United States v. Carmine Galante and Anthony Mirra ( 1962 )

J. JOSEPH SMITH, Circuit Judge.

During the course of a long (5% month) narcotics conspiracy trial, eventually ending in a mistrial by reason of injury to a juror, leaving less than 12 available to serve, appellants were advised by the judgment that their courtroom misconduct was being noted. When the mistrial was declared appellants were called before the bench, held in contempt for the earlier actions, and each sentenced to imprisonment for 20 days. The sentence in the case of Mirra was to follow an earlier sentence then being served. Appeals were taken. Galante applied for bail pending appeal,, which was denied. Galante’s sentence-was fully served June 3, 1961 and he was; then discharged.

The United States moves to' dismiss Galante’s appeal as moot. The motion must be granted. In the absence of any showing of collateral effects of a judgment of conviction, such as loss of civil rights or potential enhanced punishment under multiple offender statutes, completion of service of a sentence of imprisonment makes an appeal from the judgment moot. “[T]he moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review.” St. Pierre v. United States, 319 U.S. 41, 43, 63 S.Ct. 910, 911, 87 L.Ed. 1199, Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393.

A judgment of guilt of criminal contempt is not a felony conviction. United States v. DeSimone, 2 Cir., 267 F.2d 741, cert. denied 361 U.S. 827, 80 S.Ct. 74, 4 L.Ed.2d 70. So far as civil rights are concerned, Galante had at least one prior felony conviction in New York State. Any loss.of civil rights.had already been suffered. He does not therefore come within the rule of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L. Ed. 196, or Pollard v. United States, supra. Galante’s appeal is dismissed as moot.

The certificate filed by Judge Levet in Mirra’s case sets forth, as a basis for the finding of contempt, the following transcript of a portion of the trial:

“In accordance with Rule 42(a) of the Federal Rules of Criminal Procedure, I hereby certify that the defendant Anthony Mirra, in the presence and the hearing of the Court, on April 3, 1961, committed the acts which are set forth in Exhibit No. 1 attached to this Certificate,-and that these acts constitute a contempt of the Court. I further certify that the aforesaid acts were committed by the said Anthony Mirra during the course of the trial of United States v. Bentvena, et ah, which trial was then being held before me. Accordingly, in pursuance of the Federal Rules of Criminal Procedure, I summarily find Anthony Mirra in contempt of this Court and commit him to the custody of the Attorney General, or his authorized representative, for imprisonment for a period of twenty days, said twenty day period to commence upon the expiration of the jail sentence which said Anthony Mirra is presently serving.”

Exhibit 1

“The Court: Under the circumstances I am compelled, of course, to consider this motion favorably. Before acting on it I wish to consider certain situations in the trial of this action. One relates to the defendant Mirra. On April 3, 1961, page 13349 of the minutes, the following took place in the presence of the Court and in the hearing of the court:

“‘The Court: Next witness.

“‘Mr. Katz: Alex Freeman.

“ ‘Defendant Mirra: Your Honor

“ ‘The Court: Speak to Mr. Katz.

“‘Defendant Mirra: I am speaking to Mr. Katz, but he won’t listen to me.

“‘The Court: No, speak to him off the record.

“‘Defendant Mirra: Don’t you want to get to the truth, your Hon- or?

“‘The Court: Yes.

“ ‘Defendant Mirra: With all due respect, you are not trying to get at the truth, your Honor.

“ ‘The Court: I have spoken to you before about this.

“‘Defendant Mirra: Well, your Honor — ■

“ ‘The Court: Will you stop talking?

“‘Defendant Mirra: Your Honor —your Honor, with all due respect, please — •

“ ‘The Court: Will you stop talking and talk to Katz?

“ ‘Defendant Mirra: With all due respect, your Honor, I want you to listen to me, please. Can I be heard ?

“‘The Court: I am not going to listen to you, and I will declare a recess if you don’t sit down.

“‘Defendant Mirra: Why don’t you let the jurors know the truth?

“ ‘The Court: Yes, they will know the truth.

“‘Defendant Mirra: You are keeping the truth from them.

“ ‘The Court: There will be a recess.

“‘Defendant Mirra: Why don’t you tell them that they are trying to poison them, the agents. We get blamed for everything in this courtroom.

“ ‘The Court: Keep your mouth quiet. (Jury out.)

“ ‘Defendant Mirra: Tell them the truth.’

“Upon the basis of the record in this court heard by me and seen by me I hereby sentence the defendant Mirra for contempt and direct that an order be prepared by the United States Attorney’s office citing the facts which I have just mentioned and the sentence of twenty days to follow the present sentence now being served by the defendant Mirra on another charge.”

The government contends that the incident is to be viewed in the light of the entire record of the trial, appellant that we are confined to the certificate under Federal Rules of Criminal Procedure, Rule 42(a), 18 U.S.C.A.

Rule 42 provides:

“Rule 42. Criminal Contempt

“(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

“(b) Disposition Upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charge and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant’s consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.”

We do not find it necessary here to determine to what extent a prior course of conduct relied on by a judge in holding a particular act contumacious must be spelled out in the certificate, since the particular act here certified and relied on was in itself a contempt.¹ The refusal of Mirra here to stop talking and sit down, portrayed in the certificate, required the judge to interrupt the trial, declare a recess and excuse the jury. This was an actual obstruction of the judicial process, punishable as a contempt, without regard to what had gone before. Taken as an isolated incident, the punishment by imprisonment for 20 days is severe. It interrupted a trial, however, which the record shows had been under way for many weeks, involving a large number of defendants. The judge was entitled to consider that fact in determining the punishment. MacInnis v. United States, 191 F.2d 157, 161, 9 Cir. 1951, cert. denied 342 U.S. 953, 72 S.Ct. 628, 96 L.Ed. 708.

The power to punish for contempt committed in the presence of the court is an unusual and summary sanction, arising from the necessity of control of judicial proceedings and their protection from disruption and delay, whether by litigants or others. Because of the possibility of its arbitrary use, and the absence of the usual safeguards of a criminal trial, the power must be sparingly and carefully used “with the utmost sense of responsibility and circumspection.” Brown v. United States, 359 U.S. 41, 52, 79 S.Ct. 539, 547, 3 L.Ed. 2d 609. When a trial judge makes the determination on sufficient grounds that action is necessary, the sentence is within the discretion of the court, and is open to review only for arbitrary use of the power in abuse of discretion. United States v. Levine, 2 Cir. 1961, 288 F.2d 272, Shibley v. United States, 9 Cir. 1956, 236 F.2d 238, cert. denied 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed.2d 77 (1956), Robles v. United States, 9 Cir. 1960, 279 F.2d 401, 406. There is here no hint of interjection of personal conflict on the part of the judge. Therefore we will not lightly set aside his determination that the concededly improper conduct of Mir'ra required recessing the trial to bring obedience to the lawful order of the court to desist from his conduct, nor that this interruption of trial was an offense deserving of so severe a punishment as 20 days imprisonment.

It is contended that even if the power existed summarily to punish Mirra for his acts, the power was lost by the six week delay in exercising it, and that at the very least any finding of contempt after such a delay required notice and hearing under 42(b). We think this contention answered by the decisions of this court and the Supreme Court in United States v. Sacher, 2 Cir. 1950, 182 F.2d 416, affirmed Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717. It was permissible to postpone action until the end of the trial in progress, rather than risk prejudicing the completion of trial of the main issue. The judge acted promptly on the termination of that trial when the mistrial was declared. The punishment of Mirra may help to prevent recurrence of this conduct in this or other trials in the future.

We do not feel that the failure of the court more specifically to invite a statement from Mirra before sentence, first raised by our brother Friendly’s dissent, was reversible error. Since the proceeding was under Rule 42(a), the formal requirement of Rule 32(a) is not applicable, although the reasons for the rule referred to by Judge Friendly may in a proper case require the court to interrogate the defendant personally. Here, however, the court had observed Mirra in court for 5% months, had tried to provide orderly communication through counsel, giving Mirra the option to have counsel sit next to Mirra, an option Mirra rudely rejected, and later permitting Mirra to sit behind his lawyer at the counsel table, the better to communicate during the cross examination of witnesses. There was here no request from counsel or from Mirra to address the court before sentence, and no indication that any matter in mitigation would not have been considered if offered.

There was no error in the conduct of the contempt proceeding. The conviction of Mirra is affirmed.

1 . If in basing the contempt conviction “upon * * * the record of this court” Judge Levet intended to rely upon all the other contumacious incidents set forth in the government’s appendix, we would doubt whether the certificate was sufficiently informative. While a certificate in support of a summary contempt conviction need not and probably should not set out all the relevant incidents verbatim from the record, it should summarize them, with appropriate references to the record, in such a way as to make clear their nature and contumacious tendency.