t punished this way that there in the Clayton Act it was put in this provision according to custom etcetera.

    And since there wasn’t any case like this, therefore, there was no power to have a case like this.

    Therefore it was written impliedly into the Clayton Act, is that it?

    That’s a fair summary of your argument.

    John J. Abt:

    Except that I — I’m afraid, I’d — I’d take only one exception to your statement, Mr. Justice Frankfurter.

    I don’t — I don’t put it negatively.

    Grammar requires me to phrase it in a negative fashion because there are no positive words to say it.

    My point is that the prevailing usage — usage to prevail without exception from 1789 to 1916 was to punish offenses — punish contempt as an offense not infamous.

    Now, I —

    Felix Frankfurter:

    But — but you — you also said that the conception of infamous didn’t come until 1889 or whatever it was.

    John J. Abt:

    No, I didn’t say that, Your Honor.

    I said —

    Felix Frankfurter:

    W1hat did you say?

    John J. Abt:

    What I said was that the conception of an infamous offense is not a static concept —

    Felix Frankfurter:

    All right.

    John J. Abt:

    — social concept.

    That was an infamous offense in 17 — or what was not an infamous offense in 1789, by 1885 as been said by this Court to be an infamous offense.

    In other words, let — let me restate my point.

    In 1789, it wasn’t the place of confinement that determine whether punishment was infamous or not.

    It was abuse of the pillory or — or hard labor.

    Felix Frankfurter:

    But the whole conception of infamous to which you were addressing yourself relates to so-called technical crime, that I call technical crime, I thought it might accept that (Voice Overlap) —

    John J. Abt:

    I’m sorry, I don’t follow, Your Honor, (Inaudible)

    Felix Frankfurter:

    Where does the concept infamous crime comes from?

    John J. Abt:

    No, sir.

    But infamous crime or infamous punishment is a notion of a punishment which involves some kind of disgrace.

    Felix Frankfurter:

    No.

    I’m — I’m not talking about what the meaning is.

    John J. Abt:

    Yes.

    Felix Frankfurter:

    But where is the source of its relevance?

    John J. Abt:

    Fifth Amendment.

    Felix Frankfurter:

    All right.

    Now, so that all your talk presupposes that the concept of infamous crimes in the Fifth Amendment relates to contempts, isn’t it?

    John J. Abt:

    I think there’s more than that’s involved.

    That — that is my — that is one of my points of course.

    Felix Frankfurter:

    And I think that covers your argument.

    But that — that’s the basis and source for discussing what is an infamous crime.

    John J. Abt:

    Nobody would have talked — in this country ever talked about an infamous crime.

    I suppose that there haven’t — there hadn’t been a reference to it in the Fifth Amendment.

    Felix Frankfurter:

    No, but —

    John J. Abt:

    That’s correct.

    Felix Frankfurter:

    — that isn’t what I’m saying.

    I’m saying that in 1789 when the first Judiciary Act was written —

    John J. Abt:

    Right.

    Felix Frankfurter:

    Nobody thought of contempt in terms of crimes under the Fifth Amendment.

    That’s what I’m saying.

    John J. Abt:

    All right.

    I think I’d — I’d go further, Your Honor, I think nobody thought of it as an infamous crime.

    Felix Frankfurter:

    But before we get to infamous crimes, we have to determine whether contempt or contempts or the contempts that’s covered by the protection of the Fifth Amendment.

    If they are covered by the Fifth Amendment, then they would have had to think about infamous crime.

    John J. Abt:

    Correct.

    Felix Frankfurter:

    And so, all this elaborate argument presupposes that infamous crime covers the — that contempt equals crime, punishment probably determines rather a crime is infamous or not.

    Is that a fair statement?

    You first have to — you first have to establish that a contempt that in 1789, a contempt was covered by the protection of the Fifth Amendment.

    John J. Abt:

    I don’t think that’s necessary, Your Honor but assume it was not.

    Felix Frankfurter:

    Well —

    John J. Abt:

    Assume that (Voice Overlap) —

    Felix Frankfurter:

    I — I won’t assume something that is contrary to fact.

    But why isn’t it necessary on your argument?

    John J. Abt:

    Oh, I’d say, let us assume that contempt is not an infamous crime within the meaning of the Fifth Amendment.

    I said —

    Felix Frankfurter:

    No, that isn’t my point.

    My point is, it isn’t a crime within the Fifth Amendment —

    John J. Abt:

    Yes.

    Felix Frankfurter:

    — which is a very different story.

    John J. Abt:

    That it is not at all.

    Felix Frankfurter:

    All right.

    John J. Abt:

    Let me restate them.

    Let us assume that contempt is not a crime within the Fifth Amendment.

    Nevertheless, if the — if the usage had been as it was for 125 years to punish contempt as though it were a crime not infamous and if as I have shown, in 1914, the Clayton Act placed the limitation on the punishment for contempt.

    That limitation being the usage which previously prevailed, then it seems to me that irrespective of the Fifth Amendment that the Section 24 of the Clayton Act limits the punishment of contempt to punishment for — on infamous.

    Felix Frankfurter:

    Well, even on your hypothesis, it may not prove that it’s limited constitutionally.

    They limit it statutorily.

    John J. Abt:

    That’s — that’s my whole point, Your Honor.

    Felix Frankfurter:

    Well, I don’t — from myself, unless you — unless you stand on the proposition on which you do stand, I understand that part of the argument, namely that a contempt is covered by the Fifth Amendment, all this talk about infamous — infamous punishment is calculated I think, if I may say so, to be a foggy issue.

    John J. Abt:

    To be a foggy issue?

    Felix Frankfurter:

    Yes.

    John J. Abt:

    I don’t — I don’t believe so, Your Honor.

    Felix Frankfurter:

    I’ve — I’ve made the reservation that I understand your proposition, that contempt is a crime, then I follow you.

    John J. Abt:

    I — I have two points, Your Honor.

    First, that — and my point is I — I think this Court did never reached the constitutional question because under a proper construction of 401 and 402 as — that’s the usage clause, that the Court is without power to —

    Felix Frankfurter:

    But in order to do that, you have to establish what you’ve tried doing what I call in a negative way that the fact that you can’t produce a case during that whole period, proves that the power wasn’t there and the usage was against it.

    That nonexistence of a usage proves the usage.

    John J. Abt:

    Correct, Your Honor.

    Felix Frankfurter:

    All right.

    John J. Abt:

    The substance of Section 24 of the Clayton Act was incorporated in Section 402 of Title 18 when the criminal statutes were revised and codified in 1948.

    The codification modified some of the wording of Section 24, but as my brief shows and as the Government does not deny, the codification did not alter the substance of the original enactment and these are adviser’s notes to Section 402 which were made a part of the House and Senate committee reports specifically state that the changes in phraseology did not change the meaning or substance of Section 24.

    Accordingly, Section 402 like its predecessor codifies the usage which prevailed in 1914, prohibits infamous punishment for contempt and by virtue of Section 4083 of Title 18, limits the maximum sentence for contempt for one year.

    The Government makes two replies to this contention.

    First, it says that if Section 24 of the Clayton Act had been intended to set a maximum prison term for the contempts excluded from Section 22, Congress would have done so by expressly limiting the sentence to one year.

    In effect, the Solicitor General argues that because the prevailing usage clause employs what he characterizes as certain elocutionary language, the clause should be disregarded altogether.

    Or he insist that the sole purpose of Section 24 was to confine the jury trial and six months sentence provisions of Section 22 for the type of contempt described in Section 21.

    As I have shown, however, that purpose was accomplished by these explicit provisions of the first clause of Section 24.

    Hence, the respondent’s reading of Section 24 makes the prevailing usage clause completely redundant.

    Second, the Government cites a number of federal cases subsequent to the enactment of the Clayton Act in which contempt sentences of more than one year were imposed.

    Before coming to these cases, I want to say a word about state law on the question.

    There have been only three reported instances of infamous punishment for contempt in the state courts and in all three of these cases the sentences were reversed as beyond the power of the Court to impose.

    Currently, the punishment for contempt is regulated by statute in 36 states.

    Earl Warren:

    Mr. Abt, was it on this — this ground that you’re talking about now?

    John J. Abt:

    Well, we’re not on the statutory ground, Your Honor.

    That is some of the particular statutory grounds I discussed.

    In one of the cases it was reversed on constitutional ground, the grounds that Mr. Justice Frankfurter was discussing a moment ago.

    And the other two, the reversal was on the ground that unless the statute specifically and expressly provides for infamous punishment, infamous punishment may not be imposed.

    John J. Abt:

    In furtherance, I say the punishment for contempt is regulated by statute in 36 states.

    I summarized the statutes at page 45 of my brief.

    None of them authorizes infamous punishment.

    Nineteen states fixed the maximum term at 30 days or less and of the 29 states which specify the length of the sentence, only two authorize imprisonment for a period as long as one year.

    I turn now to the federal authority.

    Since 1914, the date of the Clayton Act, there had been nine reported cases in which infamous punishment, that is sentence of more than one year, has been affirmed.

    With one exception, however, the question of the power of the Court to impose infamous punishment was not raised or considered in any of these cases.

    The exception is Creekmore versus United States decided by the Eighth Circuit in 1916, two years after the enactment of the Clayton Act.

    The decision, however, does not mention the prevailing usage clause which evidently had not been called to the attention of the Court.

    This Court has affirmed a criminal contempt sentence of more than one year in only case, Hill versus United States decided in 1937.

    All that that case decided, however, was at the maximum sentence of six months specified in Section 22 of the Clayton Act is inapplicable to contempt for disobedience of an order entered in an action brought by the United States.

    Thus, the Court in this case is free to write on a clean slate.

    Now, I don’t suppose that there can ever be a dogmatic answer to any novel question of law.

    And this is certainly, particularly true when the question lies in the difficult area of statutory construction.

    But it seems to me that it’s not necessary to establish that mine is the only possible interpretation of the contempt statutes which I have discussed and of Rule 7 (a) of the Criminal Rules which I discussed in my brief (Inaudible) further here.

    It is enough for the purposes of this case that the interpretation for which I contend is tenable.

    If so, I submit it should be adopted for a contrary conclusion would pose a major constitutional question which as this Court has so often held should be avoided if possible.

    The question is one which the Court has never had occasion to decide.

    It arises from the requirement of the Fifth Amendment that infamous crime, that is crimes that are punishable by infamous punishment must be prosecuted by indictment.

    The Government contends that the question is insubstantial because criminal contempt is sui generis and hence is not a crime within the meaning of the amendment.

    But I think that the question cannot be so lightly dismissed.

    As Mr. Justice Holmes said of criminal contempts in the first (Inaudible) case and I quote him.

    “If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech”.

    Accordingly, many constitutional and statutory provisions for the protection of those accused of crime had been held applicable to prosecutions for criminal contempt including such the other guarantees of the Fifth Amendment against double jeopardy and compelled testimony against one’s self.

    Felix Frankfurter:

    Well, he didn’t say that with reference to any constitutional protection, did he?

    John J. Abt:

    No, Mr. Justice Holmes did not.

    Felix Frankfurter:

    No.

    John J. Abt:

    But the fact is that —

    Felix Frankfurter:

    This has to do with statute of limitation.

    John J. Abt:

    The statute of limitations, of course, Your Honor.

    Felix Frankfurter:

    Yes.

    John J. Abt:

    But the fact is that this Court has held for example that the double jeopardy and provision and the guarantee against compelled testimony of the Fifth Amendment are applicable to criminal contempt.

    The exception is the holding that criminal contempt sui generis with respect to the constitutional requirement of a jury trial in criminal cases.

    As I show in my briefs, this exception appears to rest on an erroneous reading of history.

    And the court below agreed that was the case.

    Certainly, a substantial constitutional question as presented by the decision below and the contention of the Government which would compound this error of history by a ruling that criminal contempt is not a crime within the indictment requirement of the Fifth Amendment.

    The construction of the contempt statutes and of Rule 7 (a) of the Criminal Rules for which I contend avoids the constitutional question.

    It equates the power of federal judges to punish criminal contempt with the power that they exercise during the first century and a quarter of our history and which still prevails in every state and it implements what seems to me to be the sound democratic principle that no court should be called with limitless power over the extent and character of the punishment that it may impose.

    To conclude, as I have shown, the cases of petitioners and the other two Dennis’ fugitives are wholly without precedent in three respects.

    First, in the use of the contempt power as a device for punishing absconders.

    Second, the theory of the evidence on which their convictions were faced and third in the severity of their sentences.

    In each of these respects, the convictions and sentences are not only unprecedented but are unauthorized by law and impinged on constitutionally protected rights.

    A reversal, I submit, is therefore required.

    Earl Warren:

    Mr. Spritzer.

    Ralph S. Spritzer:

    Mr. Chief Justice, Your Honors.

    I shall attempt to address myself to the questions which have been presented by petitioners in the same order that petitioners’ counsel had done so.

    That brings me first therefore to the contention that the Government failed adequately to prove in this case that the petitioners had knowledge of the order which they were charged was willfully violated.

    I’d like to review very briefly the sequence of events, the circumstances which bear on the question of proof of knowledge.

    Perhaps first, I should say that we contend on two bases that this aspect of the Government case was made out.

    The first is that petitioners are chargeable as a matter of law with knowledge of the order which was ultimately issued and the second is that there was an adequate basis for the Court’s finding that there was in fact such knowledge on their part.

    Now, the sequence of event is I think important.

    As pointed out earlier, the petitioners were out on bail during the course of their appeals from the conviction in the main case.

    The affirmance by the Second Circuit took place in 1950 and this Court’s decision in the Dennis case was handed down on June 4, 1951.

    Thereafter, an application was made to Mr. Justice Jackson for a stay of this Court’s mandate.

    It was denied.

    The United States attorney thereafter proceeded on June 28, 1951 to serve a notice on all of the defendants in the Dennis case.

    That notice was served together with a proposed order and it appears in the record at page 57 of the notice and then the order which was ultimately signed by Judge Ryan appears on pages 59 and 60.

    Your Honors will note that that is an order on mandate which is specific, which is complete in its detail, down to the point that it provides that the defendant shall surrender themselves in room 318 of the courthouse at Foley Square on the 2nd of July at 11:05 in the forenoon.

    Your Honors, will also note from the notice of settlement of that order on page 57 that the application for the signature of this order was to be presented at 10 o’clock on July 2nd.

    In substance then, the U.S. Attorney put the defendants in the Dennis case on notice.

    Ralph S. Spritzer:

    That on July 2nd in the morning and July 2nd was a Monday, he would present to the Court for signature an order which would require them to surrender themselves for their — for the service if their sentence that same morning.

    Now, as I say, this notice of settlement and the proposed order was served on June 28.

    On June 29, Friday, June 29, petitioners through their counsel, went before Judge Ryan who was the judge scheduled to sit in criminal motions for the following Monday.

    And as petitioner’s counsel has pointed out, they make certain motions.

    One of the motions or applications which they presented to Judge Ryan on Friday, June 29 was their request made on behalf of all of the Dennis defendants that the dates for their commitment, they put over until after the July 4th holiday.

    Judge Ryan did not grant that motion.

    He did not act on any of the applications made.

    He did tell the petitioner’s counsel that he wanted them to be sure to bring all of the defendant into the courtroom on the following Monday morning.

    The counsel agreed to do so.

    And as testified later at the hearing on contempt, counsel, did in fact inform all of the Dennis defendants that they were to be in court on the following Monday morning.

    Now, against this background of facts —

    (Inaudible)

    Ralph S. Spritzer:

    The 29th, a Wednesday.

    (Voice Overlap)

    Ralph S. Spritzer:

    At page 11.

    There is a — some of that colloquy comes in the form of a quotation of the earlier colloquy given at the ultimate hearing on contempt.

    Now, these circumstances that are just recited seem to us to show that the petitioners on June 29, certainly, knew that the entry of the order on mandate was certain and imminent.

    Incidentally, I have not mentioned that appears also that the reason of the hearing was set for July 2nd was that that was date that it was anticipated that this Court’s mandate was going to be received by the District Court.

    In other words, the U.S. Attorney had ascertained when this Court’s mandate would come down and he had learned apparently that it was going to be there by the second and therefore filed — prepared an order which would have permitted the Dennis defendants on that day.

    In addition to being aware of the proposed order which had been served on their counsel, petitioners were aware that the United State’s attorney and subsequently Judge Ryan on June 29 had not favorably entertained a request to put over the date of the commitment until after the July 4th holiday.

    We submit in a word that petitioners knew that the end of the road has been reached and that they were about to be required to begin asserting their sentences.

    So notified, we think, petitioners could not disappear on the eve or the virtual eve of the date of surrender and then claim that they were not chargeable with knowledge of the order as issued.

    Anymore, we think, than somebody who knows an injunction is about to issue can go out and change the facts and put the matter beyond the jurisdiction of the Court before the judge puts it in to paper.

    Anymore we think, than someone about to be served and knowing he is about to be served with an order for production of document can go out and say, “We’ve got to hurry and burn the papers, the judge is just about to sign the order.”

    Now, we think that is the fair meaning of the rule stated in the Pettibone case to which Mr. Abt earlier made reference.

    As the Court will recall, it was said in that case that somebody is chargeable if he had — or is not chargeable unless he at least has notice of the pendency of the proceedings or that an application is about to be made.

    Now, here we say, petitioners knew far more than that an application was to be made.

    Well, they not only has this notice of settlement, they have seen the proposed order complete in its detail —

    Hugo L. Black:

    The defendants have seen it?

    Ralph S. Spritzer:

    At least their counsel had.

    Ralph S. Spritzer:

    And they were further aware that they had been summoned through their counsel by Judge Ryan to be in court on Monday morning, July 2nd.

    Suppose the order was submitted on the 2nd of July —

    Ralph S. Spritzer:

    Yes, sir.

    (Inaudible)

    Ralph S. Spritzer:

    Counsel in court with —

    (Voice Overlap)

    Ralph S. Spritzer:

    — all the four of the Dennis defendants.

    Surrendered — he surrendered at the time of — in a matter of minutes (Inaudible)

    Ralph S. Spritzer:

    Yes.

    (Inaudible)

    Ralph S. Spritzer:

    This record does not show, I presume from what is shown here that the request to put the date of surrender over until after July 4th was renewed.

    (Inaudible)

    Ralph S. Spritzer:

    No, sir.

    It’s not?

    Ralph S. Spritzer:

    No, it was not over to them.

    On June 29th, they said to Judge Ryan, “We’d like to have a later date.”

    Judge Ryan didn’t take final action.

    He just said the lawyers will — I’ll see about that later but you’re going to have your people in court Monday morning.

    So, I assume they renewed that request.

    I’m speculating that — I suppose they did at that time.

    (Inaudible)

    Ralph S. Spritzer:

    Yes, sir.

    On July 2, of course, as Your Honors know, all of the defendant — Dennis defendants except four, including these two petitioners appeared, these two petitioners were absent for four and one half years thereafter.

    William J. Brennan, Jr.:

    Mr. Spritzer, I understood you to say did I not that the order handed to the notice of June 29th or whatever day that was (Inaudible) is in the typed form that the order was July 2 as entered?

    Ralph S. Spritzer:

    There’s no indication that any change was made in the order.

    It was (Voice Overlap) —

    William J. Brennan, Jr.:

    Inclusive even to the date as I understand it.

    Ralph S. Spritzer:

    Pardon.

    William J. Brennan, Jr.:

    Inclusive even to the date, the date, July 2, 1951 appeared as I am — do I correctly understand as it was the text (Voice Overlap) —

    Ralph S. Spritzer:

    Oh, yes.

    Ralph S. Spritzer:

    The proposed — the order Your Honors see on pages 59 and 60 is the signed order which corresponds — presumably it’s the same copy as the original, the proposed order.

    There’s no suggestion as I think, petitioner’s counsel agrees that there was any variation between the proposed order as served with the notice of settlement and the order as ultimately signed several days later by Judge Ryan.

    Tom C. Clark:

    That’s the notice on page 10 in the record, is that the same notice (Inaudible)

    Ralph S. Spritzer:

    I think so, yes.

    Tom C. Clark:

    Now, (Inaudible) when there were some objection over illegality — of the alleged illegality of the notices, is this the same notice?

    Ralph S. Spritzer:

    Yes, sir.

    There were no other notices in the — in the contempt aspects in the course that I am familiar of.

    Felix Frankfurter:

    Have you had any difficult, Mr. Spritzer that the logical argument that one cannot very well disobey an order that that is not in existence?

    Ralph S. Spritzer:

    Well, I’ve been arguing up to this point, I think that the circumstances are sufficient to make out.

    The petitioners are chargeable with knowledge because they could not defeat the process of the court knowing that the Court was about to act by closing their ears or running away or covering their eye.

    Felix Frankfurter:

    Chargeable with knowledge, what was known by them — it’s chargeable with knowledge of what happened up to the time that you charge them with it.

    Ralph S. Spritzer:

    Yes, sir, I think that —

    Felix Frankfurter:

    But you go beyond that as a logical argument and you charge them with disobeying something that hasn’t existed certainly when they took to heal.

    Ralph S. Spritzer:

    Well, I think it’s — now, I guess to the case I mentioned before, a party to a civil proceeding goes in to Court to apply for an order of production and he gets the matter set for hearing before a judge.

    The other party gets wind of it and says, “I’m going to defeat this possibility before the order is entered.”

    It seems to me that in those circumstances, the law in order to protect his own processes must hold that the party who knew the action to be pending may not without committing contempt of the Court altered the situation so as to place it beyond the capacity of the Court to deal with it.

    Felix Frankfurter:

    Well, you may — you may — I’m not denying what you’ve said but one may say that you — it doesn’t follow because you can charge them with contempt of frustrating in order to be made that he has violated an order that had not been made.

    Ralph S. Spritzer:

    Well, I — I think the way in which the law has put that is in terms of saying he is chargeable as a matter of law with knowledge.

    Now, I think further —

    Felix Frankfurter:

    You — you may be chargeable with knowledge that there will be an order but has he (Voice Overlap) —

    Ralph S. Spritzer:

    No.

    Felix Frankfurter:

    — because there is a logical problem there, isn’t there?

    Ralph S. Spritzer:

    Well, I think he becomes responsible for the situation that he has created if the order then does issue.

    Felix Frankfurter:

    It may be — this may be a question in a larger sense of pleading maybe that he’s been put into contempt for something or that he should have been put into contempt for something else for — for aborting that which he well knew within due course come to pass.

    That’s really what he did, didn’t he?

    Ralph S. Spritzer:

    Well, I have a further point to make on this question of knowledge because petitioners made rather elaborate statements not to be sure in Court but in press releases and in press interviews contemporaneous — contemporaneously with their surrender four and a half years later.

    Those statements were made a part of the record at the hearing on contempt.

    Now, in those statements, petitioners flatly asserted that they took flight as a means of asserting resistance to and protest against the decision of the Court in the main case and as a means of publicizing their cause.

    More pointedly, their statements show that petitioners knew they were fugitives during the entire period of their absence.

    They — they stated that, we are ceasing on such and such a date to be fugitive.

    Ralph S. Spritzer:

    The choice we made five years ago, we made for such and such reasons.

    So we think that this was a calculated matter.

    There was no question about the motive for departure.

    There is a further point to be made in the same connection.

    Petitioners didn’t become fugitives until an order did issue.

    A recognizance did not contain a direction to appear at any specific time and place.

    They were at liberty under that recognizance until further order of the Court.

    The recognizant appears at pages 55 and 56, I believe, of the record.

    Your Honor will note beginning at the bottom of that page and on the —

    Felix Frankfurter:

    Could you (Voice Overlap) —

    Ralph S. Spritzer:

    — top of the next page.

    Felix Frankfurter:

    What page Mr. —

    Ralph S. Spritzer:

    55 at the bottom.

    Felix Frankfurter:

    Thank you.

    Ralph S. Spritzer:

    56 at the top.

    That they are to surrender if the judgment appealed from shall be affirmed on such day or days as well.

    To surrender on such day, the Court may direct or in the event of retrial, on such a day or days as the Court may direct.

    Therefore, I think it’s fair to say that petitioner’s acknowledgement that they were knowingly fugitives from justice during the entire period of their absence, carries with it by necessary implication, knowledge that the Court had acted.

    That it had not continued their enlargement on bail but had entered the order which terminated such enlargement.

    I turn then secondly to petitioner’s argument that willful disobedience of an order to surrender for — for commitment should not be deemed a contempt.

    Well, does that acknowledge — then you take the position, it’s not necessary for you to prove as a matter of mathematical or geometrical demonstration but as a matter of beyond reasonable doubt, that’s all you have to do.

    Ralph S. Spritzer:

    Yes, sir.

    We take the position that it was inferable from the fact that they knew and also that those same facts and circumstances made them chargeable as a matter of law with knowledge.

    Could you do that in any criminal offense that’s new — that’s recognized as a criminal offense, hold a man guilty on the matter of being chargeable as a matter of law —

    Ralph S. Spritzer:

    I think the —

    — was a crucial point in the case?

    Ralph S. Spritzer:

    I would think that there were many —

    I can’t — I can’t understand —

    Ralph S. Spritzer:

    — situations in which knowledge was attributable on the basis of circumstances.

    Well, I can understand that if you have circumstances sufficient.

    But apart from circumstances, you say sufficient, do you know of any instance in which in a criminal case, a man charged with a felony, let us say, he can be found guilty on lack of evidence on a crucial point on this premise that he is chargeable as a matter of law with that knowledge.

    Ralph S. Spritzer:

    I don’t think that one could invoke a theory of chargeable as a matter of law in a situation where there was not a wholly rational basis for making —

    So that’s a method — that then would be (Voice Overlap) to the fact —

    Ralph S. Spritzer:

    For a holding, it was possible.

    Pardon?

    That would be sufficient to hold it as a fact.

    Ralph S. Spritzer:

    Well, I think that the same circumstances which support the inference of fact, supports the strong policy consideration that you won’t permit a person to say, “I didn’t know because I closed my eyes. Even though I was told a few seconds ago that it was going to happen.”

    In that kind of situation, I think there is no unfairness in attributing knowledge.

    I don’t see how the law could operate in respect of many of its orders if it were open to parties as soon as they ascertain that the Court was going to act in order to preserve a situation to change it, and thus, to frustrate the process of the Court.

    You say as a matter of policy but is there any policy that’s stronger in the law so far as crime is concerned, the question of proof beyond a reasonable doubt.

    Ralph S. Spritzer:

    Well, I —

    I’m not talking about your other — your other point to your argument.

    Ralph S. Spritzer:

    Well, I would — I would certainly agree with the — with Your Honor that this chargeable as a matter of law cannot be invoked in a situation where it would be arbitrary and then obvious fiction.

    I think it is anything and but (Voice Overlap) —

    But can it be — can it be invoked unless there is proof beyond a reasonable doubt is the question I asked.

    Ralph S. Spritzer:

    I’m sorry, I did not.

    The question I’m — understand is, can it be invoked unless there is proof beyond a reasonable doubt of a crucial fact upon which guilt or innocence depends?

    Ralph S. Spritzer:

    Well, I think there must be proof beyond a reasonable doubt but I think that the law can imply knowledge in certain circumstances where to fail to do so would be to permit the party to set the law — not and where the presumption or inference of — as of law is a rational one —

    Do you think it could come in conflict with —

    Ralph S. Spritzer:

    — as I will think it to be here.

    Come in conflict with (Inaudible) against the United States?

    Ralph S. Spritzer:

    No, I think this was not because I think the presumption that these people knew that the order had issued.

    When they knew that it was certain and imminent and they fled on the eve of the departure, and then the order did in fact issue and was a public matter is not arbitrary.

    But I think in any event, if Your Honors disagree with that as to that that the admission by the petitioners, when they surrendered that they knew the entire time they were gone that they were fugitives with the fact from which the Court could infer that there was actual knowledge taking that together with the sequence of events leading up to their departure.

    Felix Frankfurter:

    Mr. Spritzer, mine is a much narrower point, namely, not that the law hasn’t — the means for dealing with the situation whereby a man frustrated either the production of documents or the production of himself but that the act of frustration may be the basis — may be later the basis for contempts rather than the fact that he violated something which he’s prevented from coming to pass, namely, that he should be in Court when he was told to be in Court at 2 o’clock.

    So, that — I — I just want to indicate that —

    Ralph S. Spritzer:

    I think —

    Felix Frankfurter:

    I don’t think there’s impotence on the part of the law to deal with this kind of a situation but maybe a problem really of pleading.

    So we have (Voice Overlap) some cases —

    Ralph S. Spritzer:

    Well, I think there might be impotence.

    Felix Frankfurter:

    Pardon me?

    Ralph S. Spritzer:

    I think there might be impotence if you couldn’t proceed on the basis of disobedience of an order.

    Felix Frankfurter:

    Well —

    Ralph S. Spritzer:

    I think we rest on the fact that an order was issued.

    I would not argue that if the petitioners here had left New York and absconded the day after this Court’s Dennis decision that there would have been a contempt.

    Felix Frankfurter:

    I — haven’t — we’ve had some cases here in which the Court divided on other than — other aspects about making a crime, the failure to be at a particular place.

    Would the — what do you call that cases, service cases, that a man should report, didn’t we have cases in this Court?

    Ralph S. Spritzer:

    For induction in military service?

    Felix Frankfurter:

    For induction, yes.

    Ralph S. Spritzer:

    Yes.

    Felix Frankfurter:

    That is —

    Ralph S. Spritzer:

    (Voice Overlap) —

    Felix Frankfurter:

    Then he’s told to be in Baltimore next Monday and he isn’t there.

    Now, is there any comparison between that and this?

    Ralph S. Spritzer:

    Well, I think here, we are operating under 18 U.S.C. 401 which would not be applicable in the case (Voice Overlap) —

    Felix Frankfurter:

    No, no, of course not.

    But I mean the fact — the non-action, the non-appearance when there is a knowledge of a duty to appear, create the responsibility, the violation of which is just as much within the competence of — of the law as — as knocking a man down.

    Ralph S. Spritzer:

    Oh, certainly, I — I would certainly think there was no doubt that if the contempt power is to be efficacious at all, if the courts can implement their orders that they have to implement them whether the violation is affirmative action or inaction.

    Hugo L. Black:

    I’d like to ask you one other question because I’m a little surprised that the statement made, made it correct, statement made by Justice (Inaudible) to the effect that there was no — it was — could not be a crime to conspire or to plan with others to obstruct toward the Chief Justice by refusing to be present to await the final action of the Court, is it?

    Ralph S. Spritzer:

    Well, I don’t know that there’s any —

    Hugo L. Black:

    At any statutory crime?

    Ralph S. Spritzer:

    — indication that there could have been a basis for charging conspiracy here.

    Hugo L. Black:

    But is there any — any — do you concede that it’s not a violation of any statute to do this and then there’s no statute of recovery?

    Ralph S. Spritzer:

    Leaving out the elements of conspiracy.

    Hugo L. Black:

    Leave — well — well, yes.

    We’ll first leave out the element of conspiracy to obstruct justice, that wouldn’t cover it?

    Ralph S. Spritzer:

    I think —

    Hugo L. Black:

    (Voice Overlap) looked at it.

    I — I said I haven’t looked at the statute so I’m just asking.

    Ralph S. Spritzer:

    Well, it is now of course, there’s a —

    Hugo L. Black:

    I know now.

    Ralph S. Spritzer:

    Under the 1954 —

    Hugo L. Black:

    — because it specify this particular conduct.

    Ralph S. Spritzer:

    I think —

    Hugo L. Black:

    There’s no other statute under which he could have been charged with violating a criminal law.

    Ralph S. Spritzer:

    No, none that I know of.

    Hugo L. Black:

    If it was a conspiracy between them to do that, could they have been —

    Ralph S. Spritzer:

    Then I think it would have been under the — concluded in the family of offenses which relates to conspiracy to obstruct justice.

    Petitioners, I may say don’t contend and they never contended that this was an independent crime —

    Hugo L. Black:

    I can understand that on that one.

    Ralph S. Spritzer:

    Well — or that there was any avenue other than the contempt process which would had — which was open to the Government.

    William J. Brennan, Jr.:

    Mr. Spritzer.

    Ralph S. Spritzer:

    Yes, sir.

    William J. Brennan, Jr.:

    I wondered, did I correct you — correctly understand you to argue on this matter of knowledge and the order alternatively that from the facts and circumstances, knowledge of the order is to be implied as a matter of law or that from the facts and circumstances justifiably beyond a reasonable doubt, actual knowledge maybe incurred?

    Ralph S. Spritzer:

    Yes, sir.

    William J. Brennan, Jr.:

    Is that it?

    Ralph S. Spritzer:

    Yes, sir.

    William J. Brennan, Jr.:

    And you’re doing it alternatively and not arguing — or standing in one or the other.

    Ralph S. Spritzer:

    We’ve argued both from (Inaudible).

    Turning to the second argument that petitioners had made, it is that contempt doesn’t cover willful disobedience of an order to surrender for commitment.

    Now, of course, 18 U.S.C. 401 covers willful disobedience of any lawful order of the Court.

    And therefore, what petitioners are saying is that this Court should carve out an exception for the class of orders of the type here involved.

    And it supports that by saying that there are no common law cases involving the matter of treating absconding as a contempt and therefore, the argument is, you shouldn’t regard it as within the historic framework or historic meaning of contempt to court as used in these country’s contempt statutes since 1789.

    Now, we think to rely on the common law here is to look at history through blinders.

    It’s true that one who was indicted for a crime at common law and then failed to appear at his trial was not attached for contempt but the reason was that the common law had available to it, what was a greatly heightened form of contempt process with far more baneful sanction, the process with outlawry, which Pollock and Maitland described as an engine for compelling the contumacious and I emphasize that word to abide the judgment of the courts.

    Now, if a criminal defendant failed to appear after having been five times summoned for his trial.

    If he failed to appear at common law, he was a convict of outlawry.

    That meant that there was a total forfeiture of his property.

    It meant that anybody might hunt him down because he was beyond the bail and protection of the law.

    It meant that he’s apprehended.

    Ralph S. Spritzer:

    He stood convict without further trial of the substantive offense for which he had been indicted which in turn meant that if he had been indicted originally for a common law felony that he was subject to capital punishment.

    So, it will hardly do, I think, to suggest that the failure of a criminal defendant to answer the process of the Court was likely regarded as common law.

    Professor Beale has stated in his article on Contempt of Court that the word “contempt” is a very old word to cover any act done in violation of a direct order of the King for any governmental process.

    He goes on to show in that same article that some of the earliest cases of contempt and trial of contempts by courts involved failures of parties to appear in response to process.

    He mentioned that in the time of Henry II.

    It was laid down that if a tenant duly summoned in the Court was absent, the King or his justices might have their pleasure, punish him for his contempt of court.

    Now, a common place of course to this day, that a witness who fails to respond to a subpoena, a party who fails to produce documents in response to an order of discovery, a party who fails to honor other form of process is liable in contempt.

    And we see no basis for making the suggestion that a criminal defendant and especially one who has first exhausted all the processes of the law that there’s any left to contempt for him to flout the order of the Court to appear and to begin serving his penalty.

    Petitioners also say that if this, as the Government argues, is a contempt within a classic category, why is it that there are no other reported cases involving a proceeding for contempt for a violation of this kind of order.

    I think that the dearth of such cases has a ready explanation.

    Under the contempt statutes, I don’t think there would be any basis for a proceeding unless, first, a specific order had been laid at the door of the party who was to appear.

    And in the nature of things, most bail jumping occurs before the Court ever gets around to setting a time and place certain for a hearing.

    If in this case, as I earlier remarked, the petitioners had left town the day this Court decided the Dennis case.

    There would have been no notice of settlement of an order of mandate, no possibility of serving such a notice on them and I don’t think we could lay a foundation by way of showing the issuance of a specific order —

    Felix Frankfurter:

    But couldn’t you —

    Ralph S. Spritzer:

    — which will support a contempt.

    Felix Frankfurter:

    Couldn’t you charge him with making — making himself unavailable for what he is rightly to be charged with knowledge that the Supreme Court affirmed the conviction that then automatically and mechanically is a direction to the lower court to summon in the defendant who’s out on bail and then carry out the sentence.

    Ralph S. Spritzer:

    Well, 401 is limited in its definitions of contempt.

    It says, the Court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of authority and none other.

    That’s on page 82 of that statute here.

    Felix Frankfurter:

    Yes.

    Ralph S. Spritzer:

    Now, the first subparagraph is misbehavior in the presence of the Court and failure to appear would not be in the presence of the Court.

    Paragraph two which relates to officers of the Court is not applicable.

    So I think necessarily, if it is a contempt, as we think it was in these circumstances, it must come under subparagraph (3), which embraces disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

    Now, the first command, the first order of a specific nature to appear was the order of July 2.

    I don’t think that the mere affirmance of the conviction in the main case would have the specificity of that — of the command, which would be, I take it, a necessary foundation for charge of willful disobedience.

    Hugo L. Black:

    Did he ever appear after the first order?

    Ralph S. Spritzer:

    Did the petitioners?

    Hugo L. Black:

    Yes.

    Did this petitioner ever appear?

    Ralph S. Spritzer:

    In court?

    Hugo L. Black:

    In the first order, yes.

    Ralph S. Spritzer:

    Not until between that time and the signature of the order?

    Is that what Your Honor has in mind?

    Hugo L. Black:

    Yes.

    Ralph S. Spritzer:

    So, the answer is no.

    They appeared by counsel.

    Hugo L. Black:

    And he didn’t appear after the order.

    Ralph S. Spritzer:

    Four and a half years after.

    Hugo L. Black:

    Yes.

    Felix Frankfurter:

    I don’t want to take your time but I — and take us off the track but I’m not sure that the hypothetical case I put wouldn’t be a resistance to the command of this Court, it’s not —

    Ralph S. Spritzer:

    Well —

    Felix Frankfurter:

    — directed to the individual as such.

    Maybe I wouldn’t —

    Ralph S. Spritzer:

    Well, it seems to me that that would be —

    Felix Frankfurter:

    We would have to —

    Ralph S. Spritzer:

    — extending the contempt power considerably more than any application here of the contempt statute would require because here we’re relying on an order which is much more specific.

    Felix Frankfurter:

    Well, I’m assuming that it — of the order doesn’t have to be directed to him.

    If he — a resistance — I should think preventing another person from carrying out a command of the Court would be a resistance to its command, wouldn’t it?

    However, that would —

    Ralph S. Spritzer:

    Certainly, if he knew about the — the order will stand.

    Felix Frankfurter:

    Well, I don’t think there’s any trouble about this, agreeing, having known what was done in the course of these proceedings up to July 2nd, is there?

    Ralph S. Spritzer:

    Yes.

    No one —

    William O. Douglas:

    I suppose that you have met counsel head on when this — on this point that the — of this contempt statute must be read in light of the common law at the time of the formation of this country that that jump — bail jumping was not a (Inaudible) —

    Ralph S. Spritzer:

    There —

    William O. Douglas:

    — not that the confusion to obey as subpoena wise.

    I think that’s the line of difference as I read the briefs that he has entered to date.

    I don’t think that you’d quite answer that in your argument.

    Ralph S. Spritzer:

    Well, I say at common law and in the 18th century when the Constitution was adopted as well the process by which criminal defendants were punished.

    Ralph S. Spritzer:

    If they absconded before trial with the process of outlawry which was much more severe and heightened, if you will, contempt sanction than the attachment for contempt.

    Outlawry of course was imported into this country during the colonial period and it fell into its use in the early 19th century.

    What I’m saying more broadly here is that — that common law, every — virtually every form of violation of order and particularly every form of violations the king’s writ, the king’s process which was punished by attachment for contempt.

    Beale so state facts in his research emphasizes that an early form of contempt at common law was the form of order disobedience.

    At the very early — at the very earliest, it was disobedience of the king’s writ and then it became — came to be extended soon thereafter to disobedience of the rule of the Court or decision of the Court.

    But that is an ancient form of contempt which has been punished continuously under every American contempt statute since and — since 1789 by words which say willful disobedience of any lawful order of the Court.

    Now, I cannot see with such comprehensive language in the application of it to all forms of disobedience process that there is any reason to state that disobedience of an order of criminal defendant to appear in Court is somehow an exception, assuming we have the necessary foundation of such disobedience an order here because certainly that would seem a formal — a serious form of contempt.

    Then let us say, a witness in a civil case, perhaps failing to get there and coming in a few hours late and being held in contempt.

    Here, the refusal was a refusal to obey an order to begin serving a sentence which had been imposed, which had been tested on appeal and affirmed by the highest court in the land.

    If it was a contempt, it seems to me, it was quite serious and aggravated one as well.

    Hugo L. Black:

    Is the common law contempt to which you refer requires a knowing disobedience of the order with knowledge that the order was out, the common law contempt to which you’ve just referred.

    Ralph S. Spritzer:

    I don’t know how strict the common law was in insisting our knowledge but I am certainly ready to concede that we are required through willfulness under the statute.

    Hugo L. Black:

    Under the statute?

    Ralph S. Spritzer:

    Yes.

    Hugo L. Black:

    But under this particular case?

    Ralph S. Spritzer:

    In this case, we have to prove willful disobedience.

    Hugo L. Black:

    With knowledge of the —

    Ralph S. Spritzer:

    The charge was willful disobedience and knowing —

    Hugo L. Black:

    But do that include knowledge of the fact that it’s an order.

    Could a man be convicted of willful violation without showing that he knew the order was out?

    Ralph S. Spritzer:

    Well, I can refer, Your Honor to the citation for contempt.

    I think we are required under the citation for contempt to show that this order was willfully disobeyed with knowledge of its issuance.

    Felix Frankfurter:

    Mr. Spritzer, I — I have not had a chance to go and I haven’t looked at the cases which Judge Clark cites showing the use of outlawry in some of the states in the early days of this country.

    Ralph S. Spritzer:

    Yes, sir.

    Felix Frankfurter:

    Were those cases of outlawry with reference to this kind of thing or other problem — other uses of outlawry to various purposes?

    Ralph S. Spritzer:

    Well, there, of course, bail after conviction was quite un — well, more than uncommon.

    I suppose unheard of —

    Felix Frankfurter:

    It wasn’t (Voice Overlap) —

    Ralph S. Spritzer:

    — at common law, to the early common law.

    So all of the cases of outlawry are instances in which somebody is at large prior to trial.

    Felix Frankfurter:

    But these — these are outlawry with reference to jumping bail, are they, these cases of his?

    My reference is to — to his statement that in the early days of this country, outlawry was rather rigorously employed. Remember that —

    Ralph S. Spritzer:

    Yes.

    Felix Frankfurter:

    — in his opinion?

    Ralph S. Spritzer:

    Yes, in the —

    Felix Frankfurter:

    And — and I was wondering whether —

    Ralph S. Spritzer:

    Of course —

    Felix Frankfurter:

    — there’s outlawry for all sorts of things at common law but —

    Ralph S. Spritzer:

    He is talking certainly in the context of —

    Felix Frankfurter:

    Outlawry.

    Ralph S. Spritzer:

    — outlawry of a criminal defense.

    Felix Frankfurter:

    (Voice Overlap).

    All right.

    Ralph S. Spritzer:

    Yes.

    Felix Frankfurter:

    That’s what I wanted to know.

    Ralph S. Spritzer:

    We have cited several of those early outlawry cases in our briefs.

    William J. Brennan, Jr.:

    No.

    That first sanction, as I understand it, might well have been applied whether or not there’s been any conviction (Inaudible) an absconder after in effect?

    Ralph S. Spritzer:

    In fact, it would invariably be so applied because he wouldn’t be out on bail after a conviction.

    William J. Brennan, Jr.:

    And that may well be, there were no orders such as the outlined in here which is the matter before us and I gather that your position is that the breadth of this statute embraces this order and this is an order of his disobedience for that order for which a criminal contempt prosecution was held and that we’re not really concerned with the limits on outlawry at common law, is that right?

    Ralph S. Spritzer:

    That’s right.

    The — we said clearly within the statute’s language and the reason I refer to the process of outlawry is solely by way of explaining petitioner’s comment that there were no contempt cases for — arising out of absconding at common law.

    I was merely remarking, at common law, they had a much more severe process which was employed as against the criminal defendant who absconded the day of the trial.

    Of course after trial, you never have the situation (Voice Overlap) —

    William J. Brennan, Jr.:

    But as I understand it, these — these contempts were not present at least technically by — because these men absconded so much as because they disobeyed the order to report.

    Ralph S. Spritzer:

    To surrender, that’s right.

    William J. Brennan, Jr.:

    Is that it?

    Ralph S. Spritzer:

    And petitioner’s contention is that such an order is somehow accepted or should be accepted despite the comprehensive language of 401.

    Felix Frankfurter:

    Mr. Spritzer, if you have nothing to do for the next 24 hours, I wish you do, span of the time to ascertain this.

    I noticed that in the cases referred to by Judge Clark of uses of outlawry for this kind of thing, for the purpose you’ve just indicated, showed there aren’t any common law cases because they were worst and severe.

    Felix Frankfurter:

    I noticed there are several Virginia cases that would interest me to know whether Jefferson (Inaudible) the Virginia law, after Virginia and the rest of the state separated in 1776 in order to call out all the hardships or the cruelty of the common law, whether in Jefferson’s post Criminal Code of Virginia, I don’t if he — the Virginia cases for Virginia, etcetera.

    What light can we get from the Jefferson’s notion about the use of contempt in his days?

    Ralph S. Spritzer:

    Well, we have for other purposes, for purposes of dealing with the constitutional argument which petitioners make in this case made a rather intensive effort to find and I’ll come to it later, whether there was any in discussion at all of the contempt power at the time of the constitutional convention or at the time of the adoption of the Bill of Rights.

    We’d look at the convention proceedings and the ratification proceedings, the Annals of Congress as the first ten amendments.

    As I say in relation to the argument that contempt is within the Fifth and Sixth Amendment —

    Felix Frankfurter:

    Postpone it if you want to for that —

    Ralph S. Spritzer:

    Pardon?

    Felix Frankfurter:

    Don’t let me divert you again.

    Ralph S. Spritzer:

    No.

    Well, this I think maybe relevant to the constitutional argument later, so I’ll complete the thought.

    We did not find any reference at the constitutional convention to the matter of contempt at all and we looked in the writings as well of many of the leading figures of the constitutional period with that same result.

    Now, I’d like to deal briefly with the statutory language for petitioners who are arguing that on their third point that there is a statutory basis for implying a one year limitation on the fine or imprisonment which may be imposed in a criminal contempt case.

    I’ve already referred to Section 401 and if the Court is aware in terms, it says that the power to punish by fine or imprisonment at its discretion is conferred upon the Court.

    Now, that language at its discretion is not ambiguous, it seems to us, and it has been in every contempt statute since 1789.

    The argument is then made —

    Earl Warren:

    What does that establish Mr. Spritzer?

    Ralph S. Spritzer:

    That the contempt statute confers discretion as to the quantum of the punishment to be imposed —

    Earl Warren:

    Well, is it —

    Ralph S. Spritzer:

    — by way of fine or by way of imprisonment.

    Earl Warren:

    Doesn’t it just say you can do either?

    Ralph S. Spritzer:

    Well, I think not.

    Earl Warren:

    Where — where does it go — how does it go further?

    That’s what I like to —

    Ralph S. Spritzer:

    I would say, Your Honor that the power to punish by fine or imprisonment means you can do either.

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    And therefore, that the word “at its discretion” if they are not redundant means that the Court shall have discretion as to the amount of punishment in whichever of the due form imposed.

    Earl Warren:

    Well, to what extent do you — do you think that it gives him discretion?

    Ralph S. Spritzer:

    Well, I — I certainly think that discretion can be abused and that the Court — and that the appellate court and this Court would not approve a sentence in a contempt case which it believes to be inordinate.

    The Court has assumed in the past the — that it has the power to abuse sentences in contempt even though it has proclaimed from reviewing sentences in a case of violation of the criminal law.

    So I think there’s always open a question and such a question — such a contention is made here, always open to a person held in contempt to argue the sentence was represented in abuse of discretion.

    Earl Warren:

    Well, suppose he — suppose he made it nine years instead of three here, what standard would — would we use?

    Ralph S. Spritzer:

    Well, I think I can only refer to what this Court has said in the past that the district judge is to consider the various circumstances, the gravity of the contempt, the amount of the harm done, the duration of the contempt.

    The Court laid down such standards in — in the United Mine Workers case, which it was based with the rather novel problem of deciding whether to who they fine, I suppose, unheard of proportion at that time, a three and a half million dollar fine.

    This Court ultimately concluded that it should affirm that fine to the extent of $700,000 and that modified the District Court’s judgment.

    Now, I — I think that it’s inherent in — in every case of criminal contempt that the judge must exercise the discretion which the statute accords.

    Earl Warren:

    What would be the limited discretion, a cruel inhuman punishment?

    Ralph S. Spritzer:

    No.

    I think a reasonable punishment in the light of the circumstances of the case, seriousness of the offense.

    I don’t think it would have — it would be a matter of discretion.

    I don’t think that the Court could intervene only when it found that there was a violation of prohibition on cruel and unusual punishment.

    Earl Warren:

    But even — even taking your — your interpretation of the words “at its discretion” to the effect that that means the quantum of the punishment, there is nothing in that language that would indicate they — they intended to make it a felony rather than a misdemeanor or to permit the judge to give felonious punishment as distinguished for misdemeanor punishment, is there?

    Ralph S. Spritzer:

    I don’t think there’s anything in the history of the contempt statutes at all to indicate that anybody meant for contempt to be either a misdemeanor or — or a felony.

    I think it was never regarded in either one but it was regarded as something which had grown up in the process of the law as a distinct cut board.

    The courts in certain areas have been exercising contempt power over a period of some hundreds years.

    Sir John Fox, in his study which we referred to extensively in our brief, the English experience, points out that parliament, though has done so in the case with almost every other type of offense has never faced the limitation as the power to punish or contempt which is always been deemed to be a power that the courts have had, had inherently many judges have said and similarly in this country, Congress has never written any limitation into the law.

    Now, in the — in the Clayton Act —

    Hugo L. Black:

    You don’t think it wrote anything in 1871?

    Ralph S. Spritzer:

    As to penalty?

    No, no.

    Hugo L. Black:

    It is to the power of that contempt and aren’t you a little strong in saying everybody has always recognized the power to punish the criminal contempt, inherent power of courts, isn’t that a little strong?

    Ralph S. Spritzer:

    I said that some have — have described it as inherent, Your Honor, as I have stated.

    I said the — the argument in the contempt power and particularly the contempt power where the disobedience is of a writ or the process of the Court goes back to earliest time of common law —

    Hugo L. Black:

    In other words —

    Ralph S. Spritzer:

    — stand on that statement, yes.

    Hugo L. Black:

    How early?

    And then some statements had just eased itself into the common law.

    Ralph S. Spritzer:

    Well, I think what Fox establishes in his research about the common law is this, that constructive contempts commenced — contempt, if you please, by strangers to the proceeding, committed out of the presence of a Court, were tried at early common law by ordinary criminal law procedures, matters such as libel upon a judge.

    And he argues that it wasn’t until the early 18th century that such constructive contempts were dealt with by attachment for contempt rather than by ordinary criminal law procedures.

    He says at the same time that contempt in the presence of the Court and contempt by disobedience of process or court order was punished from early common law through attachment for contempt.

    So, I think that this historical error which has been referred to upon examination is this, that it has been erroneously assumed that constructive contempts were punished from earliest times by the contempt process.

    Ralph S. Spritzer:

    In other words, what Fox’s research showed and what Fox aimed to prove or to induce was to have parliament provide by statute, essentially what this Court did by statutory interpretation in the Nye case, told that constructive contempts, contempts by parties outside the courtroom, people who were strangers to the proceeding and not under any order, could only be tried through the criminal law.

    Earl Warren:

    Well Mr. Spritzer, what I’m trying to find out is if there are any — any limits that — on the contempt power that have been established or can be established, you say it all depends upon the seriousness of the offense.

    How in a courtroom, if — if a person creates a mild disturbance, it — he probably get a small fine or maybe there so in jail.

    Suppose during the course of a trial, he killed a man in the courtroom, would the judge send him to jail for life for contempt because of the seriousness of the offense that he committed?

    Ralph S. Spritzer:

    No.

    The —

    Earl Warren:

    How — how long could he send him for?

    Ralph S. Spritzer:

    I think the — in the case of any act of disobedience such as we have in this case in which the act was independently a violation of the criminal law, there would be a limit on the sentence by virtue of Section 21 and Section 22 of the Clayton Act.

    Where, however, a contempt is not an independent crime then the limitation is the discretion of the Court appropriately exercised in the last analysis in the judgment of this Court.

    Earl Warren:

    Well, as I — as I understood you, if these — if these two men conspired to do what they have done and the — and the evidence here all shows that whatever they did, they conspired to do.

    Ralph S. Spritzer:

    No, sir.

    Earl Warren:

    They — they would only be guilty of — of a year.

    You said they could have been charged with conspiracy, we’re doing that —

    Ralph S. Spritzer:

    I — I knew of no facts which would enable be to say that there had been a conspiracy.

    Earl Warren:

    No, but — but I understood you to say also that if they had agreed to do it, that it would have been a criminal conspiracy.

    Ralph S. Spritzer:

    Yes. If there had been a —

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    — an agreement, it might have been within conspiracy statutes.

    Now, I didn’t —

    Earl Warren:

    Yes, what would —

    Ralph S. Spritzer:

    — state what the limit of punishment on that law.

    Earl Warren:

    What would be — what would be the limit of a conspiracy of that kind?

    Ralph S. Spritzer:

    Conspiracy to obstruct justice?

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    I would think it is more than a year, Your Honor but I would not —

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    — give a categorical answer to that (Voice Overlap) —

    Earl Warren:

    For the three years — it isn’t three years as much as this one, this (Voice Overlap) —

    Ralph S. Spritzer:

    I don’t know the — I would have to check the conspiracy to obstruct justice statute because there —

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    — there has been in this case nothing about conspiracy.

    These are — are two men who were — who were both charged with contempt out of events arising at the same time.

    I don’t know that they conspired with one another to something.

    Earl Warren:

    Well, I thought you were — I just thought you were reading their statements and saying, “We did this —

    Ralph S. Spritzer:

    They were (Voice Overlap) —

    Earl Warren:

    — in order to — in order to do that,” and so forth.

    And I thought maybe that — well, that’s — that’s beside the point, I believe.

    Ralph S. Spritzer:

    Their statements were individual.

    There’s nothing in their statements —

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    — to show that they acted in — in accordance, sir.

    Earl Warren:

    Yes.

    Ralph S. Spritzer:

    A word, if I may about the Clayton Act provision, as we read that provision in Section 24, it was designed simply as the history of the Clayton Act contempt provisions show to state that the jury trial provisions, which were written in 1914 for a special class of cases, so it’s coming within Section 21, were not to be deemed applicable to other types of cases.

    The Clayton Act which was — the courts passed as a result of criticism of many broad injunctions in labor union cases was designed to provide that disobedience of injunction, where the disobedience was also an independent crime should be tried upon the man being accused by a jury.

    And Section 24 simply expresses that thought.

    There is nothing in Section 24, as we read it which relates to any substantive matter and certainly nothing which relates to the quantum of punishment that maybe imposed.

    Certainly, Congress knew how to establish a maximum punishment if it chose to do so.

    In Section 22, it said six months and a thousand dollar fine where the offense is also an independent crime.

    It has never attempted in any statute that we know of to delimit the power to punish criminal contempts by the Court.

    I’m talking now as to the question of penalty.

    The 1831 Act which Justice Black mentioned earlier eliminated the power to punish so-called constructive contempts.

    But so far as we know that there’s never been any attempt by Congress in a statute to say that the limit is three months, six months, a year or two years or whatever it is.

    And this Court, we think, has always proceeded on the assumption notably in the United Mine Workers case where the criteria is set forth that the test is the discretion of the Court, reasonably exercised.

    William J. Brennan, Jr.:

    Well, Mr. Spritzer —

    Earl Warren:

    Mr. — oh, pardon me.

    Go right ahead.

    Go right ahead Justice Brennan.

    William J. Brennan, Jr.:

    I’m just going to ask, if this case that arisen or this action that these petitioners had arisen after the bail jumping statute, do I correctly read the bail jumping statute as authorizing both a criminal prosecution under that statute for the possible sentence to five years to $5000 enclosure and also a criminal contempt proceeding?

    Ralph S. Spritzer:

    The last sentence of that said that nothing in this Act shall inhibit the power of the Court to punish for contempt.

    Yes, I — that statute is set forth in our brief.

    William J. Brennan, Jr.:

    So that there might have been both in that case.

    Ralph S. Spritzer:

    I think the Clayton Act would limit the maximum punishment —

    William J. Brennan, Jr.:

    To what?

    Ralph S. Spritzer:

    To six months —

    William J. Brennan, Jr.:

    Because of the —

    Ralph S. Spritzer:

    If it was independently a violation of another statute.

    In other words, I don’t think you could — the man could get five years for absconding under the bail jumping statute and then get an additional sentence under — for a violation of a specific order to appear in excess of six months because if you — if he was triable under this criminal statute, then I think the Clayton Act provision comes into play.

    Hugo L. Black:

    Do you think that Section 402 of 18 U.S. Code defines a crime?

    Ralph S. Spritzer:

    Defines a crime?

    Hugo L. Black:

    A crime.

    Ralph S. Spritzer:

    402 was the contempt statute, Your Honor.

    Hugo L. Black:

    That’s right.

    It says constituting contempt, constituting crime.

    Do you think that provides for the trial of a man for a crime?

    Ralph S. Spritzer:

    Your Honor is reading from Section 402 —

    Hugo L. Black:

    Section 402, contempts constituting crimes, any person is so-called willful in disobeying any local order.

    Is statutory contempts a crime?

    Ralph S. Spritzer:

    Crime, for some purposes where the purpose of invoking certain rights this Court have said, certainly not a crime, this Court has repeatedly said within the Fifth or Sixth Amendment —

    Hugo L. Black:

    You mean the statute —

    Ralph S. Spritzer:

    — for common understanding.

    Hugo L. Black:

    You mean the statute or the — which called the Court’s inherit power to punish (Inaudible)?

    Ralph S. Spritzer:

    Well, I —

    Hugo L. Black:

    The statute defines itself as a crime, doesn’t it?

    What I’m getting at is (Voice Overlap) —

    Ralph S. Spritzer:

    I think it — I think it adds nothing to the concept of criminal contempt, Your Honor.

    Hugo L. Black:

    It — it constitutes a conduct or authority, doesn’t it?

    The prosecution of a crime where the man was entitled to have a trial in accordance to the crime, the trial so far as the statute is concerned.

    I suppose.

    I didn’t suppose there were a dispute about that.

    Ralph S. Spritzer:

    There’s no dispute that this is a criminal contempt, Your Honor.

    Hugo L. Black:

    I’m not talking about criminal contempt.

    I’m talking about a crime, where the statute makes a crime and forbids certain conduct that it ceased to be a crime because the statute refers to it as contempt.

    Ralph S. Spritzer:

    Well, I would have to say that criminal contempt, Your Honor certainly entitles the accused to many of the same protections than on the basis of the Due Process Clause which is available to criminal defendant.

    Hugo L. Black:

    Why not all of them so far as the statutory contempt you say.

    I’m not talking about now what’s called the inherent power of the Court.

    I’m talking about when Congress comes along and says certain things and held not to be done and that makes it a crime — makes it an offense punishable, can that be any less a crime because it’s defined as contempt?

    Ralph S. Spritzer:

    I think the Judiciary Act was codifying the common law, was saying the Court shall have the power — that the lower federal court shall have the power to punish all contempts with their authority and that was the —

    Hugo L. Black:

    But it defines what it is, command of any District Court, provision the order by doing anything or act forbidden, if the actual thing he’s done of such characters constitute also a criminal offense under any statute of the United States shall be prosecuted in such contempt and so forth.

    What I’m getting at here — where does it — if the man can be prosecuted under the statutory offense or a contempt —

    Ralph S. Spritzer:

    Yes, sir.

    Hugo L. Black:

    — can he also be prosecuted under the other statute which makes that same conduct a crime under another name.

    Congress has attempted to preserve the right to punish twice for the same conduct both of them defining what I would call crime.

    What do you think about that face of the statute?

    Do you think you could be prosecuted both by statutory contempt under 401 and if it was an assault and battery, could also be constituted or prosecuted for assault and battery?

    Ralph S. Spritzer:

    Well, certainly, so far as — we don’t have any question of double prosecution here in this case of course.

    But, so far as what this Court has said and so far as I know on deviating them in the past, contempt is not a crime within the Fifth or Sixth Amendment and somebody made the charge with a contempt and also punished for a crime which is committed by virtue of the same act which constitutes the contempt.

    Of course, the Clayton Act is recognition of fact.

    It — it says that if the — if the contempt rule is taken, he cannot be punished beyond a certain limitation.

    And one of the purposes of that, I take it was that Congress did not want resort to the contempt power to increase the penalty or to avoid the proceedings, ordinary criminal law provision, in cases where the matter fall within the criminal law domain.

    Hugo L. Black:

    You do not draw a distinction between statutory contempt defined by Congress at these statutes and contempt which is not under the statute.

    Ralph S. Spritzer:

    Well, I —

    Hugo L. Black:

    Insofar as the statements the Court has made from time to time that it is not a crime within the Fifth Amendment.

    Suppose this punishment —

    Ralph S. Spritzer:

    Yes.

    Hugo L. Black:

    — this statute had been five years, it said that for disobeying an order of the Court, a man should be given five years, is it your judgment, he could be tried without a jury (Inaudible)

    Ralph S. Spritzer:

    My judgment would be, that as long as the power which the Court is exercising, if the contempt power as it existed at common law and as it was conferred on the lower federal court, first by the 1789 Act and later by a successor contempt statute that so long as that is the case, the Fifth and Sixth Amendment do not apply.

    I hardly think that I could state as a matters categorically as this Court stated it in — in the Myers case and then through Chief Justice Hughes in the — in the Blackmer case in which the Court stated while contempts maybe an offense against the law and subject to appropriate punishment, certain it is, that since the foundation of our government, proceedings upon such offenses has regarded as sui generis and not criminal prosecutions within the Sixth Amendment for a common understanding.

    Felix Frankfurter:

    Shouldn’t you add, Mr. Spritzer that there is no longer inherent power in the federal courts to punish for contempt.

    Congress has seen fit to define and to limit, there was in the (Inaudible) and what is now.

    So that —

    Ralph S. Spritzer:

    Yes.

    Felix Frankfurter:

    There is no, as I understand it, there is no — there’s no federal judge can now punish as an exercise of inherent power.

    He must bring himself within the terms or limitations of the contempt statute.

    Ralph S. Spritzer:

    Yes.

    I take it that I would be correct in saying that the contempt statute since 1831 leave in the federal courts a portion of the contempt power which would exercise as common law and it has cut away a part.

    Hugo L. Black:

    I agree with you fully in the statement that these statutes have done away with what was called inherent power of the Court punishment for contempt, and with that I agree.

    Earl Warren:

    Thank you Mr. Spritzer.

    Mr. Abt.

    John J. Abt:

    I’ll attempt to conclude in four minutes, You Honor so that I won’t (Inaudible) Court.

    Earl Warren:

    You may have your — you may have your eight minutes, if you wish.

    John J. Abt:

    Oh, I understand.

    It seems to me that a normal first reaction to the facts of this case and I take it that that was the reaction of this Court is that the man who absconds after his conviction and certainly after his conviction has been affirmed by this Court is guilty of some kind of an offense for which he ought to be punished.

    But the fact to the matter is, if the Court please, that except where a statute makes bail jumping a crime, neither the Government nor I have been able to find any case in which an absconder has suffered any punishment other than the forfeiture of his bail and the issuance of a bench warrant for his arrest, if that be called punishment.

    That — that just happens to be the state of the law and has been since the beginning in the case of his character.

    William J. Brennan, Jr.:

    Well, Mr. Abt, was this really a contempt prosecution for absconding or is it rather one for disobedience of this order of July —

    John J. Abt:

    I’m coming — I’m coming to that next, Your Honor.

    But what I said applies to any kind of absconding whether there — there has never been a case before as I’ve said earlier in which an order to surrender was entered against the defendant after he have absconded, just never heard anybody before.

    Now, certainly if no order had been entered in this case, no surrender order had ever been entered in this case, there couldn’t have been a contempt prosecution.

    And similarly, it seems to me that if the defendant didn’t know that a contempt order was entered, he can’t be held in contempt any more than he could have been of no order at the moment.

    Now, the only evidence that the Government has been able to — even to suggest of actual knowledge of the order, is contained in the statements that the defendants issued immediately prior to their surrender, which as the Government says, indicated that they knew they were fugitives.

    Well of course, they knew they were fugitives, nobody could deny that.

    The Government says, since they knew that they were fugitives, they must have known that the order for their surrender had been entered.

    But the Government’s conclusion doesn’t follow from its premise.

    If the Court had done what every — so far as I’ve been able to discover, every court has done in the past really forfeited the defendant’s bail.

    When his bail was forfeited and he became fugitive.

    And all — when — when the statements — and I agree with Mr. Spritzer, the statements indicate that the man knew they were fugitive.

    But it doesn’t indicate that they knew that they were fugitives by virtue of the entry of the surrender order.

    They could just as well have been fugitives by virtue of the forfeiture of their bail.

    And as I say, that’s — that’s the only bit of evidence and that there is no evidence that the Government concedes on as evidence of knowledge.

    Everything else that it says is not on the basis of actual knowledge of a surrender order but on the theory that Mr. Spritzer stated very correctly, that the defendants are chargeable as a matter of law with knowledge of the order that is if they have notice, some kind of constructive or implied notice of the order.

    John J. Abt:

    And what Mr. Spritzer said I think in answer to a question by Mr. Justice Black is that Justice Black said, “Will, the law — as I understood you, sir, you said, “Will the law imply knowledge in a criminal case?”

    And Mr. Spritzer answered, “Yes, the law will imply knowledge when not to do so would permit a defendant to flout the law.”

    Well, that’s to me like saying that because you think a man is guilty and ought to be punished, you punish him even though we’ve got no evidence that he is guilty and you can’t prove he’s guilty under reasonable doubt.

    That’s what it comes down to.

    Hugo L. Black:

    What do you say to his argument that the fact that it was customary when this Court affirmed the case and send back a mandate plus the fact that the Court immediately issued an order which was received by the lawyers, plus the fact that the lawyer said that he told this man that he had — about (Inaudible) notice containing a copy of the proposed order.

    And if they want to meet on that date, a certain date, what do you say to his argument that a jury would have a right to find from that evidence reasonably or beyond a reasonable doubt that the man did have notice.

    John J. Abt:

    I think Toth, if you cite it, Your Honor is applicable there.

    Hugo L. Black:

    I’m not talking about presumptions now.

    I’m talking about — he takes the position that from that evidence, they could draw reasonable inferences so that they could find beyond a reasonable doubt that he knew about this order.

    John J. Abt:

    It comes down to a presumption, Your Honor.

    I serve you with a — with a notice that tomorrow I’m going to apply for an order.

    Lots of things happened between a notice of an order and the issuance of the order.

    The order of reapplication can be withdrawn.

    The Court can deny the order.

    It can enter as a modified form, something that can happen — can happen will render the application moot before it’s ever made so that there can be no presumption or inference that an order has been entered by virtue of the fact that an order has been applied for.

    Now, it’s true that there’s an inference I suppose, the man will be charged with knowledge that he knew that it was 10 o’clock in the morning that the sun was up.

    But orders don’t follow from applications like the sunrise from the revolution of the earth.

    Hugo L. Black:

    What do you say about the additional fact that a statement was made when he left, that he’s trying to get away.

    When he came back, did he — had gotten away, had been a fugitive.

    John J. Abt:

    Been a fugitive.

    Hugo L. Black:

    (Inaudible)

    John J. Abt:

    All that means, Your Honor at most — of course he knew he was a fugitive.

    He knew he was supposed to go to jail.

    And let — I suppose he knew that if he didn’t show up, his bail would be forfeited.

    And therefore, he was a fugitive but he — but there was nothing in that statement to indicate that he knew that a specific order was entered for his surrender —

    Hugo L. Black:

    Coule he —

    John J. Abt:

    — and that’s what he was charged with.

    Hugo L. Black:

    Could he be a fugitive without some kind of an order of court?

    John J. Abt:

    Surely, sir.

    His bail was — if an order was entered forfeiting his bail and that would be the normal thing and then he is no longer be on bail, he’d be a fugitive from justice, he should be in jail.

    John J. Abt:

    And that — that could all happen without entering an order for his surrender.

    He wasn’t charged just by being a fugitive from justice, being a man that ought to be in jail and wasn’t.

    He was charged with contempt because he knowingly violated a specific order for his surrender.

    Hugo L. Black:

    But if he — supposed it been shown that he knowing — knew that his bail has been forfeited and that he knew that after the bail was forfeited the man refused to come in and (inaudible) be afugitive.

    Do you say that — there’s no evidence in which you inferred that he knew that the — the Court have made a sufficient order to impose on him the duty of coming back.

    John J. Abt:

    He had a duty to come back, Your Honor.

    The question is, was his — was his failure to perform that duty a contempt and it wasn’t a contempt unless he knowingly violated an order for his surrender and my — my whole point is that there was no knowledge that he had — no evidence that he had knowledge of the issuance of the order.

    I want to end the Court (Inaudible).