John Shields Daschbach v. United States of America, Terry Pettus v. United States of America, Herbert J. Phillips v. United States

254 F.2d 687 John Shields DASCHBACH, Appellant, v. UNITED STATES of America, Appellee. Terry PETTUS, Appellant, v. UNITED STATES of America, Appellee. Herbert J. PHILLIPS, Appellant, v. UNITED STATES of America, Appellee. Nos. 14321-14323. United States Court of Appeals Ninth Circuit. April 21, 1958. John Caughlan, Seattle, Wash., for appellants Daschbach and Pettus. Philip L. Burton, Seattle, Wash., for appellant Phillips. Charles P. Moriarty, U. S. Atty., Richard D. Harris, Asst. U. S. Atty., Seattle, Wash., Kevin T. Moroney, William F. O'Donnell, III, John J. Keating, Jr., Attorneys, Department of Justice, Washington, D. C., for appellee. Before HASTIE, CHAMBERS, and HAMLEY, Circuit Judges. HAMLEY, Circuit Judge. 1 These criminal contempt proceedings are an outgrowth of United States v. Huff, a Smith Act, 18 U.S.C.A. § 2385 , case in which judgments of conviction were recently reversed. 1 2 John Shields Daschbach and Terry Pettus, defendants in the principal case, took the witness stand, but refused to answer certain questions on cross-examination. Herbert J. Phillips was called as a witness for the defendants in the principal action. He likewise refused to answer certain…

These criminal contempt proceedings are an outgrowth of United States v. Huff, a Smith Act, 18 U.S.C.A. § 2385 , case in which judgments of conviction were recently reversed. 1

John Shields Daschbach and Terry Pettus, defendants in the principal case, *688 took the witness stand, but refused to answer certain questions on cross-examination. Herbert J. Phillips was called as a witness for the defendants in the principal action. He likewise refused to answer certain questions on cross-examination.

In each instance, the trial judge held the witness to be in contempt as soon as the refusal occurred. Each was then immediately remanded to the custody of the marshal until the end of the Smith Act trial. At the close of the trial, all three were adjudged guilty of criminal contempt. In each case, a penitentiary sentence of three years was imposed.

Each has appealed. Daschbach and Pettus filed joint briefs. We consolidated dhe three appeals for purposes of argument and disposition.

Several questions are presented on appeal. The first of these is whether, by imprisoning appellants during the course of the trial, the court exhausted its summary power and was without jurisdiction to…

(concurring) .

In the Yates contempt ease, 227 F.2d 848 , the record shows the trial court when it (during the course of trial) applied a coercive sanction: immediate commitment to jail, was not proceeding under Rule 42(a) of the Rules of Criminal Procedure for a criminal contempt. But the trial judge when first confining Mrs. Yates to jail assured her, “You carry the key to the jail in your purse.” Thus, there was an affirmative statement from which one would naturally imply that the contemporaneous action was all there was to it.

Here the facts are about as strong for these defendants as they were for Mrs. Yates. So I concur.

Rule 42(a) does not ordinarily contemplate a trial, but I also assume that before the matter leaves the trial court there would always be the opportunity to raise the point that in imposing the civil sanction the court did not before the close of the testimony advise the defendant he had not exculpated himself under Rule 42(a). Notice to the defendant of possible criminal contempt is required under Yates, supra, if the civil sanction is being applied.

After the law in this circuit was settled by Yates in 1955 on notice, I would require the defendant to…