Harris v. United States (382 U.S. 162)/Opinion of the Court

by William O. Douglas

United States Supreme Court

382 U.S. 162

Harris  v.  United States (382 U.S. 162)

 Argued: Oct. 11, 12, 1965. --- Decided: Dec 6, 1965

This case brings back to us a question resolved by a closely divided Court in Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609, concerning the respective scope of Rule 42(a) and of Rule 42(b) of the Federal Rules of Criminal Procedure. Petitioner was a witness before a grand jury and refused to answer certain questions on the ground of self-incrimination. He and the grand jury were brought before the District Court which directed him to answer the questions propounded before the grand jury, stating that petitioner would receive immunity from prosecution. He refused again to give any answers to the grand jury. He was thereupon brought before the District Court and sworn. The District Court repeated the questions and directed petitioner to answer, but he refused on the ground of privilege. The prosecution at once requested that petitioner be found in contempt of court 'under Rule 42(a).' Counsel for petitioner protested and requested an adjournment and a public hearing where he would be permitted to call witnesses. The District Court denied the motion and thereupon adjudged petitioner guilty of criminal contempt, imposing a sentence of one year's imprisonment. ^[1] The Court of Appeals af>>firmed, 334 F.2d 460. We granted certiorari, 379 U.S. 944, 85 S.Ct. 438, 13 L.Ed.2d 542.

Rule 42(a) is entitled 'Summary Disposition' and reads as follows:

'A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.'

Rule 42(a) was reserved 'for exceptional circumstances,' Brown v. United States, 359 U.S. 41, 54, 79 S.Ct. 539, 548 (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of 'the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,' ibid., and in light of the wording of the Rule. Summary contempt is for 'misbehavior' (Ex parte Terry, 128 U.S. 289, 314, 9 S.Ct. 77, 83, 32 L.Ed. 405) in the 'actual presence of the Court.' Then speedy punishment may be necessary in order to achieve 'summary vindication of the court's dignity and authority' Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767. But swiftness was not a prerequisite of justice here. Delay necessary for a hearing would not imperil the grand jury proceedings.

Cases of the kind involved here are foreign to Rule 42(a). The real contempt, if such there was, was contempt before the grand jury-the refusal to answer to it when directed by the court. Swearing the witness and repeating the questions before the judge was an effort to have the refusal to testify 'committed in the actual presence of the court' for the purposes of Rule 42(a). It served no other purpose, for the witness had been adamant and had made his position known. The appearance before the District Court was not a new and different proceeding, unrelated to the other. It was ancillary to the grand jury hearing and designed as an aid to it. Even though we assume arguendo that Rule 42(a) may at times reach testimonial episodes, nothing in this case indicates that petitioner's refusal was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures (Cooke v. United States, supra, at 536, 45 S.Ct. at 394), was necessary. Summary procedure, to use the words of Chief Justice Taft, was designed to fill 'the need for immediate penal vindication of the dignity of the court.' Ibid. We start from the premise long ago stated in Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242, that the limits of the power to punish for contempt are '(t)he least possible power adequate to the end proposed.' ^[2] In the instant case, the dignity of the court was not being affronted: no disturbance had to be quelled; no insolent tactics had to be stopped. The contempt here committed was far outside the narrow category envisioned by Rule 42(a). ^[3]

Rule 42(b) provides the normal procedure. It reads:

'A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.'

Such notice and hearing serve important ends. What appears to be a brazen refusal to cooperate with the grand jury may indeed be a case of frightened silence. Refusal to answer may be due to fear fear of reprisals on the witness or his family. Other extenuating circumstances may be present. ^[4] We do not suggest that there were circumstances of that nature here. We are wholly ignorant of the episode except for what the record shows and it reveals only the barebones of demand and refusal. If justice is to be done, a sentencing judge should know all the facts. We can imagine situations where the questions are so inconsequential to the grand jury but the fear of reprisal so great that only nominal punishment, if any, is indicated. Our point is that a hearing and only a hearing will elucidate all the facts and assure a fair administration of justice. Then courts will not act on surmise or suspicion but will come to the sentencing stage of the proceeding with insight and understanding.

We are concerned solely with 'procedural regularity' which, as Mr. Justice Brandeis said in Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (dissenting), has been 'a large factor' in the development of our liberty. Rule 42(b) prescribes the 'procedural regularity' for all contempts in the federal regime ^[5] except those unusual situations envisioned by Rule 42(a) where instant action is necessary to protect the judicial institution itself.

We overrule Brown v. United States, supra, and reverse and remand this case for proceedings under Rule 42(b).

Reversed and remanded.

Mr. Justice STEWART, with whom Mr. Justice CLARK, Mr. Justice HARLAN, and Mr. Justice WHITE join, dissenting.

Notes

1. 'The Court: Anything further?
2. And see Nye v. United States, 313 U.S. 33, 52-53, 61 S.Ct. 810, 817-818, 85 L.Ed. 1172; In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30; Cammer v. United States, 350 U.S. 399, 404, 76 S.Ct. 456, 458, 100 L.Ed. 474.
3. Rule 42(a) was described by the Advisory Committee as 'substantially a restatement of existing law. Ex parte Terry, 128 U.S. 289 (9 S.Ct. 77, 32 L.Ed. 405); Cooke v. United States * * *.' We have confirmed this on more than one occasion, e.g., Offutt v. United States, 348 U.S. 11, 13-14, 75 S.Ct. 11, 13-14, 99 L.Ed. 11; Brown v. United States, supra, 359 U.S. at 51, 79 S.Ct. at 547.
4. Chief Justice Taft said in Cooke v. United States, supra, 267 U.S. at 537, 45 S.Ct. at 395:
5. In more than one instance in the Southern District of New York, from which this case comes, witnesses cited for testimonial contempt before the grand jury were given hearings under Rule 42(b). E.g., United States v. Castaldi, 338 F.2d 883; United States v. Tramunti, 343 F.2d 548; United States v. Shillitani, 345 F.2d 290; United States v. Pappadio, 346 F.2d 5. There is no indication that this procedure impeded the functioning of the grand jury.