UNITED STATES of America, Appellee, v. Roland E. THOMPSON, Respondent-Appellant.
No. 342, Docket 28073.
United States Court of Appeals Second Circuit.
Argued March 28, 1963. Decided June 10, 1963.
319 F.2d 665
Havens, Wandless, Stitt & Tighe, New York City (Adelbert C. Matthews, Jr., Malvern Hill, Jr., New York City, of counsel), for respondent-appellant.
Before WATERMAN and KAUFMAN, Circuit Judges, and BRYAN, District Judge.
WATERMAN, Circuit Judge.
Roland E. Thompson appeals from a judgment of the United States District Court for the Southern District of New York, Levet, J., holding him in contempt for failure to comply with a grand jury subpoena issued under the provisions of
Thompson is an American citizen who, since 1938, has resided in the Philippines where he has substantial business interests. During June 1962, a grand jury sitting in the Southern District of New York was investigating alleged fraud in the procurement of contracts, and other alleged irregularities, in the administration of the Mutual Security Act of 1954. In furtherance of this investigation a subpoena was issued to Thompson by order of District Judge Thomas F. Murphy. The subpoena, bearing a return date of August 2, 1962, was personally served on appellant by the American Vice Consul in the Philippines.1 On July 16, 1962, Thompson wrote to the Presiding Judge of the District Court saying that he was unable to comply with the subpoena by reason, inter alia, of his poor health. Annexed to this letter was a certificate of appellant‘s physician, Dr. Luis A. Vazquez, stating that he had advised Thompson not to travel.
Thompson did not appear before the grand jury on August 2, 1962. On August 7, the grand jury filed an indictment charging him and one Addison R. Ketchum, a former employee of the International Cooperation Administration, with conspiracy to defraud the United States. Ketchum, thеreupon, was arrested, and a bench warrant was issued for Thompson‘s arrest. The same day the district court issued an order directing Thompson to show cause why he should not be found in contempt for failure to appear before the grand jury on August 2.2 The order was personally served upon appellant and due service by publication was made.3 After continuances to permit appellant‘s counsel to take depositions in Manila, a hearing upon the order to show cause was had. On Jаnuary 21, 1963, Judge Levet found Thompson to be in contempt and ordered that he be fined $50,000, subject to his purging himself by appearing before the same grand jury on February 26, 1963. Notice of the present appeal was filed on February 21, 1963.
I. Does the respondent-appellant as a defense to a contempt action brought for failure to obey the subpoena have standing to challenge the power of the district court to issue a grand jury subpoena under
II. Does
III. Did the court below consider and pass upon the issue of fact which controlled the question whether respondent-appellant was guilty of contempt for noncompliance with the subpoena?
We shall discuss each of these issues in turn.
I.
Although appellant sought to justify his noncompliance with the subpoena by means of his July 16, 1962 letter to the Presiding Judge of the District Court, it was not until the hearing on the contempt action that Thompson challenged the power and jurisdiction of the court below to issue a grand jury subpoena under
Howat v. Kansas, supra, establishes the proposition that an order issued by а court with jurisdiction over the subject matter and person must be obeyed by the parties, even if the order was erroneously issued, until it is reversed by orderly and proper proceedings. See United States v. United Mine Workers, 330 U.S. at 293, 67 S.Ct. at 695. Here, however, it is precisely the jurisdiction or power of the court below which is challenged by the appellant. We have no doubt that as a matter of international law or constitutional limitations, the United States “possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal.” Blackmer v. United States, 284 U.S. 421, 436-437, 52 S.Ct. 252, 254, 76 L.Ed. 516 (1931). That power must, however, be exercised by Congress, and the district court has no such power or jurisdiction unless expressly conferred by statute. Blackmer v. United States, supra.
The Government further argues, relying on United States v. United Mine Workers, supra, and United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950), that even assuming the district court was without power or jurisdiction to order a grand jury subpoena under § 1783, Thompson could not ignore with impunity such an order which was valid on its face. In the United Mine Workers case it wаs held that except in circumstances of plain usurpation, a United States District Court has the authority to determine its own jurisdiction in a matter before it, and to maintain the status quo, as by issuance of a temporary restraining order, pending the determination of that issue. The Supreme Court concluded, therefore, that even should the district court be ultimately found, in such a case, to lack jurisdiction over the parties or the subject matter, it had power to punish violations of its prior restraining order as contеmpt. Here, however, the court was not seeking to preserve existing conditions pending a jurisdictional determination. Similarly inapposite is United States v. Bryan, supra, which dealt with the failure of a witness under subpoena to raise objections to the competence of the body before which he appeared to testify. That decision did not touch the
We hold, therefore, that a mandate is void which is beyond the power and jurisdiction of the issuing court and that the court may not punish for its violation. Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861 (1881); In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402 (1888); Ex Parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117 (1885). Thus, the power and jurisdiction of the court to issue a subpoena may be raised for the first time in a proceeding to punish for contempt.
II.
Appellant‘s major contention, in attacking his conviction below, is that the Walsh Act,
Subpoena of witness in foreign country
(a) A court of the United States may subpoena, for appearance before it, a citizen or resident of the United States who:
*
*
*
(2) is beyond the jurisdiction of the United States and whose testimony in a criminal proceeding is desired by the Attorney General.
The expression “criminal proceeding“, as it is found in the statute, is, at best, ambiguous. The weight of authority would appear to hold that the expression as generally employed does not embrace grand jury investigations, and thаt “criminal proceedings” have not been commenced until an indictment, information or complaint has been lodged against the accused. Post v. United States, 161 U.S. 583, 587, 16 S.Ct. 611, 40 L.Ed. 816 (1896);4 Mulloney v. United States, 79 F.2d 566, 578-579 (1 Cir. 1935), cert. denied, 296 U.S. 658, 56 S.Ct. 383, 80 L.Ed. 468; Orfield, The Federal Grand Jury, 22 F.R.D. 343, 391; Ballentine‘s Law Dictionary, p. 312 (1948 ed.). And see In re Groban, 352 U.S. 330, 333, 77 S.Ct. 510, 1 L.Ed.2d 376 (1957); United States v. Price, 163 F. 904, 906 (S.D.N.Y.1908), aff‘d, Price v. Henkel, 216 U.S. 488, 30 S.Ct. 257, 54 L.Ed. 581 (1910); Durban v. United States, 221 F.2d 520 (D.C.Cir.1954). Some authorities, however, speaking in a variety of contexts, but, again, speaking without reference to the specific statute before us, have interpreted the phrases “proceeding” or “criminal proceeding” morе broadly. See Schwimmer v. United States, 232 F.2d 855, 860 (8 Cir. 1955), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52; Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Hemans v. United States, 163 F.2d 228 (6 Cir. 1947), cert. denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940).
As the statute before us is ambiguous on its face, we must turn to legislative history to ascertain Congress‘s intent in enacting the provision. Colony, Inc. v. Commissioner, 357 U.S. 28, 78 S.Ct. 1033, 2 L.Ed.2d 1119 (1958); Offutt Housing Co. v. Sarpy County, Neb., 351 U.S. 253, 76 S.Ct. 814, 100 L.Ed. 1151 (1956); District of Columbia v. Y. M. C. A., 221 F.2d 56 (D.C.Cir.1955).
The Walsh Act, 44 Stat. 835,
As originally enacted,
712. Trial of criminal actions; witnesses beyond jurisdiction of United States; issue of subpoena addressed to consul in foreign country.
Whenever the attendance at the trial of any criminal action of a witness, being a citizen of the United States or domiciled therein, who is beyond the jurisdiction of the United States, is desired by the Attorney General or any assistant or district attorney acting under him, the judge of the cоurt before which such action is pending, or who is to sit in the trial of the same, may, upon proper showing, order that a subpoena issue *** commanding such witness to appear before the said court at a time and place therein designated.
(Emphasis supplied.)
By its use of the expression, “the trial of any criminal action,” it is clear that Congress did not intend this original provision to apply to grand jury investigations. The subpoenas contemplated by the provision were to be issued by the judge of the court “before which such aсtion is pending or who is to sit in the trial of the same.”
In the 1948 revision and codification of the Judicial Code, the Walsh Act was redrafted and the phrase “criminal proceeding” was used in place of the phrase “trial of any criminal action.” The question, thus, is whether Congress, by using the phrase “criminal proceeding” in the 1948 revision, intended to enlarge the scope of the Walsh Act, so as to make it applicable to grand jury investigations.
It is well settled that where statutes are revised and consolidated a chаnge in phraseology does not import a change in the law unless the intent of the legislature to alter the law is evident or the language of the new act is palpably such as to require a different construction. United States v. Ryder, 110 U.S. 729, 740, 4 S.Ct. 196, 28 L.Ed. 308 (1884); Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199, 36 S.Ct. 626, 56 L.Ed. 1047 (1912); Gulf Research & Development Company v. Schlumberger Well Surveying Corporation, 92 F.Supp. 16, 18-19 (S.D.Cal.1950); 2 Sutherland, Statutory Construction 255 (3d ed. 1943). See also discussion in 1 McKinney‘s Consolidated Laws of New York Annotated, Statutes, § 422, and cases cited therein. It is also established that the revisers’ nоtes to the 1948 codification of the Judicial Code,
The revisers’ notes to
Because of the necessity of consolidating, simplifying and clarifying numerous component statutory
enactments no changes of law or policy will be presumed from changes of language in revision unless an intent to make such changes is clearly expressed. Mere changes in phrasеology indicate no intent to work a change of meaning but merely an effort to state in clear and simpler terms the original meaning of the statute revised.
Congress recognized this rule by including in its reports the complete Reviser‘s Notes to each section in which are noted all instances where change is intended and the reasons therefor.
Barron, The Judicial Code, 1948 Revision, 8 F.R.D. 439, 445-446. The same views have been expressed by other persons concerned with the revision. See Preface to Title 18, U.S.C.A. by Judge Alexander Holtzoff, pp. v. and vi.; Report of House of Representatives Committee on Revision of the Laws accompanying H.R. 7124 (H.R.Rep. No. 2646, 79th Cong., 2d Sess. (1946); Statement of Charles J. Zinn, Law Revision Counsel of the Committee on the Judiciary, Cong. Service, 28 U.S.C., 80th Cong., 2d Sess. (1948) at pp. 1980-81.
In light of these authorities we conclude that Congress did not intend to enlarge the scope of the Walsh Act when it enacted revised Section 1783 of
III.
Even if
In passing adversely upon respondent‘s excuse for noncompliance with the subpoena, Judge Levet held:
No evidence has been presented by the respondent indicating that his travel from Manila to New York to comply with this court‘s order would have presented a great risk of death or serious illness. * * * I conclude that there is insufficient evidence that Thompson is suffering from coronary insufficiency. 213 F.Supp. 378-379.
We have some doubts about the correctness of Judge Levet‘s ruling on this issue.5 We believe, hоwever, that he erred in assuming that the primary question before him was a medical one, whether Thompson was in fact physically capable of responding to the subpoena without undue risk to his health. The question for decision was, rather, whether Thompson‘s noncompliance with the subpoena was in mala fides and demonstrated a contumacious disregard of the authority of the court. See United States v. Bryan, 339 U.S. 323, 332, 70 S.Ct. 724, 94 L.Ed. 884 (1950).
The question of fact that controlled that issue, and the one which should have
Upon the record before us the proper disposition of that question is by no means clear. Persuasive of Thompson‘s good faith are his immediate response by letter to the subpоena, his professed willingness to be examined under oath in Manila concerning the subject matter of the grand jury investigation, his voluntary submission to physical examination by Embassy doctors, and the medical testimony of his own physicians. Persuasive of Thompson‘s bad faith are some inconsistencies in the reports of his physicians, and several apparently-contrived non-medical excuses which he advanced for his nonappearance.
The judgment of the district court is reversed and the cause is remandеd with instructions that the contempt proceedings be dismissed.
KAUFMAN, Circuit Judge (dissenting).
I agree with the answers given by the majority to questions I and III. I too believe that appellant raised his objections to the scope of the District Court‘s subpoena power in a timely fashion, and that the District Judge improperly addressed himself to the question whether appellant was in fact physically able to comply with the subpoena rather than the question whether he, in good faith, believed that his health would be seriously endangered by so complying. I would remand for further findings on this question of fact. I cannot, however, join with the majority in holding that the District Court was powerless under
My brothers go astray, I believe, when they resort to an ambiguous legislative history. This they do after determining that two words in section 1783, “criminal proceeding“, have no settled mеaning. They err when they search for the “definition” of these words without the anterior appreciation of their context which can be derived from the face of the statute itself. Even the simplest of words may become ambiguous when viewed in isolation and out of context. Thus, as an illustration, “the word ‘bill’ may refer to an evidence of indebtedness, to currency, to a petition, to a person‘s name, to the anatomy of a bird, a portion of a cap and a host of other objects * * *.” 2 Sutherland, Statutоry Construction § 4505, at 319-20 (1943). So too with the phrase “criminal proceedings.” As the Supreme Court has noted, “The word ‘proceeding’ is not a technical one, and is aptly used by courts to designate an inquiry before a grand jury.” Hale v. Henkel, 201 U.S. 43, 66, 26 S.Ct. 370, 50 L.Ed. 652 (1906).
Since the language of
It is thus undisputed that if appellant were within the geographical boundaries of the United States, Rule 17(e) (1), he would be punishable for contempt for failure to comply with the court‘s order, whether employed as an incident to a grand jury proceeding or a criminal trial. Indeed, there has apparently never been any special provision of statute or rule for the issuance of grand jury process; grand jury process and court process have always been viewed as synonymous, cf. Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), well before the adoption of the Federal Rules. See Act of February 26, 1853, § 3, 10 Stat. 169; Rev.Stat. § 877,
Moreover, in addition to the Federal Rules, there is another area of the law, presenting policy considerations quite similar to those before us today, in which the grand jury proceeding has been deemed by the Supreme Court to be a criminal proceeding. In determining the propriety of immediate appeal from court orders issued prior to a criminal indictment, the Court recently held that “Presentations before a United States Commissioner * * * as well as before a grand jury * * * are parts of the federal prosecutorial system leading to a criminal trial. Orders granting or denying suppression in the wakе of such proceedings are truly interlocutory, for the criminal trial is then fairly in train.” Di Bella v. United States, 369 U.S. 121, 131, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The reasons for so holding were earlier stated in detail in Cobbledick v. United States, 309 U.S. 323, 327, 60 S.Ct. 540, 542, 84 L.Ed. 783 (1940), in language which might apply just as readily to the instant case:
“It is no less important to safeguard against undue interruption
the inquiry instituted by a grand jury than to protect from delay the progress of the trial after an indictment has been found. Opportunity for obstructing the ‘orderly progress’ of investigation should no more be encouraged in one cаse than in the other. That a grand jury proceeding has no defined litigants and that none may emerge from it, is irrelevant to the issue.”
I find the absence of a formal prosecutorial or adversarial proceeding to be just as irrelevant in this case as the Supreme Court found it to be in Cobbledick, and for precisely the same reasons. See also, In re Grand Jury Investigation, 2d Cir., 318 F.2d 533.
I am impelled to conclude that the meaning of the phrase “criminal proceeding” in
I would reverse and remand for further findings of fact.