*1 NILVA v. UNITED STATES. Argued 8, 13, February 25,
No. 37. November 1956. Decided *2 Eugеne argued petitioner. Oressman for With cause him on the brief was John W. Graff. argued the for the
Richard J. Blanchard cause United on him the brief were Solicitor General States. With Rankin, Attorney Olney General and Beatrice Assistant Rosenberg. opinion
Mr. Burton delivered the Justice Court. convicted an case, a Federal District Court
In this specifications three for attorney of criminal on tecum, imposed gen- disobeying subpoenas duces imprisonment year day. for a and a eral sentence specifi- has abandoned two Since the Government principal questions are whether there is cations, third to sustain the conviction sufficient evidence if specification standing alone, and, so, whether the case resentencing. for For the reasons should be remanded in stated, answer the affirmative. hereafter we each n for in the District Court the United States Nilva, I. Dakota, petitioner, of North Allen District Elmo T. and Herman tried, Paster, with Christianson conspiracy Act, to violate the Federal Slot Machine 1134-1136, Stat. S. C. 1171-1177. Christian- §§ U. Attorney son was the of North Dakota. Paster General distributing companies was the of several owner located Paul, attorney St. Minnesota. Petitioner was Paul, a St. brother-in-law of and an officer sev- Paster, eral distributing companies. of Paster’s The indictment charged that these three conspired, others, accumulate late in and transport slot machines them Dakota, into North they where were to distributed operated рrotection under the Christianson, who Attorney was to take office as General that State *3 January 2, trial, jury
On the first was 1953, agree unable guilt acquitted on the of Christianson and Paster but petitioner. 1954, in for a preparation retrial of Paster, subpoenas Christianson and the same court issued 78, duces tecum No. on No. returnable March and May- returnable on March 29. Each was to the addressed Paul Distributing Company, flower St. slot machine dis- tributing corporation wholly by Each owned Paster. for production called the for certain records, periods 1951, relating 1950 and to transactions in slot machines and on coin-operated other devices.1 Each was served Johnson, secretary-treasurer company. Walter D. On the for trial, Paster, prоducing date set instead of subpoenaed records, subpoenas moved to quash 1Subpoena corporation No. 160 commanded the to— bring you invoices, bills, checks, “Gome and slips, papers, with all letters, records, ledger sheets, records, bookkeeping journals and copies between, by concerning Mayflower Distributing thereof or Company, made, entered, July 1, 1950, through or sent received from April 30, 1951, reflecting both inclusive, any purchases, dates and all sales, trades, exchanges transfers, foreign or both domestic and machines, flat-top console, operated and all slot device, or coin any persons, whether new or with used firm or concern.” wholly by owned was company that ground on furnish him to subpoenas required him that and and, denied The motion was against himself. evidence ordered court request, the response to the Government’s produced to be “forthwith.” subpoenaed an attor- who was April 1, petitioner, days later, Three in court and stated Paster, appeared for ney of record it in for vice-president appearing company’s he was the “in response He said subpoenas. to the answer in the people the aid of I with personally, attempt in an all our records force, office searched brought all of the and have comply your subpoena when comply However, I could to therewith.” evidence purchases the records of asked for Government he subpoenas, sales of slot machines called sug- them and he had been unable to locate stated that company’s records had been gested that some a conspiracy transferred to St. Louis in connection with pending appeal.3 case there being convinced, stated, The trial as it later court, giving testimony, issued false evasive pursuant (c), This to Rule 17 Federal Rules Criminal Procedure: Subpoena.
“Rule 17. *4 Documentary “(c) and Production or Evidence of Ob- For jects. may subpoena person A to whom it is also command the produce objects books, papers, the or other directed documents quash designated promptly may therein. The on court motion made modify subpoena compliance or the if would be unreasonable or oppressive. may books, papers, The court documents or direct objects designated produced before the at in the court prior they prior time are to be a time to the trial or to the when may production permit books, upon offered in evidence and their the inspected objects portions papers, documents or or thereof to be attorneys.” parties their and States, April 19, 115, v. United F. decided 1954. See Nilva 2d Nilva, George not the herein. related to Samuel This company of the reciting an order the failure of the officers ordering and all produce subpoenaed records company impounded by of the the United States recоrds Paul Many company’s Marshal. of the St. impounded at from the Fed- once accountants them. Investigation promptly eral Bureau of examined Among company’s purchases them of the were records and sales slot machines 1950 and 1951. At the con- F. B. I. spiracy April 12, agent trial named Peterson about he testified those records from summaries had compiled. April
On it 15, apparent peti- court found testimony both,” tioner’s “was evasive or or false, him jurisdiction permis- ordered not to leave its without action at sion. No further was taken that time “because jury it was Court’s desire the conspiracy. that the [in should learn during trial, of the affair so case] prejudiced by defendants therein would not be in any way.” April On jury found Christianson and Paster guilty conspiracy charged.4 following On the day, appear April court directed 27 and why he show cause should not be held criminal con- tempt having justice.5 obstructed the administration of In three specifications, charged petitioner the court with— Giving
“1. false and testimony evasive under on April 1954, upon answering, vice-presi- oath as Mayflower of the Distributing Company, dent sub- poenaes . duces tecum directed to . . [it] States, See v. Christianson United 226 F. 2d Contempt. “Rule 42. Criminal Disposition Upon Hearing. “(b) A criminal con- Notice and tempt (a) except provided in subdivision rule shall be place prosecuted on The notice shall state the time and notice. allowing hearing, preparation a reasonable time for the *5 No. subpoena duces tecum “2. Disobedience to Distributing Mayflower Com- 78, directed to the following in articles were pany ... thereby: as produced, required reflecting the sheet “(a) Original ledger Stanley 1, 1950 Baeder, of November account 30, 1951; through August No. to duces tecum “3. Disobedience Distributing Mayflower 160 directed to the Com- Court, pany, and disobedience to the order Mayflower 29, 1954, directing made on March forthwith, Distributing Company produce T. in the case United States America v. Elmo Paster, Christianson and Herman Criminal No. produced, in as following articles were not required thereby: ledger
“(a) 1950; General “(b) ledger 1951; General “(c) 1950-1951; Journal . . .” “(d) Register 1950-1951; Check . defense, constituting and shall state the the criminal essential facts charged contemрt given and describe it as such. The notice shall be orally by open presence in the court defendant or, attorney application attorney of the United States or of an appointed by purpose, the court for that an order to show cause or by jury an order arrest. The defendant is to a trial entitled Congress provides. case in which act of is so He entitled provided to bail admission in these If the rules. charged disrespect involves or judge, criticism of a is disqualified presiding hearing except from the trial or at with the Upon guilt or finding defendant’s consent. a verdict the court fixing punishment.” shall enter an order Fed. Rules Crim. Proc. Authority prosecute for criminal is found Rule (g), Procedure, Federal Rules of Criminal and 18 U. S. C. (3). §401
391 m., April 27, рetitioner At a. on appeared 10 as directed. his gave impounded The court counsel access to the p. records and the m. postponed hearing until 3 At that time, the books and impounded present records were petitioner table and took the in stand his own defense. (a), (b), (c) (d) He identified items and of in listed the third specification and introduced those his (a) records as exhibits. Item com- pany’s general ledger for 1950. It contained a record of sales of machines during new slot January October 1950— 1951; sales of during July used slot machines 1950—Jan- uary 1951; purchases and of used slot machines during August January 1951. Petitioner admitted hav- 1950— ing previously examined the company’s 1950 and general ledgers but said that he had not found evidence purchases machine of slot and sales. He also admitted that he had not examined 19 of the 22 items listed No. 3. At the close of specification hearing, over of petitioner’s objection, transcript testimony given F. B. Agent Peterson, I. at the conspiracy trial, proceeding in evidence in the contempt admitted without for him or opportunity confront cross- proceeding. examine him that finding petitioner guilty contempt
After criminal him specifications, gave each of the three the court a gen- imprisonment year day. for a and a On eral sentence him June released on bail but denied his motion to suspend grant probation. his him sentence Court of affirmed 227 F. Appeals judgment, 2d rehearing, denied F. 2d 134. granted We certiоrari. S. 1005. U.
Although the petitioner guilty District Court found on each specifications, three now concedes that on the Government convictions validity first are of doubtful and does two not undertake them Consequently, we do not consider them. to sustain here.6 charge case to the
This reduces the produce order certain wilfully disobeyed the court’s required by subpoena No. 160. On that corporate records is committed it is settled that criminal issue, calling corpora- response one to a who, when refuses to surrender them records, tion or association *7 his control. United States they are in existence and within White, Fleischman, States v. United 349; 339 U. S. v. States, 361; v. United 221 Wilson U. S. 694; U. S. Patterson, F. States v. 2d 659. and see United failure petitioner’s rests its casе The Government four in the first items set produce the records listed e., i. for ledger specification 3, general No. forth in for 1950- 1951, journal for general ledger 1950, register for 1950-1951. These are and the check 1951, in evi- petitioner introduced impounded records for ledger The first is the general as his exhibits.7 dence by to include petitioner’s shown the list of exhibits of the during part purchases and sales made Agent transcript of Peter that the The concedes also Government testimony conspiracy at the trial should not have been admitted son’s rely proceeding and does not here. in evidence in materially the Government’s case This does not affect concession in specification because the books and reсords named under No. by properly exhibits specification introduced speak contempt proceeding for themselves. in the and part parties stipulated these exhibits would be a The list of appeal. Their contents are summarized the record on supplemental record, first introduced is included in a exhibits which Although petitioner to strike Appeals. moved before the Court of record, he from his motion supplemental of that omitted out most objected containing pages this list and he has all references to the presence its in the record before us. period by subpoena called for No. 160.8 Petitioner having previously admits examined the first items. two vice-president corpo- Petitioner was a “nominal” ; legal ration he rendered it and administrative services of many kinds; he was a of its sole brother-in-law owner and president; appeared he representa- court as its official tive answer to the subpoenas represented that he had him brought subpoenaed all of the records that he and the office force could find. subpoenas had secretary- been served on the
treasurer of the corporation, who, in turn, had entrusted duty satisfying peti- them. When
8Among “ledger records called for No. 160 are reflecting purchases sheets” July and sales of slot machines between 1, 1950, April 30, 1, supra. 1951. See note The list of exhibits Mayflower’s general ledger shows that exhibit No. 1 includes 1950 in which the— (Slot
Records indicate thаt “Sales —Bells New” Ma- chines) made as follows: [were] *8 $650.00
October 1950. 3,631.00 December 1950. January 9,000.00 1951.
$13,501.00
total (slot machines)
Sales—Bells used July $1,249.00 1950.
August 3,160.00 1950.
September 2,125.00 1950. (1,140.00)
October 1950. November 1950. 625.00 14,104.00 December 1950.
January 50,005.00 1951.
$72,499.50
total response subpoenas, to the he in court appeared
tioner possession of actual either want did claim authority or opportunity or lack required records Bryan, States v. See United 339 U. S. produce them. States, supra, Yet United v. at 376. Wilson 323, 333; corporate the vital records produce he failed to impounded. opin- In our promptly the Government reasonably supports ion, the evidence conclusion within those records existence were petitioner’s control. following pur- further indicate that
chases were made: machines) (slot New”
“Purchases —Bells machines) (slot used” “Purchases —Bells August $320.00 " 400.00 ... ” 1950 ... 980.00 September 1950 990.00 ” 315.00 ” (80.00) November 1950.. 100.00 10,620.00 December 1950.. 965.00)
January 1951.... ” 3,815.00) $11,960.00 1951 ... ” 7,180.00) 1951 ... $25,784.00 total ledger containing, among Exhibit No. is describеd as a other records, Mayflower general journal 31, 1951, Paul March —St. January general ledger February 1, 1951, January *9 31, 1952. Mayflower journal Exhibit No. 3 is described as the Paul —St.
February 1, 1946, January 31, to 1953. register Mayflower Exhibit 4 is No. described as check —St. July 1946, January 1, 31, Paul Its to contents are described relating purchases to used slot machines. of
395 testimony Petitioner contends that his that he at- comply tempted, good faith, subpoenas with the disproves the existence default, pre- of wilful an “adequate comply sents excuse” for his failure to under Rule 17 (g), Federal Rules of Criminal Procedure. However, protestations subject his faith good were appraisal by the court that heard them. It was the credibility of his and of the weight given States, testimony. Lopiparo to his v. United 216 F. 2d 87, 91. our the trial view, court had suffi- cient basis for concluding intentionally, “adequate excuse,” and without We, defied court.9 agree that sustains therefore, petitioner’s the record con- contempt specification viction for criminal under 3.No. claims that he adequate Petitioner was not allowed time to his prepare defense. Under circumstances this case and view of the wide discretion on mat- such properly ters vested the trial think court, we this is claim unfounded.10
Petitioner also contends as a that, law, matter of contempt proceeding should have been heard than proceeding. other the one who initiated the Rule (b), Federal Rules Criminal does not Procedure, require disqualification of the trial judge except where proof species satisfy require Whether aof lesser of intent will ments for a conviction of criminal need not be decided See, generally, Moskovitz, Contempt here. Injunctions, Civil and Criminal, 780, (1943); Note, 43 Col. L. Intent Rev. 793-796 Orders, Contempt Injunctions, Element in Decrees and Court (1950). Mich. L. Rev. 864-869 attorney appeared Petitioner was with the familiar case. He subpoenas 1; impounded April in answer to the on after the produced, was, April 15, juris he warned to leave court; why him to he diction order for show cause should April not be held in criminal was issued on returnable April 27; April hearing postponed and on his five hours give impounded his time counsel extra to examine the records. *10 396 disrespect to or criticism contempt charged involves
“the here Concededly, . .”11 judge of a . . may while there be of that kind. And charged was not it is 42 cases, brought (b), other under Rule who assign preside did practice the better contumacy alleged occurred over the case which the assignment an is dis- contempt proceeding, hear the such of an cretionary. showing of a abuse the absence specification on discretion, petitioner’s conviction 3No. be should sustained. question petitioner’s sen- general
There remains a his each imposed following tence. It conviction on specifications. Although the Gov- original the three ernment undertakes to sustain but one of the con- now it sentence should be victions, pеtitioner’s contends it as it is because was within the trial court’s allowable left should believe, however, We court
discretion. sen- given opportunity petitioner’s to reconsider of the fact that his conviction now rests tence view solely the third specification.12 for criminal con-
Accordingly, petitioner’s conviction affirmed but his sentence tempt specification No. is is to the District Court is vacated and the case remanded of his sentence. for reconsideration is
It so ordered. Justice, Black, Chief Justice whom Mr. Douglas join, Mr. Justice and Mr. Justice Brennan dissenting.
This criminal be re- conviction for should versed the case be remanded to the District should Court with directions that be tried before some district preferred аgainst charges other than the one who 5, supra. See note Husty 117; States, Cf. Yasui v. United S. v. United U. States, 282 U. S. him. prob- and then convicted There have
ably been in the few cases annals of this where the Court *11 proceedings many were flagrant below afflicted with so errors. The Government has of confessed most these errors, but that enough contends can salvaged from the record to sustain the conviction.
Petitioner, who is a lawyer, was a president vice Mayflower Company. Distributing Apparently he served largely as a nominal officer performed only and minor functions for company. this He was indicted with the president of the company and another man a charge they conspired unlawfully had transport gambling devices in interstate commerce. A jury acquitted peti- tioner charge but failed to reach a verdict on against the the other Subsequently two defendants. a new trial was for ordered these trial, two defendants. Prior to this new procured very Government the issuance of two broad subpoenas Mayflower directed the Com- Distributing pany produce large number of its corporate records, anticipated might illegal Government show transactions in interstate commerce. These subpoenas served on the company’s secretary but since he occupied pro- elsewhere he asked by duce the material subpoenas. demanded On petitioner produced rather short notice a substantial num- of ber recоrds compliance with these orders.
However, the Government, believing that all of the company’s by records subpoenas called for had not been produced, examined petitioner under oath before the trial in an judge effort to determine the extent of compliance. his pro- Petitioner testified that he had many duced as as he records demanded could locate by a diligent search; trial nevertheless the ordered all the company’s impounded. records be Gov- agents ernment took charge impounded these and examined them. The Government claims that by the called for books and documents
material included by petitioner. produced but not subpoenas (b) under Rule issued an ordеr for Procedure the Federal Rules of Criminal held criminal should not be why cause he show charge This contempt of the court. petitioner had specifications: (1) that on three
based oath falsely evasively when asked under testified by all the materials called produced whether he had comply that he had failed to subpoenas; (2) items; five producing subpoena the first by failing disobeyed that he had second (3) days order twenty-two items. Four after this to produce *12 held contempt charge the was issued, hearing a trial in the retrial the who sat before same charge who preferred defendants and the two other petitioner guilty The found petitioner. against him contempt and sentenced specificatiоns on all three day Court of year imprisonment. one The one the judgment.1 affirmed Appeals on the confesses that the conviction Government specifications contempt cannot be sustained. first two evidence to concedes, only there was not insufficient As in charges specifications made these but the support the admitted and relied on evidence which was court In denied incompetent. addition, clearly right and cross-examine his constitutional to confront And testimony against whose was used him. witnesses alleging in false and regard specification to the first at testimony conduct, oath, petitioner’s evasive under pun- only involved a crime that cannot be most, perjury, by contempt power.2 Nеvertheless, ished use of the uphold have us the conviction and would Government F. 2d 1 227 2 Michael,
In re S. 224. U. finding sentence below the basis of the guilt on the specification third alone, alleged comply failure to subpoena. with the second premise
A fundamental of our is criminal law prosecution has proving beyond the burden of reasonable doubt that the accused committed the offense charged. repeatedly emphasized And this Court has prosecution for criminal should be treated the same as other criminal prosecution respect.3 Before guilty could be found of criminal for failing comply a subpoena, with prosecution had the burden showing beyond a reason- intentionally able doubt that he obey refused to by court’s order not producing the materials demanded though they even were available him. this case the record enough competent does not contain evidence for the trier of fact intentionally find that petitioner refused to comply subpoena second or even that the books and documents demanded were available to him.
Only four of twenty-two documents referred to specification the third introduced evidence and, g., P., E. Chicago, Michaelson v. United States ex rel. St. M. & O. *13 Co., 42, (“In contempts, cases, R. 266 U. S. 66 criminal as in criminal presumption the guilt beyond of innocence obtains. Proof of must Gompers Range .”); Co., reasonable . doubt . . Bucks Stove v. & (“Without deciding may U. S. what be the rule in civil contempt, it proceedings is certain that in for criminal the presumed innocent, proved guilty defendant is to be he must be to be beyond .”)(cid:127) a reasonable . . doubt . Kroger Baking
See also Grocery United States ex rel. Porter v. & Co., (“[W]e 163 F. 2d have examined the authorities with ascertaining necessary a view of alleged the essential elements to be proven justify contempt. in order to conviction criminal plain is protection It that a defendant is entitled to all the afforded ordinary a defendant in an upon criminal case and that the burden is government doubt.”) guilt beyond to establish his a reasonable must rest the conviction recognizes, the Government these four docu- produce to refusal intentional petitioner’s in the record evidence only competent The mеnts. knew petitioner that an inference support tends to even they or that these four documents any the location he had comment him was his to were accessible by But itself this of them.4 examined two “previously” clearly insufficient is ambiguous fragment solitary that the records a reasonable doubt finding beyond justify sup- he was at the time when available were subpoena. Since with the second posed comply trial, at the admissible evidence offered no prosecution point the sole case remark constitutes this obscure only of admissible shred against petitioner. It is glean from majority has been able evidence testified that hand, the record. On the other records company’s as most of the as far he knew he had made of its office and that stored the basement in an pro- records effort to diligent through search these subpoena. And he the material demanded duce company’s records, only but custodian of was a nominal officer.
Similarly nothing there before the trial was almost petitioner intentionally suggested court which even demanded. He stated produce refused to in accounting oath that not trained under he was company’s accounting not familiar with the records. following colloquy: transcript gives the of the record you Respondent’s “Q. [By petitioner's Have examined counsel] ? one of the four documents introduced in Exhibit 3 [Exhibit evidence.] Yes, sir, record, [By petitioner] I have examined this as well
“A. say, others, my no, I let me examined and from examination — previously and was unable to find evi- those other two records dence of slot machines —” ambiguous. is It does not indicate where or when
Petitioner’s answer *14 place or under what conditions. prior examination took He repeatedly testified that he attempted had good comply subpoena. faith to with the The Government prima contends that a facie case of intentional can refusal be made out circumstantially from such evidence as is contained in the record. But competent since the evi- dence does support not even an inference petitioner knew the location the four crucial or documents they him, were accessible tо isit hard to see how an inten- tional obey refusal to can implied at all, let alone beyond a reasonable doubt.
The trial judge compounded his error in convicting petitioner on striking such a insufficiency of compe- tent relying evidence hearsay inadmissible state- ments which were not subject to cross-examination. The Government introduced in objection, over evidence, transcript of FBI agent’s testimony prior at a trial was not a party. agent had tes- tified that he found certain records and documents company’s offices. Apparently some these were papers May- second had ordered the Company produce. flower agent’s testimony The FBI together by petitioner with certain stаtements did furnish some evidence that these papers peti- were available tioner, but, testimony as the Government confesses, plainly inadmissible.5 indi- Nevertheless the record cates that the trial on it in finding relied guilty. As a matter of say fact he went far so
.. that in this proceeding ought there to be included any pertinent part pre- record or the files in the ceding case because this out contempt proceeding arose [petitioner’s] refusing actions comply [in a subpoena in the prior issued case].”
The judge's position manifestly A wrong. criminal is a proceeding wholly separate from Oliver, re See 257, 273. 333 U. S. *15 402 contempt alleged arose.6
any prior trial out of which
(b) proceeding
42
in a Rule
for
A conviction
in that
introduced
properly
еvidence
on the
must stand
in
his decision
judge
trial
bases
a
Where
proceeding.
material is inadmissible
although
on evidence
part
appellate
an
though
stand even
the conviction cannot
the bad evidence
expunging
after
might
court
conclude
the conviction.
support
remained to
enough good
that
judge
the trial
by
decision
The
is entitled to
defendant
proper
evaluation of the
evidence.
judge’s
on that
based
judge
could have
say
It is no
to
that
answer
good evidence.
guilty solely on the
found the defendant
is entitled to retrial.
He did not and
defendant
hearsay
par-
was
danger
from inadmissible
prejudice
ticularly
in this case
the admissible evidence
grave
since
inadequate.7
was
grossly
before
trial court
so
portions
of the record from
The erroneous admission
in the
another impropriety
the earlier trial accentuated
wrong
I
it is
in a Rule
below.
believe
proceedings
42
for the same
who issued the
(b) proceeding
disobeyed
preferred
charges
and who
allegedly
orders
on his
his own initiative and based
In
knowledge
own
to sit
on the accused.
judgment
man
essence,
already
this allows a
who
believes that
person
disobeyed
another
has
his command to act
both
proceeding
formally
in a
prosecutor
“decide”
person disobeyed
pun-
whether that
him and should be
6 Gompers
Range Co.,
444-446,
v.
Bucks Stove &
U. S.
Hayes
Steamship
451;
Fischer,
121;
Orleans v. The
v.
U. S.
New
Co.,
387;
Kearney,
parte
20 Wall.
Ex
The record discloses several specifically incidents which petitioner indicate that was not accorded fair trial. At outset, judge informed the that burden on him to proceed. This is completely incon- sistent the presumption with of innocence which exists person favor of a charged with contempt. criminal Rather, prosecutor carries the burden of establish- beyond a ing reasonable doubt that the alleged eon- temnor committed the charged.9 offense The almost tоtal of attempt absence by the to Government petitioner’s introduce evidence at trial support Murchison, In In re U. S. this Court that it held violated process judge try contempt charges due for a pre which he had acting ferred while grand jury. as a so-called Court, one-man pp. 136-137, at declared: “A requirement fair trial in a fair process. tribunal is a basic of due requires
Fairness of course an absence of actual bias in the trial of system always cases. But our of law has prevent endeavored to probability even of unfairness. To end this no man can be a judge try permitted in his own case man is and no cases where he has an interest in . . important outcome. . Fair trials are too part society prosecuting judges of our free judges to let be trial charges they prefer.” present compelled question case we are not to reach the process possesses general supervisory power due since this Court over procedures the criminal in lower federal courts. 3, supra. See footnote indicates relied the accusations And as knowledge of the case. judge's personal the trial the trial times majority points out several the trial that he believed repeatedly prior indicated and evasive testi- of false guilty charged specification in the first mony offense —the that he did nothing suggests contempt. There is views on the other two preconceived not have similar Surely every defendant is entitled to specifications.10 prejudged his case but one who has impartial at the only on the evidence introduced instead decides simple principle just is Application trial. as in necessary cases others. of the Federal Rules of Criminal (b) Rule
Under “disrespect involves alleged contempt Procedure when disqualified. shall be judge” of a to or criticism respect disquali- provision no (b) Rule 42 contains *17 on majority The relies fication in other circumstances. the trial reject petitioner's silence to contention this But at most Rule stepped here have aside. judge should that a who only judge a inference (b) permits negative of his orders contempt charges for violations prefers bearing proceedings intimately involved related who is alleged on the con- judgment sit in charges on these can a (b) promulgated is rule tempt. event, Rule by explicit and where it is not we should this Court a interpret deny in manner to fair trial before an it a majority Even if the were correct impartial arbiter. of discretion” must be shown before “abuse saying peti judge’s trial attitude toward A indication of the further prepared by “supplemental the Gov in the record” tioner is found judge Appeals. reported The is as stat the Court of ernment for ing trial that had "been at the conclusion alleged coconspirators] the of his as it was defendant in two [trial time], I think he been so second don’t would have tried [the imposed petitioner. judge then a harsh sentence on fortunate.” The this Court compel disqualify will himself, record in this clearly case shows that an “abuse was of discretion” for trial judge step not to aside.
If preceding improprieties errors and are not flagrant enough, Appeals the Court of contributed addi- tional error on relying “supplemental a so-called rec- ord” affirm the conviction. This “supplemental record” included material which was not introduced at the trial a part not even made of the record on appeal by the trial judge. Government now concedes that it improper appellate for the rely court to opinion material. But as its first shows, the Court Appeals referred to the “supplemental support record” to its conclusion that there was sufficient evidence to find that papers called for were avail- able to he petitioner, that failed to produce them and that this failure was in bad faith. And rehearing Appeals Court of added still further error. After con- ceding that grave there were doubts about the admis- sibility agent's of the FBI hearsay uncross-examined statements, it nevertheless stated that the conviction was not reversible because the pros- could have been summary procedures ecuted under the (a). Rule But as the Government points out, petitioner could not conceivably have been convicted under that rule.
And there are tainting proceed- even more matters ings Fоr example, petitioner below. was rushed to trial an unduly period prepare short his defense to contempt charge. specifica- He was informed *18 Friday tions on a and told appear to the next Tuesday for subpoenas extremely trial. Since the vague specifications broad and and the large involved a petitioner number of documents a faced formidable task in preparing a defense. He had four days, over a week- lawyer to a end, secure and familiarize him the case, examine a great records, to volume to talk with those about these records and knowledge relevant
having lawyer his at the trial witnesses. And when secure judge gave only continuance, a reasonаble requested respite. a few hours a where should not sanction conviction
This Court many basic below were riddled with so proceedings whole case back magnitude. Sending the errors of serious one, sentence, if it turns out to be smaller a new even according me fall far short of seems to right expect justice every defendant has the kind of an from somehow there is idea our courts. While trials procedural required in other criminal safeguards due contempt, available in trials for criminal are not requires charged that one with such process certainly impartial judge. given a fair trial before liberty per- deprived Here is to be his haps professional having his career without received justice. prerequisite essential