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Securities and Exchange Commission v. Radio Hill Mines Co.

May 25, 1973


Before Moore, Hays and Mulligan, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

Defendant-appellant Sidney Stein appeals from three orders of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, issued in connection with an application by the Securities and Exchange Commission (SEC) to adjudge Stein in civil contempt for failure to comply with a preliminary injunction. Two of these orders were issued in the pending injunctive action - an order of May 22, 1972, found Stein in contempt for failure to comply with the reporting provisions of a preliminary injunction, and a commitment order of June 9, 1972, directed that Stein be confined until he did so comply. The third order which is here appealed denied an application for a writ of habeas corpus in a proceeding brought to obtain Stein's release from confinement.


The preliminary injunction was issued on November 5, 1970, upon motion of the SEC. After a seven-day evidentiary hearing on the motion then District Judge Mansfield found that Stein and three others had participated in a scheme that violated the registration and antifraud provisions of the Securities Act of 1933 (15 U.S.C. § 77e(a), (c), 77q(a)) and the antifraud provisions of the Securities Exchange Act of 1934 (15 U.S.C. 78j(b)) and Rule 10b-5 promulgated thereunder (17 CFR 240.10b-5). Judge Mansfield's order required that each defendant submit to the Commission within thirty days of the entry of the decree, a complete record of all securities owned by him either of record or beneficially, and thereafter to submit quarterly reports of all of his securities transactions.

Stein did not comply with this order. Instead, on December 16, 1970, some eleven days after the initial report to the SEC was due, Stein appealed that order. No stay of the order pending appellate review was sought. By letter dated December 22, 1970, Stein informed the SEC that he did not intend to submit the ordered reports on the ground that to do so would tend to incriminate him in violation of his rights under the Fifth Amendment.

On July 7, 1971, the SEC filed a notice of motion before Judge Tenney to adjudge Stein in contempt for failing to comply with the November 5th order. Before any decision was reached on its contempt motion, the SEC, on January 20, 1972, moved to dismiss Stein's appeal of the November 5th preliminary injunction. The motion was unopposed by Stein. On February 15, 1972, fourteen months after the notice of appeal had been filed, this Court dismissed that appeal for want of prosecution.

On May 4, 1972, Judge Tenney issued a Memorandum Opinion in which he found Stein in contempt for failing to file the required reports with the SEC. On June 7, 1972, new counsel for Stein sought to have the dismissal of Stein's appeal of the preliminary injunction vacated. This Court denied that application. On June 9, 1972, Judge Tenney signed a commitment order which provided that Stein be incarcerated until he purged himself of his contempt. On June 13, 1972, Stein's attorneys sought stays of the contempt and commitment orders. These stays were denied and Stein was confined in the Federal House of Detention. On June 15, 1972, Stein's attorneys filed a petition for a writ of habeas corpus asserting Stein's Fifth Amendment privilege as the basis for that petition. When the petition was denied, Stein purged himself of the contempt by filing the required reports and was released from custody.

We affirm the orders of the court below by which Stein was found in contempt and incarcerated; we further affirm the denial of Stein's petition for a writ of habeas corpus.


Stein has attacked the reporting provision of Judge Mansfield's preliminary injunction*fn1 on three grounds. He asserts that this provision is invalid because (1) there is no statutory authority for such reports in the Securities Acts, (2) all of the securities reporting requirements which Congress intended to permit are specifically provided for in the statutes, and (3) the required reports constitute an unreasonable search and seizure in violations of Stein's Fourth Amendment rights.

"It is now well established that [the Securities Act of 1933 and the Securities Exchange Act of 1934] confer general equity powers upon the district courts." SEC v. Manor Nursing Centers, Inc., 458 F.2d 1082, 1103 (2d Cir. 1972). See also, SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1307 (2d Cir.), cert. denied, 404 U.S. 1005, 92 S. Ct. 561, 30 L. Ed. 2d 558 (1971), reh. denied, 404 U.S. 1064, 92 S. Ct. 733, 734, 30 L. Ed. 2d 753 (1972). The Supreme Court has held that in appropriate instances there is authority in equity "to use quite drastic measures" to insure compliance with the law. United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 726, 64 S. Ct. 805, 88 L. Ed. 1024 (1944).

Despite appellant's contention to the contrary, we believe that the existence of certain reporting requirements within the Securities Acts (see, e.g., §§ 13 and 14(d) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78m and 78n(d)) does not preclude a court, acting in the exercise of its equitable powers in an appropriate case, from designing additional reporting requirements which may be necessary to insure compliance with an injunction. Indeed, in United States v. E. I. Du Pont deNemours & Co., 366 U.S. 316, 81 S. Ct. 1243, 6 L. Ed. 2d 318 (1961) the Court declared:

[It] is well settled that once the Government has successfully borne the considerable burden of establishing a violation of law, all doubts as to the ...

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