MATHES, District Judge.
18 U.S.C. § 401 declares that: "A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority * * * as * * * (3) Disobedience * * * to its lawful * * * order * * * or command."
Contempt of court is thus declared to be a public offense
While on trial under an indictment charging conspiracy, 18 U.S.C. § 371, to violate the Smith Act, 54 Stat. 670, 1940; 18 U.S.C., 1946 ed., § 10; id. 1948 ed., § 2385, defendant Oleta O'Connor Yates chose to take the witness stand in her own defense. Upon cross-examination she declined to answer certain questions, and repeatedly persisted in her refusal after being instructed by the court to answer.
The criminal trial was interrupted and a hearing had. 85 Tr. 11325-11354, 11367-11477. Upon this hearing counsel for the defense conceded that the questions which the defendant as witness blatantly refused to answer were properly put to her, and that "unquestionably this is exclusively within the court's sound discretion." See United States v. Toner, 3 Cir., 1949, 173 F.2d 140, 144; Fed.Rules Crim.Proc. 52(a).
The court thereupon ordered the defendant committed "to the custody of the * * Marshal * * * until such time as she * * * purge herself of the contempts by
The criminal trial then proceeded, with the recalcitrant witness Yates continuing to testify and refusing to answer such questions as she chose not to answer. After both prosecution and defense had rested, the court — expressly declining to excuse defendant Yates as a witness in the case — submitted the issues of fact to the jury. The jury returned a verdict of guilty as to defendant Yates and others, a motion for a new trial was presented and denied United States v. Schneiderman, D.C.S.D. Cal.1952, 106 F.Supp. 906, judgment was pronounced, and an appeal from the judgment in the criminal case has been taken and is still pending. The Court of Appeals has ordered defendant Yates released on $20,000 bail pending the appeal in the criminal case. See order in Yates v. United States, No. 13527, 9 Cir., August 29, 1952.
Defendant Yates thereafter moved to be released from custody under the civil contempt charge, basing her motion upon the ground that since the criminal trial is at an end there is no longer any reason why she should be coerced to answer.
This court denied the motion to release the defendant from coercive custody. See United States v. Yates, D.C.S.D.Cal.1952, 107 F.Supp. 408. The defendant appealed and the Court of Appeals has ordered her release on $1,000 bail pending that appeal. See order Yates v. United States, No. 13535, 9 Cir., Sept. 5, 1952.
The United States now presents a motion to punish the witness Yates for criminal contempt by reason of her wilful disobedience to the orders of the court that she answer the unanswered questions.
Where a witness is imprisoned for civil contempt, "Imprisonment * * * is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. * * * to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said In re Nevitt [8 Cir.], 117 F.  451, `He carries the keys of his prison in his own pocket.' He can end the sentence and discharge himself at any moment by doing what he had previously refused to do." Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55 L.Ed. 797.
The power of a court to coerce performance of legal duty is equitable in character. Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at page 441, 451, 31 S.Ct. 492, 55 L.Ed. 797; Bessette v. W. B. Conkey Co., 1904, 194 U.S. 324, 327-329, 24 S.Ct. 665, 48 L.Ed. 997; In re Chiles, 1874, 22 Wall. 157, 168-169, 89 U.S. 157, 168-169, 22 L.Ed. 819. It exists for an equitable purpose, and duration of the power in a given instance is co-extensive with existence of the purpose. United States v. United Mine Workers, 1947, 330 U.S. 258, 295, 67 S.Ct. 677, 91 L.Ed. 884; Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at pages 441-442, 451-452, 31 S.Ct. 492; In re Debs, 1895, 158 U.S. 564, 594-596, 15 S.Ct. 900, 39 L.Ed. 1092; Ex parte Kearney, 1822, 7 Wheat. 38, 45, 20 U.S. 38, 45, 5 L.Ed. 391; United States v. Hudson, 1812, 7 Cranch 32, 34, 11 U.S. 32, 34, 3 L.Ed. 259; Harris v. Texas & Pacific Ry. Co., 7 Cir., 1952, 196 F.2d 88, 90; United States v. International Union, 88 U.S.App.D.C. 341, 190 F.2d 865, 873-874; Parker v. United States, 1 Cir., 1946, 153 F.2d 66, 71, 163 A.L.R. 379; 3 Bl. Comm. *444-445; 4 id. *283-288.
This equitable power to imprison a recalcitrant witness in an effort to coerce an answer for the benefit of a litigant is not derived from the quoted provisions of 18 U.S.C. § 401, but is an inherent power possessed from the beginning by federal courts in the exercise of their equity jurisdiction, which parallels that exercised by the English Court of Chancery at the time our Constitution was formed. See Sprague v. Ticonic Bank, 1939, 307 U.S. 161, 164-165, 59 S.Ct. 777, 83 L.Ed. 1184; Atlas Life Ins. Co. v. W. I. Southern, Inc., 1939, 306 U.S. 563, 568, 59 S.Ct. 657, 83 L. Ed. 987; Pennsylvania v. Wheeling Bridge Co., 1851, 13 How. 518, 563-564, 54 U.S. 518, 563-564, 14 L.Ed. 249; Boyle v. Zacharie, 1832, 6 Pet. 648, 658, 31 U.S. 648, 658, 8 L.Ed. 532.
While the authorities speak of "civil" contempt and "criminal" contempt
If coercive or compensatory power of the court is exerted upon the contemnor solely for the benefit of a litigant, such exercise of equity jurisdiction involves the civil power of the court, and hence the proceeding is termed "civil" contempt. Matter of Christensen Eng. Co., 1904, 194 U.S. 458, 24 S.Ct. 729, 48 L.Ed. 1072; Worden v. Searls, 1887, 121 U.S. 14, 24-26, 7 S.Ct. 814, 30 L.Ed. 853.
On the other hand, if the punitive or penal power of the court is exerted upon the contemnor, the court's criminal power to punish for the commission of a public offense is necessarily invoked, 18 U.S.C. §§ 401, 402, and such a proceeding is called "criminal" contempt. Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at pages 441-443, 31 S.Ct. 492; In re Debs, supra, 158 U.S. at pages 593-596, 15 S.Ct. 900; Savin, Ex parte, 1889, 131 U.S. 267, 9 S.Ct. 669, 33 L.Ed. 150; Cuddy, Ex parte, 1889, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154; Ex parte Terry, 1888, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405; cf. In re Merchants' Stock & Grain Co., Petitioner, 1912, 223 U.S. 639, 32 S.Ct. 339, 56 L.Ed. 584; Doyle v. London Guarantee & Accident Co., 1907, 204 U.S. 599, 27 S.Ct. 313, 51 L. Ed. 641; Alexander v. United States, 1906, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; Beale, Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 11 (1908).
Thus the same act of contempt may result in invoking the equitable power of the court in an effort to coerce compliance, and also in invoking the criminal power of the court to impose a definite sentence of imprisonment by way of punishment. [Penfield Co. v. S. E. C., 1947, 330 U.S. 585, 590, 593-594, 67 S.Ct. 918, 91 L.Ed. 1117].
If, therefore, the equitable power of the court fails of its coercive purpose or cannot for some reason be invoked, cf. United States v. Yates, supra, Yates v. United States supra, such a contingency is "without prejudice to the power and right of the court to punish contempt * * *." Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at pages 451-452, 31 S.Ct. at page 502; Alexander v. United States, supra, 201 U.S. at page 122, 26 S.Ct. 356; Bessette v. W. B. Conkey Co., supra, 194 U.S. at pages 327-334, 24 S.Ct. 665; In re Debs, supra, 158 U.S. at pages 593-594, 15 S.Ct. 900; cf. Michaelson v. United States ex rel., 1924, 266 U.S. 42, 64-67, 45 S.Ct. 18, 69 L.Ed. 162.
And as Mr. Justice Lamar was moved to observe in the Gompers case, supra, 221 U.S. at page 450, 31 S.Ct. at page 501, "if, upon examination of the record, it should appear that the defendants were in fact and in law guilty of the contempt charged, there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience. For while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. * * * If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the `judicial power of the United States' would be a mere mockery."
For the reasons stated, the motion to invoke the criminal power of this court to punish the defendant Yates for contempt pursuant to 18 U.S.C. § 401 and Rule 42(a) of the Federal Rules of Criminal Procedure is granted. A certificate of criminal contempt will be filed as provided in Rule 42 (a), and an appropriate term of imprisonment imposed.
Appendix Certificate, Order and Judgment of Contempt
In conformity with Rule 42(a) of the Federal Rules of Criminal Procedure I hereby certify that on June 26, 1952 the series of contempts hereinafter set forth, consisting of the refusal of the defendant Oleta O'Connor Yates to answer proper
And the defendant, Oleta O'Connor Yates, having refused to answer the above questions after having been ordered so to do by the court, the court now finds and certifies that said Oleta O'Connor Yates is in criminal contempt of this court, in that she did wilfully disobey and resist lawful orders of the court, to wit, the orders hereinabove set forth, to answer the questions appearing under the above numbered specifications 1, 2, 3 and 4.
Now, on this 8th day of September, 1952 the defendant Oleta O'Connor Yates having appeared and being before the court in person and with her counsel Ben Margolis, Esquire, and the attorney for the Government also being present,
It Is Adjudged that the defendant has been convicted of four separate contempts, 18 U.S.C. § 401, committed in the presence of the court, Fed.Rules Crim.Proc. 42(a), by wilful refusal to answer four questions in wilful disobedience of the order of the court so to do, as hereinabove shown; and the court having asked the defendant whether she has anything to say why judgment should not be pronounced, and no sufficient cause to the contrary being shown or appearing to the court.
It Is Adjudged that the defendant is guilty of four separate contempts as hereinabove charged and convicted.
It Is Further Adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for a period of 3 years for each of the four separate contempts of which the defendant stands convicted herein, for refusal to answer the four questions concerning Harry Glickson and Frank Spector as hereinabove certified.
It Is Ordered that the Clerk deliver a certified copy of this judgment and commitment to the United States Marshal or other qualified officer and that the copy serve as the commitment of the defendant.
It Is Further Ordered that the entire record — including the reporter's transcript of testimony, argument and other proceedings — in (1) criminal case No. 22131 pending in this court, and (2) in civil contempt proceeding, D.C., 107 F.Supp. 408, and (3) in criminal contempt proceeding No. 22379 pending in this court, be and are hereby incorporated by reference herein.