Before CHASE, CLARK, and FRANK, Circuit Judges.
This appeal, from three summary orders of contempt, is an aftermath of the affirmance by the Supreme Court in Dennis et al. v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137, of the conviction of eleven officers of the Communist Party of America for violation of the Smith Act, 18 U.S.C. § 2385. Those defendants had been enlarged on bail in the sum of $20,000 each, furnished by the Bail Fund of the Civil Rights Congress of New York pending appeal to this court and, after affirmance, United States v. Dennis et al., 2 Cir., 183 F.2d 201, pending certiorari by Circuit Justice Jackson, Williamson et al. v. United States, 2 Cir., 184 F.2d 280, because of the substantial issue of law involved. The present appellants are three of the five trustees of that Fund. When the District Court received the mandate of final affirmance by the highest court on July 2, 1951, it ordered the surrender of the defendants, to commence service of their sentences of imprisonment. Seven appeared and were duly incarcerated. Four did not; and when bench warrants did not produce them on the next day, their bail was declared forfeited. The court then directed the appearance before it of the bondsmen and trustees and officers of the Bail Fund which had acted as surety for the fugitives. Appellants appeared and were examined by the court and by the United States Attorney at hearings occupying several days - Field on July 3 and 5, Hunton on July 6 and 9, and Hammett on July 9. All refused to answer certain questions and to produce certain books and records of the Bail Fund and were cited for contempt, Field on July 5, and the others on July 9. Field was sentenced to imprisonment for ninety days or until such time as he might purge himself of his contempt. The others were sentenced for six months, with like provision for purging themselves.
These are the orders we have for review. Certain later proceedings should, however, be noted. Field applied to Chief Judge Swan for bail pending appeal, who eventually denied the application in a detailed opinion reported in United States v. Field, 2 Cir., 190 F.2d 554; and this was concurred in by Judge L. Hand in denying similar applications by Hammett and Hunton, United States v. Hunton et al., 2 Cir., 190 F.2d 556. Thereafter all three made like petitions before Justice Reed as Acting Circuit Justice for the circuit. Justice Reed denied the petitions in a comprehensive opinion dated July 25, 1951. 193 F.2d 86. The opinions of these several judges cover with meticulous care a subtantial part of the case now before us on this full review of the entire record, and we have been greatly aided by the clear statements of the law there set forth.
Meanwhile Field, having refused to comply with directions of a federal grand jury, was found in contempt and sentenced to an additional term of imprisonment of six months - an order we are reviewing in the companion case herewith of United States v. Field, 2 Cir., 193 F.2d 109. A fourth trustee, Abner Green, was also held in contempt of directions both of a grand jury and of the court in proceedings decided in the third appeal herewith, Green v. United States, 2 Cir., 193 F.2d 111. Application for a special session of the court during the summer recess having been granted, these three appeals were heard at a single sitting in September. It is a matter of regret to the court that some delay in disposing of the cases has occurred, due to illness in the court, pressure of judicial work upon the opening of the regular October term, and the gravity of the issues involved.
The record before us shows that when the judge undertook his inquiry into the escape of the fugitives, there were placed before him the documents filed in court when the bonds were given. These included, first, the "Agreement and Deed of Trust," dated originally September 16, 1946, and amended September 26, 1949, and signed by the five trustees, with the fifth trustee, Robert W. Dunn, signing a second time as "Treasurer." This provided that the Fund was to accept both loans and gifts - for which certificates of deposit and receipts were to be given the lenders and contributors respectively - to be employed in posting bail "for the benefit of strikes, and of those whose civil rights are threatened or under attack." Second, there was a statement under oath, dated November 3, 1949, by three trustees - Field, Dunn, and Hunton - reciting specific authority to Dunn to post the Government Bearer bonds, purchased with moneys given "by diverse persons," as collateral security for bail for the eleven specifically named defendants. It also stated that "in addition to the general authority contained in the annexed Agreement and Deed of Trust, all the trustees duly adopted a resolution at a meeting of the trustees held on July 22, 1948, reading as follows: Resolved that the trustees hereby authorized the use of the bail fund for such bail as might be required in the case of the Communist leaders indicted under the Smith Act on July 20, 1948, at all stages of the proceedings and until the case is finally terminated." And third, there were the formal "Bonds on Appeal" in the penal sum of $20,000 conditioned on the appearance of the particular defendant named whenever required by law or order of the court and signed by the particular defendant as Principal and Dunn as Surety.
At the hearing on July 3, Field appeared voluntarily without waiting to be subpoenaed. Advised that the purpose of the hearing was to make inquiry of the sureties under oath as to their knowledge of the whereabouts of the defendants whom the court was seeking - an inquiry "to assist the Court in effecting service of its process, which has been issued" - he was duly sworn and proceeded to testify. At first he answered readily, stating that he was a trustee of the Fund, that he had paid several visits to the headquarters of the Communist Party during the previous week in order to assure himself that the defendants would appear, and that during one of these visits he had seen at least two of the four who had failed to appear. His first refusal to answer was to a question as to the source of the funds which the group had used in posting the bond in question. He was then asked a series of questions pertaining to the last time he had seen the fugitives, the functioning of the Bail Fund, its officers, and the records it kept. These he answered, with the exception of questions pertaining to those who had contributed to the Fund, as to which he now responded affirmatively to a suggestion in a question put by the court that such a disclosure might tend to incriminate him. Thereafter he stood definitely on this claim of privilege under the Fifth Amendment. When the hearing was resumed on July 5 the court after further questioning ordered the production of the books and records of the Fund which Field had described.Again he refused, alleging the same privilege. The court then made a specific direction that the records be produced and the questions answered. The witness continued his refusal and the citation for contempt followed.
Next Hunton was sworn, having also appeared without subpoena upon being advised that the matter was before the court. He likewise admitted his trusteeship of the Bail Fund. Beyond this, however, he would not go; he declined, on grounds of the privilege against self-incrimination, to answer numerous questions concerning the nature and location of the Fund's records, acquaintanceship with the four fugitives, the time when he had last seen them, whether the signatures on the bond or trusteeship agreements were his, and even whether or not he knew what records the Bail Fund kept. Directions to produce such records were variously answered with a plea that he had no control over them and, later, with a plea of the privilege. Specific directions to answer the questions and produce the books were ignored and he also was sentenced for contempt.
When Hammett appeared on July 9 he would admit nothing; he met all questions, including his trusteeship of the Fund, the signatures on the minute book (which Field had produced), his knowledge of the fugitives, and the nature of the books of the Fund, with the same plea. After the court's overruling of the plea and his continued refusal, he too was sentenced for contempt.
Appellants seek reversal here on two basic tenets: that the court had no jurisdiction to conduct the inquiry, and that the appellants were protected by their privilege against self-incrimination under the Fifth Amendment which they had validly asserted.
1. Jurisdiction of the District Court
Appellants' vigorous attack on the court's jurisdiction even to institute and prosecute the inquiry is based upon the premise that the matter concerned a possible crime against the United States. It is the exclusive province of the executive arm of government, they contend to investigate such matters and, if facts justify, submit them to the courts through the process of grand jury indictment after review of the evidence. The precedents upon which they rely are cases where duties of investigation or of acting as a "one-man grand jury" were held improperly granted or "delegated to" the courts. See, e.g., In re Richardson, 247 N.Y. 401, 160 N.E. 655; In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682.
But we think this argument misses the real point as to the court's authority to take steps to effectuate its own decrees. True, there may have been crimes committed in connection with the flight of the fugitives, as under the Harboring Act, 18 U.S.C. §§ 1071, 1072; and the grand jury investigation which led to the contempt orders reviewed in the companion cases was obviously natural and desirable in this area. But the possibility of accusation and prosecution under a statute defining a crime does not offer or suggest any immunity for violating the direct mandate of a court; two different powers are involved, though the acts and events may be the same or interwoven. And we suggest that any conception restricting a court from taking even such limited steps to effectuate its decrees as investigating the reasons for noncompliance is not only novel, but abhorrent to any idea of effective justice. Carried to its logical conclusion it would mean that a court cannot issue execution or supplementary writs to carry its judgments, civil or criminal, into effect, but must await the chance action of some outside agency; it would also mean that it cannot issue warrants for the detention of the fugitives themselves. Actually of course courts have always exercised such powers; specific instances alone, and not the broad principle itself, have been challenged. True, the court may call upon the executive to assist its authority or carry out its mandate; but that its mandate must be obeyed, whether or not effectuated by enforcing officers of another arm of the government, even to the forfeit of human life if necessary, is quite clear. For this reason a federal officer executing the process of a United States court, or even merely guarding the person of a federal justice, is immune from state prosecution for a homicide committed in performance of these duties. See In re Neagle, 135 U.S. 1, 10 S. Ct. 658, 34 L. Ed. 55, and cases cited; Ex parte Jenkins, Fed.Cas.No.7,259, 2 Wall.Jr. 521; Ex parte Turner, Fed.Cas.No.14,246, 3 Woods 603; Beckett v. Sheriff Harford Co., C.C.D.Md., 21 F. 32; and cases collected in 65 A.L.R. 732.
Mr. Justice Reed, in his opinion cited above, succinctly answers appellants' argument as to the District Court's jurisdiction thus [193 F.2d 90]: "District Courts of the United States have jurisdiction of all offenses against the laws of the United States. 18 U.S.C. § 3231. They 'may issue all writs necessary or appropriate in aid of their respective jurisdictions agreeable to the usages and principles of law.' 28 U.S.C. § 1651. 'The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment is satisfied.' Wayman v. Southard, 10 Wheat. 1, 23, 6 L. Ed. 253. Under ancient practice bench warrants are issued on indictments to bring defendants before the court for trial, and after violation of bail, either before or after conviction, warrants issue in order that a judgment may be executed. There can be no doubt of the power of the court to direct the bench warrant for the arrest of the four fugitives from justice in the case of Dennis et als." We agree.
"Furthermore, it is fundamental that federal courts, in common with other courts, have inherent power to do all things that are reasonably necessary for the administration of justice, within the scope of their jurisdiction." Strohbar v. Dwinnell, 5 Cir., 29 F.2d 915, 916. See also Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S. Ct. 236, 87 L. Ed. 268, 143 A.L.R. 435. Here the court was properly continuing the effective disposition of the litigation initiated in the Dennis case; and examination of those who, as developed below, had constituted themselves "in truth, the jailers of the fugitives, responsible for their appearance," was a natural and appropriate step.
Mr. Justice Reed, who is author of the clause just quoted, also went on to point out that a mere witness was not entitled to question the court's jurisdiction: "It is enough if the court has a de facto existence and organization," citing Blair v. United States, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979; United States v. Shipp, 201 U.S. 563, 573, 27 S. Ct. 165, 51 L. Ed. 319; and United States v. United Mine Workers of America, 330 U.S. 258, 293, 67 S. Ct. 677, 91 L. Ed. 884. But the jurisdiction of the court seems to us so clear that we do not need to resort to this additional ground.
2. The Privilege Against Self-incrimination
While the questions of the court to the appellants and the order for production of the Fund's books were all a part of the one attempt to obtain information as to those who had advanced money for the bail and might reasonably be expected to have knowledge of their whereabouts, a separation of the issue as to the books from that as to the questions is expedient. For the Supreme Court has already given such clear guidance in the realm of organization records that we think no doubt can exist as to this first issue. In United States v. White, 322 U.S. 694, 699, 64 S. Ct. 1248, 1251, 88 L. Ed. 1542, 152 A.L.R. 1202, the Court upheld the conviction for contempt of a custodian of books of a labor union, saying that official records held "in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally." This is a settled rule, as shown by Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771. The authority would seem particularly conclusive here, since these trustees of a declared trust, probably even more clearly than union officers, are acting as representatives of a group, rather than in their own purely private or personal interest.
The conclusions thus reached necessarily require affirmance of the convictions. What effect, if any, a possible error disclosed in the remainder of the record should have is not overclear.In Blau v. United States, 340 U.S. 332, 334, 335, 71 S. Ct. 301, 95 L. Ed. 306, the majority did not decide the point; but the minority opinion indicates that the entire conviction would still be valid, citing Pinkerton v. United States, 328 U.S. 640, 641, note 1, 66 S. Ct. 1180, 90 L. Ed. 1489; Hirabayashi v. United States, 320 U.S. 81, 84, 63 S. Ct. 1375, 87 L. Ed. 1774, though the appellants might apply under F.R.Cr.P., rule 35, 18 U.S.C., to the district court to exercise its discretion to reduce the sentences. While decision of the further issues in this case may therefore not be required, nevertheless since they are definitely presented by the record and may be of importance in the ultimate disposition of this case, as well as other like cases, we think consideration of the problem at this time is desirable.
The questions asked of these appellants fell into certain distinct patterns.We shall dismiss at once those which concerned their positions as trustees of the Fund, because Field and Hunton readily admitted their office, and Hammett (as well as they) was committed by the deed of trust and trustee vote, filing of which was required by the District Court for acceptance of the bail originally. Nor need we stop as to those questions which sought to locate and identify the books; for these were proper under the precedents. Once custodianship of the books was admitted, the custodian had no privilege as to questions "auxiliary to the production," and was obligated not merely to produce them, but also to make their use in court possible "without requiring other proof than his own." United States v. Austin Bagley Corp., 2 Cir., 31 F.2d 228, 234, certiorari denied Austin-Bagley Corp. v. United States, 279 U.S. 863, 49 S. Ct. 479, 73 L. Ed. 1002; Pulford v. United States, 6 Cir., 155 F.2d 944, 947. So far, it is clear, there was no breach by the court of the constitutional privilege; and Hunton and Hammett, who refused to answer even these questions, were properly held in contempt. Remaining for consideration are two important series of questions: as to what ...