Shillitani v. United States

PETITIONER:Shillitani
RESPONDENT:United States
LOCATION:General Petroleum Corporation

DOCKET NO.: 412
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 384 US 364 (1966)
ARGUED: Mar 02, 1966
DECIDED: Jun 06, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – March 02, 1966 in Shillitani v. United States

Earl Warren:

Number 412, Salvatore Shillitani, Petitioner versus United States.

Andimo Pappadio, Petitioner versus United States.

Mr. Krieger.

Albert J. Krieger:

Mr. Chief Justice, may it please the Court.

Sometime ago, some members of this Court had the opportunity to state and did state that confinement in prison for a period such as two years or 18 months or three years without the intervening process of indictment and trial by jury in a criminal contempt case would corrode our civil liberties.

I believe that that was stated some six years ago and on one instance some seven years ago.

I believe that the situation about which these members of the Court warned has come to pass finally.

Salvatore Shillitani was brought before a grand jury in the Southern District of New York — asked certain questions, invoked his constitutional privilege against self-incrimination, eventually he was granted immunity and persisted in his refusal to testify, once again invoking his constitutional privilege against self-incrimination.

He was directed by one judge, Judge Wyatt to respond.

He failed to respond.

Subsequently, a hearing was held before Judge MacMahon and that the conclusion of the hearing Judge MacMahon sentenced Shillitani to two years in prison and added thereto a rather strange what we can term “purge clause.”

Shillitani was remanded without bail.

Application was made before the Court of Appeals for the Second Circuit for bail, bail was denied.

He had been remanded on August 10th of 1964, argument before the Court of Appeals was held in November of 1964.

This Court granted certiorari to certain questions in Harris in December of 1964, and finally, in January of 1965, after Shillitani had served some five months, he was finally admitted to bail, very substantial bail.

One of the great problems in his being admitted to bail was that he could not be released until there had been considerable supplication and genuflection and pleading with the Parole Commission.

The Federal Parole Commission had lodged a warrant in Shillitani in the intervening period because in their estimate of the situation, he had been convicted of a felony.

He had a criminal conviction and therefore he had violated his parole.

The two questions upon which this Court granted certiorari, the add mixture of civil and criminal contempt and whether Shillitani had a right to indictment and trial by jury cannot be discussed completely, separately, and apart.

They do interlock — they do interdigitary.

And the reason they do this is because our very recent history has shown us the development of a new type of prosecution, something which has not existed in our past.

This Court had the opportunity on April 7th of 1964 to state that its research had shown that there were approximately six cases since 1957 in which a sentence of one year or more had been imposed in a criminal contempt case, and that prior to 1957, there were only two.

Since April 7th of 1964, in the Second Circuit alone there had been four cases with sentences of two years or one year.

The real problem posed here is not whether there should be a machinery for obtaining testimonial compulsion.

No one can quarrel that there must be some way to obtain testimony.

The problem seems to rotate around whether there can be imprisonment for as long as two years or if the judge feels otherwise for considerably longer.

For at least as far as Shillitani is concerned, for four times the sentence — the maximum sentence for a petty offense without the intervening safeguards of indictment and trial by jury.

The results may well be the same after these safeguards have been applied but that is no reason why the safeguards should not be applied.

The Solicitor General, states basically five reasons why the Government does not like jury trials in cases of this sort.

And of course it appears that if a jury trial is good enough, is appropriate — is a properly appropriate procedure in cases involving murderers, in cases involving spies, in cases involving any and every horrendous crime, it’s certainly is an appropriate procedure and can do the right thing in imposing, if need be, a punishment for a failure to testify.

Albert J. Krieger:

There is no greater risk to be run by the Government or by the court in nullification of its order by the interposition of the jury system.

The court of necessity when there has been a refusal to testify must vindicate its authority and integrity.

No one can quarrel with that proposition either.

The question is, once again, how?

Now we must differentiate between a refusal to testify in a situation such as occurs when a person appears before a grand jury and the situation which might have occur from the stubborn, obdurate attitude immediately before the court by a witness before and during the course of the trial or the classic situation of some kind of misbehavior before the court which require quick and summary disposition by the court.

Our —

Potter Stewart:

That’s —

Albert J. Krieger:

— administration of justice —

Potter Stewart:

— that distinction counsel goes to the question of whether it should be in the federal system, at least a 42 (a) procedure or 42 (b) procedure which was the subject of the Court’s recent decision in Harris, doesn’t it?

Albert J. Krieger:

No sir–

Potter Stewart:

The sanction you’ve just made.

Albert J. Krieger:

No, I don’t believe that — that applies Mr. Justice Stewart necessarily because just because there was a hearing, I do not state that the court is authorized to impose a sentence in excess of six months.

I think that is the crux of the issue here if in a 42 (b) proceeding which is what we had here —

Potter Stewart:

Yes.

Albert J. Krieger:

— the court imposes a sentence in excess of that reserve for petty offenses.

Then the defendant is entitled to his constitutional protections.

He was entitled to his trial — to his indictment, to his trial by jury.

Would your argument be the same if the sentence took a form of a so-called civil contempt or is it not?

Albert J. Krieger:

No, Your Honor.

No.

It would not be.

Albert J. Krieger:

It would not be the same.

I feel that — and I — I don’t hesitate on this and I don’t intend to equivocate in any form or fashion.

I believe that civil contempt is the remedy and it is a very efficient remedy.

The Solicitor General has remarked in some of his briefs that civil contempt is inadequate in many instances because perhaps there is an insufficient time left.

Well, I speak with Shillitani.

There was nine months — there were nine months between his refusal to testify and the exploration of the grand jury.

Nine months, this Court has recently denied bail in the civil contempt case.

In the Second Circuit, bail has been denied in the civil contempt case.

The person who has refused to answer had stayed in jail with the keys to the jail in his pocket as the phrase goes.

Albert J. Krieger:

If the intent of the court is to obtain testimony, there is an appropriate and proper device to obtain testimony.

That device was not employed here with Shillitani which brings us right to the judgment.

Let us —

William J. Brennan, Jr.:

Well, may I ask Mr. Krieger, I might understand then that your contention for jury trial is limited to these situations.

One, it’s a testimonial contempt.

Two, it’s a refusal to answer questions before a grand jury.

Three, it’s a situation in which the sentence in excess of that reserved for petty offenses, is imposed.

Albert J. Krieger:

And also, Mr. Justice Brennan, for that sort of contempt which does not require — require the immediate action of the court to vindicate its authority and integrity.

William J. Brennan, Jr.:

Well this goes then to that situation, I understand you have in New York Southern District at least where a grand jury sits for —

Albert J. Krieger:

Eighteen months.

William J. Brennan, Jr.:

— eighteen months or whatever it is and in consequence of which depending upon the time when the alleged contempt occurred.

There is ample time to resort to some other sanctions —

Albert J. Krieger:

That is —

William J. Brennan, Jr.:

— primarily the civil contempt sanction is —

Albert J. Krieger:

That is correct Your Honor.

If there is not ample time and the Government feels that it must seek other redress, it does have machinery and equipment for it.

William J. Brennan, Jr.:

Well, what I want to get clear is that at least you’re not urging on us any general proposition that all criminal contempts must constitutionally provide a jury trial.

Albert J. Krieger:

No.

No, I am not.

I believe that if there are in excess of — as the sentence to be imposed as an excess of six months, I believe that there is a constitutional requirement for an (Voice Overlap) —

William J. Brennan, Jr.:

Well, what I’m trying to get is a constitutional requirement at least — at least in connection with this kind of testimonial contempt or you’re urging that proposition generally as to any criminal contempt.

After all, the statute talks, doesn’t it, of violation of a court order, the sort of thing that we had in Winston and Green cases and the rest.

You don’t have to go that far I gather for your purposes in this case, do you?

Albert J. Krieger:

For my purposes in this case, I don’t have to go that far.

I think that I am faced with a specific situation here which perhaps may well be unique.

William J. Brennan, Jr.:

Well — are you — do you intend to comment on the power of this Court to exercise the case as I recall it with Mr. Justice Clark about the Yates wasn’t it, to reduce these sentences.

Albert J. Krieger:

Well unfortunately, for Shillitani, if a sentence is merely reduced, he is in as bad situation as if he had just stayed in jail and served his two years.

What Shillitani seeks here —

William J. Brennan, Jr.:

Well, in Yates we reduced the time served as I recall it, didn’t we?

Albert J. Krieger:

Shillitani would then have to face the Parole Commission.

William J. Brennan, Jr.:

Why wouldn’t — if we reduce the sentence to five months (Voice Overlap) —

Albert J. Krieger:

Because he has — he has a criminal conviction, if Your Honor please.

He has a criminal conviction which brings us right into the substance —

William J. Brennan, Jr.:

I don’t follow that.

If it’s served, if we reduced it to five months and it’s then fully served, what’s he involved (Inaudible).

Albert J. Krieger:

His violation of parole consisted of his being convicted for a criminal offense on August 10th 1964.

If this judgment were on for civil contempt, he has not violated his parole.

William J. Brennan, Jr.:

This is the parole on some other offenses?

Albert J. Krieger:

On a — an offense for which he have been convicted in 1951.

William J. Brennan, Jr.:

Sorry, I didn’t —

Albert J. Krieger:

He was released in 1961.

As of today, he has three years left on parole.

William J. Brennan, Jr.:

I understand you, I’m sorry, I didn’t realize that.

Albert J. Krieger:

The judgment — and I think I should address myself to the judgment of conviction here — provided in what we have termed as the purge clause that if Shillitani reappears before the grand jury and responds to Judge Wyatt’s order, at anytime prior to the exploration of the grand jury or prior to the exploration of the two-year sentence, then he has — then an application maybe made to terminate his imprisonment.

This language, our Court of Appeals for the Second Circuit interpreted as meaning that Shillitani upon responding to Judge Wyatt’s order at anytime had an immediate right to be released from prison, that as I understand the law is a clear definition of civil contempt, not criminal contempt.

Yet I throw this question, as I must, if Shillitani had not pursued his appellant remedies, would not the court have been barred by the exploration of the 60-day period Rule 35 of the Federal Rules of Criminal Procedure from doing anything to alter the sentence?

That is the problem involved in the judgment such as this.

Judge MacMahon at the time of imposing the judgment said, “I impose this judgment to compel testimony rather than to punish.”

Compelling the testimony is the thrust.

It’s the basis of civil contempt.

If Shillitani has been convicted of a civil contempt, that is one thing, and I think it would be an appropriate thing at the role of the circumstances.

Now how does this judgment with the purge clause (Inaudible) at the Court of Appeals?

Except for the label, the label of the criminal contempt, how was it different from the — different from an ordinary civil contempt?

Albert J. Krieger:

Just in the language of the judgment and commitment itself.

If —

In doing — doing the label?

Albert J. Krieger:

No, it has given a specific label and because it has a specific label Your Honor —

You told me that label is the — it’s the basis of your argument.

Albert J. Krieger:

Well that label because there are certain things which float from that label such as he is — he stands convicted of a felony.

(Inaudible)

Albert J. Krieger:

And he stands convicted of a felony.

And if he — and inferentially, if he has been convicted of a felony, then certainly the statutes do provide that where a person is charged with felony, he is entitled to prosecution by way of indictment.

If he’s entitled to a prosecution by way of indictment, then necessarily he’s entitled to a trial by jury.

Well, what’s the basis for you to say that the conviction of felony is the source of argument?

Albert J. Krieger:

I believe Section 1 of Title XVIII provides that anyone who is convicted of a criminal offense, the punishment for which is more than one year.

Yes, in criminal offense, but it isn’t because (Inaudible) convicted in a contempt, a criminal contempt conviction and in criminal (Inaudible).

In other words, when a (Inaudible) it seems to me it turns logically on the question (Inaudible) on the label, obviously in the label.

Albert J. Krieger:

I can’t run away from that.

Certainly if he had been — if he had been —

If the judgment then is to say, “Alright, this is (Inaudible)

I’m not going to quarrel if this is criminal contempt or is it a civil contempt,” if that is the judgment — exactly the same way with the purge clause, and the Court of Appeals construed the purge clause to the jury, can it be your argument?

Albert J. Krieger:

I don’t think that you would have granted — granted certiorari.

You wouldn’t be making them?

Albert J. Krieger:

And I couldn’t be making that argument because it would have been a civil contempt and I believe that even the Justices of this Court would have indicated that disenchantment with this order procedure has specifically stated that this does not attached to civil contempt.

William J. Brennan, Jr.:

Well, Mr. Krieger, suppose we should — in light of what the Court of Appeals said, wholly as if this is really only a civil contempt conviction.

Where does that lead your client regarding the parole warrant?

Albert J. Krieger:

My understanding is that the parole warrant, which has been lifted in order to allow him out on bail, would remain lifted, that there is no criminal conviction.

William J. Brennan, Jr.:

Do you think it’s open to us to read the conclusion that really this is only a civil contempt —

Albert J. Krieger:

I think that if we — that if the opinion of the Court of Appeals has meaning in its last paragraph, then this Court could state that in fact, this was a judgment for civil contempt.

William J. Brennan, Jr.:

And if we did that, in your view, that would make it unnecessary to reach the jury trial question in this case.

Albert J. Krieger:

In this case.

Earl Warren:

Even though he didn’t take the one year maximum off, that they left it on — that we left it on and still called it — or two years, right?

Albert J. Krieger:

Yes.

Earl Warren:

As I understand he got — do you think it could be considered — we could say it’s only a civil appeal even though the judgment still says that he shall remain there for two years only.

Albert J. Krieger:

Mr. Chief Justice, that’s my problem with the judgment.

Earl Warren:

Yes.

Albert J. Krieger:

If civil contempt has meaning under all of the cases, then he could only be a judge in civil contempt for the life of the grand jury —

Earl Warren:

That’s right.

Albert J. Krieger:

— which means that the civil contempt terminated in March of 1965 when that grand jury expired.

It would therefore require, it does appear to me a — an invalidation, let me use that word, of the judgment of conviction if it is actually a civil contempt.

William J. Brennan, Jr.:

Well, wouldn’t that —

Albert J. Krieger:

I don’t —

William J. Brennan, Jr.:

Wouldn’t that necessarily follow?

If you’re right, if we were to — if we’re — it lead to — to interpret this now, it’s just a civil contempt order.

The annex of the rule is, is it not, that if — it’s (Inaudible) at the end of the term of the grand jury.

Albert J. Krieger:

Yes sir.

William J. Brennan, Jr.:

And that time has now passed.

Albert J. Krieger:

Yes.

William J. Brennan, Jr.:

So the order is, in all respect, (Inaudible) as a civil contempt order, if we said that?

Albert J. Krieger:

If you said that, yes.

Yes, if you said that.

But your question as I understood with Mr. Chief Justice was different.

You were saying — if I understood your question, could there be a civil contempt sentence for a definite period of two years?

Earl Warren:

Yes sir.

Albert J. Krieger:

I don’t believe that there can be.

Earl Warren:

You believe that what?

Albert J. Krieger:

I don’t — under these circumstances, I don’t believe that it can be.

Hugo L. Black:

Under any circumstances?

Albert J. Krieger:

Yes, I think that the — I think statutes so provide.

I have seen civil contempt orders for 30 days giving an opportunity to a specific defendant to purge himself.

Hugo L. Black:

Well, that’s quite different than it wouldn’t be for two years.

Albert J. Krieger:

No.

Hugo L. Black:

That it’d be during the time, that he continued to disobey the order of the court.

Albert J. Krieger:

The order of the court — the order of the court would terminate at the time of the exploration of the grand jury.

(Inaudible)

Albert J. Krieger:

I believe there is upon appropriate application.

(Inaudible)

Albert J. Krieger:

Yes sir.

William J. Brennan, Jr.:

Well Mr. Krieger, I don’t — I’m quite — well, I don’t follow that.

If — if the rule is — and I think you told us, it is — that there may not be a civil contempt order that survives the period of grand jury.

William J. Brennan, Jr.:

How can there ever be a civil contempt order in term — a point of time, why wouldn’t every one of them have to be, for the life of the grand jury, whether or not make an extent — why wouldn’t that be — why wouldn’t that be limited?

Albert J. Krieger:

Well, that is my understanding of this — of the civil contempt order in a case such as this, in the case —

William J. Brennan, Jr.:

In a testimonial compulsion, refusal to answer that (Voice Overlap) —

Albert J. Krieger:

That — that is correct.

That’s for instance in the Second Circuit, we had a situation of the type which Your Honor is making a reference to, In Re Bonanno where he was confined to the Federal House of Detention for Men until he chose to respond or the grand jury terminated.

Eventually, came a time he chose to respond.

I believe in Chicago, Mr. Giancana is still in jail awaiting perhaps the expiration of the grand jury.

Earl Warren:

Well if the — if the court puts a maximum sentence on, would it make any difference whether it’s for 30 days or for two years.

Because if the court said you’ll be confined for 30 days with the right to purge yourself in the meantime and suppose the grand jury was discharged in 10 days, wouldn’t that man under your theory be illegally held?

Albert J. Krieger:

Yes — yes sir.

I do believe that Mr. Chief Justice.

Earl Warren:

Yes, well then —

Albert J. Krieger:

In —

Earl Warren:

It wouldn’t go as far as to say that the — that they would say for 30 days, but they couldn’t say after two years.

Albert J. Krieger:

I — I don’t think that time is important in the context in which you’re phrasing the question.

Earl Warren:

That’s right.

Albert J. Krieger:

We’re seeking to obtain testimony before a specific grand jury.

Earl Warren:

Yes.

Albert J. Krieger:

So therefore, the natural boundaries of that compulsion would be the like of that grand jury.

Earl Warren:

I see.

If that’s what you mean —

Albert J. Krieger:

That is what I mean.

Earl Warren:

I understand it clearly.

Albert J. Krieger:

That is what I mean.

If Your Honors please, the only other point which I would like to make is that it has been stated that there’s a fear that trial by jury might result a nullification of the court’s command.

With all due respect to all the courts, I think that a legislative command is entitled to the same treatment as the judicial command and a judicial command to a legislative command.

And that — and perhaps an odd case, I would prefer to see, nullification of either a legislative command or a judicial command, the nullification of one of the basic rights assured to us citizens in the United States Constitution.

Earl Warren:

Mr. Spritzer.

Oh — you’d like to talk right now, yes, very well.

Jacob Kossman:

I think that there were arrangements to these —

Earl Warren:

I beg your pardon.

Jacob Kossman:

I think that there were arrangements that (Voice Overlap) —

Earl Warren:

Yes, alright.

You may — Mr. Kossman you may proceed.

Are you — are you addressing yourself now to the Shillitani case or to Pappadio?

Jacob Kossman:

Pappadio.

Earl Warren:

Pappadio, very well.

Jacob Kossman:

Mr. Chief Justice, may it please the Court.

This case is here also on certiorari for the Second Circuit for an individual who has given two years in the sentence of criminal contempt, a contempt not occurring in the presence of the judge and there was a hearing, 42 (b), he asked for a jury which was denied.

Now, two years — two terms ago, this Court in United States versus Barnett stated, “In view of the impending contempt hearing, the effective administration of justice requires that this dictums be added.

Some members are of the view that without regard to the seriousness of the offense, punishment by summary trial without a jury would be constitutionally limited to that penalty provided for petty offenses.”

Now, perhaps that this dictum had been written in the body of the opinion rather than in the footnote, the Second Circuit might not have misinterpreted.

Now, my first point is just as two terms ago, the effective administration of justice required that that caveat victim be added even more so now because every Court of Appeals in this country except the Second Circuit has followed.

The Court of Appeals for the District of Columbia, the Third Circuit, In Re (Inaudible) case, the Fifth Circuit, Johnson, the Sixth Circuit, Schiffer, and the Seventh Circuit, in the case that’s following In Re Shipp.

So to repeat and of course to all District Courts and the respective Court of Appeals Judicial Districts, only the Second Circuit has refused to follow it.

William J. Brennan, Jr.:

Now, may I ask you Mr. Kossman.

Jacob Kossman:

Sure.

William J. Brennan, Jr.:

Is this order in the same form of that involved in the Shillitani?

Jacob Kossman:

It is and it isn’t.

I will put it this way.

William J. Brennan, Jr.:

Oh well, let me ask more directly counsel.

Does it have a third course which the Second Circuit Court of Appeals gave the same construction as that in the —

Jacob Kossman:

It has.

The Second Circuit did not — did not treat it in the opinion dealing with Pappadio.

It comes about this way.

Here’s — to answer the question directly.

The court sentenced him two years, on page 78 (a) of the record.

The Assistant District Attorney said, “Your Honor, since the primary purpose of this investigation is to obtain testimony or to obtain evidence, so that indictments might be filed or voted upon, might I suggest to Your Honor that you include a clause in the sentence that if Mr. Pappadio does answer the questions as directed, that a further application may be made to Your Honor to reconsider the sentence so that we will have some coercive effect on Mr. Pappadio.”

The court said, “Yes, I adopt the proposal.”

When it came to the formal judgment —

Earl Warren:

Who made that suggestion?

Jacob Kossman:

The Assistant District Attorney.

Earl Warren:

Yes.

Jacob Kossman:

The Assistant District Attorney was the one who suggested, “By rule of the show cause, let’s have a hearing 42 (b).”

Now, when it came to the formal judgment that was filed, it was the same one as Shillitani.

Not this business that took place in court so that we’ll have some — let’s say that you’re sentenced for two years for that.

If you answer before the grand jury expires, you — I may consider a change, and the Second Circuit has said later on that that’s equivalent to a motion that if you do answer, you will get a dismissal.

But this is a criminal contempt.

It was a hearing on the rule for —

William J. Brennan, Jr.:

But Mr. Kossman, I thought something you just said, indicated that the form of order entered here is the same as a form of order entered to the court.

They’re not — aren’t we —

Jacob Kossman:

I beg your pardon.

William J. Brennan, Jr.:

Can’t we — can’t we suppose that the interpretation of that order would be that given in the Shillitani case.

Jacob Kossman:

I would say so, no question about that.

William J. Brennan, Jr.:

Well again, let me ask you what I asked Mr. Krieger.

If we give it – oh does that mean, is your man still in prison?

Jacob Kossman:

No, my man spent 20 days in jail and our argument on the reasonableness is he shouldn’t have spent two days in jail.

William J. Brennan, Jr.:

Well I know, but he spent 20?

Jacob Kossman:

He spent 20 days.

William J. Brennan, Jr.:

But if we — if we should conclude that this really is nothing more than a civil contempt order and washout the two-year thing on the ground that it’s maximum limit had to be the life of the grand jury.

Does the jury trial question disappear from your case too?

Jacob Kossman:

Well, if Your Honor please, it’s a practical proposition representing an individual suffering from a two-year (Voice Overlap) —

William J. Brennan, Jr.:

Well, it’s gone — my hypothesis is that it’s gone.

Jacob Kossman:

If you — if this Court puts it that way that they wish to do it, then I’ll forget all about the jury trial.

I’ll forget about the Barnett.

I don’t think this Court has the power to do this.

William J. Brennan, Jr.:

Oh, I see.

Jacob Kossman:

I don’t —

William J. Brennan, Jr.:

You don’t think we do?

(Voice Overlap) seem to have a different view.

Jacob Kossman:

I mean that you can reduce it on the grounds that the reasonableness I mean, but you can’t call this a civil contempt because this is a criminal contempt proceeding.

The fact that —

William J. Brennan, Jr.:

Well, that’s the label on it.

There’s just the solid (Voice Overlap) —

Jacob Kossman:

Well, it’s more than the label.

There was a hearing, there was finding, there are civil contempt involves enforcement of a judicial decree — criminal contempt involves punishment (Voice Overlap) —

William J. Brennan, Jr.:

In other words, you — you just want us to decide the jury trial question?

Jacob Kossman:

No — no.

If Your Honor please, if you wish —

William J. Brennan, Jr.:

I think it would be a lot more interesting in getting your client a relief from the effect of this order.

Jacob Kossman:

I say this, if Your Honor wishes to do that, I mean I have — that’s the end of the argument.

But in terms of preparing for this particular argument, I could anticipate that this Court would be that generous.

But I would love to have that resolved and I will not follow a petition for a rehearing.

Now, to come back to this Barnett propositions, clearly, that was the law at the time it was enunciated.

The Government never filed a petition for rehearing and as I say they have now fought this proposition involved.

Now here is — I think I can best help this Court and the petitioner by discussing the third question first, the question, “Is this a reasonable sentence?”

When the petitioner was brought before the grand jury, he was under indictment.

He — after given — being given immunity, answered 125 questions out of a 130.

There are only five questions, and the more I read the record, the more I see he’s answered even two or three of those particular questions.

But that — but whether it’s five or whether it’s two questions or three questions, it’s really unimportant.

The proposition involved in this particular case is in terms of the third question, is this reasonable?

Now, Justice Harlan in the Green case stated very noble words, very good words that they will examine a criminal contempt sentence to see in words to this effect if it’s reasonable, and that they as appellate courts reserved the right to reduce the sentence if it turns out to be unreasonable.

I might say the minority opinion prophetically stated that the word reasonable standard is irrepressible, vague, and delusive.

Now, I wouldn’t be arguing before this Court that this was an unreasonable sentence if when he was asked these questions, mind you, it was — it came in — in fact, on page 174 (a), it’s brought before the grand jury.

This case seeks for relief.

And the Assistant District Attorney says to him on page 174 (a), “So that you’ll have a better appreciation of the purpose of this grand jury proceeding, I want to advice you that there’s been testimony before a Senate Committee and statements have been made to federal law enforcement agencies that a person named Thomas Lucchese is at the head of a group, the people that are engaged on a number of illegal activities.

It has been alleged that one of these illegal activities is the illicit narcotics traffic.It also has been alleged sir that you are a member of this particular group.”

Question now continues.

Now what we’re attempting to do is to find out whether or not these allegations are true or false.

Are these allegations true?

Jacob Kossman:

Now, petitioner answered as follows.

“I’m not a member of this group if they exist.

I have no knowledge if there is a group.

I do not deal in narcotics.

I do not know if Mr. Lucchese deals with narcotics.

I do not know of anybody else in this room or out of this room is dealing with narcotics.”

Now, I’m going to skip — and then he went on answering all other questions such as that he never discussed how they were going to handle grand jury proceedings with Lucchese or with anyone else.

On page 214 of the record, “Mr. Pappadio, I’m going to ask you some of the questions that Judge Harlan directed you to answer on the time you were before and prior to the day.

At the narcotics trial of Vito Genovese there was testimony, there was testimony that you attended the meeting at the home of Rocco Mazzie.

Did you attend this meeting?”

“No sir.”

“Do you know of such a meeting?”

“No sir, no sir.”

Now, as I say, do you think — do you think that I would be arguing here, if he had said I refuse to answer, that this is an unreasonable sentence?

Mind you, I’m coming back to what Justice Harlan stated in the Green case majority that appellate courts will review, and therefore we haven’t had a review in the Court of Appeals, you’re just — the judge in Levine said the sentence is too much for that basis.

He said a year would have been enough, and he suggested when a man comes under indictment — under indictment and answers those questions, 125 out of 130 — but more startling, more startling is this, on page 42 of the record, I said to the judge, the trial judge when the case started because the indictment was hanging over his head and words don’t wash away the indictment.

It’s true the Court of Appeals and the trial judge says, “Don’t worry about the indictment, I mean they can use anything against you,” but of course as the — these particular immunity statutes have been interpreted, you don’t get immunity from prosecution.

You only get immunity from use.

And under those circumstances, he had something to worry about and don’t forget these questions have nothing to do, “Are you doing anything crooked?”

Or so on and so forth.

It has to do with the meeting with the lawyers and where they — they were meeting.

Now, I said this to the court.

Now, it seems that an indictment that has been outstanding six and a half years that the Government certainly doesn’t have the desire to drop that indictment because if it did dropped the indictment it would certainly influence the defendant in answering some of these particular questions.

What happened?

They refused to drop the indictment.

After certiorari was granted, after the brief on the merits was filed, the indictment was dropped.

The Government notes it in a little footnote, Your Honors may miss it just with one little sentence you see.

The indictment was recently dropped.

William J. Brennan, Jr.:

Does that brief argue that that was significant?

Jacob Kossman:

I beg your pardon?

William J. Brennan, Jr.:

Does that brief argue that the dropping of the —

Jacob Kossman:

No.

William J. Brennan, Jr.:

— indictment is significant?

Jacob Kossman:

No.

They just have a little footnote calling to Your Honors attention that the indictment was dismissed.

I filed a reply brief in which I said it could have been more explicit that it was dropped, but it was dropped in January of 1966.

Now, there’s something else that — that (Voice Overlap) —

William J. Brennan, Jr.:

You mean, you see there’s sort of psychological approach to us in the way they’ve handled it?

Is that it?

Jacob Kossman:

Well, I don’t want to read — I’m grateful.

Anytime the Government drops an indictment, I’m grateful.

I have no complaints about that.

And I only simply say this by everything that’s a fair play, that when a man is worried and assigns, not for the first time in this Court, but assigns at the trial level.

He says, “We’ll answer these questions if you drop the indictment.”

It’s not fair not to drop the indictment there.

Drop it now where it’s too late already to grand jury, after we’ve got the two-year sentence.

But there’s something more that’s startling and more that’s aggravating in this particular case.

And that is — and more deadly because at least the court answered this by saying, “Well, it can’t hurt you.”

It would attend to the charge of perjury that the defendant set up.

He said, “Look, I’m in trouble.”

He filed an affidavit, a sworn affidavit.

Page 8 (a), defendant states he has been on his consultation with attorneys not only with respect to the instant grand jury proceeding but also with respect to the indictment pending against him and with respect to a possible proceeding for perjury against him, even though he has truthfully answered the questions put to him by the Assistant District Attorney before the grand jury.

In connection therewith, defendant has been engaged in the preparation for his defense not only for the indictment outstanding against him, but for the possible proceedings for perjury against him.

Now, the Government, the court below, the trial court — the court below and the Government simply doesn’t understand this proposition involved.

They say you can’t say something on direct examination and then say, “Oh, I don’t have to testify on cross-examination because I might contradict myself,” that’s not the situation here.

This man never contradicted himself under oath.

This man said, “I don’t belong to a gang.

I have nothing to do with narcotics.”

But he said it only after the Government, in the silver platter — very unusual in this type of grand jury examinations.

The Government usually don’t say, “We have evidence.”

Jacob Kossman:

They simply ask you “Are you in narcotics?

And if you lie, you’re in trouble.”

But here, they said, “We have evidence, statements, is that true or false?”

Now, he said, “I am not in narcotics and that was a year and a half ago.

The Government, and I assume, that what they said was in good faith.

The Government must believe his story because he hasn’t been indicted for a perjury.

That’s the — sure there’s a five-year statute of limitations, but they don’t have to wait five years when they say, “We have the evidence.”

Now, it’s a terrible thing for this reason, because the purpose of immunity statute is that society can benefit by it.

They give the person — and there’s a question but of course the decisions have been — that it is a substitute for the Fifth Amendment.

But at least society benefits, they get something if it turned — for letting a crook off, a bad person off, they’re not going to punish him.

But when — when an individual was asked the question after they say, “We have two people who say you are on a narcotic business, are you?”

And you’re facing perjury if you give a truthful answer and you’re really not, it almost place an individual to think twice and say “I’ll go along with what the Government says,” then he can be indicted for perjury?

And where does the community benefit buy?

The man might be tempted to say, “Well, if you got two witnesses, it must be so.

And that was a problem that I have to face in an individual.”

I said, “Look, you’re going to face a perjury proposition — or indictment after they say they have evidence.”

Now, they come back and said, “Look, I’m telling the truth” (Voice Overlap) —

Hugo L. Black:

May I ask you, are you still arguing the question of reasonableness of the punishment?

Jacob Kossman:

Yes.

Because the question of reasonableness comes into this particular play that under these circumstances, it’s true that the — the intent with which he refused, Cook versus United States, the intent with which he refused to answer these particular questions is important in finding out whether he was really contumacious, whether there was a willful violation.

Hugo L. Black:

Well, assuming — assuming that the judges found a legitimate way to do it, that this is a proper prosecution, and the man is willfully and deliberately decline to answer questions, on what basis can you argue that two years is an unreasonable punishment to this.

Jacob Kossman:

On what basis can I argue that two years is an unreasonable sentence?

Well, I —

Hugo L. Black:

Suppose he just deliberately made it up, committed to — decided that he will not answer any question.

He is going to defeat every way he can.

It’s very important for the Government to have.

Jacob Kossman:

Well, leaving aside the jury trial portion where that —

Hugo L. Black:

What I’m asking is —

Jacob Kossman:

— leaving aside the Barnett, I’m coming to that next.

Hugo L. Black:

–used about that.

Jacob Kossman:

Oh yes.

Hugo L. Black:

Why are you saying that this is an unreasonable punishment if he’s guilty of what they found him to be guilty of?

Jacob Kossman:

But there’s no — but the point is I go back to the good words, to the noble words that Justice Harlan — I have to address myself to the four justices who subscribed to the (Voice Overlap) —

Hugo L. Black:

But did they indicate that you couldn’t give a man two years punishment —

Jacob Kossman:

Oh —

Hugo L. Black:

— who was deliberately thrown in the court, decline to (Inaudible)?

Jacob Kossman:

Yes, but it’s been brought out in this particular case just like in the Harris case, there were — there was no grace and effort here.

This is the only man who answered the question.

Shillitani and I know comparisons are traditionally invidious, Shillitani refused to answer 53 questions.

Castaldi refused to answer any questions, Tramunti refused to answer questions dealing with gambling and whatnot.

Yet, he gets two years in vain.

Now, I wonder the doctrine and I’m coming back to the first and second question under the doctrine of reasonableness that Justice Harlan advocated, the power of the appellate courts to reduce if it’s an unreasonable sentence, we come in under that.

(Inaudible)

Jacob Kossman:

I beg your pardon, yes it was three years.

But it was the most –your own words are egregious one.

The man ran away after a trial.

A person, well Your Honor is familiar with the factual situation — no comparison.

Here’s an individual who has really spilled out his guts so to speak, and said I have — “I didn’t do anything that’s wrong” and these questions that are being answered has to do with him looking to protect themselves against the prosecution.

Now, I’ll come back to the first two questions, if Your Honor please, and it’s this.

This — I might have — the Barnett of course gets a ceiling of six months.

But that’s not the solution because suppose a person needs six — should only get six days.

The Barnett decision means that this Court and all appellate courts will still have to have a case by case analysis of the record in order to find out whether the sentence is reasonable since the Congress has not fixed any maximum punishments there.

Now, here, it happens to be a 300-page record — maybe a 3000-page.

It may be a 13,000-page.

Now, therefore I have to — and see, I’d lived with the — in the past, there are many people have with the idea that judges can’t send you to jail without a jury trial.

And the reason I live with it was because you used to get a fine or ten days.

But I woke up after I saw the sentences and after I began reading the dissenting opinions that someday I hope may become to the majority opinion than I — and I went back to history.

And going back to history, there’s one thing that’s clear in going back to history.

Number one, the historical error has been exposed.Justice Frankfurter exposed that.

That hasn’t been sufficient to convince this Court to throw away the decisions based on the doctrine that a jury trial is not required in contempt cases.

Jacob Kossman:

But there is a solution.

And the Harris shows there’s a solution by showing that there’s a difference between the contempt in the presence of the court and the contempt not in the presence of the court.

Now, once there is no necessity for speed, once there is no necessity for vindicating the authority of the judge immediately, I’ll go along even for a summary conviction in a court trial, even the sentence is delayed if the man behaves very badly in the court and the judge don’t want to punish him at that particular moment even though because it might hurt the defendant.

But where a contempt does not occur in the presence of the court, it isn’t such a radical change, he’s given the right to counsel, he’s given the right to subpoena any witnesses, proof beyond the reasonable doubt, what is wrong with having a jury?

Now, the argument that the Government has created, the jury, that there are unsympathetic jurors around, I’ve never found them but there maybe popular defendants and I never heard of any popular defendant except one.

I heard recently mentioned but that’s a fear that there’s no excuse for overthrowing — why that’s apparent on the face of the Constitution, Article III, Article — Amendment Five, Amendment Six.

Seven, the founders of this country was so concerned about a jury that they even put into an amendment that a trial for more than $20, you must have a jury trial.

Now, it’s exasperating to feel that when you have these sentences of six months, less or more, not incurring the presence of a grand jury that the judge who has his own order defied has the power to sentence you.

Now, look how the — how the Government defended it?

On page 65 of their Harris brief, nor is the rule proposed by the Barnett, this is Barnett dictum, it’s the Harris brief, if Your Honor please, I don’t know — a significant protection against unfair convictions for those accused of contempt.

Even under that rule, a district judge could summarily convict an alleged contemnor and sentence him to less than six months imprisonment or to whatever term is the constitutional maximum for petty offenses.

This is the Government, that Barnett dictum does not therefore afford protection against unfair determination of guilt.

It merely ensures that lengthy imprisonment will not to be imposed, without the intervention of someone other than the jury.

Well, at some insurance at least anywhere, at least I have a cutoff point of six months.

But further, a similar safeguard available for contempt cases but not for other crimes is the rule that appellate courts may review and revise contempts of sentences.

Now the word similar is a wrong word.

You can’t say that an appellate review is similar to a trial by jury.

Why?

A jury would have acquitted this man without leaving the jury box, with these particular three questions involved.

Now, as I say, here’s a — oh, there is something else I must call Your Honor’s attention to, and it’s this.

In terms of separating as I say, I spend so much time on the reasonableness and I’m sorry, I have to make a jury type of argument at this Court but that’s because I didn’t have an opportunity to make a speech to the jury or I should have made it in the trial court.

On page 45 of the Shillitani brief, it states this, in the same investigation, other witnesses, also a footnote, other witnesses including Shillitani similarly refused to testify.

Well, that’s a misstatement.

Sure, it was an oversight.

You can’t say other witnesses similarly refused to testify.

Here is a man who answered every single question, every single question pertaining to the investigation.

Now what does the Government say in order to defend on the ground that it’s reasonable?

And if Birkenstein was arguing this case, she would say, “Most unreasonable, most unreasonable, most unreasonable,” what does the Government say?

On page 13, “We think that the District Court’s judgment is supportable in light of the extensive narcotic conspiracy which was being investigated by the grand jury.

And the possibility,” a remarkable word, “And the possibility that petitioner, Pappadio’s refusal, was part of a concerted plan to hinder the investigation.”

Jacob Kossman:

Is that what we send people to jail for two years without a jury trial, “On the possibility”?

Oh, anything is possible but you can search the record from top to bottom inside, out — you won’t find — there’s no possibility.

There’s no possibility that — that’s the end of it.

They say, “A possibility” and when the Government has to resort to the possibility to sustain a sentence of two years on the ground that’s reasonable, they don’t have anything more, then I say it’s most unreasonable.

Now, there’s another argument that the Government has thrown in about this two-year business and I’ll conclude with that and that’s this.

They said, “Well, we have a different conception about time today than the founders of the country had, at the time of the Constitution.

That time — time doesn’t mean anything, two years then and two years now, all the different things entirely.

Well, Paul Getty recently said that a billion dollar is isn’t worth as much as it used to be.

But I feel that two years – 1776 is just as long than as it is in 1966.

If Your Honor please, this judgment should be reversed with reasonableness first in my opinion so that all district judges, and all Court of Appeal judges should know if the Barnett and the Green decision combined has any meaning that they can give out two years.

That when this Court has said appellate review will be made, that it will be made and that sentences will be reduced when they should be reduced.

And I can’t think of — I just can’t think of any justification for sentence of two years in a case that should be two days.

And he has served 20 days in jail.

Bail was refused, but the bail was granted at the time of the argument in the Court of Appeals.

Earl Warren:

Mr. Spritzer.

Ralph S. Spritzer:

Mr. Chief Justice, and may it please the Court.

I think perhaps I should address myself to the outset to the question which was raised in the colloquy with Mr. Justice Brennan.

We have construed the judgment of conviction in this case as being in criminal contempt because of the specific or fixed term in the event of non-compliance with the judgment.

Now, it is true that the judgment of this kind obviously has a coercive as well as a punitive effect because the judge did provide that he would enter a further order in the event that the witness complied with the direction to testify.

And the Court of Appeals in fact construed that judgment in the Shillitani case as giving the contemnor an unqualified assurance that the sentence would be reduced in the event that he complied with the order.

William J. Brennan, Jr.:

Reduced or terminated?

Ralph S. Spritzer:

Reduced in effect — in effect call it to reduce to the portion already served.

The judgment in the Pappadio case is in essentially the same form and though the Court of Appeals did not address itself to the question whether the right to termination upon compliance with the order was unqualified, in that case, I have no reason to assume that these two panels of the Court of Appeals entertained different views especially since Judge Lumbard sat on both of those cases.

William J. Brennan, Jr.:

Well, may I ask you that Mr. Spritzer.

Do you think it’s absolutely essential that we reach the jury trial question in each of these cases?

Ralph S. Spritzer:

Well, I construe this as a criminal contempt judgment Your Honor because if there should be a refusal to comply with the order, I take it that under the terms of the judgment, the sentence would be two years and not the duration of the grand jury which was then in session.

On that basis it seems to me it clearly has the aspects of criminal contempt.

William J. Brennan, Jr.:

Well that — then, that is to say —

Ralph S. Spritzer:

I think it is (Voice Overlap) —

William J. Brennan, Jr.:

— initially, we must reach the constitutional question?

Ralph S. Spritzer:

Yes.

The grand jury is (Inaudible)

Ralph S. Spritzer:

The grand jury is — that grand jury is no longer in session.

I do not think the possibilities of purge are therefore gone for this reason.

A successor grand jury has — is continuing the same investigation of these alleged and suspected narcotics activities.

Certainly, it would be the view of the United States Attorney if this — if these judgments were affirmed in this Court that he would be ready to provide an immediate opportunity — would wish to provide immediate opportunity to these witnesses to give the information they have before the successor grand jury.

In the event that such testimony were given, it would be the Government’s view that the District Court would have the power and we would say the obligation here to reduce the sentence in accordance with the purpose of the judgments originally entered.

I take purpose because it is true that the language of those judgments does in terms refer to the grand jury which was then in session.

However, we would have no doubt that whatever question might exist in the District Court in the event of such purge, measured against the literal terms of its judgment, there could be no question that under Rule 35, the court — District Court could accomplish the very same thing under its authority to correct or reduce a sentence.

So I would say this may bear somewhat upon the point that Mr. Justice Brennan was raising that the possibilities of compliance and of purge remain.

It has been in our interpretation, however, that this judgment has the aspects of the criminal contempt judgment because in the event of noncompliance, it provides for a fixed sentence which extends, in this case, beyond the term of the grand jury.

Coming to the constitutional issues then which we think are presented, the first of these is the question whether broadly, quite irrespective of the sentence ultimately adjudged in the case, whether broadly there is a right to a jury trial in a case of criminal contempt.

And that of course is the issue — an issue that the court has had before it several times in recent terms in the Green case, in the Barnett case, this term again in the Harris case though the decision did not reached that issue.

Important though it is I shall speak to it only very briefly in view of the fact that we have argued and briefed it extensively on these past occasions.

The basic argument which the Government has advanced in the various cases, in which this issue has been — has been posed, isn’t the issue turns very largely on historical considerations?

We say, as the court has held in the past, that the framers did not regard or include contempts in the category of crimes as that term is used in our Article III or in the category of criminal prosecutions as that term appears in the Sixth Amendment.

That rather they are regarded contempts as offenses against the court with which the court had an inherent power to deal, the point has been stated in many cases, long ago it was stated in Ex parte Burr.

And since the settlement of this country, the court should exercise the power to punish contempts in a summary manner such being the universal practice and the sentiment upon the subject.

It cannot be supposed to that decision that the makers of the constitution meant to include it in a number of crimes entitled to trial by jury.

Hugo L. Black:

Did you say universal?

Ralph S. Spritzer:

I was reading from the Ex parte Burr, yes, the quotation is “Such being the universal practice and sentiment upon the subject,” universal and — in a parochial sense because he’s talking about the colonies and not the world.

He means the universe and the colony as I take it rather than all countries.

We’ve also argued as Your Honors know that the first Judiciary Act very powerfully confirms this thesis.

That Act made provision for jury trial in the District Courts in civil and criminal cases.

In another section of the same Act, it provided for trial by the court and punishment by fine or imprisonment in the discretion of the court, a provision which has continued in that form without significant change from that day to this.

And we also think lately circumstance that the Congress in 1790 passed the General Crimes Act defining all the federal crimes that it intended to punish, that it did not deal with contempt in the General Crimes Act but dealt with it rather exclusive — dealt with it exclusively as I’ve indicated in the Judiciary Act.

That has been the view of the court without — it’s been the view to date.

It was the view that was followed without any dissent I believe from 1789 until the 1950s when it was first questioned.

Hugo L. Black:

Do you mean that during all that time, there has not been a fight between the legislative bodies in the country and the courts as to how far the courts could go in providing people of a jury trial?

I read history quite differently because I think it was a very scrambling position in the court as illustrated by the trial of Judge Peck on one point and one meaning?

Ralph S. Spritzer:

Well, there was a great dispute I think in connection with the Judge Peck matter as to whether the Congress could legislate to limit the power of the courts and the Congress did legislate in the aftermath of the Judge Peck case to take out of the power of the courts, the power to deal with what was then known as constructed contempt and I’m not arguing that the Congress is without legislative power in this area.

What I had said was that none of the decisions of this Court had seemed to express any doubt until the 1950s on the proposition that the courts could deal with contempt by summary process.

William J. Brennan, Jr.:

May I ask Mr. Spritzer, does the Government offer any additional material to that which seems to me there had been at great lengths offered in the Barnett case and earlier case —

Ralph S. Spritzer:

No, we are relying so far (Voice Overlap) as the historical material on our Harris and Barnett brief.

William J. Brennan, Jr.:

This is the same argument (Voice Overlap) —

Ralph S. Spritzer:

And I was clearly summarizing and I don’t intend to go on further with it, the essential point that we have been arguing —

William J. Brennan, Jr.:

Yes.

Ralph S. Spritzer:

— on several occasions in the past.

William J. Brennan, Jr.:

Well, at least once — one of us of course hasn’t heard this argument before.

Ralph S. Spritzer:

Yes sir.

Earl Warren:

These men stand convicted with felony by reason of this —

Ralph S. Spritzer:

No, they stand convicted of contempt —

Earl Warren:

And that is —

Ralph S. Spritzer:

It is our view that contempt is a — its something apart from crimes in the constitutional sense.

Earl Warren:

The reason I ask — I read in the press just a couple of weeks ago about a former soldier who died and his widow want him buried in Arlington Cemetery.

And it was objected that he had been convicted of a felony and subversion and therefore shouldn’t be there.

And as I read it from the paper, the opinion that apart from the justice was that under the statute which says that if a man has been convicted of felony and sentenced to more than five years, he is not eligible to be buried there.

And the Department of Justice ruled that because this man had been convicted of subversion and punished — and was punished by I think four years, and then for not showing up, he was convicted of criminal contempt for three years that those two felonies could be added together and made seven years and therefore the man’s — the remains couldn’t be put in the Arlington Cemetery —

Ralph S. Spritzer:

I don’t know what regulation or statute they were interpreting Your Honor, I would say that it’s certainly been our position in all cases involving contempt that I haven’t had anything to do with it.

Contempt is neither a petty offense nor a misdemeanor nor a felony but a separate category, certainly that that is true for purposes of considering the constitutional issue which we’re talking about here.

Earl Warren:

Well, I was just thinking of the consequences of a man suffering that kind of a conviction if it’s to be added to other criminal sentences, to add up to a greater number of years so that the man can suffer other disabilities, you would think that regardless of what it was called, that it would be a felony.

Ralph S. Spritzer:

I think in the — our position here, it isn’t necessarily must be.

I think it’s historically correct.

I think it has been consistent on our part, that this is not a crime, where this is a separate from the category crime in the constitutional sense and has always been regarded so.

Abe Fortas:

Then you have to take the position about it, Mr. Spritzer, that it’s also not an offense within the meaning of 18 U.S.C. 1, definition of felony.

Ralph S. Spritzer:

Yes, well —

Abe Fortas:

That was 18 U.S.C. 1 (Voice Overlap) —

Ralph S. Spritzer:

— that merely, that merely breaks down crimes into the category —

Abe Fortas:

Yes, I know that but —

Ralph S. Spritzer:

— of felony and misdemeanor and petty offense (Voice Overlap) —

Abe Fortas:

It uses the term offense.

It says any offense punishable by death or imprisonment for a term exceeding one year is a felony.

So you have to take the position that this is not an offense.

Ralph S. Spritzer:

Yes, I do.

Abe Fortas:

It’s not a felony even though it’s punished by — it’s punishable by two years.

Ralph S. Spritzer:

I would say it’s not a misdemeanor when it’s punished by three months, it’s neither one.

I think this is but another aspect of the question whether it is a crime in a constitutional sense.

Abe Fortas:

So you take the position then that there is a distinction as I understand that your position would be — there is a permissible distinction between an offense against the state and an offense against the court.

Ralph S. Spritzer:

Yes.

Our position is that contempts were not included in the category of crimes in the constitutional sense the way a violation of a criminal statute would be clearly in that category, but rather it’s something apart.

Abe Fortas:

It’s not — not only that.

It seems to me that it’s also a legislative problem.

That is to say that if you’re trying — if we’re trying to find out whether a criminal contempt punished by two-year provision, your preliminary question maybe whether this Congress has done something to make this a — something like this to the category of felonies and then you go on to the constitutional question.

I’m not suggesting that as a conviction of my part as you know, but as a —

Ralph S. Spritzer:

Yes.

Abe Fortas:

— possible — possibly necessary — for an analysis.

Ralph S. Spritzer:

My analysis would be that the 18 U.S.C. 1 is but an attempt to breakdown the constitutional category of crimes into various subcategories so the Congress for purposes of other legislation might indicate what consequences would flow from conviction of one type of crime as opposed to conviction for another type of crime.

Abe Fortas:

Would you have any question as to the power of Congress to say that — legislative effect that convictions of criminal contempt shall be a felony and that all — whatever flows from other statutes are indeed from the Constitution with respect to felonies.

Ralph S. Spritzer:

No, I would not have any doubt.

I think that’s another way of saying what I had said earlier.

The Congress could provide specifically it’s a trial by jury in those areas where it chose, in connection with contempts.

Abe Fortas:

I think perhaps one of the troublesome things as far as I’m concerned is this, this is 42 (b), it’s not 42 (a).

Ralph S. Spritzer:

Yes.

Abe Fortas:

And then the 42 (b) in effect, Congress — but through the rule or through the mechanism of the rules, has modified in any event the category of — the idea that a criminal contempt is somewhat must be treated in someway procedures, by providing for a notice —

Ralph S. Spritzer:

This is a matter of definition of summary in the sense that it’s then and there, it has modified it in the sense that it is still by the court through a procedure which is considerably shorter than indictment by a grand jury and trial by jury.

It is still in the sense summary.

I don’t think that there’s anything in Rule 42 or in it’s history to suggest that the Congress contemplated any procedures extending beyond notice in hearing or that it was changing it’s views as to the prerogative of the court as distinguished from the jury or the institution or the grand jury to deal with contempts of the court’s authority or orders.

Now that brings me, and again, it is a point that has been dealt with before and I shall try not to be unduly repetitious to the Barnett dictum.

The suggestion that even if trial by jury is not constitutionally acquired in all cases of criminal contempt, that a limitation of six months ought to be imposed either as a matter of constitutional doctrine or in the exercise of the supervisory powers where the trial court contempt is without a jury.

The basis of that suggestion, I take it, was the discussion in Mr. Justice Goldberg’s dissenting opinion in the Barnett case, which suggested to him the possibilities that some of the colonies may have regarded contempts as akin to petty offenses in terms of the punishments which might be imposed therefore.

Ralph S. Spritzer:

And he cited statutes from some of the colonies in which there was provision made for a day in jail or a five-pound fine or another rather trivial penalty as suggesting that possibility.

It was an answer to that suggestion that we undertook the extensive historical research which we presented in the Harris case.

And as Your Honors know, our examination of the statutes after exhaustive search of materials, which are not readily available, brought out the fact that there was no colony which had a general or comprehensive or across the board limitation upon the power of its principal courts to punish for contempt.

There were in many of the colonies some statutes which placed some limitations upon some kinds of contempt such as very often the relatively minor contempt of failing to appear on time in response to a subpoena.

More than that, we found that none of the colonies had any statutory limitation upon the power of the courts to impose a penalty or punishment for disobedience of the court’s order or decree.

And finally, we found that in the very jurisdictions where Mr. Justice Goldberg had observed the existence of these statutes imposing minor penalties, there were other statutes which authorized severe penalties for other more serious types of contempts.

The actual practice in colonial times we found — confirms what the statutes might manifest, that there was no conception that contempt was a petty offense.

Many contempts were punished by quite trivial penalties just as many are today but they were in all of the colonies’ instances of severe or serious punishments as well.

We also documented I think rather fully the proposition that none of the commentators, none of the judges at the time, court’s opinions of the courts were not frequent but there are some events, that none of the commentators or judges of that day drew an analogy between contempt and petty offenses.

Our conclusion is that there is no supportable historical basis for such an analogy.

We think that contempts of authority not surprisingly were viewed with considerable gravity in the 18th Century.

We think it was no inadvertence that Congress in 1789 authorized punishment by fine or imprisonment in the discretion of the court.

And today, no less, we suggest that it would be an anomaly to regard a grave and desirous and deliberate contempt where it occurs as punishable only in the manner of let us say a traffic violation or similar petty offense.

Abe Fortas:

Why do —

Ralph S. Spritzer:

In the Barnett case some members of this Court emphasize how serious the contempt there adjudged was.

Abe Fortas:

Mr. Spritzer, why do the courts have to pay any attention at all to what Congress says about the contempt on your theory.

Ralph S. Spritzer:

What Congress says?

Abe Fortas:

Yes, on your theory.

That is to say, if this is an effect of offense against the court to be distinguished from an offense against the state, why — don’t the courts have power to act regardless of what the Congress says about anything?

Ralph S. Spritzer:

Well this was long debated, of course in 19th Century (Voice Overlap) —

Abe Fortas:

Yes.

I know.

Ralph S. Spritzer:

It’s a debate at the time of the Judge Peck impeachment.

I’ve been emphasizing what the colonies thought and what framers thought about the nature of the power of contempt, not from the standpoint of arguing what powers Congress might or might not have, but rather from the point of view of showing that the framers did not intend to embrace contempts in the guarantee of jury trial in writing Article III or the Fifth Amendment.

Abe Fortas:

Well, is it your position that the historical analysis is or should be determinative of this constitutional question we have before us?

Ralph S. Spritzer:

Well, I certainly think it’s of great weight.

Abe Fortas:

Qualified (Voice Overlap) —

Ralph S. Spritzer:

And I’m also going to argue that I think there are reasons of policy to support adherence to what has been the traditional rule.

William J. Brennan, Jr.:

Well, may I ask Mr. Spritzer, I’m correct, am I not, that the Congress has required a jury trial —

Ralph S. Spritzer:

In some case.

William J. Brennan, Jr.:

— in some —

Ralph S. Spritzer:

Yes.

For example where —

William J. Brennan, Jr.:

Would you — would you —

Ralph S. Spritzer:

— we had it in the Barnett case where it’s also an offense against the statute and the plaintiff is not United States, the Congress has said —

William J. Brennan, Jr.:

Well, is your approach that this is not, as my brother Fortas said, an offense against the state, against the court — the courts have to honor constitutionally or the courts obliged to honor these requirements to a jury trial?

Ralph S. Spritzer:

Yes, I’m not — I’m not questioning the power of the Congress to legislate (Voice Overlap) —

William J. Brennan, Jr.:

How is that consistent with the (Inaudible)

If this is an offense against the court, therefore a judicial — a matter of judicial prerogative, where does the Congress come in to tell us that we have to allow jury trial?

Ralph S. Spritzer:

That is as I say our proposition that’s conceivably arguable and was argued by many in the 19th Century.

This Court has decided long since that Congress does have this power to regulate the procedures and I certainly have no thought of raising any question as to that.

My reference to what the colonies thought and what the framers thought and what they’ve said was solely by way designed to make a point that they didn’t think of it as a crime in the conventional sense.

They thought of contempt as something different and hence not included so my argument to goes in the language crime and in the words criminal prosecutions.

That’s the only purpose for which I am referring to this history.

Hugo L. Black:

I read the brief very carefully in the other case and I didn’t see that it’s ordered there at all.

And another thing about it is the colonies, that was passed before the amendments were adopted which expressly emphasized the (Inaudible).

Ralph S. Spritzer:

The — I’m sorry I didn’t catch your —

Hugo L. Black:

Well, I just did not understand if your brief established it at all the last time, just what you said it did, that the colonies even if we went back to the colonies before we had the amendment, when they want to get away from the rules, even if we went back then, I did not see why they said that should not be treated as a crime.

That developed as I saw it later when a number of the states combating the state legislature, had a fight and used the word that you used, inherent power of the courts in order to show that the legislature couldn’t take away from them the power to punish the contempt as they (Inaudible)

Ralph S. Spritzer:

There are many instances Your Honor and I cannot develop them here and have to — I have to rely on the Harris brief in which judges of the colonies did speak of the contempt power as an inherent power of the courts.

Hugo L. Black:

Do you remember which state it was that first asserted the noble doctrine that the courts had inherent — which has been followed by some judgment, the court said.

Ralph S. Spritzer:

Yes.

Hugo L. Black:

They had inherent power which the legislature couldn’t take away to fix such punishment for contempt as they sought for it, do you remember which state first did that?

Ralph S. Spritzer:

No, no Your Honor.

Hugo L. Black:

I maybe wrong but I think it was Arkansas.

The fight was between the legislative branch and the court.

Ralph S. Spritzer:

Oh yes.

Hugo L. Black:

And they answered it by saying, “We have inherent authority because we are the court and the legislature can do nothing about it.”

Ralph S. Spritzer:

Yes.

Well there was —

Hugo L. Black:

I’m happy to see that you do not follow that.

Ralph S. Spritzer:

No, I’m not arguing here against the power of Congress at all.

As Your Honor knows, that — that argument was conducted in the halls of the Senate at great length by Livingston and by others in the aftermath of Judge Peck.

There I take it that the contempt legislation of the 1830s establishes and led us to ask the question where the Congress was intruding upon the Judiciary’s powers in narrowing the definition of contempt.

I take it also —

Hugo L. Black:

None of them can take it away at the time.

Would you say that?

Ralph S. Spritzer:

I’m thinking —

Hugo L. Black:

Are you sticking to the old idea of the original record — that’s an inherent power of the courts and the Congress is incapable of taking it away —

Ralph S. Spritzer:

Actually, what makes me hesitate is the thought that it would be rather — it would be crippling to the courts if no aspects of the contempt power remain because I think of many situations in which —

William J. Brennan, Jr.:

Well, on what basis would we say that no — there is a limit to which Congress can go constitutionally, how would we say that?

What in the constitution would permit us to say —

Ralph S. Spritzer:

I suppose the ultimate question is at what point would legislation, on this subject, go so far, be so crippling to the very function of the court that it could be an invasion of the principle of the separation of powers.

I don’t know any other (Voice Overlap) —

William J. Brennan, Jr.:

Well, I’m thinking of an example that —

Ralph S. Spritzer:

— under which that I can really replace it.

William J. Brennan, Jr.:

Now, where they deal with sentences as I recall it, am I right, that Congress has limited the sentence in a criminal contempt in certain situations (Voice Overlap) —

Ralph S. Spritzer:

In certain situations —

William J. Brennan, Jr.:

— three years is the (Inaudible)

Ralph S. Spritzer:

Yes.

William J. Brennan, Jr.:

Suppose Congress could do what has done in narcotics field and say, for a conviction of criminal contempt in a given situation, there must be a mandatory sentence of five years or ten years?

Ralph S. Spritzer:

Well, that question has never a risen because since 1789, the grant of authority to federal courts has been explicitly in terms of the discretion of the court.

The — so far as the grant of authority is concerned, then there had been ceilings placed on the punishment which might be imposed in (Voice Overlap) —

William J. Brennan, Jr.:

Well, your argument — this intrudes on the concept of separation of powers.

It seems to me that really —

Ralph S. Spritzer:

I’m not —

William J. Brennan, Jr.:

— so the ultimate result is all of these congressional intents of regulations.

Ralph S. Spritzer:

No, I’m not — I’m not attacking any congressional regulation in this case.

That was — (Voice Overlap) in answer to Justice Black’s question, whether there would ever be a point at which Congress would have to stop, whether the Congress could take away the whole scope of the contempt power and leave the courts nothing, even for the purpose, let us say of maintaining decorum in the courtroom, I don’t know.

That’s a troublesome question to me, I can’t conceive the Congress ever would.

Ralph S. Spritzer:

But I think the — that is not a relevant interest to the constitutional issue we have here.

William J. Brennan, Jr.:

No, it is relevant I think.

I suggest that it’s relevant to the application of the jury trial, at least to me, very well.

Ralph S. Spritzer:

Well, it’s not relevant to the defense I’m offering for our position because we don’t question the Congress to tell (Voice Overlap) —

Abe Fortas:

Mr. Spritzer, may I suggest the possible relevance as it tentatively appears to me, you are saying that contempt — criminal contempt is something quite different from any other kind of offense against the law.

And the next proposition which is I think has been established in the colloquy that has occurred is that Congress has the power to regulate, prescribe up to some indefinite point with respect to contempt.

Now if that is so — it seems to me there’s quite a substantial burden of persuasion to — on your part to establish that this is a different category and other crimes.

Ralph S. Spritzer:

The Congress has the power to legislate upon many topics, which relate to the judiciary and those matters are essentially judicial.

The Congress could limit the avenue of appeal to this Court in certain categories of cases, that they’re not —

Abe Fortas:

Then you call that jurisdiction?

That’s a matter relating to jurisdiction and similarly, perhaps we call anything a matter relating to crimes, criminal offenses.

Ralph S. Spritzer:

I don’t think one can gain much light on the question whether the framers regarded contempt is carrying the right of trial by jury, by posing the question whether the Congress can legislate in respect to the procedures in contempt cases.

I think, more light is obtained by going to such historical evidence as we have in (Voice Overlap) —

Abe Fortas:

That’s more — more lights contained in the — which you’re coming to as I understand you —

Ralph S. Spritzer:

Well my — I’m trying to make a very (Voice Overlap) —

Abe Fortas:

— this other point about — this being in a different category and it’s troublesome.

Ralph S. Spritzer:

Well, I think there are significant differences between violation of a court order and violation of a statutory command in the form of —

William J. Brennan, Jr.:

In that connection Mr. Spritzer, would it be — could we get the opinion of the Attorney General in the case that the Chief Justice mentioned?

Ralph S. Spritzer:

I’m sure we can.

William J. Brennan, Jr.:

— burial in Arlington.

Ralph S. Spritzer:

I think — I’m not familiar with the opinion though.

William J. Brennan, Jr.:

Yes —

Ralph S. Spritzer:

— (Voice Overlap) provided for the court.

William J. Brennan, Jr.:

— because it refers from this (Voice Overlap) what you’re talking about it now?

Ralph S. Spritzer:

Yes sir.

What I was about to say now is that in the case of violation of a court order as distinguished from violation of the statute, there has been a full judicial proceeding.

The precise duty of a particular defendant has been specifically defined in an adversary case in which he’s been represented by a lawyer.

The issue has been refined.

The end product is the product of case by case adjudication or of an equity proceeding, a direction to the defendant to do or not to do something.

That particularization of the command following a full judicial proceeding I think makes that kind of an order significantly different and the consequences of the flouting of that kind of an order significantly different from a generalized legislative command addressed to the world at large.

Ralph S. Spritzer:

The court’s authority has been refined.

It has spoken in a particular case.

In this case, it heard repeated arguments.

It entered an order directing testimony.

It decided which question should be answered and which need not be answered.

It repeatedly directed their answer.

Now if that kind of a question — if that kind of an order cannot then be implemented directly by the courts, it seems to me that the sanction of contempt will lose a great deal of it’s promptness and it’s sureness both of which.

William J. Brennan, Jr.:

You mean the sanction of criminal contempt.

Ralph S. Spritzer:

Yes.

William J. Brennan, Jr.:

That certainly, the sanction of civil contempt, which maybe more appropriate for that very situation, would still be available.

Ralph S. Spritzer:

Yes.

I —

William J. Brennan, Jr.:

And in full strength?

Ralph S. Spritzer:

I think incidentally the availability of civil contempt, I think does emphasize the point I was making to Justice Fortas that there’s a difference between a court order and a legislative command because you couldn’t impose any sanction, civil or criminal contempt to implement a generalized, a legislative command.

The very reasons that you can impose a civil contempt sanction are that you have had this proceeding, this refinement of the case, this adjudication.

The reason the Southern District has been utilizing criminal contempt sanctions rather than civil contempt in this type of case I take it, is that it has concluded that the sanctions, the force of the sanction ought not depend in whether the refusal to testify occurs the last week that the grand jury is in session or the first week.

Abe Fortas:

Mr. Spritzer, I beg your pardon.

I wonder if you can really confine that narrowly because there are other types of criminal contempts.

How about 42 (a) contempt, the contempt committed in the presence of the court, counsel and the judge get into a dispute, what about the availability of the jury there.

Now, that’s a generalized provision, 42 (a) is a very generalized provision, isn’t it?

Ralph S. Spritzer:

Yes.

Abe Fortas:

And so that your argument would not apply there, but still there’s a jury question, isn’t there?

It might be before us now.

Ralph S. Spritzer:

Oh, whether a jury is required?

Abe Fortas:

Yes —

Ralph S. Spritzer:

Where a contempt case is (Voice Overlap) —

Abe Fortas:

— or, it may not be before us now, but intellectually and conceptually, in a way, it’s a question.

Ralph S. Spritzer:

Yes.

It’s a case, Your Honor — it’s putting a case in which the facts are not — perhaps have to be in dispute when it takes place in the (Voice Overlap) —

Abe Fortas:

Well, that may very well be, yes sir.

Ralph S. Spritzer:

They may, I think, but —

Abe Fortas:

A controversy between the judge and the counsel —

Ralph S. Spritzer:

Yes.

Abe Fortas:

— I mean, there might be a dispute.

Ralph S. Spritzer:

Well, I’m not saying there’s no possibility of dispute.

But it is an action there in the presence of the court.

My point is not that there are never any factual issues in contempt cases, obviously, there are.

My point rather is that the situations in which the contempt power is utilized and needed, frequently make it important and I think the case that follows next after this one gives some practical illustrations in another area.

Frequently, make it important in our view, that the Court have the power to proceed in its traditional fashion.

Earl Warren:

We’ll recess now.