JAMES ALGER FEE, Circuit Judge.
Oleta O'Connor Yates was one of those indicted and on trial as a defendant on a charge of conspiracy to violate the Smith Act, 18 U.S.C.A. § 2385. After the close of the government case, all of the defendants rested except four, of whom Mrs. Yates was one. She was the only defendant there who testified. Yates v. United States, 9 Cir., 225 F.2d 146. Upon cross-examination she refused to answer any of four questions. Upon direction of the court to respond, she still refused. Thereupon, the trial judge signed a certificate with four specifications setting up the refusals. A judgment was entered committing her to the custody of the Marshal for imprisonment "until such time as she may purge herself of the contempts by answering the questions ordered to be answered in each instance or until further order of the court." Notice of appeal from this order of June 26, 1952, was immediately filed. Defendant Yates continued under cross-examination for three days, during which time she refused to answer other like questions. She continued in custody during the rest of the trial. Upon conviction in the conspiracy case, she was confined with the other defendants until August 30, 1952. All of the others were then released upon posting bail.
The Marshal refused to release Mrs. Yates until the judge then presiding gave a specific order releasing her until the matter could be heard by the trial judge who had committed her for contempt originally. On September 3, 1952, the minutes recite that "defendant is ordered back into physical custody of the U. S. Marshal pursuant to the order of June 26, 1952, re civil contempt" and that a bench warrant issue. This order was passed by Hon. William Mathes, who had presided at the original trial. An appeal was taken from this order. Pending hearing, this Court stayed execution on the order and relieved Mrs. Yates of recommitment.
The confusion as to meaning of words existing here is blameworthy. There is no essential dichotomy between "civil" and "criminal" contempt. The power of the court is inherent and can only be removed when the court is abolished. This prerogative is based upon the federal Constitution. When "inferior courts" are created by Congress, each possesses this authority by virtue of its existence. The Supreme Court has expressly held that coercive measures to superinduce obedience and penalties for defiance may be imposed by the same
Where the United States is prosecuting a criminal case, and a defendant as a witness refuses to answer after order by the court, it seems a contradiction in terms to call the refusal a "civil" contempt. The defiance of the order is committed in the face of the court. Procedural safeguards are thus unavailable and unnecessary.
As to the primary order, there is no question. The trial court was well within the channels of power. It would be subversive of our system of trials, where a defendant is not compelled to testify, to permit him to testify voluntarily to that which he wishes and on the other hand refuse to answer on cross-examination any question which he might believe embarrassing. He cannot be compelled to testify at all. No comment upon his failure to testify can be made by the prosecution — a feature which we sincerely hope is never eliminated from the federal system. But, where one waives this immunity and voluntarily gives testimony he should not be permitted to pick and choose that which he will answer.
The questions here propounded were material, if not vital, to the main issue of conspiracy. Mrs. Yates had fair opportunity to answer, was expressly warned and refused with full knowledge of the consequences. The confinement as a result was proper exercise of the authority of the trial judge. The order of June 26, 1952, was valid.
It has, however, been now called to our attention that the trial at which the witness was ordered to testify has ended. This circumstance highlights the situation in the second appeal which was taken from the order of September 8, 1952, directing that Mrs. Yates be recommitted to custody, in accordance with the previous order, based upon the continued failure to testify. Termination of the original proceeding was a circumstance requiring consideration by the trial court before further action was taken. All concepts of the common law indicate a criminal trial is an entity. From ancient times, it was a proceeding before one judge and one jury. Even modernly, it has been held that the same
In any event, once a verdict is returned and the jury is discharged, the trial is ended. Once so concluded, a trial is ended forever. The situation can never be recreated. This defendant, or some of the defendants or other people, may be retried on the same charge by the same judge and the same jury, but the trial is not the same. It is true that, if we followed the analogies of civil cases, in which coercive measures in order to enforce the mandates of the court have been employed, the principle which was followed by the trial judge here would rule the proceeding.
The trial court recognized that the only cases which involve this peculiar situation of prosecution by the United States are contrary to the position taken in this case. Where a witness has been called to testify before a grand jury and the grand jury has been discharged,
This Court recognizes that the answers to the questions by Mrs. Yates may still be of great importance to the government of the United States in this
The order of June 26, 1952, was valid and is affirmed. It was error, however, to direct confinement thereunder after the close of the main trial. The order of September 8, 1952, is reversed.
STEPHENS, Circuit Judge.
I concur in the result.