The opinion of the court was delivered by: NOONAN
This proceeding was instituted on September 9, 1953 by an order requiring Robert G. Thompson, the respondent, to show cause why he should not be punished for criminal contempt of this court. 18 U.S.C. § 401; Rule 42, Federal Rules of Criminal Procedure, 18 U.S.C.
Following respondent's arraignment and the entry of a plea by him of not guilty, trial was had to the court without a jury on December 8th and December 9th, 1953, (Rule 42(b), Federal Rules of Criminal Procedure; 18 U.S.C. § 3691; U.S. v. United Mine Workers of America, 330 U.S. 258, 298, 67 S. Ct. 677, 91 L. Ed. 884). At the end of the government's case, respondent moved to strike certain testimony and also moved for judgment of acquittal.
We shall consider first the evidence presented on the trial.
The respondent, Thompson, is one of the eleven defendants in the case of U.S. v. Dennis, (Indictment #C128/87), whose conviction, under the Smith Act, to teach and advocate the violent overthrow of the Government of the United States was affirmed by the Court of Appeals of this Circuit, 183 F.2d 201; and the Supreme Court of the United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. At the conclusion of such trial, Thompson was sentenced to three years imprisonment and fined $ 10,000. Thereafter, the Court of Appeals, on November, 2, 1949, fixed bail for Thompson in the sum of $ 20,000 and he was enlarged accordingly. Respondent, Thompson, executed a bond in such penal amount and was released on November 3, 1949. Such bond contains, in part, the following language:
'Now the conditions of this recognizance are such that (the respondent) 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 District of New York may direct, if the judgment and sentence appealed from shall be affirmed, and shall appear before the District Court of the United States for the Southern District of New York on such day or days as shall be sent (sic) for a retrial of said cause providing the judgment of the District Court of the United States for the Southern District of New York is reversed by the said United States Court of Appeals; and shall not depart the jurisdiction of the District Court of the United States for the Southern District of New York without leave * * *'.
On November 10, 1949, Judge Bondy of this Court entered an order extending the bail limits for Thompson to the Eastern District of New York on his sworn application that his place of residence was located at 3940 -- 46th Street, Long Island City, New York. The latter order provides that Thompson 'will return to the Southern District of New York whenever ordered by this Court so to do.'
Upon the affirmance of his conviction by the Court of Appeals for this Circuit on August 1, 1950, the government sought revocation of his bail. The motion was granted with leave to the defendants in the Dennis case to apply to the Circuit Justice for continuance of bail. This application was granted by Mr. Justice Jackson, the Circuit Justice, and the respondent, and his co-defendants, were continued on bail pending an application for certiorari and, if granted, pending final disposition of the case by the Supreme Court. Williamson v. U.S., 2 Cir., 184 F.2d 280.
Respondent's conviction was thereafter affirmed by the Supreme Court on June 4, 1951, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. Thus the mandate of the Supreme Court, unless stayed, would come down to the District Court twenty-five days after the Supreme Court's decision, namely, June 29, 1951. Sup.Ct. Rule 34, 28 U.S.C. On June 22, 1951 an applications to stay the mandate and continue respondent on bail was denied by Mr. Justice Jackson. On that date, Thompson was interviewed in New York by Agents of the Federal Bureau of Investigation.
On June 28, 1951, the government prepared and served upon counsel in the Dennis case an order on mandate with notice of settlement in usual form. Harry Sacher, an attorney for certain of the defendants in the Dennis case, accepted service for Thompson's attorney. The order on mandate with notice of settlement contained an express provision requiring all the defendants in the Dennis case personally to surrender to the United States Marshal for the Southern District of New York on July 2, 1951, at 10:30 A.M. On June 29, 1951, after service of the proposed order on Mandate, Mr. Sacher requested the United States Attorney to adjourn the surrender of all of the defendants until after July 4, 1951, to 'allow these men to spend the last holiday, which would be available to them for some years * * * with their wives and children * * *'.
This request was denied and Mr. Sacher thereupon appeared before Judge Ryan of this court in support of two proposed orders to show cause affecting the sentences previously imposed on all of the defendants in the Dennis case. Mr. Sacher stated to Judge Ryan at that time: 'You have my word that all of these defendants will be here at that time'. (Referring to Monday morning, July 2, 1951).
Upon questioning by the court, Mr. Sacher advised Judge Ryan:
'the only basis on which I could make any statement or promise to the court was the promise of my clients and the others to appear'.
Following his departure from the courthouse on June 29, 1951, Mr. Sacher went to Communist Party Headquarters, located at 35 East 12th Street, where he told Henry Winston, Gilbert Green, Gus Hall and the other defendants in the Dennis case to appear in court on Monday day morning, July 2, 1951.
Mr. Sacher's statement as to whom he saw at 35 East 12th Street, at the time just referred to, is unequivocal insofar as Winston, Hall and Green are concerned. His recollection of having seen Thompson there at that time is couched in the phrase: 'I may have'. But the demonstrable fact is that Thompson was at 35 East 12th Street at that time. Abner Green, one of the sureties on Thompson's bail bond stated that he saw Thompson with Gilbert Green at Communist Party Headquarters; Mr. Sacher went to Communist Party Headquarters after being in court on the afternoon of Friday, June 29, 1951. So did Abner Green, one of Thompson's sureties. The only logical inference to be drawn from these facts is that Thompson and his codefendants in the Dennis case were together ...