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April 16, 1956

UNITED STATES of America, Petitioner,
Gilbert GREEN, Respondent

The opinion of the court was delivered by: DAWSON

This proceeding was brought on by an order to show cause duly served upon the respondent directing him to show cause why he should not be adjudged and held in criminal contempt of this Court by reason of the fact that he knowingly and deliberately disobeyed and resisted a lawful order and command of this Court directing him to appear before it on July 2, 1951 and July 3, 1951 for surrender in execution of the judgment and sentence imposed under indictment C 128-87.

Respondent was convicted in this Court, after a long trial before Judge Medina, of conspiring to teach and advocate the overthrow of the government by force and violence, 18 U.S.C.A. § 2385, and pending appeal from his conviction, was ordered released on bail. The conviction was sustained by the Court of Appeals, 2 Cir., 183 F.2d 201, and on June 4, 1951, the Supreme Court affirmed his conviction. Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137. A proposed order on mandate requiring his appearance for surrender to the United States Marshal on July 2, 1951 was served upon his counsel on June 28, 1951. Respondent did not appear on July 2, 1951, and attempts thereafter to execute a bench warrant at his stated address failed.

 Respondent was arraigned and pleaded not guilty to the charge of contempt, and the issues were tried by the Court without a jury pursuant to Federal Rules of Criminal Procedure, Rule 42, 18 U.S.C.A.

 The evidence showed that the order of Judge Ryan of July 2, 1951 required the respondent to surrender personally to the United States Marshal for the Southern District of New York. There is no doubt that respondent did not surrender for over four years, or not until February 27, 1956 when he surrendered himself for commitment at the United States Courthouse in New York, N.Y.

 The evidence was sufficient to establish, beyond a reasonable doubt, that the respondent knowingly disobeyed the order of Judge Ryan. The evidence showed that Mr. Sacher, an attorney in the case, personally advised the respondent on June 29th that he had to be in Court on July 2, 1951. There was other evidence that thereafter, but before July 2, respondent left his New York City address and was not seen there again. There was further evidence that several days before respondent surrendered, he issued a written statement to the press admittedly signed by him which conclusively established that he had remained in hiding in order to avoid serving the sentence to which he had been committed. Furthermore, on the day on which he surrendered, respondent made statements to the reporters who were present on the Courthouse steps which also conclusively established that he had knowingly and willfully absented himself so as to avoid serving a sentence which he knew had been imposed upon him.

 From the testimony, the Court found as a fact that respondent had notice of the order and willfully disobeyed it. See United States v. Hall, 2 Cir., 1952, 198 F.2d 726, certiorari denied 1953, 345 U.S. 905, 73 S. Ct. 641, 97 L. Ed. 1341.

 Respondent then contended that the Court was without power to impose a sentence for contempt of Court of more than one year, and this opinion deals primarily with that question.

 § 401 of 18 U.S.C.A. provides that

 'A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as --

 '(3) disobedience or resistance to its lawful writ, process, order, rule, decree, or command.'

 It is the argument of the respondent that this provision is not a grant of unlimited power to the Court, but that the discretion of the Court is confined to punishment for a misdemeanor, as defined in § 1 of Tit. 18 U.S.C.A., i.e., a crime punishable by imprisonment for not more than one year. Respondent argues that at Common Law, contempt was considered to be a misdemeanor; and that if 401 is construed to authorize the punishment of contempt by a term of more than one year, it would violate that provision of the Fifth Amendment to the United States Constitution which provides that:

 'No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.'

 This argument presupposes that criminal contempt is an 'infamous crime' within the meaning of those words as used in the Fifth Amendment.

 While, for certain purposes, contempt cases may be considered criminal cases, it has been well established that 'proceedings in contempt may be said to be sui generis'. O'Neal v. United States, 1903, 190 U.S. 36, 23 S. Ct. 776, 777, 47 L. Ed. 945. *fn1" The Court of Appeals for the Eighth Circuit in a case which raised the point now urged by the respondent decided that a criminal contempt is an 'offense' and ...

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