Yates v. United States – Oral Reargument – October 22, 1957

Media for Yates v. United States

Audio Transcription for Oral Argument – October 09, 1956 in Yates v. United States
Audio Transcription for Oral Argument – October 10, 1956 in Yates v. United States

Audio Transcription for Oral Reargument – October 22, 1957 in Yates v. United States

Earl Warren:

Number 2, Oleta O’Connor Yates versus United States of America.

Mr. Branton.

Leo Branton, Jr.:

May it please the Court?

This, like the case of yesterday, is a case involving the power of the court to punish for contempt.

However, unlike the case of yesterday, it involves a different kind of a contempt.

This is a contempt which grew out of the Los Angeles Smith Act trial, also known as Yates versus the United States, which was argued last term before this Court and which this Court reversed on June the 17th of this year.

At the Los Angeles Smith Act trial in 1952, at the end of the prosecution’s case, ten of defendants rested their case without putting on any evidence and four did not rest their case.

The petitioner in this case Mrs. Yates was one of those four.

She also is the only defendant to have testified in that case.

Now there were three different contempts arising out of her testimony and I’m going to take some time, if I might, to briefly summarize each of these contempt cases even though there is only one of the contempt cases which is before this Court on petition for certiorari.

And the reason that I’m going to do is because I believe that you will agree with me after I’ve given these facts that these contempts are so closely interrelated that one must know what happened in each of the other contempt cases in order to properly decide this particular case.

Mrs. Yates testified on direct examination for nine days during the course of which time she answered fully and completely every question concerning herself, when she had become a communist, why she had become a communist, the things that she believed in as a communist, the things that she had fought for during all of her life.

On cross-examination, she likewise answered fully and completely all questions concerning herself and her own activities.

However, there came an area of questions which she refused to answer, and this came on the first day of cross-examination.

She was asked four different questions, each of which she refused to answer and she gave the reason for refusing to answer these questions as a desire not to become an informer because the answer to each of these questions would necessarily name someone else, someone else other than herself as a member of the Communist Party.

And she believed that in the present times when there was so much anticommunist hysteria that to identify other people as members of the Communist Party was subject to bring some harm to that person or to that person’s family and perhaps visit physical violence upon that person or that person’s family and she could not in good conscience bring herself to be that kind of a person.

This in essence was the basis of her refusal which she spelled clearly to the court on the first day that she refused to answer these four particular questions.

At that time the court told her that he appreciated the fact that she just didn’t want to become an informer, that perhaps the jury might agree with her, the jury might understand what it is to be an informer, however, the orders of that Court had to be carried out and consequently he directed her to answer, upon her refusal to answer, he ordered to jail, to remain there until she did answer the questions.

So that she remained in jail for the rest of the trial which was some 43 days.

He held that that was civil contempt.

Then the cross-examination proceeded for another three days during which time she again answered all questions concerning herself until on the third day as she was getting – as the prosecutor was nearing the end of the day, the trial judge turned to the prosecutor and said, “Mr. Nucum you ought to be getting pretty close to the end of your cross-examination now” and the prosecutor said, “Well, I intend to go all day tomorrow,” whereupon the trial judge said, “You are just waiting time now, come on get along with the case.”

What was the time interval between the first episode and the one you are talking about?

Leo Branton, Jr.:

Three days.

Three days.

Leo Branton, Jr.:

Whereupon — whereupon the prosecutor immediately without further ado began to put other questions to her which said questions necessary called for her identification of other people as members of the Communist Party.

He put eleven separate questions to her, which she refused to answer and said, “I repeat these – this is the same kind of a question you asked me the other day and no matter how many times you ask me to identify these people as members of the Communist Party, I can’t bring myself to do so.”

The court at that time held that he treated the eleven contempts of that day as criminal contempt and he treated them as separate contempts from those of the third of cross-examination, from those which had jailed her civilly and on the first day of cross-examination, and he postponed a sentence upon that until the end of the trial.

Now this was on June the 26th.

Then on August 6th the jury found all defendants guilty.

The next day the trial judge sentenced each defendant to $10000 fine and five years in jail, the maximum allowed under the Smith Act at that time and on the same day or the next day, I don’t recall which, the court sentenced the defendant Yates to one year in jail for the contempt of the third day of cross-examination to which the eleven questions which he had ruled was criminal contempt rather than civil contempt.

Leo Branton, Jr.:

Now all of the defendants applied for bail.

Bail was refused by the Trial Court.

We went to the Ninth Circuit Court of Appeals which held that there was a substantial question and ordered the Trial Court to set bail.

The Trial Court still refused to set bail.

We went back to the Ninth Circuit and the Ninth Circuit itself set bail at the sum of $20,000 as to each defendant.

However, the marshal refused the release the defendant Yates even though the $20,000 bail was deposited because he said he was still holding the defendant Yates in jail pursuant to a certificate of civil contempt, which the Court had ordered on the first day of a cross-examination and consequently until the Court ordered her release, she was in jail or still should be in jail.

Now Judge Mathes, the trial judge, was not in the jurisdiction at that time.

Mrs. Yates was taken before another judge who ordered her release upon the stipulation that she would present herself a couple of days later before Judge Mathes to see what his ruling would be concerning the civil contempt.

So two days later the defendant appeared before Judge Mathes, at which time Judge Mathes ruled — asked her if she was still willing to answer the questions which she had refused to answer on the first day and for which he had jailed her for 43 days.

She said, “My position is still the same Your Honor.”

The judge held that the prosection was still entitled to those answers in spite of our argument that she could no longer purge of contempt the trial being over and he ordered her back to jail where she was remain until she answered the questions which would have in affect been — may have been a life time sentence.

We asked for bail for this.

The trial judge denied bail, we went to the Ninth Circuit Court of Appeals who then fixed bail to the sum of $1000 on this contempt.

She got out on bail.

After she got out on bail, the trial judge summoned her before the court a third time, this was 30 days after the trial was over, at which time he told her that because of her refusal to answer the questions of the first day for which she had – she had already spent 43 days in jail and for he held she would have to stay in jail until she answered and for which we had just got her out on appeal, he said he was now going to treat that as criminal contempt and he sentenced her to three years in jail for that contempt.

All three of those of cases of contempt went to the Ninth Circuit Court of Appeals.

The Ninth Circuit reversed the contempt which called for her staying in jail until she answered the questions on the obvious ground that the trial being over, she could no longer purge herself and that since that was civil contempt, the government was no longer entitled to those answers and ordered a reversal of that contempt.

The Ninth Circuit also reversed the three-year sentence of contempt on the grounds that it was a denial of due process to the defendant Yates to first punish her in civil contempt and send her to jail for 43 days incidentally by the time she – all of these, she was jailed after each one of those contempt citations and it took us some time for the machinery of bail to get her out, by this time she had spent in excess of 70 days in jail because of these contempts rather than the 43 days which she spent prior to the time of conviction.

At any rate, this three-year sentence was likewise reversed by the Ninth Circuit on the grounds that it was a denial of due process for the Court to first punish her civilly and then without giving her any warning or any notice that was willing to punish her again, after the trial was over to punish her criminally for that same contempt.

The court affirmed, however, the one-year sentence of contempt and to repeat myself perhaps but in order that we might get the complete picture, this was the sentence wherein she had refused to answer questions on the third day of cross-examination and which the court at the time said that it was going to treat differently from the contempt of the first day of cross-examination.

Harold Burton:

Now that relates to the eleven questions on June 30?

Leo Branton, Jr.:

Yes sir.

Harold Burton:

And that’s what is before us?

Leo Branton, Jr.:

That is the appeal that is before us today.

Now that brings us here.

When the Ninth Circuit reversed, I’m sorry, affirmed the one-year sentence it stated that the contempt of June 20th to with the third day of cross-examination were different and separate contempts of the 26th of June, the first day of cross examination but it gave no reason for holding that these contempts were separate and distinct and this brings us to the first point which we argue here on appeal.

Our first point which we believe calls for a reversal by this Court is the fact that the contempt of June 30th, if it was a contempt at all, and I say ‘if it was a contempt’ because on an argument which I will make later I think that I have a very valid argument that there was not even a contempt permitted on June 30th but for purposes of this first point, I want to assume for a moment that there was a contempt.

If there was a contempt at all it was not a contempt committed on June 30th but the only contempt in this case was committed on June 26th at which time the witness said, “I will answer all questions excepting questions which will call for my identification of other people as members of the Communist Party.”

At that time her contempt was tolled and thereafter the prosecution could not multiply the contempts in this case, if the prosecution asked her to identify 5 people, 11 people or 5000 people, this is the holding of the Costello case.

The government agrees with the Costello case.

Harold Burton:

Even though these are different people?

Leo Branton, Jr.:

Even though they were different people.

In the Costello case, Mr. Costello Your Honor had refused and stated, “I’m not going to answer any questions at all” and thereafter he was asked three different questions, one question did he know one person, one question did he know (Inaudible) and one other person, all of which questions he refused to answer and the – he was held in separate contempts for those refusals and the court said that once he had said he was going to answer no questions, the court could not multiply the contempt by holding – answering questions which called for different people, and consequently there was only one contempt.

Now the Court – as I said the government accepts that case, but yet it claims that that the Yates case is different.

I don’t really know why other than what they argue in their brief but in a moment I’ll attempt to show you that in my opinion that has no merit –

Supposing one were to agree with your position that this is a single contempt, what about – what do you say to the right of the court to see it as one continuing contempt and to impose sentence on the basis of what happened on the 30th, which is a continuing contempt?

Leo Branton, Jr.:

That is a question which comes up in my second point if I might defer it until that time –

Yes certainly.

Leo Branton, Jr.:

— I would be glad deal with it at that time.

The trial judge in the case mistakenly considered each separate refusal as a separate contempt.

The Ninth Circuit Court of Appeals treated the contempts of June 26 as different from the contempts of June 30th, but it does not say why.

The government argues two possibilities.

It argues that the contempt of June 30th was different because it concerned different individuals, the Costello case is a complete answer to that argument I believe, but it also argues that the contempts took place on a separate day.

I have been unable to find any cases of contempt which say that a contempt committed — a question which is answered or which a witness refuses to answer on one day makes it any different than a question which she had refused, the witness refused to answer on the day before because if you follow that logic I think you can get into an absurdity.

Here our two witnesses who testifying before a court.

One witness refuses to answer a question after having stated his position, “There are certain kinds of questions I will not answer.”

He refuses to answer a question at 4:29 on one day and the court because it adjourns at 4:30, it starts another session tomorrow and he refuses to answer the first question out of the box the next day, under the government’s argument that time that witness would in contempts twice, two different contempts merely because of the accident of the case – of the questions having been asked on two separate days.

Another witness on a trial in the same courtroom could be answered 20 questions all of which had came in the same day and refused to answer all of those questions and that witness under the Costello case would be guilty on the one contempt.

I think that what both the Court and – below and the government misses in this case, what they all ignore is the position of the accused in this case.

Her complete singleness of attitude, the fact that at all times when she refused to answer questions she acted with a single impulse, she had a single course of conduct, she gave an identical nature of her ground of refusal and I believe that under the Costello case and under the plain logic, the witness cannot be held in contempt many times because of the accident of refusal coming on separate days.

And that – yes sir.

Charles E. Whittaker:

Mr. Branton may I ask you, do I understand you to say that the only reason she gave for refusing to answer the questions on the 26th were the same that she gave for refusing to answer on the 29 – on the 30th.

Leo Branton, Jr.:

She did not use the same words, but basically it was the same reason and in that – the Ninth Circuit recognized that in its opinion.

It stated I believe that on the other day she was asked questions of a similar nature and she refused on similar grounds.

Charles E. Whittaker:

Did she not on the – in refusing to answer the questions on the 30th of June say that she wouldn’t answer questions that she thought would hurt anyone?

Leo Branton, Jr.:

Mr. Justice Whittaker, it is true that on the first day of her examination, she said, “I will not answer any questions which will identify anyone as communist because of the fact that the answer to this question is subject to cause someone some damage, a loss of a job or physical violence etc.

Then it is true that on the 30th she did add to her answer the fact she would identify people as communist wherein the answer to that question would not hurt anyone.

It is true, but in my opinion Mr. Justice Whittaker that makes no difference in this case.

Charles E. Whittaker:

Perhaps not, but then you tell us how one could tell, how the trial judge could tell what questions she thought would or would not hurt anyone?

Leo Branton, Jr.:

I would be glad to answer that sir.

Leo Branton, Jr.:

The trial judge could not tell, neither could the prosecutor tell, whether or not the answer to a question would hurt anyone or not, but in my opinion it is not necessary for there to be an objective by which the trial judge or the prosecutor can know whether or not an answer to a question will hurt someone.

The fact is once the question is put and once the answer makes that question fall into the category of the refusal that the witness had carved out for herself, it becomes a part of the original contempt.

Now let me give you what I mean, and let me tell you why that should be the policy of the law.

A witness like Mr. Costello who says I won’t answer any questions can only be in contempt one time no matter how many questions are put, but here is a witness who says in the beginning, “I’m not going to answer any questions that will hurt anybody” or rather “I’m not going to answer any questions that will identify anybody as a member of the Communist Party” and then she narrows this a little bit by saying, “Well, I will answer questions of people who can’t be hurt by this.”

In my opinion that witness is showing her complete good faith in narrowing it because if she had refused to identify people for example like William Z. Foster, who was the acknowledged head of the Communist Party, who was publically a communist, which question she did answer incidentally Mr. Justice Whittaker, she did answer questions about some people and she answered a question about a fellow by the name of Mike Quinn, because in her opinion, she said Mike Quinn is dead and Mike Quinn can’t be hurt anymore, so I have — I will name Mike Quinn.

I think the policy of the law should be to encourage as much testimony from a witness as possible rather than to discourage that witness from testifying because what that witness was doing when answered some of those questions, and I think without weaving her position was showing her complete good faith because in the beginning she said I’m not going to identify anybody who can be hurt, so that if she had refused to identify Mike Quinn, then this Court could have said why you aren’t even in good faith, because you can’t hurt Mike Quinn, Mike Quinn is dead.

So she did name Mike Quinn.

In my opinion, the policy of the law should be not to punish her by holding her in contempt many times because of the fact that she did identify some people who she could not hurt, because if that’s going to be the policy of the law that the safest thing for this witness to have done on cross examination was to say I’m just not going to answer any questions at all.

And so for that reason, I think the fact that she did answer those particular questions is of no significance whatsoever and should not be under the law and could be justice.

Now the second point and I think that this point gets us to the point which was raised by Mr. Justice Harlan.

We say that in this case, while the judge treated this attempt as criminal, and he labelled it as criminal, actually it was civil contempt.

And it was civil contempt because of the way the judge treated it for the purpose of the punishment here.

I need not remind this Court of the difference between civil contempt and criminal contempt.

Felix Frankfurter:

You mean remind us, but I’m sure we’d be glad to have your enlightenment.

[Laughter]

Leo Branton, Jr.:

Mr. Justice Frankfurter suffice it to say that the purpose of civil contempt is coercing to get the answers.

Well the benefit of the parties seeking those answers, while on the other hand, the purpose of criminal contempt is not coercive at all, but it is impunity, it is to vindicate the authority of the court in order to deter any possible future contention and it’s not to coerce the answers.

Now let’s examine what happened in this case.

As I said it’s not the label which makes it criminal attempt, but it’s the character and the purpose of the punishment which controls.

This was held by (Inaudible) and by several other cases.

We can only tell what the essential purpose of the court was in this case by examining what the court said and what the court did at the time of the sentencing.

Now at the time of the first contempt which is unquestionably civil, nobody disputes that, this was the language that court used.

To borrow language from some of the cases, you carry the key to your jail in your own purse.

You may purge yourself at anytime and be discharged from custody.

This is typical language of civil contempt, carrying the keys to the jail in your own pocket.

I think it was quoted from some case, the name of which I cannot recall at this point in time.

Also the court at the time of ordering her back to jail under civil contempt stating isn’t the government entitled to those answers which she according to the orders of the court should have given, and in case there is another trial of the case, if she should elect to take the stand, the government should have those answers, again this signifies that they treated this as civil contempt.

Now what did the court say at the time of the second contempt, and this is the contempt that is now before this Court, the contempt which he labeled as criminal, but which we say was actually civil and he had no power to give a punitive sentence because of the fact that he treated it as civil, the court said this and this language appears at page of the transcript of the record and it’s also in the record of the Ninth Circuit Court of Appeals which is 13541, which we also filed with the Court.

Charles E. Whittaker:

This is page 27 of the record?

Leo Branton, Jr.:

Yes.

Charles E. Whittaker:

Thank you.

Leo Branton, Jr.:

The court said I had hoped by this time that Mrs. Yates might be willing to purge herself.

That she might be prompted to do so and again at page 36 and 37, the court said I hope Mrs. Yates will yet purge herself.

I am not interested in imprisoning Mrs. Yates.

This is the language of the court.

Well why isn’t the court interested in imprisoning Mrs. Yates because imprisonment would be punitive and the court wasn’t interested in any punitive imprisonment here.

He wasn’t interested in vindicating the authority of a court, the reasons was that he wanted the answers, because if he was going to punish her criminally, she couldn’t purge herself from criminal contempt as he says here, and he wouldn’t have used this language about being interested in having the answers if the purpose of his sentence was punitive rather than civil.

Now did the court say at the time of the third contempt, now this was 30 days after the case was over?

The court said, do you wish to answer the questions at this time Mrs. Yates, this was even after the case was over, you could end it all, there is simply Mrs. Yates by answering the questions.

If you disposed to purge yourself of this contempt and obey all lawful orders of the court I will entertain a motion to modify any one, not only this sentence, but any other of these sentences heretofore invoked.

And then at the time of his written judgment, he said if and when at any time prior to defendant release from custody following execution of the concurrent three-year sentences, the defendant shall purge herself of contempt by answering under oath the questions, then the concurrent three-year term of imprisonment herein shall ipso facto cease and terminate.

Now the government says that if is any different contempt proceeding and has no bearing upon the contempt which is before this Court, but we say that it does, because if the court 30 days after a trial is over, when it is no longer possible to recall the jury in that case, is still interested in getting the answers and tells her he hopes that — does she still want to answer the questions.

And he hopes that she would purge herself.

In my opinion it has very distinct bearing upon the question which was asked, rather has distinct bearing upon how the court felt at the time of the first sentence.

Now to get specifically to the question which Mr. Justice Harlan asked?

The court – the government argues that even if it was one contempt, the court could treat the contempt both civilly and permanently, because it maybe a continuing attempt, and it cites the United Mine Workers case.

I believe that the answer to that is, that in the first place, the contempt was not continuing, that the questions which she refused to answer on June 30th was not a contempt, but was only a reiteration of the position which she had stated on June the 26th and that no contempt was committed at that time, and if there was a contempt, the contempt was committed on June the 26th.

And if you can say that the court has the power to punish both civilly and criminally for one contempt, the court did attempt to do so in this case because the court attempted to treat the civil contempt as criminal by giving a three-year sentence, so that if there is only contempt, the court has held her in jail for the 43 days.

It has given her a three-year sentence for the same contempt, which sentence was reversed by the Ninth Circuit Court of Appeals and which sentence is now final, the government did not appeal from that, and that is the law of this case.

Felix Frankfurter:

Are you saying that for conduct either of omission of commission of omission, what she refused on June 30th, she had already completely refused on June 26th that’s your position.

Leo Branton, Jr.:

That is exactly our position.

Felix Frankfurter:

Does the record bear that out?

Leo Branton, Jr.:

I don’t think that — yes it does, I don’t think there is any argument about that.

The only argument that the government makes against that is it says that on June 30th she narrowed her refusal by naming some people after saying she would not name anyone.

Felix Frankfurter:

Now suppose a witness says on June 26th I’m not going to answer any of your questions and give no reason, if the witness says I’m not going to answer any of your questions, that would comprehend, that would be inclusive of all particulars, but if she says I’m not going to answer your question because I don’t want to get other people into trouble, then that generalization doesn’t cover the particulars, because the particular maybe outside of the generalization, is that right?

Leo Branton, Jr.:

That is correct.

Felix Frankfurter:

Now, what are the facts or reference to what happens as between what she said on the 26th and what said on June 30th?

In other words, the counsel in asking that, the District Attorney would have to find out in each case whether the particular person about whom he sought answers, came within formula, isn’t that right?

Leo Branton, Jr.:

That’s correct Mr. Justice Frankfurter.

Felix Frankfurter:

Now can you say that the record establishes that as to each person of whom she was asked, about whom she was asked on June 30th automatically was included in her refusal of June 26th.

Leo Branton, Jr.:

The record — the asking of the question Mr. Justice Frankfurter does not establish that it falls within that category, but the answer, makes it obvious that it does, and it’s the answer which is important and not the question and I’ll give you an example.

Felix Frankfurter:

Well before you give me the example just give me the facts.

Is it that you’re saying that when he — what about Smith, what Jones, what about Robinson, she said each one of these fellows I’ve dealt with on June 26th, I told you I’m not going to answer anything to bring trouble to any of my friends, is that the fact?

Leo Branton, Jr.:

That is the fact.

Now to give you an example of what I was talking about a minute ago, wherein the question is not the thing that is important, but as long as the answer makes it fit within that category then it becomes a part of the initial and only contempt.

Suppose the witness had said I am going to testify fully and completely about everything, but I am not going to answer any questions concerning a member of my family, now that’s pretty clear that this witness will answer all questions, but this witness just isn’t going to be an informer on his family.

The prosecutor has no way of knowing who belongs to that family and he starts putting names, Joe Jones, Joe Smith and so forth and so forth and she gets to some question she answers some question and she refuses answer.

The prosecutor cannot then say well I didn’t know that Joe Jones was a member of your family, so I think the fact that she spells out the area is the only thing that is important, and as long as the refusal to answer specific questions thereafter falls within the area which she has spelled out for herself, and it is a question of good faith and here I don’t think there is — undoubtedly there was good faith and all of the people whom she refused to answer, I think then that there is only one contempt committed.

Now I get to my third point, this is that the sentence in this case was arbitrarily imposed and was a gross use of discretion and constituted a cruel and inhuman punishment.

And now I come to a part of my argument which I said from the beginning what I argued, point one I said for purposes of that argument I was going to assume that, that was a contempt.

Here I am going to argue and I think with much validity, that there was no punishable contempt in this case at all.

Now we have to remember that we are dealing with a summary contempt power of the court, a power which offers tremendous possibilities of abuse, and that Congress and the courts have recognized this, beginning with the first Judiciary Act of 1789 and then following the famous impeachment of Judge Peck, we had the Act of March 2, 1831; and finally what we know is 18 U.S.C 401.

This does not involve a question of the power of the court to punish for contempt.

Of course a court has the power to punish for contempt, but I say that, that power is strictly construed by Section 401 of 18 U.S.C and by the cases which have drastically curtailed the power of the court.

And the reason the court had been so zealous in guarding the rights of individuals in this kind of contempt because it is summary contempt, where we don’t have the protection of the Bill of Rights, we don’t have that kind of indictment.

We don’t have that confrontation of witness, the right of cross examination, and the right to be found guilty beyond a reasonable doubt, but here the judge acts as — he acts as the person bringing the indictment, the prosecutor and the sentencing judge.

Whey then, we ask this extraordinary power?

The only reason this extraordinary power was given to the court is in order to prevent an obstruction to the performance of the judicial process.

And the cases of Henry Hudgins and the Michael’s case which I’ve cited in my brief make clear that obstruction of the judicial process is a necessary element which must be found in every summary contempt case before the court has a new power to punish for contempt.

If the conduct did not obstruct, then the use of the contempt power is not justified.

What do you do with subdivision three of 401?

Leo Branton, Jr.:

I’m talking about summary contempt power now which is contempt which is in the view of the judge, and which it says in his discretion I think you have to read in that section which says, at his discretion whether or not there was any obstruction.

The restriction does not say that there must be obstruction, but the cases say that there must be obstruction in other cases.

William O. Douglas:

(Inaudible)

Subdivision one talks about obstruction, subdivision three talks about resistance to a lawful order, command, et cetera of the court.

William O. Douglas:

And you are under 3 here (Inaudible)

Leo Branton, Jr.:

That is true, but —

Felix Frankfurter:

Are you under three?

Are you conceding this?

Leo Branton, Jr.:

Yes.

Felix Frankfurter:

Well, how do we determine whether it’s under one or three?

William O. Douglas:

Well that was my intention?

Felix Frankfurter:

How we determine whether it’s one or three?

Leo Branton, Jr.:

Because three is the only — perhaps I can be corrected.

Is not three the section which says —

Felix Frankfurter:

Disobedience of resistance to its lawful writ process or a rule, decree or command.

Leo Branton, Jr.:

That’s what I thought.

If you read those sections, it is the only section that you could possibly under.

Felix Frankfurter:

Well, the government thinks it was under three, what did the judge do who actually committed it, did he put it under three?

Leo Branton, Jr.:

Yes.

Felix Frankfurter:

Well look at the left half of the judgment, the certificate of the judge.

Leo Branton, Jr.:

The certificate —

Felix Frankfurter:

The order of judgment, the certificate of criminal contempt, always good to go to the text of documents when we talk about documents.

Leo Branton, Jr.:

The certificate of contempt recites that in topology with Rule 42(a), Federal Rules of Criminal Procedure, 18 U.S.C.A.

Hugo L. Black:

What page is that?

Leo Branton, Jr.:

This is on page three of the transcript of records.

Felix Frankfurter:

Read it (Inaudible) read it –

Leo Branton, Jr.:

In conformity with Rule 42(a) of Federal Rules of Criminal Procedure, 18 U.S.C.A I hereby certify that on June 30, 1952 the series of criminal contempt set forth below consisting of the refusal of the defendant Oleta O’Connor Yates to answer proper and relevant questions put to her on cross examination, were committed in the actual presence of the court and were seen or heard by the court during the trial of the case of the United States versus Schneiderman et al., numbers 22131 CD.

Felix Frankfurter:

Now what do you say?

Leo Branton, Jr.:

Then it says the specifications.

Felix Frankfurter:

What do you say now, in the actual presence of the court?

Leo Branton, Jr.:

Yes.

Felix Frankfurter:

Where is that phrase found?

That’s found in one and not in three.

Leo Branton, Jr.:

You are correct, Mr. Justice Frankfurter I had confused one —

William O. Douglas:

Any correction in the (Inaudible)

Leo Branton, Jr.:

That’s correct.

Felix Frankfurter:

And that could maybe under one?

Leo Branton, Jr.:

That’s correct.

Harold Burton:

It’s refusal order of an order, is it not?

Leo Branton, Jr.:

Yes, it’s a refusal of an order it is a contention.

Harold Burton:

Refusal of an order that happens to be orally made in the courtroom.

Leo Branton, Jr.:

My point is that —

Felix Frankfurter:

Well before — this is very vital, don’t go off on this, without facing it.

It’s a very important topic.

Leo Branton, Jr.:

I want to face everything Mr. Justice —

Felix Frankfurter:

I’m not suggesting that if — it isn’t that you’re not facing it because if you’re damaged, quite the contrary.

Contended statute 401 has three clauses, presumably defines its own particularity, and when a judge fines somebody for contempt he must issue a certificate and he must formulate a judgment.

And as plain as a pikestaff to me what this Court, what this judge did was to find the violation of one and not of three, because the phrase in the presence of the court is only in one and not in three.

Leo Branton, Jr.:

I agree with you Mr. Justice Frankfurter.

Felix Frankfurter:

I suggest you insist on it.

Leo Branton, Jr.:

Yes, I had confused what I had thought what was in three was what was in number one, and that’s why I said three, when actually all the time I did mean one because of the fact that it is the only section which has in the presence of the court, and I do insist on it.

Harold Burton:

If you go back to number that refers to misbehavior, doesn’t it, only to misbehavior, misbehavior in the presence of the court?

Leo Branton, Jr.:

I do not have the —

Felix Frankfurter:

Well that’s misbehavior, if a fellow doesn’t answer questions when he is told to answer and obstructs the course of justice, that’s misbehavior.

I don’t know what more misbehavior you could have.

Harold Burton:

Anything said about misbehavior in the certificate of contempt?

Leo Branton, Jr.:

No, nothing is said about misbehavior other than the fact that there was a refusal to answer proper and relevant questions.

Felix Frankfurter:

And a finding of contempt —

Leo Branton, Jr.:

Yes, a finding of contempt based upon that, but the words misbehavior are not used Mr. Justice Burton and the Court did not in anytime of its certificate find misbehavior other than him stating that there was a refusal to answer the questions and it did not at any time state that there was any obstruction —

Felix Frankfurter:

I suggest that if you have to use every word, in one, two or three then there is nothing said about disobeying a lawful writ, pass this order (Inaudible) command, is there?

William O. Douglas:

But there is in the judgment that’s on page 16 and 17.

Leo Branton, Jr.:

Of the record Mr. Justice Douglas?

Yes it is in the judgment.

He does have the language —

Felix Frankfurter:

You can’t get anymore out of a judgment, than you can get out of the order judgment, then you can get out of the certificate because that’s incorporated.

Leo Branton, Jr.:

That’s correct.

Harold Burton:

Does anyone on either side claim that there was any misbehavior?

Leo Branton, Jr.:

No sir everybody — if you want to call the refusal to answer questions as misbehavior, it can be argued that this is misbehavior, but other than that kind of misbehavior, nobody argues that there was any misbehavior, there was no respect — no disrespect.

As a matter of fact the government concedes and the record bears out the fact there was the utmost respect for the Court in every way other than the fact that the witness just would not violate her conscious by answering questions which she had said she would not answer.

Felix Frankfurter:

Well misbehavior doesn’t mean you must draw an (Inaudible)

Leo Branton, Jr.:

No sir.

William O. Douglas:

And the misbehavior (Inaudible)

Leo Branton, Jr.:

In the meaning of what cases Mr. Justice Douglas.

William O. Douglas:

(Inaudible)

Leo Branton, Jr.:

Both of those cases had to do with perjury.

The trial court in both of those cases felt that a witness was committing perjury and was knowingly committing perjury and in that case the Court held that because on the perjury that it necessarily obstructed the processes of the Court and he found them in contempt, but the Court in reversing both of those cases said that perjury in and of itself does not necessarily constitute an obstruction, but there must be some other element present in the case which was not present in the case and either of those to this cases.

William J. Brennan, Jr.:

(Inaudible)

Leo Branton, Jr.:

Applying that to the case at hand I believe that we have a stronger case, than either the Michael’s case or the Hudgins cases because of the fact that I can conceive of perjury, not giving truthful answers possibly being an obstruction to the purposes of the Court, but we have to look at what happened in this case.

There was a refusal to answer these questions.

The question were of dubious relevancy, because of the fact that when the questions were asked it’s obvious from the record that these question were only asked for the purpose of getting names and the work.

It was not connected up with the evidence in the case in anyway whatsoever.

As a matter of fact, as to the people whom she identified as communist, they did not attempt to come up and follow this up by showing some connection with these people on their case, so that —

William O. Douglas:

This (Inaudible)

Leo Branton, Jr.:

This was cross examination of the defense witness and not a part of a main case and another thing that shows that there was no obstruction in this case Mr. Justice Douglas is the fact that while she refused to identify certain people as members of the Communist Party, she never denied that they were members of the Communist Party.

She just wouldn’t affirm it with her own lips and there was much other evidence in the record to — which was undisputed, which we never attempted to meet in anyway, counsel didn’t even attempt to meet it in its argument, in order to show that this was something which the government just wanted to get from her lips and it didn’t add anything to the case whatsoever.

As a matter of fact at the conclusion of the — it only heard the defendant, at the conclusion of the trial, the trial judge instructed the jury that they could take into consideration her refusal to answer these questions in judging the credibility of the witnesses on testimony and the jury brought back a verdict of guilty in the case so that I can’t say how this record shows that there was any obstruction at all upon her refusal to answer —

Felix Frankfurter:

May I ask you to (Inaudible) something you said in — a minute ago namely that what she was asked, the government either had in this case or the information was available, didn’t you say something like that?

Leo Branton, Jr.:

Yes.

Felix Frankfurter:

Does that appear in the record?

Leo Branton, Jr.:

Yes sir it does.

Felix Frankfurter:

How does it appear?

Leo Branton, Jr.:

Well the record was over 15,000 — you mean the trial transcript that appears, it does not appear in the record which was before the —

Felix Frankfurter:

No, but I mean on the main —

Leo Branton, Jr.:

On the main case —

Felix Frankfurter:

I understand your suggestion, your argument is that she couldn’t obstruct or disobey or obstruct or have anything that really interfered with the process of the law in this trial —

Leo Branton, Jr.:

That’s correct.

Felix Frankfurter:

— because the question which he refused to answer were in fact in possession of or indeed produced by the government, is that right?

Leo Branton, Jr.:

Yes, I can’t tell you the specific case that it appears in the —

Felix Frankfurter:

No —

Leo Branton, Jr.:

— but I can tell you how it appears.

Witnesses took the stand and testimony was allowed from those witness.

They went to various schools where a class was taught by the communist leader Joe Doakes who said such and such a thing.

We’ve put on no evidence in the record at all to dispute that the Joe Doakes did say such and such a thing or that the Joe Doakes was a member of the Communist Party, so that this was in the government’s case and she is undisputed.

We did not touch on that when we put all the witness understand on direct examination but on cross examination the government asked the witness, do you know Joe Doakes who was mentioned in such and such a testimony, the witness said yes I know Joe Doakes.

Was Joe Doakes a member of a Communist Party, it was there where she refused to answer at that, it is in that context that it appears.

Felix Frankfurter:

Of course it may become important sometimes, to illicit conformation of a trial witness.

The jury may believe one witness more than another witness or the jury may have doubt, except when three witnesses say the same thing then doubt becomes conferred, dissipated.

Leo Branton, Jr.:

It maybe in some instances Mr. Justice Frankfurter, but in this case on this record it was totally unimportant and insignificant.

Now I want to spend just a few minutes on my last point —

Hugo L. Black:

If your point that you raised, that in order for this to be punished as contempt, it is not enough to show that the defendant refuses to answer, but you must in addition to that as in connection with perjury, show that the refusal to answer, actually served as an obstruction to the proceedings of the (Inaudible)

Leo Branton, Jr.:

That is exactly my position.

Felix Frankfurter:

And do you say that, that applies to subdivision three or law of obstruction isn’t mentioned as well as the subdivision one?

Leo Branton, Jr.:

Yes sir.

Felix Frankfurter:

Do You say that — are you suggesting that if Hudgins is found, if Hudgins’ law, as it has been decided in that case, which have since been referred to and relied upon, holding that the mere fact that the witnesses commit perjury, isn’t in and of itself an obstruction, that while it couldn’t be deemed an obstruction, for reasons given in that opinion by the then Chief Justice, that they could label it a disobedience to an order, that would take care of Hudgins, is that it?

One would — are you suggesting that one would reach that alternative?

Leo Branton, Jr.:

No I’m not suggesting that the Court did in the Hudgins case.

Felix Frankfurter:

No, in Hudgins they dealt with perjury and said it wasn’t an obstruction, or could the Hudgins conclusion be avoided by calling it not an obstruction, but a disobedience of an order?

Leo Branton, Jr.:

I think not, because I believe that obstruction must be present in every contempt case and that the Hudgins case so holds.

Now on my final point and that is the — and I do want to save a few minutes for a possible rebuttal.

Yes sir.

Charles E. Whittaker:

Min dif I ask, the refusal (Inaudible) that it follows there is not obstruction (Inaudible) but nevertheless it would be a direct disobedience of an order of the Court to answer, wouldn’t it?

And wouldn’t that therefore constitute in the direct language of subdivision three, a refusal to comply with order of the Court, to answer it?

Leo Branton, Jr.:

No sir that is not my position.

My position is that if she refuses to answer a question, while it is a refusal of a direct order of the court, that before the court can use its summary contempt power, that the record must show that the refusal to answer that question had some obstructive effect upon the judicial process and it is not just enough to show that there was a ipso facto refusal.

In my opinion, the court cannot punish in criminal contempt for the absence — for the refusal to answer the question without anything else being shown concerning the possibility of obstruction and I think that’s what the Hudgins case shows Mr. Justice Whittaker.

Charles E. Whittaker:

Do I understand you to say (Inaudible) by declining to answer nothing can be done about as contempt?

Leo Branton, Jr.:

I believe that unless the record shows that, that refusal to answer was obstructive of the judicial process in some way that the mere fact of the refusal does not give the power to — the Court the power to punish for contempt, I believe that that what the law is.

Charles E. Whittaker:

Relying on the Hudgins?

Leo Branton, Jr.:

Relying on both the Hudgins case and the case of Henry (Inaudible)

Charles E. Whittaker:

(Inaudible) I don’t think you’re testifying, I think you’re not telling the truth, therefore I find you guilty of perjury, is that it?

Leo Branton, Jr.:

No he said that I find you guilty of contempt, because —

Charles E. Whittaker:

(Inaudible) my point of view.

In other words you’ve got to answer questions in such a manner as satisfies the trial court that you’re telling the truth or you maybe sentenced for perjury, that’s what the trial court’s theory there was, not (Inaudible)

Leo Branton, Jr.:

That’s correct.

But the court attempted to use the contempt power in that case to punish for what he thought was perjury and the holding was that mere fact of perjury alone is not sufficient for the court to use that contempt power, that there must be an obstruction, and we say that in this case there was no such obstruction.

Harold Burton:

When a person refuses to be in order of the court, what do you call it?

Leo Branton, Jr.:

I do not think that the refusal to obey all orders of Court is an obstruction.

There are circumstances under they you can refuse to obey the order of a court and it would not be obstruction and that’s the fact in this case.

Charles E. Whittaker:

That’s word (Inaudible)

Leo Branton, Jr.:

Mr. Justice Whittaker I don’t think if the word — I’m not relying upon the fact that she was — she said it sweetly and I don’t think that makes any difference, I still would give the same answer to Mr. Justice Burton.

Now finally on this —

Have you got any case which suggests that where the ground of the contempt is refusal to obey a command of the court, that obstruction is a necessary element?

Leo Branton, Jr.:

Other than the —

Other than the refusal?

Leo Branton, Jr.:

The Michaels cases and the Hudgins cases are the only cases that I know on the point of obstruction, and they both deal with perjury and not with the (Inaudible)

Yes.

You haven’t found any such case have you?

Leo Branton, Jr.:

I haven’t other cases.

Hugo L. Black:

What about the case many years ago from California where the man, I’ve forgotten his name, that Judge Beal, that after Judge Beal, they tried him for contempt, have you looked at it, do you remember it?

Leo Branton, Jr.:

No sir.

Hugo L. Black:

Cited in Oliver, against the Oliver case, 333 U.S.

Felix Frankfurter:

May I revert to your answer to Justice Harlan’s question, that Hudgins is perjury because there the witness did answer, is that right?

Leo Branton, Jr.:

Yes, the answer —

Felix Frankfurter:

I suggest that the order of a witness when he is asked the question is derived from the oath that he takes to answer truthfully, not just to answer.

The command is to answer truthfully, and I don’t think that a perjurious answer is an obedience of a question for the court.

Leo Branton, Jr.:

As the matter of fact Mr. Justice Frankfurter the Court in that case said that he was giving answers which were evasive and he really was not answering the questions so that in affect what was a refusal to answer the questions (Inaudible)

Felix Frankfurter:

I think it would have profited us if you had printed as an appendix to your brief the series of questions, the whole record in Hudgins case, which was the persistence not only alleged perjury, alleged lies, but also evasion as you point out, that as judge there pointed out, its believed they did and when a man is on the witness stand, he doesn’t fulfill the order to answer what is relevant by (Inaudible) must be words that are full and truthful.

Leo Branton, Jr.:

I agree with that wholeheartedly.

On the question of the amount of the amount of the sentence in this case, at the time of oral argument at last year, Mr. Chief Justice Warren asked both sides to submit a supplemental memorandum on what had happened in other contempt cases.

Leo Branton, Jr.:

Those memorandums have been filed with the Court.

I examined very carefully the memorandum which was given to me by the government and I made a very brief reply to that memorandum and let me say this that from the refusal to answer a type of contempts, the maximum sentence which has been given in any other contempts case for refusal to answer in these types cases, where the judgment is final, has been either a 30-day sentence or a 60-day sentence.

District Court judges have found that 30 days or at the most 60 days was sufficient to vindicate the authority of the court and in my opinion that should have some bearing upon what the court should do in another cases.

In no other case has the court given as drastic a sentence as the one year sentence which was given in this case with the exception of some cases which followed this case and which I (Inaudible)

Do you retain any doubt as to the power of this Court if it thinks the sentence was an abuse of discretion to deal with a sentence directly?

Leo Branton, Jr.:

There is no doubt whatsoever.

This Court has that power, and it does so many times in the past.

Tom C. Clark:

Mr. Monahan.

Philip R. Monahan:

Mr. Chief Justice, may it please the Court?

I believe that, I say this with respect that the record is clear, that this contempt comes under 18 U.S.C. 401, paragraph 3.

It is true as Mr. Justice Frankfurter has pointed out, that the certificate of contempt describes the contempt has having occurred in the presence of the court, but the judge did not thereby mean to say that because he thereby described where these contempts occurred that he was limiting it to 401, 18 U.S.C. 401(1).

The whole context and all the colloquy around this sentence appears in the record, it is clear that he was putting it under 401(3).

Felix Frankfurter:

Are they reciprocally exclusive, do you think?

Philip R. Monahan:

I believe that if a contempt clearly meets 401(3), a disobedience of the valid order, that it would be excluded from 401(1).

Felix Frankfurter:

Can you say more than this with definitiveness, that in order to come under one it has to be some conduct or absence of conduct directed in the presence of the Court, that one deals with things that happen in the Court.

(Inaudible) so I’m behaving, is that right?

Philip R. Monahan:

Misbehavior other than a disobedience of a valid order because 401(3) —

Felix Frankfurter:

Why do you say that?

Philip R. Monahan:

401(3) covers that.

Felix Frankfurter:

Well I know but legislation isn’t that scientific?

Philip R. Monahan:

Well, but this is a — the third paragraph of a unified statute.

Felix Frankfurter:

Well is the direction of a court to a witness to answer a question, you claim that is an order, isn’t it?

Philip R. Monahan:

Yes sir.

Felix Frankfurter:

Well wasn’t it an order in Hudgins?

Much more of an order, almost than here because how to remember who the judge was, a very good judge who presided in that case thousands of years ago, he constantly told Hudgins you must answer this, don’t evasive, you answer this, and then he gave round about questions, wasn’t that an order or a command?

Philip R. Monahan:

Well, correct me —

Felix Frankfurter:

That must have been an order if this was an order.

Philip R. Monahan:

Wasn’t the point of — and I confused — wasn’t the point of Hudgins that what — he did answer, did he not?

Felix Frankfurter:

Well not wholly as —

Philip R. Monahan:

He did answer.

William O. Douglas:

(Inaudible) properly, he said he was also charged with evasion.

If I ask you where were you yesterday and you tell me Westside Story is a good show, I wouldn’t call that an answer.

Philip R. Monahan:

But the point is that Hudgins did answer, he answered perhaps perjuriously, perhaps evasively, but here there was a refusal to answer.

Felix Frankfurter:

Yes but wasn’t that — wasn’t he ordered to answer, didn’t the judge there say, I asked him again and again and he evaded, wasn’t that a — wouldn’t you call that an order?

Philip R. Monahan:

If an answer was given, even though it may have been perjurious or evasive it was an answer.

Felix Frankfurter:

It was not a disobedience, what’s the other word, resistance to an order, I put it to you that when a judge says, “Will you answer that?”

He means will you answer that truthfully, not when you just utter some sound.

Philip R. Monahan:

Well of course all witnesses are supposed to tell the truth.

Felix Frankfurter:

Well precisely and that’s why the denial of it is a disobedience of an order.

Philip R. Monahan:

But the committing of perjury is not a contempt as this Court has held.

Felix Frankfurter:

But that’s why I am asking you therefore if you start with that I am asking you this, may Hudgins be avoided simply by saying it’s an order and that cares of the decision in Hudgins.

By having a judge say this witness has purged himself flagrantly again and again I put because the court put questions to him in that case, I had asked him questions, he evaded these and so I ordered him to answer truthfully will that take care of Hudgins, if it does then it’s really playing tricks with words.

Philip R. Monahan:

I think the Hudgins is taken care of by the fact that there was what purported to be what was claimed to be a truthful answer.

Now if the fact that was evasive and perjurious does not detract from the fact that an answer was given, which I think distinguishes this case.

But furthermore I don’t know — I do not rest on that point there was obstruction here.

My argument is two pronged, it comes within 401(3) which does not require an obstruction but there was an obstruction here.

What was the purpose of these questions?

This, this witness was on cross examination.

Under it she had testified that she had never conspired with anyone to advocate the violent overthrow of the government and that to the best of her knowledge and belief, the Communist Party of the United States did not so teach or advocate.

Now that goes to the heart of what this case was about.

The indictment charged the defendants with having conspired to advocate the violent overthrow of the government and to organize as the Communist Party of the United States a group of persons who so advocate and teach.

The Communist Party under the government’s theory was the instrumentality, the vehicle of this conspiracy and this Court recognized it in the Yates’ opinion last term.

Therefore when the — Mrs. Yates made what was referred to in the record as the bold, bold denial that she knew, that she ever advocated the violent overthrow of the government or that the Communist Party had ever so thought, it became relevant for the prosecution to test, to test the veracity, the credibility et cetera of that direct testimony by inquiring — by asking her these questions as to whether not she knew these various persons who have played such a prominent part in the government’s case whether she knew they had been communists or not.

The issue was — I mean I think the purpose of these questions was not to get her to inform on anyone, the government, the government’s testimony clearly established that these persons were communists, but as on page 5 to 6 of the record, the point of these questions I think becomes clearer.

In specification 4, “Is it not true that Ida Rothstein has for the last five or six years at least been a club chairman or the leader of one or more of the clubs of the Communist Party situated in the City of San Francisco?”

Answer, “That is asking me to say that Ida Rothstein is a communist.”

“I will ask you that question, is Ida Rothstein a communist then?”

The witness, “I decline to answer it.”

Mr. Nucum does — Your Honor — then the court says, “You understand –” addressing the witness, “You understand that question to be, is she known to you as a member of the Communist Party.”

The witness, “Yes I do Your Honor.”

Philip R. Monahan:

“Is that the way you understand the question?”

The witness, “Yes I do so understand the question.”

“You are instructed to answer the question,” et cetera.

The point of these questions is were these people known to witness as communists.

Hugo L. Black:

What difference did that make?

Philip R. Monahan:

Petitioner — excuse me sir.

Hugo L. Black:

What difference did that make in the charge you had against her, whether she knew some people as communists?

Philip R. Monahan:

Well that was — that would be relevant –

Hugo L. Black:

Why?

Philip R. Monahan:

— to the — to her denial that the Communist Party — that she ever had advocated the violent overthrow of the government —

Hugo L. Black:

How would that tend to show that she advocated the violent overthrow of the government —

Philip R. Monahan:

Because it was a –

Hugo L. Black:

(Inaudible) communist?

Philip R. Monahan:

It was the government’s theory that these defendants had conspired to advocate the overthrow the government through the instrumentality of the Communist Party.

And therefore it becomes — certainly became relevant as part of the whole picture as to whether or not these persons who she admitted she knew, some of them she knew for 20 years, whether she knew they were communists.

In any event that was the, that was the relevance of the questions and therefore when the witness refused to —

Hugo L. Black:

Was it shown by other evidence that they were communists?

Philip R. Monahan:

The government’s evidence showed that they were communists, yes.

Hugo L. Black:

No dispute about that?

Philip R. Monahan:

The —

Hugo L. Black:

Had anybody denied it?

Philip R. Monahan:

The defense had not denied it, but it was not — it was not admitted on the record Your Honor.

Hugo L. Black:

Right.

Philip R. Monahan:

It was undisputed but it was not admitted.

So therefore I would conclude —

Earl Warren:

Did the record show that any of these people concerning whom she was questioned did advocate the overthrow of the government by force and violence.

Philip R. Monahan:

Certainly there was evidence of statements which had been attributed to these people or some of these people from which the jury could infer as part of the whole picture that they were parties to a conspiracy.

Well for example this Ida Rothstein case, one of the prominent passages in the opinion of this Court in the Yates case of last term dealt with Ida Rothstein and she was one of the teachers at the San Francisco classes in 1946.

Hugo L. Black:

Where the public teachings — were they – were they secret teachers?

Philip R. Monahan:

These were limited to Communist Party members.

Hugo L. Black:

They —

Philip R. Monahan:

They were secret, in that essence, they were party teachers and the most, the most significant aspect of her teachings as the Court will recall was her analogy of the San Francisco general strike to the Paris Commune when she said that here was a time when labor held power for three days and if the political consciousness of the people and labor had been more mature, they could have gone further and taken over the government or words to that effect and she said next time you have got to be more ready — ready for a situation like that.

Now in light of testimony such as that, it became entirely relevant for the prosecutor to ask Mrs. Yates whether she knew if Mrs. Rothstein, whom she admitted knowing for 20 years I believe or something like that, knew that she was a communist.

It certainly was part of the general picture that was dealt at the trial, but now I should like to get to the point of whether or not the judge had exhausted his power to sentence for contempt on June 30th.

Hugo L. Black:

Well may I say before you leave the point of Hudgins, that as I read Hudgins and the other cases on which it rests, it makes a, makes the obstruction of the court, the constitutional prerequisite to what is known as contempt, a contempt by a person can be given a summary trail without protection of bill of rights, what do you say about that?

Philip R. Monahan:

Well my answer is, is I said two pronged, there was an obstruction here but it was not necessary to prove an obstruction because it came squarely within the terms of 401(3) disobedience of a valid order of the court which does not require that there be an obstruction.

Felix Frankfurter:

Mr. Monahan.

Philip R. Monahan:

Yes sir.

Felix Frankfurter:

Would you mind clearing up something for me, I find it difficult to the point of impedance to understand how any disobedience or resistance to an order of the court lawfully issued and therefore within the authority of the court and relevant to the proceeding before it, how a disobedience or resistance to such an order can fail to be an obstruction?

Philip R. Monahan:

Well perhaps, perhaps the way you would answer the question —

Felix Frankfurter:

Well maybe we are waiting —

Philip R. Monahan:

If it was, if it was relevant —

Felix Frankfurter:

But if this wasn’t relevant, the court has no business to answer questions.

Philip R. Monahan:

Well right perhaps that’s the answer.

This was a relevant question.

Felix Frankfurter:

Very well, so assuming both of those and my phrasing it doesn’t state the problem, the particular problem fairly, then correct it, but if a court issues an order that is relevant and within the power of the court for the fair conduct and disposition of a litigation, why isn’t that inherently an obstruction?

Philip R. Monahan:

Well perhaps Your Honor was suggesting that 401(3) is superfluity.

Felix Frankfurter:

I do not because there are lots of disobediences which are interferences with the fair conduct of justice that do not happen in the presence of a court and to me that’s the vital thing between one and three.

Philip R. Monahan:

Well that could be an disobedience of an order of the court which do not take place in the court.

Felix Frankfurter:

Certainly but — therefore you have to have more than one because one requires in the presence of, and if this Court sends the Marshal out to give notice to somebody about something within its power and at the other end of the district you couldn’t get him under one.

Philip R. Monahan:

Well perhaps Congress’ point was that if a violation, a disobedience of a specific order that that should end and there should not be any necessity of inquiring into whether or not there was obstruction.

Felix Frankfurter:

But all I am saying is – I’m suggesting that it’s a presupposition, obstruction is a presupposition of breach and that you cannot — you cannot have a judgment of disobedience and resistance without necessarily implying thereby and requiring thereby obstruction and therefore what Hudgins says about what obstruction means becomes relevant, that’s the direction of my thinking on this subject.

Philip R. Monahan:

Well, in any event I continue to insist that there was —

Felix Frankfurter:

Very well, I understand that.

Philip R. Monahan:

All right, now —

Felix Frankfurter:

It takes care of it, it takes of it.

Philip R. Monahan:

It is the petitioner’s contention that there was just one contempt committed over this two-day period June 26th and June 30th and when the judge sentenced her for civil contempt on the first day he thereby exhausted his sentencing power with respect to that single contempt here assumed to be single for purposes of argument so that on the third day of her cross examination June 30th, he could — he just lacked the power to impose a criminal sentence.

The government’s reply to that is likewise two pronged.

We say that the premise is unsound, but even if it were sound, the conclusion does not follow and I think that if I can sustain that, the court will agree that there was not much left to that argument.

Hugo L. Black:

Was there any objection to trial here without a jury on the ground that this statute creates a crime —

Philip R. Monahan:

None was —

Hugo L. Black:

— distinct from the common law idea of contempt?

Philip R. Monahan:

None whatsoever sir.

Hugo L. Black:

That’s not in this record?

Philip R. Monahan:

That’s not in this record.

Felix Frankfurter:

Now would you allow me to make a correction or a qualification or elucidation on this question of obstruction because I — for me that that is one of the vital aspects of this case.

I quite agree with you, I thoroughly agree with you that if you have a clear case of a disobedience or resistance to a court order, you do not have affirmatively to prove obstruction because it is implied from my point of view, but the question is whether you may negative the implication by disproving obstruction?

Philip R. Monahan:

Well at least I am glad to answer that — I have you in the first point there that it was not necessary to prove it affirmative.

Felix Frankfurter:

No, no, because I say it’s inherent in a — that’s my point, resistance and disobedience inherently implies obstruction and therefore the government in a particular or the judge in a particular case said, “I issue this order, I told you to be here at 10:00 on Tuesday and you weren’t there and that’s a disobedience of the court.”

Philip R. Monahan:

Yes.

Felix Frankfurter:

It is, but then the other person can explain why it wasn’t a disobedience if he had a telephone call from one of the officials of the court who told him that it isn’t necessary?

Philip R. Monahan:

But in any event that’s not this case.

Felix Frankfurter:

No, no.

Well but there is involvement in this case whether and I think seriously involved whether the requirements of Hudgins as to what constitutes obstruction is present in this case.

Philip R. Monahan:

Now I should – for the purposes of this argument, I shall first assume that there was just one contempt, but clearly it is government’s position that this contempt continued from June 26th to June 30th.

It was a continuous offense.

Now the decisions of this Court have settled, have clearly settled the point that a single act of contempt can be made the basis for both a civil sentence and a criminal sentence, I refer Your Honors to the (Inaudible) case, the Mine Workers case, and Penfield versus the Securities Exchange Commission.

Perhaps the following quotation from Mr. Justice Douglas’ opinion speaking for the Court in Penfield will make this point clear.

“We assume,” he said, “arguendo that the statute 401, USC 401 allowing fine or imprisonment governs civil as well as criminal contempt proceedings.

If a statute is so construed we find in it no barrier to the imposition of both the fine as a punitive exaction and imprisonment as a coercive sanction or vice versa.”

Skipping a bit, “When the court imposes a fine as a penalty it is punishing yesterdays contemptuous conduct when it adds the coercive sanction of imprisonment it is announcing the consequences of tomorrow’s contumacious conduct.”

Now in that case there was a dissent, but the dissent was not relevant to this point.

It follows therefore that it lay within the powers of Judge Mathes to impose both a civil contempt sentence and a criminal contempt sentence for petitioner’s contemptuous series of refusals, which I herein assume to be but one contempt.

Now — but even if I were wrong on that point, I now argue that there was more than one contempt.

There were, now the number of contempts that there were I shall infer for the moment, I’ll reach it very shortly, but what I am, what I now propose to argue is that there were more than one contempt at least, at least two and that is all that is necessary even under a petitioner’s contention to establish the validity of the criminal contempt sentence of June 30th.

Earl Warren:

Mr. Monahan assuming they can be punished both civilly and criminally, are there any cases which say whether or not those convictions must be simultaneously or on the other hand can the court coerce a person for so long under civil contempt and then decide well that isn’t working and then call him up and say now I am going to find you — I am going to find you guilty of criminal contempt.

Philip R. Monahan:

To the best of my knowledge of the cases which establish that proposition that one contempt, one act of contempt maybe made the subject of both civil and criminal, it was a simultaneous.

It was not, it was not — in other words it was not a continuing offense as here, but the government’s view is that is not, that doesn’t make any difference.

Earl Warren:

Wouldn’t that, wouldn’t that militate against your argument if there was only one contempt and she committed that contempt on the first day and the judge committed her to jail to coerce her to testify and then the next day or so he found that she was guilty of the same contempt.

Philip R. Monahan:

Yes, but it is of essence of this argument that this one contempt be a continuing contempt.

Philip R. Monahan:

In other words, it did not — it was not completed on the first day but it continued on to June 30th too.

Earl Warren:

Well in — under those circumstances then you could have one contempt punishable by as many refusals as she made to answer?

Philip R. Monahan:

Yeah.

Earl Warren:

How would you call that one contempt if she could be punished criminally maybe a dozen times and — in addition to the civil contempt?

Philip R. Monahan:

Oh no I am not suggesting that she could be punished criminally a dozen times, she could only be punished criminally once for this one contempt.

Earl Warren:

Yes but my point is this.

I understood you to say that the cases you had read indicated that if she was to be committed both civilly and criminally that the commitment should be — commitments should be made simultaneously.

Now —

Philip R. Monahan:

Oh, no I misunderstood.

I thought you meant was the offense, a single offense that occurred at one point of time.

Earl Warren:

No I was talking about — I was asking you if there are any cases that that say that it must be simultaneous or that they, that he can hold her in jail to coerce her for a number of days and then if she isn’t amenable to that, can he then bring her up and say, “well now you haven’t — you haven’t responded to several contempt and I am going to find you guilty of criminal contempt?”

Philip R. Monahan:

I think the Penfield case is at least analogous.

In the Penfield case she was first — the witness was first subjected to a criminal fine of $50.

Earl Warren:

Yes.

Philip R. Monahan:

And the government appealed from that on the ground that the proceeding — that the judge had in effect abused his discretion by fining the witnesses $50 and it should have subjected him to a civil sentence of imprisonment until the witness agreed to answer.

The government argued that in the Court of Appeals and the Court of Appeals agreed and this Court upheld the Court of Appeals, but there the, it was just a reverse of this.

There the criminal sentence came first and the civil sentence was there after imposed by the appellate court but at two different times.

Now here it was just the other way around.

Here the civil sentence came first and a criminal sentence came thereafter, but I think that the principle will be the same.

Now, it is the government’s position that there were as many contempts committed as there were persons who were the subject matters of the questions in over this two-day period with one qualification, which I shall mention in a moment.

In other words, in these, in this two-day period there were a total of 10 persons concerning whom Mrs. Yates was questioned, two on the first day and eight on the second day and — Now we agree that if the purpose of these questions was to ask Mr. Yates whether or not she knew any communists at all that all these questions were really in effect a single question, but that was not the purpose of these questions.

Each of these, each of these questions insofar as they are related to a different person had value in itself and therefore there were as many contempts as there were persons who were the objects of the questions.

Now with this one qualification, five of these questions dealt with codefendants of Mrs. Yates who had rested their cases.

Now Mrs. Yates said from the beginning and consistently maintained throughout the two-day period that she would not identify any of her codefendants who had not rested their cases as communists.

Now in view of the fact that she was consistent in that position, we believe at least we shall assume for argument that the multiple questions dealing with these several codefendants were in effect one.

But there were also these other people about whom she was questioned, who were not codefendants and she answered these questions on a person by person basis.

Some of the persons she answered about.

She answered about a peson named Mike Quinn.

She answered about a person named Carl Winter who was one of the – her — one of the named but unindicted coconspirators.

He was one of the Smith Act defendant – the Dennis defendant.

Philip R. Monahan:

She named William Z Foster.

She named a person named Sam Darcy who was a former communist who had been expelled and the rationalization that she presented to the court and to the prosecutor as to why she was asking, why should answer some of these questions and not others was this.

“I will answer any questions that you ask me as long as in my opinion, my identification of him as a member of the party cannot hurt him or any member of his family.”

It was specifically pointed out to her.

“How Mrs. Yates can you hurt someone who is employed by the party.”

And she acknowledged, “You know, well it’s true I can’t hurt him, but I might hurt some members of his family.”

And then in the case of Mike Quinn she said, “Well, I will answer about Mike Quinn.

He is dead.”

But how about members of, how about members of Mike Quinn’s family, well she didn’t go into that.

The net effect to that was she was in the words of the (Inaudible) case, she was arrogating onto herself the function of a judge.

She was going to decide or at least with respect to these questions on cross-examination, she was going to decide on a person by person basis which person she would answer about and which ones she would not answer about.

Now for that reason the government is of the view that each question insofar as it dealt with a different person, with the exception that I mentioned a moment ago about codefendants, forms a basis of a separate contempt.

Now by the basis — by the use of a little arithmetic that would come down to six contempts, two committed on the first day and four additional ones on the second day.

Now since petitioner admits that all you need is two to establish the basis — to make the criminal sentence valid, that if my reasoning is sound that proves that the criminal contempt sentence was valid on the independent grounds than the one I first mentioned.

Now I shall like to come to the petitioner’s second point namely that the criminal contempt sentence was misconceived because the purpose of a sentence was not punish Mrs. Yates, but really to coerce her and to give an answer, into giving answers for the benefit of the government.

We think that it is clear from reading the record and the record is very short and particularly the colloquy between the judge and Mrs. Yates and her counsel that his purpose in opposing this second sentence, this criminal sentence of June 30th was to vindicate the authority of the court.

He used that expression at least five times during that colloquy and that is the characteristic purpose of a criminal sentence.

Now it is true that he does speak in terms of I had hope, he said, “I had hoped Mrs. Yates would have purged herself by now.”

But it is clear from the context in which he uses that expression that he was using it in the sense of I had hoped that she would by now have bound to the authority of the court.

In other words he was saying that he had, he hoped that by now she would have exhibited some repentance and contrition for her refusal.

And he said that if she had done that, he would take that into consideration in reducing the sentence.

He referred specifically to Rule 35(a) of the Federal Rules of Criminal Procedure which authorizes a court within 60 days after the imposition of a criminal sentence to reduce it.

He referred to that specifically.

So I think it is clear that the judge’s attitude and point of view was this.

This is a criminal sentence but you have it within your power by answering these questions and thereby exhibiting a repentance and contrition that you bow to the authority of the court and I will take that into consideration in reducing your sentence, possibly suspending, possibly suspending it’s execution.

And for that reason we think that there was no merit to the petitioner’s view, contention that the judge really didn’t know what he was doing here, that he was really that — they admit that the sentence would inform a criminal, it was to a definite period which is the hallmark of a criminal sentence.

But they say that the judge didn’t really know what he was doing, what he really had in mind was trying to coerce her into giving these answers for the benefit of the government.

In the colloquy it was pointed out to him that it was too late to give these answers.

The trial was over and he recognized that.

He said — he said I recognize the fact that it’s too late for the trial but she can still answer the questions and thereby bow to the authority of the court.

Could I ask you a question (Inaudible)

Philip R. Monahan:

Well it would have no effect whatever on it sir.

I don’t believe so.

(Inaudible)

Philip R. Monahan:

I missed the point of Your Honor’s question.

The effect would be —

(Inaudible)

Philip R. Monahan:

Yes, the contempt sentence would begin immediately I take it.

(Inaudible)

Philip R. Monahan:

I don’t follow Your Honor there.

(Inaudible)

Philip R. Monahan:

No I am saying that this criminal contempt sentence will moot become regardless of what happens at her second trial.

The only thing that might happen would be that if she is acquitted at her second trial, then her criminal contempt sentence in this case would begin to run immediately because there would be nothing — there would be no other sentence on which it would be tacked on to.

(Inaudible)

Philip R. Monahan:

Well it is true that that the — at least now in terms of beginning to run at the end of the —

The fact that she had served the sentence.

Philip R. Monahan:

Well that is on the assumption that she is going to serve, right.

I am sure that that’s the — what that means that it will begin to run when that, when that sentence is.

But that’s on the presumption that she — on the assumption that she is going to serve it.

Of course she does not have to serve it because she is acquitted at a second trial, well it won’t be tacked on to anything and so therefore will begin immediately.

Hugo L. Black:

Or she is neither (Inaudible) be affirmed now and sent back, when would her sentence begin?

Philip R. Monahan:

Well it would still begin at the end of her, of her – oh I see what you mean.

I think that a reasonable reading of the way that sentence — the sentence in this case reads is that it will begin to run at the end of her sentence of on the main, but of course that’s —

Hugo L. Black:

Pretty soon.

Philip R. Monahan:

That’s been dictated now.

Hugo L. Black:

I see —

Philip R. Monahan:

That’s, that’s a nice question.

Frankly it did not occur to me but I don’t think that it had, I’d like to think about that some more, I don’t think it is pertinent to this case.

(Inaudible)

Philip R. Monahan:

Oh no, I don’t think they had any intention of whatsoever about what it’s all about.

Philip R. Monahan:

That’s an ordinary, I mean that’s the way many sentences read, it will begin to run at the end of some other sentence.

Now it often happens that another sentence is washed out, but that doesn’t wash out the sentence which is going to begin to run it, which was designated to begin to run.

I realize that (Inaudible)

Philip R. Monahan:

I don’t read the terms of this specific order as being unique on this respect.

I think this is a — it just says it going to begin to run at the end of some other sentence, is it not sir and for that —

Charles E. Whittaker:

(Inaudible)

Philip R. Monahan:

Well I think there are either one of two possibilities; one because that original Smith act sentence has been washed out at least as of now, it could be that she will be required to serve the sentence in this case immediately assuming that is affirmed by this Court because the sentence under which it was added just no longer is as of now.

Om the other hand a possibly resonable reading of that would be that the judge will because it was with intent to make that sentence run after the Smith Act sentence, he might decide to wait and see what happens at the second trial and if she is again convicted then make this one run consecutively to that future, possibly future sentence.

But in no case, I am sure in no case, would a reasonable reading of that sentence means that it might be washed out entirely.

There will be some question as to when it will begin to run.

I now come to the final contention of the petitioner that the sentence is excessive.

Now the argument is as I follow it that she acted out of good faith here pure motives, she didn’t want to be an informer and therefore one year was excessive.

I would like to present to Your Honors’ attention that the good faith with which a person refuses to obey a valid order is not a relevant consideration.

Such a view if it is found that is, that is relevant would certainly have, would certainly have wide radiations.

It would not be limited to contempt cases.

It would apply to the consciences objector to military service whose conscience compels him not only not to bear arms, but not to answer his graphical, not to fill out a questionnaire.

Hugo L. Black:

Why would it apply to anything else except contempt cases?

The basis of the Hudgins opinion was that’s a very narrow exception to the Bill of Rights protections to try a defendant there has to be very narrow and one of the things that makes it constitutionally possible to try and the thing which he said is an essential ingredient to make it so is to prevent giving a close shot, is that there must be an actual obstruction to the court in addition as it was held there, the prejudice there that he said was relied on the principle that there must always been shown or you could escape giving a man a full trial under the Bill of Rights, the central ingredient was that of obstruction.

So why would it go any further in contempt cases?

Philip R. Monahan:

I think it went back – (Inaudible) before, I say an obstruction was not necessary, but there was an obstruction here.

Hugo L. Black:

I understand that.

Philip R. Monahan:

But the point is her good faith had nothing to do with it whether there was an obstruction or not.

Hugo L. Black:

Well I thought you were saying, pointing out to the consequences of holding that in contempt cases for a man to be tried summarily without the benefit of a jury, an indictment and so forth that if we held that in contempt cases justified trial there must be an obstruction, the same thing would be true with reference to other types of refusals to answer question.

I don’t see why?

Philip R. Monahan:

Well I — for present purposes I would like to assume that there has to be an obstruction, but my point now is that the good faith of the defendant is not a relevant consideration.

Whether or not her conscience dictates this, she obstruct the justice — that she obstruct the proceedings is not relevant.

Hugo L. Black:

How would they be tried?

A person who tries to escape the draft, who won’t answer the question how would they be tried if they refuse to —

Philip R. Monahan:

In all criminal cases except contempt cases at a jury trial, but with due respect, with all respect sir, I don’t think that’s relevant to this present consideration.

Hugo L. Black:

Well I didn’t think so, but I thought you were pointing out with dire consequences it would come from this holding in a contempt case.

Philip R. Monahan:

I am saying —

Hugo L. Black:

In applying it to other people.

Philip R. Monahan:

No, I am merely saying that if the, if the petitioner is good faith which I am now assuming was an answer to this contempt charge that there is no reason why that rule of law should be limited to contempt cases.

Hugo L. Black:

Well that —

Philip R. Monahan:

It should be, it should apply to —

Hugo L. Black:

I beg your pardon, I misunderstood your argument.

Philip R. Monahan:

It should apply to all criminal law and it would apply to the person whose conscience tells him that he must steal from the rich and give to the poor, or it would even apply to a person who believed that it was conscientious duty to assassinate the persons who wield the authority of the state.

There was no reason for limiting that that contention to contempt cases and therefore I say that argument has wide radiations and I, with all due respect, I do not believe that it is sound.

Now was one year too long?

Well then how long was too long?

Suppose if it is taking place before a committee of Congress I don’t suppose it would be here, but if this took place be a committee of Congress because the contempt of Congress statute authorizes a one year sentence.

Not only does it authorize a one year sentence, it makes a one month sentence mandatory, a minimum of one month, minimum of one month and a maximum of a year for contempt of Congress.

And that is not all, but in addition there is a mandatory fining requirement of not less than one hundred nor more than $1000.

Here the defendant got a one year sentence and no fine because no fine was possible for a contempt of the court.

Now is a court supposed to be more restricted, should be more restricted in punishing the contempts of itself than are the Congressional committees.

Earl Warren:

Supposed he had punished her by consecutive sentences in all of these 11 counts, her term of imprisonment was 11 years instead of one, what would you say to that?

Philip R. Monahan:

And you assume that they were separate contempts?

Earl Warren:

Well such as you have got here, take the facts of this case.

Philip R. Monahan:

All right, it is one of my contentions that there were four contempts committed upon —

Earl Warren:

Did he find her guilty of eleven.

Philip R. Monahan:

He found her guilty of eleven–

Earl Warren:

Well now let’s just take that, that situation and suppose if those 11 were all variations of her contumacious conduct and that if he had the right to convict her of one, he had the right to convict her of 11 and instead of giving imprisoning her for one year by concurrent sentences he had given her consecutive sentences so that her term would have been 11 years here.

Now you asked the question what is long and I, I ask it in the language of this case.

Philip R. Monahan:

Now I think that I have to make a number of distinctions here.

Three of these 11 questions all dealt with one person.

Earl Warren:

No let’s don’t, let’s don’t make the distinction — let’s take — let’s say they were all valid, but the evidence —

Philip R. Monahan:

That’s what I wanted to —

Earl Warren:

Did he have as much right to find her guilty on one count as he did on all 11 counts he did on any one of them.

Now you got 11 counts here that emanate from this case and if didn’t, under your theory here, it could just as well as not been that way.

Philip R. Monahan:

Yes, yes.

Earl Warren:

Now you’ve got 11 counts that he finds her guilty on, he sentences her to one year on each count to run consecutively, what would you say to that?

Philip R. Monahan:

I think that would present pretty closely, pretty much the same question, as if he sentenced her to 11 years on each count to run concurrently.

In other words, what I’m saying to Your Honor is this, that there comes a point where an appellate court was saying this is an abuse of discretion, too long.

Now where that point is, it’s not for me to say, it’s for an appellate court to say.

It’s for this Court to say whether one year was too long, just as it would be for this Court to say whether 11 years would be too long, but I can’t say anything more than it is possible for a judge to abuse his discretion but it wouldn’t make any difference whether he abused his discretion by taking in a year for each one and making it consecutive or giving ten years for each and making it concurrent.

It’s the total length of the sentence which would be the relevant consideration in determining whether or not there had been an abuse of discretion.

Does that answer Your Honor’s question?

Earl Warren:

I understand you, yes.

Philip R. Monahan:

Now I readily concede that it’s within the power of this Court in its supervisory powers over the lower courts to reduce this sentence.

I’m also suggesting that there is no necessity to do it, I don’t think that one year is too long, but there is no question, especially under the United Mine Workers decision, that the Court has the power if it thinks it was too long.

(Inaudible) five years.

Philip R. Monahan:

Got five years on the main case.

Now, I think that an important factor that this Court should keep in mind in weighing, in evaluating or determining whether or not one year was too long, was the fact that her refusal, although they were purported to be the result of conscientious approval were deliberate and persistent, and she continued in it after every invitation was held out to her to answer the questions and moreover and I think this is equally important, it has been suggested that the crime of someone like Costello who says I won’t answer any questions, is more serious than the offense of Mrs. Yates, perhaps that is true.

I’m not suggesting that Mrs. Yates’ offence would have been less if she just had said, Mr. Prosecutor I’m not going to answer any of your questions, I think that would have been a more serious offense than the offense that she committed.

Earl Warren:

But would have broken that up into different categories then, the government would be through right there, if she said I won’t answer any of your questions?

Philip R. Monahan:

But that might be a more serious offense, and it would be I think, a more serious offense than the one she committed and she might subject herself to a longer prison sentence for that.

The question of whether or not — I mean the difference between the Costello Case and this case really has relevance to how many offenses, how many contempts were committed, but it does not follow that because a person only committed one contempt and not five or six; that, that one contempt was less serious than the five or six, but my final point is this, that —

Earl Warren:

Do you agree that Costello only committed one contempt, when he —

Philip R. Monahan:

Two, one on each day, but you know remember the facts of the Costello Case, he was a witness on two separate days and on each day he refused to answer questions under different circumstances.

There was something about the doctor’s certificates and there was — in anyway it was undisputed that there were at least two offences, but the Court said only two.

The offense of each day could not be proliferated by continuing to answer Costello questions and we except that principle, I think that’s sound, but that’s not this case.

But my final point is that Mrs. Yates by picking and choosing the questions that she would answer, in the words of the (Inaudible) case, she determined what testimony to give and what to withhold, and thereby she transferred from the court to the witness, the management of the trial.

I think that, that is an important factor for this Court to keep in mind in determining whether or not one year was too long.

In Gompers against Bucks Stove & Range Company, this Court said through Mr. Justice Lamar speaking for unanimous court, if a party can make himself a judge of the validity of orders which have been issued and by his own act of disobedience set them aside, then are the courts impotent and what the constitution now fittingly calls the judicial power of the United States would be a mere mockery.

For all these reasons the government submits the sentences are valid and that the one year sentence while reducible by this Court, in its opinion it is too long, was within the range of a sound judicial discretion.

Earl Warren:

Mr. Branton.

Philip R. Monahan:

I believe I have a couple of minutes.

Earl Warren:

Yes, you go right ahead.

Philip R. Monahan:

May it please the Court.

The Chief Justice asked a question of my opponent.

Philip R. Monahan:

If there — he had been able to find any cases where a judge attempted to punish both civilly and criminally on whether these cases said that it must happen at the same time (Inaudible).

The Yates decision, the reversal of the three year sentence in this case which is reported at 227 F.2d 848 says just that.

The judge had put her in jail civilly where she remained for 43 days and at the conclusion of the trial he said I now treat this as criminal and I’m going to sentence you the three years and the court reversed on the exact basis, that it was a denial of due process for the court to punish civilly and then without giving her warning at that time, that he still held it within his power, he still intended to do something criminally about it, because and this is logical, because if a witness knew at the time that he was being committed civilly, that there was a possibility of a criminal sentence for the same offence it might make an awful deal of difference as to whether or not that witness was going to answer that question or not at that time, and so the Court held that in this case, this very case, that it was the denial of due process to wait until the trial was over.

So I say that in this case says, when he first committed her for a civil contempt, assuming that there was only contempt, it was then a denial of due process for having to attempt to sentence her again and the government cannot now come back and say well he could have sentenced her both civilly and criminally and we can’t go back and retry what the judge might have done, because he tried to do just that and the court reversed it.

Harold Burton:

(Inaudible) notice?

Philip R. Monahan:

Yes and that was the question which I understood the Chief Justice to put to my opponent, whether or not they had to be given notice of that time and the case held that because she wasn’t told at that time that she might be punished criminally for the same offense, it was a denial of due process and she was entitled to it.

And in my final minute let me say this that I think that there is no question about the court having the power to do something about the sentence in this case if it feels that the sentence was excessive.

In arguing excessiveness of the sentence, I do not waive for one more, my honest and sincere and (Inaudible) belief that there are committed in this case which requires a complete reversal of this conviction without regard to the excessiveness, but failing of that argument I think that in on the basis of precedent, the fact that 30 days and 60 days has been sufficient in every other case of this kind, to vindicate the authority of the court that it was certainly a very great abuse of discretion and it is shocking to the conscience that the court would give a year in this case after she had already spent more that 70 days in jail.

(Inaudible)

Philip R. Monahan:

I repeat the comment that, that was an interesting question.

I think that perhaps if you affirm this conviction, one of two things is possible and I don’t know the exact answer to it.

It maybe that the business of sentence is purely an administrative process and that the case could go back to the Trial Court for a correction of the sentence from the standpoint of when it is to permit because it maybe that you can argument that this is purely an administrative action.

On the other hand it maybe that this is such an integral part of the judgment, that because of the fact that there was reversal in the main case, that the contempt case falls with the main case, I am not prepared to say which of those alternatives is the correct one.