Thе appellants are two of eleven defendants on trial by jury in the District Court for the Southern District of New York on an indictment charging conspiracy to violate Section 10 of Title 18 U.S.C. [now 18 U.S.C.A. § 2385]. Each of them has been adjudged in criminal contempt of court and, though previously having been enlarged on bail, has beеn remanded for the duration of the trial. Each has appealed from such order as to him and also from a separate order dismissing a writ of habeas corpus. These appeals have been consolidated in this court and one opinion will suffice to dispose of them all.
Several months аfter the above trial had started and when another of the defendants, John Gates, was testifying as a witness for the defense, he was, on June 3, 1949, adjudged in contempt of court and sentenced for refusing to obey the order of the court directing him to answer a question which the district attorney had asked him on cross-examination. (His refusal was based on constitutional grounds and appeal from that judgment has already been heard by this court and the judgment affirmed in an opinion filed July 1, 1949.) These appellants immediately participated in a demonstration in the court rQom during which they stood up with their co-defendants, other than Gates, and indicated, as will later appear, their disapproval of the action taken by the judge in respect to Gates. The appellants were at once remanded for the duration of the trial and were taken into custody by the Marshal in whose custody they have since remained, being in court during each succeeding session thereof without benefit of bail, their applications for which have all been denied.
Each of these appellants, on June 6, 1949,, filed his petition for a writ of habeas corpus. The writs were issued at once and came on for hearing on June 7, 19-19, before another judgе. The petitions for the writs showed the oral orders remanding the appellants for the duration of the trial and the returns filed showed that the Marshal was detaining the relators pursuant to these orders. The record not being then satis^ factorily clear as to whether they had been held in contempt, the judge at a hearing held on June 8, 1948, desired counsel to request the trial judge to answer the following question: “Was the remanding of the defendants Hall and Winston on June 3, 1949, intended as a form of punishment for any misbehavior on their part in the presence of the Court, constituting a contempt of court under Title 18, United States Code, Section 401(a) [sic.; Section 401 (1)]?”
When his, court convened on the afternoon of the same day, June 8, 1949, this question was handed in writing to the trial judge and he replied to- it at once as follows : “My answer is that the remanding of the defendants Hall and Winston on June 3, 1949, was intended, first, as an exercise of my plenary powers to remand thе defendants, or any of them, at any time, and as a form of punishment for misbehavior on their part in the presence of the Court, constituting a contempt of Court under Title 18 U.S.C. Section 401(a) [sic.; Section 401(1)].”
On the same day the trial judge entered formal identical orders of contempt against each appellant and filed identical certificates as to each, pursuant to the require *166 ments of Rule 42(a) of the Rules of Criminal Procedure, 18 U.S.C.A., as follows:
“On the third day of June, 1949 defendant appeared in person and by counsel.
“It is adjudged that the defendant has been found guilty of contempt of court through actively рarticipating in a disturbance in the courtroom in the course of the judicial proceedings, as set forth in the attached certificate, and the court having asked the defendant whether he has anything to say why judgment should not be pronounced, and no sufficient cause to the contrary being shown or aрpearing to the Court, :
“It is adjudged that the defendant is guilty as charged and convicted.
“It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative' for imprisonment for the remainder of the trial in United States v. William Z. Foster, et al., C. 128-87.
“It is ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the copy serve as the commitment of the defendant.
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“In conformity with Rule 42(a), Federal Rules of Criminal Procedure; I hereby certify that the conduct for which the defendant is punished for criminal cоntempt was committed in my presence during a session of the.United States District Court for'the Southern District of- New York,'under the following circumstances:
“On May 26, 1949, at a time when the defendant Davis spoke out in the courtroom in the midst of the judicial proceedings, the Court stated to the defendant Davis and his co-defendants in the case of William Z. Foster, et al., C 128-87, as follows:
“ ‘Before you say very much I want to make a little observation. You know, ,you gentlemen have been bobbing up here, saying things and doing things that I did not consider were very proper to do, some of them- ra-ther — -well, I won’t characterize them because we all rеmember what you and your other defendants have said and done. This is the first time you -have'got up. Now, I have determined here that I am going to have an orderly trial. I don’t think in the early stages that any of you gentlemen really thought I meant what I said or that I would succeed.
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“ T have penalties at my disposal, if the defendаnts insist upon interrupting the proceedings and holding forth, although they have lawyers to represent them, and I dislike very much doing some of the things that the law places it in my power to do.
“ ‘Now, I just want you to remember that. I believe that the best way to go ahead here is for the defendants to just sit there and let your lawyers represent you instead of jumping up every once in a while to get your own comments in, and your own views, and I tell you, for your own good, that I recommend that.’
“On June 3, 1949, the co-defendant John Gates was sentenced in the absence of the jury for contempt committed by refusing to comply with an order of the Court thаt he answer a question propounded to him on cross-examination by United States Attorney McGohey.
“Immediately upon the pronouncement of the judgment on contempt, the defense attorneys and the remaining ten defendants rose in the courtroom. The defendant Henry Winston and the defendant Gus Hall, each taking several steps past the end of the counsel table and toward the bench, began, in a disorderly and threatening manner, to shout at the court in loud, angry voices. ,
“The defendant Winston said in part:
“ ‘If your Honor please, may I now be heard? More than 5,000 Negroes have been lynched in' this country for such—
“‘The Court: Nbw, Mr. Winston—
“ ‘Defendant Winston: — and the Governmеnt of the United States should be ashamed for bringing in such monstrosity.’ ’’ (pp. 6973-6974)
. He was then remanded to the custody of the Marshal.
“The defendant - Hall said in part: ‘It sounds more like a kangaroo court than a court of the United States. I have heard *167 more more law and more law and more constitutional rights in kangaroo courts.’ ”
He was then remanded to the custody of the Marshal.
“The situation at that time, with the ten of the defendаnts and the defense attorneys on their feet, became so serious that it became necessary to send for additional Deputies Marshal, who were then in other courtrooms in the building, to assist in restoring order and to prevent any further incidents in the courtroom. The court suggested to Richard Gladstcin, Esq., counsеl for the defendant Gus Hall and Robert Thompson that it would be ‘prudent if the defendants resumed their seats.’ Mr. Glad-stein did not instruct the defendants to take their seats and the defendants gave no heed to the Court’s direction. After Messrs. Gladstein, Sacher and Isserman, of defense counsel, and the defendant Eugene Dennis had made statements to the Court, the defendant Dennis turned to his co-defendants and stated that he urged ‘upon my co-defendants that they at this time do1 not speak — they can act as they see fit. I urge them not to call for any provocation.’ Only then, the ten co-defendants resumed their seats in the courtroom аnd order was restored.”
The reply to the question asked the trial judge and the orders of contempt and certificates became a part of the record in the habeas corpus proceedings. On June 9, 1949, the appellants moved before the trial judge to set aside the orders and these mоtions were denied. On June 10, 1949, the writs of habeas corpus were dismissed on the ground that the appellants were being detained pursuant to orders of contempt of a court having jurisdiction and that the validity of those orders could not be collaterally attacked in habeas corpus proceedings since the relators had an adequate remedy by direct appeal. Motions for re,consideration were then made and denied and following that, on June 10, 1949, each of the relators appealed from the orders dismissing the writs of habeas corpus and denying the motions.
On the same day, June 10, 1949, eaсh of the,se appellants also appealed from the trial court’s orders of contempt and from that judge’s denial of their motions to vacate those orders.
That this court has jurisdiction of the appeals from the orders' denying motions to vacate is clear and unquestioned. Title 28 U.S.C.A. § 2255. That is, of course, also true as to the orders dismissing the writs of habeas corpus. Title 28 U.S.C.A. § 2253.
We find no error in the dismissal of the writs of habeas corpus. Such writs, except in unusual circumstances, will not serve as substitutes for an appeal and will not lie where lawfulness of the detention can be tested by direct appeal. Craig v. Hecht,
That the appellants were guilty of contempt committed in the presence of the court is so clear that we shall spend no time discussing that phase of the appeals. They were therеfore punishable under Section 401(1) of Title 18 U.S.C.A. for misbehavior in the presence of the court obstructing the administration of justice. Section 402 of that Title does not apply as the following excerpt from it clearly shows: “This section shall not be construed to relate to contempts committed in the presence of the court, * * * hut the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages of law.”
Thus we are brought to the decisive issues presented by these appeals from the motions to vacate the сontempt orders. They are (1) whether the oral orders made on June 3, 1949, prevented the formal orders on June 8th from becoming valid; (2) whether the orders and certificates, filed on June 8, 1949, comply with the requirements of Rule 42(a) of the Federal Rules of Criminal Procedure; and (3) whether the penalties are sufficiently definite to be punishment which is lawful.
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In the situation of disorder and confusion which the trial -judge faced .in his court room on June 3, 1949, there was neither the time nor the need for him to prepare and file any certificate under Rule 42(a), F.R.Cr.P., before taking such prompt and effective action as he could to quell thе disturbance. He represented the authority of this government which had been defied by enough men acting in concert to make a rather formidable display of opposition and he saw fit to vindicate that authority by promptly remanding these two appellants. Compare United States v. Bollenbach, 2 Cir.,
These formal orders were entered while the court had jurisdiction and in so far as time of entry is concerned are plainly valid. The certificates filed do comply with the requirements of Rule 42(a) of the Federal Rules of Criminal Procedurе providing that a “criminal contempt may be punished summarily.” And each “order of contempt” complies with them also. Within the meaning of the Rules of Criminal Procedure these “judgments” are orders of contempt which are not to be confused with the kind of judgments to which Rule 32 applies. It is enough that they were madе and entered in accordance with Rule 42(a) and that these criminal contempts were procedurally punished summarily in compliance therewith.
The remaining question is whether the punishment was itself lawful. The statute, Sec. 401(1) of Title 18 U.S.C.A. provides that contempts committed in the presence of the court mаy be punished by ■ fine or imprisonment at the discretion of the court. And so the problem narrows down to whether the penalties imposed are sufficiently definite to be valid. Treating them on this phase of the appeal as though they were sentences, as indeed they are from a practical standpoint, we have reached the conclusion that they are valid. As to sentences, the general rule is, as stated in United States v. Daugherty,
As the orders of contempt comply with all applicable legal requirements, wе find it unnecessary to determine whether the court could otherwise have lawfully remanded the appellants. Cf. Hirabayashi v. United States,
Orders affirmed.
Notes
Cf. United States v. Rice, D.C.S.D.N.Y.,