The opinion of the court was delivered by: RYAN
This proceeding to punish Gus Hall for contempt of court was commenced by the application of Myles J. Lane, United States Attorney for the Southern District of New York. Rule 42, Fed. Rules Crim. Proc. 18 U.S.C.A. An order was made, on October 31, 1951, citing the contemnor to show cause before this court on November 2, 1951 why he 'the said Gus Hall should not be adjudged and held in criminal contempt of Court and punished for said criminal contempt of this Court by reason of the fact that he disobeyed and resisted lawful orders and commands of this Court directing him to appear before it on July 2, 1951, and July 3, 1951; requiring him to surrender himself in execution of the judgment and sentence imposed under Indictment C 128-87, upon such day as the District Court may direct; and requiring him to remain within the jurisdiction of the District Court of the United States for the Southern District of New York, or the District Court of the United States for the Northern District of Ohio.'
Service of this order and of the affidavit of the United States Attorney upon which it was based was duly made upon the contemnor. The contemnor, represented by counsel, appeared on the return day at the bar of this court and the matter was adjourned for trial. Thereafter and on November 19, 1951, the United States Attorney served upon the contemnor and his attorney specifications of the criminal contempts charged. It was set forth in these specifications that,
'The United States of America, for its specifications of criminal contempt, alleges that the contemnor, Gus Hall, has committed criminal contempt in this Court by willfully and knowingly disobeying and resisting the following orders, decrees and commands of this Court:
'1. Order of Honorable William Bondy, United States District Judge, dated November 10, 1949;
'2. Order of Honorable Sylvester J. Ryan, United States District Judge, dated April 2, 1951.
'3. Order of Honorable Sylvester J. Ryan, United States District Judge, dated July 2, 1951.
'The United States of America further alleges that said contemnor, Gus Hall, committed criminal contempt of this Court by reason of the following:
'A. The contemnor disobeyed and resisted the orders of this court, listed as numbers 1 and 2, supra, by being without the jurisdiction of the districts specified in said orders.
'B. The contemnor disobeyed and resisted the order listed as number 3, supra, by failing to appear before this Court on July 2, 1951, by failing to surrender on said date, or at any other time prior to his apprehension at Laredo, Texas, on October 10, 1951.'
Copies of the orders which it was charged contemnor disobeyed and resisted were annexed to the specifications.
The contemnor was duly arraigned on November 21, 1951 and entered a plea of not guilty to each of the contempts charged. Trial was then had to the court without a jury. Rule 42(b), Fed. R. Crim. P.; United States v. United Mine Workers of America, 330 U.S. 258, 298, 67 S. Ct. 677, 91 L. Ed. 884.
At the outset of the trial contemnor moved to dismiss the charge of contempt based on the order of the Honorable Sylvester J. Ryan, dated April 2, 1951. The United States Attorney consenting, this charge of contempt was dismissed. The trial continued as to the other two specifications numbered 1 and 3- contempt of the order of Bondy, J., of November 10, 1949 and contempt of the order of Ryan, J., of July 2, 1951.
We turn, first, to examine the record of the prior proceedings which gave rise to the making of these two orders.
The contemnor and eleven codefendants were indicted by the Grand Jury impaneled for the Southern District of New York on July 20, 1948, charged with violation of Section 3 of the 'Smith Act', Sec. 11, 18 U.S.C.A. 1946 ed., 1948 Revised Criminal Code, 18 U.S.C.A. § 2385. Following a plea of not guilty, the defendants were released on $ 5,000 bail; contemnor and ten of his codefendants were later tried and convicted by verdict of a jury. The contemnor, on October 21, 1949, was sentenced to a term of imprisonment of five years and fined in the sum of $ 10,000, and remanded to commence service of the term so imposed.
An appeal was taken from the judgment of conviction by these defendants, including the contemnor, to the Court of Appeals for the Second Circuit. On an application for bail, the Government conceded that the appeal presented a substantial question, and on November 2, 1949 the Court of Appeals allowed bail. The contemnor and his codefendants were enlarged upon bond in the sum of $ 20,000 posted by each of them on November 3, 1949.
The contemnor signed and acknowledged his bond; he personally subscribed to the conditions of the recognizance. These conditions, in part, provided that the contemnor '* * * shall abide by and obey all orders made in said cause and shall surrender himself in execution of the judgment and sentence appealed from upon such day as the District Court of the United States for the Southern ...