In re Michael

GOODRICH, Circuit Judge.

Robert Michael was convicted of criminal contempt in' the United States District Court for the Middle District of Pennsylvania. He appeals. The foundation of the discussion of both his rights and liabilities is, of course, the statute, Section 268 of the Judicial Code, 28 U.S.C.A. § 385, which provides as follows: “The * * * courts [of the United States] shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority. Such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice * *

The argument for the appellant makes several points, some of which may be disposed of briefly before passing to the one which requires more elaborate consideration. In the first place, he says, alleged acts which constitute the contempt took place in the grand jury room where the judge was not and could not lawfully be present. This, he says, was not in the presence of the court or so near thereto to come within the statute. This point is directly settled to the contrary by this Court in Camarota v. United States, 1940, 111 F.2d 243, 246, certiorari denied, 1940, 311 U.S. 651, 61 S.Ct. 16, 85 L.Ed. 416 where the Court said: “Since the grand jury is an arm of the district court, proceedings before it are to be regarded as being proceedings in the court.”

Point is made of the fact that there was no formal presentment by the grand jury nor was there a sworn petition by the attorney for the United States. What happened was that with the grand jury present in the court room¹ the attorney for the United States, stating that he was acting at the direction of the grand jury, complained of the appellant, and petitioned the court to hold him guilty of contempt. An order to show cause was issued by the court, a copy of the petition and order handed to the defendant’s counsel and two days later copy of the transcript of the testimony of the appellant as a witness before the grand jury was furnished him. Full hearing was had upon the petition and defendant’s answer thereto. The judgment of the court followed.

We think the defendant has nothing of which to complain because of the procedure followed. The power to punish for contempt in the presence of the court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial. Ex parte Hudgings, 1919, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333. While due process requires that the accused should know the charges and have reasonable opportunity to meet them, the proceedings are not required to take any particular form “so long as the substantial rights of the accused are preserved.” Camarota v. United States, supra. We think they were clearly so preserved in this case.

The appellant also complains that the judgment does not recite that the court found him guilty beyond a reasonable doubt.² The judge did make a statement of such finding in open court, but the argument is that the judgment,' itself, is what controls, not the oral explanation or comment which accompanied it. Counsel for the United States answers that the finding of guilt beyond reasonable doubt does not need to be included in the judge’s order any more than such a finding needs to be included in a jury’s verdict. It is the standard by which the evidence leading to or sustaining a conviction must be measured. It does not have to be formally written into either. We think the government’s position is sound and, in the absence of conclusive authority to the contrary, none of which has been cited, we adopt it.

It is also alleged as error that certain letters and accounts of certain conversations were admitted, letters not to or from the appellant and conversations not in his presence. We find nothing in the court’s action here which results in prejudice to the accused. The trial judge accepted the evidence so that he could get the whole picture and we have every confidence in his ability and desire to weed out the relevant from the irrelevant when it came to determining the weighing of the testimony against the accused.

This brings us, then, to the difficult point in the case. Here we pass from allegations of mere irregularities to the difficult question of whether this appellant could properly be convicted of contempt as a result of what he did. He was not contumacious or obstreperous. He did not refuse to answer questions. His testimony cannot fairly be characterized as unresponsive in failing to, give direct answers to the questions asked him.

Counsel for the appellant has analyzed the evidence and presented arguments why certain witnesses should not. be believed and why the appellant should be believed. This line of argument we cannot go into, for it is not our function. We do not pass on the credibility of the witnesses. In our minds it is clear that there is testimony upon which the trier of the facts could reasonably have found that Michael was not telling the truth in the answers he gave to some of the questions propounded by the attorney for the United States. The questions were relevant to the subject then under examination which was an inquiry into the matters concerning the settlement of the affairs of the Central Forging Company, a corporation which had been in reorganization proceedings in the District Court for the Middle District of Pennsylvania. So here we have a witness who is asked questions relevant to an inquiry and he gives answers which may be and have been found to be untrue. For the purpose of the remainder of this discussion we shall assume the answers are untrue and that the accused might have been found guilty of perjury. May he likewise be found guilty of contempt of court and summarily punished accordingly or is he subject to prosecution for perjury only, in which he would be entitled to the Constitutional protection of trial by jury?

As Mr. Justice Cardozo said in Clark v. United States, 1933, 289 U.S. 1, 11, 53 S.Ct. 465, 468, 77 L.Ed. 993: “The books propound the question whether perjury is contempt, and answer it with nice distinctions.” ³ He cites Ex parte Hudgings, supra, for the proposition that “Perjury by a witness has been thought to be not enough where the obstruction to judicial power is only that inherent in the wrong of testifying falsely.” On the other hand, as he points out “obstruction to judicial power will not lose the quality of contempt though one of its aggravations be the commission of perjury.”⁴

As pointed out by the court in United States v. Arbuckle, D. C. D. C., 1943, 48 F.Supp. 537, in every perjury case the false testimony tends to obstruct justice. It imposes burdens on court and counsel and its refutation takes time and expense. But this inherent obstructive effect of perjury is not sufficient to constitute the additional obstruction required to make a false witness also guilty of contempt. Judge Laws, in the case just cited, concludes that the requirement is that the perjury shall block the inquiry. If it does then it is obstruction. By “block the inquiry” is obviously not meant effectively to block the inquiry, because if the blocking was completely effective the truth would not be found out and the perjury not discovered. It is sufficient if it tends to block the inquiry or blocks it so far as a particular witness is concerned even though, as in the case before us, what is determined to be the truth is discovered from other witnesses.

Blocking the inquiry can clearly take place by the speaking of words as well as by other acts. If a witness tears up a significant paper in the grand jury room he is blocking the inquiry by destroying evidence. If he refuses to answer he is doing it by failure to furnish evidence. If he denies knowledge of something which it is determined beyond a reasonable doubt that he does know about he is blocking the inquiry just as effectively by. giving a false answer as refusing to give any at all.

It is not without significance, we think, that the majority of the federal cases dealing with perjured testimony as contempt have to do with litigation on the investigatory side of legal proceedings as contrasted with the trial of particular issues of fact. Bankruptcy cases are the most frequent and an imposing array of authorities hold defendants for contempt for false answers in the investigation 'of affairs of bankrupt estates.⁵ False testimony in such cases and false testimony before grand juries ⁶ tends to block investigation at the start and those are the types of cases in which convictions for contempt must frequently appear in the federal decisions. The position of the false witness in cases like these is different in degree from a false denial by a witness in the trial of a fact issue as to the speed of a motor cal- or his whereabouts on a given day.

In the case at bar there are several places where the defendant gave testimony which, assuming its untruth, was of a type tending to block the inquiry. For instance, he was examined concerning a batch of checks executed by him as trustee in reorganization proceedings of a company. The reason the checks were given and what the money went for were critical points in establishing the principal transaction with regard to the winding up of the reorganization proceedings. The witness either denied knowledge of the checks or gave explanations which could be found to be untrue. False explanation was as obstructive as an attempt to destroy the checks would have been.

The point is not free from difficulty. We have considered it carefully with full recognition of the importance of the constitutional provision for a jury trial of a person charged with crime. Our conclusion is that the appellant’s rights were not disregarded, that he could have not only been found guilty of giving untrue testimony but that such conduct on his part was an obstruction of the administration of justice and that he could be and was properly held liable in the contempt proceedings.

Affirmed.

1 This fact was stated in the record for appeal by the trial judge over the objection of the defendant. Defendant makes the further point that it does not appear that the members of the grand jury were in the court room in their capacity as grand jurors rather than spectators. We think there is no substance in the argument.

2 It is not disputed that this is the test which must be met. Blim v. United States, 7 Cir., 1934, 68 F.2d 484.

3 The decisions, both state and federal, which have dealt with the question are collected and classified in notes, 11 A.L. R. 342 and 73 A.L.R. 817.

4 In that case the accused by means of false swearing and concealment had accomplished her acceptance as a juror and the court points out that there is a distinction, not to be ignored, in deceit by a witness and deceit by a talesman, since a talesman when accepted as a juror becomes a part of the court.

5 In re Eskay, 3 Cir., 1941, 122 F.2d 819; Schleier v. United States, 2 Cir., 1934, 72 F.2d 414, certiorari denied 1934, 293 U.S. 607, 55 S.Ct. 123, 79 L.Ed. 697; Haimsohn v. United States, 6 Cir., 1924, 2 F.2d 441; In re Gitkin, D.C.E.D.Pa., 1908, 164 P. 71.

6 In re Meckley, 3 Cir., 1943, 1)17 F. 2d 310, certiorari denied 1943, 320 U.S. 760, 64 S.Ct. 69; Schleier v. United States, 2 Cir., 1934, 72 F.2d 414, certiorari denied 1934, 293 U.S. 607, 55 S. Ct. 123, 79 L.Ed. 697; United States v. McGovern, 2 Cir., 1932, 60 F.2d 880, certiorari denied 1932, 287 U.S. 650, 53 S.Ct. §6, 77 L.Ed. 561; Blim v. United States, 7 Cir., 1934, 68 F.2d 484; Lang v. United States, 2 Cir., 1932, 55 F.2d 922, certiorari dismissed 1932, 286 U.S. 523, 52 S.Ct. 495, 76 L.Ed. 1267; O’Connell v. United States, 2 Cir., 1930, 40 F.2d 201, certiorari dismissed on stipulation, 1930, 296 U.S. 667, 51 S.Ct. 658, 75 L.Ed. 1472.