*1 RIVES, Before CAMERON Judges. BROWN, Circuit Judge. RIVES, Circuit appeal judgments This is from two court, upon conviction *2 deposit slips appellant, were and the appellant received each which the handwriting. appellant’s imprisonment. made out in the of six months sentence agent Taylor that, for Mr. “As concur- testified run to The rently was second sentence corporation known last he was the Each conviction the first. money.” obey person custody of the have refusal for the was He, course, Ballantyne for requiring called of the court an or orders order explanation pro- questions an of the withdrawals. certain him to answer pounded witness before him as a “Q. language In as near the notwithstanding claim his jury, every- Ballantyne used, give Mr. thing us questions answers to the his you respect. in that he said to him. to incriminate Quoting tend I A. as near as can recall: you matter importance ruined of the ‘To tell that I would be In view being prolix, we set financially. the risk and at I leave would have to ” length appellant’s sta- at some forth town.’ setting community, in in tus Again, explanation particular in of three asked, and the questions were which the legal withdrawals, Ballantyne items of cash was Vice- procedure. The “graft.” only used one word Baleo, operating head President course, Agent Taylor reported to In due engaged Inc., corporation in construc- George Stephen, Group Supervisor of A. building of roads tion work and Intelligence Division Internal of the consisting family bridges. had a He Houston, Service, Revenue Texas, stationed at belonged child, to a one of a wife Ballantyne him had told part, to he took an active church in which graft. Mr. for the withdrawals were club, accused been had never one social that, Ballantyne’s Stephen “Mr. testified knowingly crime, as- nor had he Taylor to Mr. seemed to have statement against It with criminals. sociated relationship” in- definite with “certain background reputation that excellent brought (which) had been formation guilty appellant was of conduct Revenue our attention the Internal questionable to cause him invoke so concerning agents possible of cer- income protection of the Fifth Amendment. “investigation individuals,” and, tain an beginning controversy was The already progress.” that was Accord- of the income tax returns examination Baleo, an ingly, Ballantyne Stephen subpoenaed had in- Inc. connection an concerning testify disposition vestigation parties.” The of “some third withdrawals. testified, examining Taylor, agent, Mr. Intelligence obviously Division was cash withdrawals were numerous “There seeking recipients to ascertain the made, determine which we could not alleged prior payments Stephen Mr. gone party, have to a third under them to they investigating testified that were not they would have to be such examination Ballantyne Mr. tax At income fraud. Mr. Ballan- dividends to constructive time, Stephen same Mr. conceded the that, tyne.” withdrawals All of these' cash Baleo, payable on checks were knowledge only I “The have about City Pasadena or either the Inc. from any bribery at all the statements LaPorte, City A rela- Texas. few Ballantyne ap- Mr. made when he directly tively were cashed small checks office, peared in our and the state- being deposited to the credit without Agent ment that Internal Revenue during and, years 1951, Inc., Baleo, Taylor told me was made to him $50,000.00 1953, approximately 1952 and Ballantyne, money Mr. that the had de- from checks were withheld was graft gone payments city of- listing slips deposit posited, ficials.” checks and the cash with- amounts Ballantyne accompanied always held, in round to this ex- numbers attorney. Initially, many his The checks amination thousand dollars. so special attorney explained agent, corporation for the endorsed background and social testified that out though an had he he “that except plead he had no other Baleo, of income source could Mr. Attorney Inc. The United States Amendment, because him, then asked un- him might possibly incriminate *3 testify. “Q. right. report- law you state der All Have he Bribery “Q. make What particular public officials.” state reference law, any, ? A. did yes. ed all [******] that income? A. I have, explained to “Q. agent you any special had Have ever received the After gratuities side, any Amendment attorney Fifth the little on side that the the protect pocket payments your not did that went into Constitution crimes, the pocket, more, of state against of a disclosures hundred dollars “Well, another your there attorney replied, which were not turned over to might your incrimina- be accountant and to the best of possibility that there knowledge reported your evasion.” on for tax income tion any tax return? A. I Ballantyne to answer Not know that declined disposition the of.” questions as ground an- withdrawals, that on the Appellant was then confronted most him, might to incriminate tend swers deposit slips and checks which dis- and assigning Fourth both closed the cash withdrawals. then He engage in some Amendments, did but testify kept declined to whether he record conversations. off personal use, withheld for cash his own Ballantyne disposition it, tell “Q. or what Mr. he made of in- did What voking remarks record the Fourth you and Fifth Amend- these off ground during statement “on the sworn ments that there is a time might possibility being A. He told that it incriminate me taken? was the state- under the agents present made federal laws.” When the Unit- during Attorney require course ed States undertook to ment the — just was he him to be definite as to proceedings that what crime he prosecuted for, appellant aft- fish, weren’t that we re- small plied, there were parties. That real er the bigger pay- made had that ones other “Well, right, thing, all there is one made, and had ever he than ments that one the federal revenue men thing pretty univer- type that responsible did threaten to hold me him to ruin would sal, it that money, prosecute for all this me concerning * * * information furnish income on Well, tax evasion. graft.” any payments just just it federal the — agent pres- special Stribling, another perjury. Mr. laws of There’s ten million record con- off the ent, just remembered them. You stated that there follows: are shelf after shelf of versation books on it. know; engineer, I don’t I am an I “Q. you Bal- pos- in Mr. tell us Can lawyer.” am words, lantyne’s close as own Well, A. sible, just said? what he testify concerning He also declined to payments awere such said he interview his Agent Taylor with Internal Revenue thing; they normal usual subsequent and his ex- Washington on from made agent special amination before the Intelligence remain down, in order to Division of the Internal Rev- it was competitively business Baleo, Service. enue He admitted that necessary him to do that.” simply performed had 12 to 15 Inc. contracts Pasadena, gross ap- subpoenaed amounts next $2,000.00 grand jury $300,- varied from at Hous- which a federal pear before 000.00, September 1955. Be- and two contracts Texas, with LaPorte on ton, gave Baleo, jury, that the checks grand his business Inc. were- fore transcript transmitted to him and that he handled shown in the filed Court, depositing you of the checks. would continue to invoke Fifth' Appellant replied, Amendment.” Judge Magruder First Chief for the “I refuse to answer pointed “The Circuit well has out grounds to do so to in- Congress tend separate and has not degrade me, my criminate and and I base before a distinct offense a witness rights refusal on the of the Fifth Amend- grand any ques- to answer to refuse ment to the Constitution of the United pertinent in- tion matter under * * * Attorney States.” The United States quiry. jury must him, then told depend upon punish contu- the court *4 con- Ballantyne, witnesses. The criminal “Mr. opinion macious it is our tempt, one, contempt you of the au- it be is obey that have refused to law- thority court.” Carlson the ful and considered order of the Cir., Judge 209 F.2d Chief of the District Court Texas, the Southern District Accordingly, Attor- United States the you in that have refused to answer ney ap- reported the court that specific questions, any the or other ques- pellant had refused to answer the questions thereto, you related requested order the court tions and yesterday.” were ordered to answer request him to make answers. At the attorney, appellant’s Accordingly, the court of the on the afternoon of the hearing request postponed day, September on that the 1955, appellant same following day, September again until the court, hailed before the the proceedings be- Attorney stating at which time United States grand jury had been transcribed. fore the court: hearing very patient at After a full and Ballantyne appeared “Mr. 11:00 appellant’s counsel introduced response o’clock in to the Court’s testimony Revenue Internal order, but declined answer disclosing substantially agents, facts questions pre- and all which he had recited, already been which have viously declined to answer. court to return directed government “The therefore asks grand jury questions.1 and answer the Ballantyne charged that Mr. with succeeding Accordingly, day, on the contempt, criminal and after notice September again appellant was hearing punished that he be grand jury sworn as a witness before the contempt by imprison- such criminal questions propounded and several custody ment of the United previous to him on his examination pe- States Marshal for such definite again him, of which he re- asked each riod time as the Court see ground fused to answer on the fit, period and that such definite him, answer tend to incriminate time as the Court sees fit or be all invoking Amendment. part Ballantyne of it remitted if Mr. Attorney him, States then asked purges contempt by himself of his through you “If I went asked those obeying the lawful and considered questions same exact verbatim as are order of the Court. Well, grand jury “The under the state of Court: of the Southern District of nearly house, I believe the case more the record Texas here in this court I believe Walker, point floor, case of Brown is the on the third at 11:00 o’clock to- morning, [16 questions U.S. morrow and answer every 819], propounded the Court held that in which that have been to him and set enforcing good transcript testimony, is bound to aid in citizen forth law, testimony, body, he has no to usé his his before that which is pre privilege hearing to shield others under a matter record in this at this protecting his name. text of time. believing, why, clear, Ballantyne?” I will wit- order the “So “Is that Mr. Ballantyne, ness, appear C. before E. contempt, definite, both, setting charge or either is criminal “The is definite, place and the questions the time and
for failure to answer
response
fact
hearing
is
criminal
before the
something
I will deter-
order of
due and lawful
present
mine at that time.”
Mr.
Court.
attorney.”
here
ap-
hearing, appellant
At
the October
attorney,
peared
re-
request
additional counsel. He
On the
quested
specification
hearing
fol-
postponed until
clear
of whether
“a
the
lowing Tuesday,
not,
ruling
not,
or a
fol-
as to whether
with the
October
lowing
this is a civil or
colloquy
criminal
nature
as to the
charge.”
“Well, you
replied,
hearing:
The court
orig-
present
were not
at the time
Honor,
Wilkey:
I will
“Mr.
Your
hearing.
was,
inal
Your co-counsel
de-
to state for the
ask the Court
Attorney
time
District
stated at that
fendant and his counsel
contempt pro-
that this was a criminal
proceeding is in the nature of a show
ceeding.” Appellant’s
then
new counsel
cause,
show
for the defendant
recognized
though
stated
he
why
not be cited
cause
should
*5
charge
under the rules notification of the
contempt.
punished for criminal
might
oral, appellant
to
be
was entitled
you
Do
Court:
understand
“The
specification
ques-
have a clear
of what
that, counsel?
required by
specifically
tions he was
the
Honor, I
“Mr. Cornish: Your
un-
court to answer
he re-
and what answers
derstand
considered
this would be
adjourned
fused make.
to
The court then
although
matter,
contempt
a civil
hearing
appellant
the
in order that
could
penalty
fine or con-
be either
can
grand jury
be returned
before the
?
viction
again
precise questions
asked the
that
right.
“The Court:
I
That’s
don’t
original hearing.
were asked him in the
know that there is
to
limit as
Again, appellant
went before the
fine,
either the
amount
day,
4,
on that
October
same
when
fine,
there should be a
or the amount
questions
all of
asked him on
imprisonment,
if there should
original hearing
September
28 were
imprisonment.
both;
It can’t be
repeated, and to the material
ones
it has to be one or the other.
declining
responses
made like
to answer
understanding
My
“Mr. Cornish:
ground
on the
that the answers
proceeding.
is it is a civil
invoking
pro-
incriminate him and
Wilkey:
Honor,
“Mr.
Your
there
of the Fifth
tection
Amendment.
charge
is some confusion here. The
subsequent
On his
return later in the
government
made
is one of
court,
day
before the
new
contempt.
criminal
That
is the
counsel insisted that “this is a different
charge which the defendant will be
charge than the one we had beforehand.”
Tuesday.
called
to answer on
Attorney
po
The United States
took the
right.
“The Court: All
that,
questions
sition
“there are several
“Mr. Cornish:
Is
Your Hon-
that
hearing
grand jury
in the
before the
on
order,
or’s
that it
criminal
is a
con-
September
exactly
ques
30 which are
tempt?
propounded
grand jury
tions
before the
Well,
September 28,
specific
“The Court:
I
on
questions
in which
don’t know
those
necessary
that
it is
for
me to de-
were asked
the same words
you
defendant,”
requested
termine
I
that now.
will let
to the
that the
argue
regardless
question.
proceed
But
on
court
its order to answer two
civil,
questions.2
of whether it is criminal or
of such
Ballantyne,
amount,
gross
Mr.
“Q.
on
occasion
that
hibit
amount of
regard
you
interrogated
$18,552.60,
cash,
with the
were
to a de-
notation ‘less
slip
$5,000.00,’
posit
Jury
deposit, $13,'
then
identified as Grand
Ex-
the next
tempt,
granted.4
directed,
As a
on
“Proceed
which the court
The court
then
other,
then,
hearing,
result of
entered
that
that
the court
without reference
findings
fact,5 again
appel-
prejudice
its
and without
found
disobeying
bring
guilty
question
lant
him back
what
on the
refusing
today.”
order or
conclusion
of the court
occurred
At
orders
hearing
questions,
appellant
imposed
an
answer
found
the court
findings
guilty
contempt.3
run
Formal
additional
sentence
six months
concurrently
previous
formal
with the
sentence.
fact and
of law
conclusions
judgment and
were thereafter
sentence
contempt,
As to his
conviction
first
Ballantyne
appealed
promptly
entered.
(1)
contends:
judgment
from this
of conviction.
comply
court
Fed-
did
not
Rule
14,- 1955,
Procedure,
Thereafter,
U.
eral
Rules of Criminal
October
on
S.C.A.,6
es-
motion
in that
it did
“state the
Government
filed an additional
constituting
con-
sential
facts
for a
order and criminal
the criminal
show cause
deposit
Ray
Ballantyne appear
;
regard
“Ordered that
C.
and in
552.60
o’clock,
slip
item
before
dollar
this Court at
a.
thousand
10 m.
five
why
you
thereon,
October
and show cause
asked:
Ray
Ballantyne
“
said
held
C.
should not be
regard
thousand
five
dollar
‘In
criminal
for the reason
keep
item, sir,
you yourself
did
Ray
willfully,
the said
C.
did
your
personal use?’
own
disobey
good
deliberately, and not in
faith
question again,
you
asking
“I am
lawful
considered
orders
your
IA.
refuse
sir. What is
answer?
September
on
grounds
to answer
refusing
October
answer
incriminate and
do so
that to
tend
questions
proper
*6
certain
proceeding
asked him in a
my
degrade me,
the
refusal on
and I base
Jury
before the
this
Grand
of
rights
the
the
Amendment
of
Fifth
session,
District
Division now
the
and
in
Constitution of the United States.
questions having
previously
said
been
ask-
not,
true,
that at
the
It
is
is it
“Q.
Ray
Ballantyne
Sep-
ed the said
C.
on
by
you
the Inter-
time
were interviewed
28, 1955,
having
tember
and the Court
agents, you,
either
Revenue
on
this
nal
hearing
found after
on
due notice and
you
thereto,
deposit slips
other
similar
September
ques-
the said
you personally
emphatically
denied
tions,
them,
and each of
the said
asked of
kept
on
the
listed
the de-
had
posit
cash items
presented
Ballantyne,
no reasonable
slips?
I
not correct? A.
Is that
danger
real
in
of incrimination. And
question
the
refuse to
on
answer
* *
thereof,
furtherance
may
ground
tend to incrim-
that to do so
Ray
degrade
my
me,
C.
I base
re-
the witness
and
and
“On October
inate
Ballantyne
grand
appeared
rights
the
the Fifth Amend-
before the
fusal on
of
jury
Houston, Texas,
response to
the
the
of
ment
Constitution
subpoena
orders
the
issued
and
of
Court
States.”
September
4th,
29th and October
and
beyond
doubt that
3. “I find
a reasonable
ques-.
twenty
thereupon
to answer
refused
* * *
Ray
you,
wil-
C.
him,
propounded
tions
previously
been
which had
good
fully, deliberately
faith
and not
September
him
28th.
asked
on
disobeyed
of this Court in re-
the order
originally
day
witness
refused
On that
questions
fusing
asked
to answer certain
twenty-six questions.
of
to answer
Two
proceeding
you
proper
before the
in a
30th,
September
these
reasked on
jury
grand
and
divi-
this district
this
of
I
Four
and on these
ruled October 4th.
now in session.
sion
twenty-six
original
witness an-
of
questions and
that said
“I further find
grand jury
swered before the
4th,
on October
Ballantyne,
the said
of them asked of
each
twenty questions
I
but to
on which
question here, pre-
particularly
the two
ruling he refused to
am now
answer.
danger
real,
or real
no
reasonable
sented
twenty questions
(number-
text of the
and
incrimination.
further
of
original
Jury
ed as in
tran-
Grand
Ray C. Ballan-
the said
“I therefore find
* *
script)
answers are
follows:
Court,
contempt
tyne
of this
in criminal
Contempt
6. “Rule 42. Criminal
custody
hereby
him to
of
commit
Summary Disposition.
“(a)
A
South-
criminal
States Marshal
the United
punished summarily
imprisonment
contempt
for
District of Texas
ern
that he
period
certifies
saw or heard
months.
six
a
,
constituting
contempt
“Committed.”
.conduct
protection
privilege,
charged
contempt
it as
constitutional
and describe
such”, (2)
appellant
entitled we
was
are
view
that the
constrained to
lack
pro-
jury
(3) that,
specificity
trial,
by
under
technical
ing
court in stat
Amendment,
appel-
harmless,
the offense as
tection
not affect
refusing
ing
contempt
appellant’s
rights
was
or con
lant
not in
substantial
stituting
questions.
deprivation
process.7
answer the
of due
conviction,
appel-
As to his second
Right
Jury
II.
Trial.
contentions, and also
makes
same
lant
deprived
Appellant’s
had been
that the district court
insistence that he
prior appeal
by
to this
jurisdiction
jury
was
appellee
entitled to a
trial
labeled
afterthought”,
the second
as a
“distinct
agree.
we
jury
the first.
There
barred
was no
for a
demand
required by
applicable
stat
Sufficiency the Notice.
I.
ute, 18 U.S.C.A. See Adams v.
63 S.
ade
We
record shows
think the
Ct.
compliance
Couts United
quate
and substantial
Cir.,
States, 8
(6),
249 F.
In
42(b)
spirit
[Footnote
Rule
deed,
throughout
pro
the issue is raised for the
time
supra],
each
first
appeal.
ceeding
this
Unless there
cons
appellant’s
sufficient
be a
counsel was
right
charge,
jury
titutional8
ly
to trial
in con
basis for each
informed
tempt proceedings of this kind
pertinent
which has
statements
from other
both
waived,
question
not been
court,
then the
his admitted
virtue of
hearing
of the
has
possession
each
before
preserved
ap
prior
been
peal.
transcript
review
complete
all
any event,
In
jury proceedings
is im
basis
holding,
charges.
posture
if we
material
presently
are
correct
our
In this
charged
stated, that,
being
to be
record,
as matter
appellant
law,
protected by
knowledge
questions
which he
of those
obey
Fifth Amendment in
claimed
his refusal
under
to answer
had refused
*7
pres-
fixing
the court shall enter
punishment.”
order
actual
an
it
committed
that was
contempt
The order of
court.
ence
signed
shall be
facts and
recite the
shall
Compare
United
v.
States
Mine
United
judge
by
record.
and entered
Workers,
258, 296,
330 U.S.
67 S.Ct.
Upon
“(b) Disposition
Hear-
and
Notice
677,
884;
Cir.,
Michael,
91 L.Ed.
In re
3
pro-
except
contempt
ing.
as
A criminal
627, 628,
146 F.2d
reversed on other
(a)
rule shall
this
vided
subdivision
grounds
224,
78,
326 U.S.
L.
60 S.Ct.
90
prosecuted
shall
The notice
on notice.
be
30;
Patterson,
Ed.
United States v.
2
hearing,
place
allow-
the time and
state
Cir.,
4;
659, 662,
219 F.2d
n.
Interna
preparation
ing
time for the
a reasonable
Union,
tional
United Mine Workers of
defense,
shall state the essential
America,
States,
U.S.App.D.
v. United
85
constituting the criminal
facts
charged
149,
29,
177 F.2d
C.
it
The no-
as such.
describe
orally
judge
dissenting expressions
by
8. See the
given
of Mr.
shall be
tice
open
Black,
by
presence
the defend-
Justice
concurred in
Mr. Justice
court in the
Douglas,
States,
or,
application
in Sacher v.
United States
United
343
on
ant
89,
attorney
by
1, 20,
451,
appointed
717,
attorney
72
U.S.
S.Ct.
96
of an
L.Ed.
or
tending
persuasion
opposite
purpose,
an order to
and as
court Corthat
tho
Debs,
564, 594,
The
see In re
158
order
arrest.
U.S.
S.
or an
15
cause
show
by jury
900,
1092;
L.Ed.
Ct.
Bessette
39
W.
is entitled
v.
defendant
Conkey Co.,
324,
Congress
326,
B.
an act of
194 U.S.
24 S.
in which
case
665,
997; Myers
provides.
48 L.Ed.
to admission
Ct.
is entitled
He
so
States,
95, 103,
272,
44
provided If the
264 U.S.
these rules.
S.Ct.
as
to bail
577;
charged
disrespect
68
Michaelson v.
involves
L.Ed.
United
judge
States,
judge,
42,
18,
is dis-
266 U.S.
45
of a
S.Ct.
L.
criticism
parte
162;
presiding
Grossman,
qualified
Ex
the trial or
Ed.
at
267 U.S.
from
87, 117, 118,
hearing
except
con-
defendant’s
45 S.Ct.
L.Ed.
guilt
finding
Upon
Workers,
States v.
Mine
verdict
United
United
sent.
330 U.S.
S.Ct. 677.
requir-
the order or
ing
orders of the court
is secured to him law.
If a di-
questions.
may
him to answer the
rect answer to it
him-
criminate
self,
then he must be the sole
Appellant’s
III. The Merits
Claim
what his answer would be. The
to the Protection
Amend-
the Fifth
participate
court cannot
with him in
ment.
judgment,
they
this
because
cannot
decide on the effect of his answer
question
presented
A most difficult
is
knowing
be;
without
what would
to rec-
as
ognize
how far the court is bound
and a disclosure of that fact
an-
the witness’
that his
claim
judges
strip
privi-
would
him of the
The
swers
subject
tend to
him.
incriminate
lege
allows,
which the law
adequately
Vol. VIII
treated in
”
Wigmore
he claims.’ Vol. VIII of
Wigmore
ed.)
(3rd
on Evidence
§
(3rd ed.)
pp.
Evidence
seq.,
et
where the author notes
405-406.
the true
was first
forth
Chief
rule
set
language
Aaron Burr’s
Justice John Marshall in
trial,
This
of Chief Justice Marshall
Burr,
consistently
United
Fed.Cas.No.
can
v.
States
reconciled with the
Reports 243,
14,692e,
present day
expressions
1 Robertson’s
Court’s
in Hoff
States,
follows:
man v. United
“
and the liberal
principles
‘When
come in
two
conferring
rule
protection upon
broad
an
other,
conflict with each
the court
invoking
privi-.
accused
lege against
his constitutional
give
must
them both
reasonable
applied
self-incrimination
construction,
preserve
só
them
this Court in Marcello v.
both to a reasonable
extent.
Cir.,
196 F.2d
v.
Poretto United
principle which entitles the United
States, Cir.,
392.9
F.2d
testimony
every
States
citi-
announcing
holding
In
its
in Hoffman
zen,
principle by
every
supra,
the Court said:
privileged
witness is
not to accuse
setting
“In
‘perfectly
it was not
himself, can neither of them be en-
clear, from a careful consideration of all
tirely disregarded. They are b&-
case,
circumstances in the
preserved
lieved both to be
to a rea-
mistaken,
witness is
according
the an
extent,
sonable
possibly
swer[s] cannot
such
have
tend
true
and of the
intention
the rule
ency’
page
to incriminate.” 341 U.S.
observing
rule, by
exception to that
page
was added which became which can be tried part of the Criminal Code and now without observance of all of the safe- guards constitutes 18 U.S.C.A. Rights, including § § of the Bill of Nye right 1505. by case this jury. The establishes that of trial discussed We Congress pur- action manifested the Matusow, supra, some those cases in relegating pose category a broad for failure of the Court be- reversed provisions offenses theretofore dealt with as con- low observe the Bill to. tempts processes Rights to the normal of crim- contempt the conduct of inal trials. trial.19 Mr. Clayton 15, 1914,12 Justice Holmes had blazed the Act of October dealing trail towards adopting as if the evolution manifested charges involving Gompers decisions,13 ordinary specif- crimes two cases, ically provided by jury Gompers persons criminal trial the second coming Supreme Court, decision.20 purview And the within the of that Act14 n prior charged declared that the decisions when with violation of court discussed in the case had been based decrees where the acts constituted also plain misreading language “a violation of criminal laws. And * * history Ever Norris-LaGuardia Act of 193215 since broad- epochal Supreme has, scope jury decision the ened further the trials in exception, Finally, passage without followed labor and added cases. strength requiring to the rule “meticu- Federal Rules of Criminal Procedure16 regard separate categories lous for those 1948,17 and the new Criminal Code of * * *, Congress, using language Clay- offenses so the in- Act, provided specifically- jury stances where has there is ton no. narrowly will prosecutions, trial in all restricted.”22 70, 73, 15. 47 Stat. now 18 U.S.C.A. §
10. 1
3692.
Stat.
83.
16. Cf. Rule 42 F.R.Crim.Procedure.
11.
full discussion
these abuses
For a
history
Contempt
and the
Statutes
401, 402,
17. 18
§§
U.S.C.A.
and 3691.
Nye
States,
see
v. United
313 U.S.
18. 2 U.S.C.A.
192.
§
810,
61 S.Ct.
et seq.
19. The Government concedes in its brief in
738,
seq.
12.
38 Stat.
15 U.S.C.A.
et
this case that Matusow was entitled to
jury trial,
attempts
distinguish
but
Range Co.,
Gompers
13.
Buck’s
&
v.
Stove
from
case
Matusow’s.
1911,
418,
492,
221 U.S.
S.Ct.
55 L.
Gompers
797,
States,
v. United
Ed.
Gompers
States, 1914,
20.
233 U.
233 U.S.
L.
S.
669
prosecuted in the
name of the
V.
States.
opinion
(a)
majority
does
While the
Moreover,
strange incongruity
a
would
right
jury
question
not
to
decide the
presented
pro
be
if it
should
held
be
trial,
expresses
doubt as
some
Rights
tection of
Bill of
should
be
appellant
whether
waived
had not
litigant contesting
withheld from a
with
right
request
a
there
failure to file
sovereign against
its
majority quo
whose activities
But,
for.
as stated
specificallydirected,
terms are
while that
States,
Emspak
349
tation from
protection
categorically
692,
vouchsafed to
198,
687,
190,
99 L.Ed.
U.S.
75 S.Ct.
litigant
grips
a
private
‘indulge every
at
with
adv
997,
“the courts must
ersary.24
against
presumption
waiver
reasonable
”
rights.’
of fundamental constitutional
(c)
pre-
A situation such as is here
ap
Appellee
does not contend that
here
peculiar
sented makes a
for trial
call
right
jury trial,
pellant
waived
charges
by a fact-finder other
arguing
merits al
on the
than the author of the
order
accused
though referring
afterthought.
to it as an
charged
disobeying.
is
Supreme
What the
giv
appellant
The
never
fact is that
was
Murchison, supra,
said
reject
jury,
accept
en the
or
chance
pages
349
136-137,
U.S. at
75 S.Ct. at
put to
but was
trial at a
when his
time
page 625,
avoiding
necessity
about the
pleading
delay in
counsel was
order
probability
even
applies
of bias
here
complete preparation
that more
be
quotation (ib.)
as does its
from Offutt
made. There was no waiver under established“justice
satisfy
appearance
must
princi
ples.23
justice.”
11,
U.S.
[348
VI. ought dispose my opinion
In we ques- procedural appeal this finding of
tion than to reverse rather Judge tends to fact of im- a state leave the Government punish
potence detect efforts to its
crime. RELATIONS LABOR
NATIONAL Petitioner, BOARD, UNION OF OPER-
INTERNATIONAL ENGINEERS, LOCAL ATING Respondent. 12, AFL, NO.
No. 15003. Appeals Court of States Ninth Circuit.
Oct.
Rehearing Dec. Denied