Under 18 U.S.C. § 401 and Federal Rule of Criminal Procedure
42(a), petitioner was summarily tried and convicted by the trial
judge of criminal contempt for conduct during a trial in which
petitioner represented the plaintiff in a suit under the Clayton
Act for treble damages for an alleged conspiracy to destroy the
plaintiff's business by restraining and monopolizing trade. At the
very outset of the trial, the judge had ruled erroneously that the
plaintiff's counsel could not try to prove the conspiracy charge;
but, in order to comply with Federal Rule of Civil Procedure 43(c)
and thus preserve his client's rights on appeal, petitioner, in the
presence of the jury, persisted in asking questions intended to lay
the proper foundation for offers of proof of conspiracy. The judge
ordered petitioner to stop doing so, but petitioner insisted that
he had a right to do so, and said he would continue to do so
"unless some bailiff stops us." However, a recess was then called
and thereafter petitioner asked no more of the forbidden
questions.
Held: there was nothing in this conduct sufficiently
disruptive of the trial court's business to "obstruct the
administration of justice," within the meaning of 18 U.S.C. § 401,
and a judgment sustaining the conviction is reversed. Pp.
370 U. S.
230-236.
294 F.2d 310 reversed.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner Thomas C. McConnell, a lawyer, was summarily
found guilty of contempt of court for statements made while
representing the Parmelee Transportation Company in an antitrust
suit for treble damages
Page 370 U. S. 231
and an injunction. The complaint charged that a number of
defendants had unlawfully conspired to destroy Parmelee's business
by restraining and monopolizing trade in violation of the Sherman
Act. [
Footnote 1] Petitioner
and his co-counsel, Lee A. Freeman, had done extensive pretrial
preparation on the issue of conspiracy, which was the heart of
their case. At the very outset of the trial, however, the district
judge, on his own motion, refused to permit counsel to try to prove
their conspiracy charge, holding that they must first prove in a
wholly separate trial that defendants' actions had resulted in an
economic injury to the public -- an erroneous holding, since we
have held that the right of recovery of a plaintiff in a treble
damage antitrust case does not depend at all on proving an economic
injury to the public. [
Footnote
2]
Cut off by the judge's erroneous ruling from trial of the basic
issue of conspiracy, and wishing to provide a record which would
allow this ruling to be reviewed by the Court of Appeals, counsel
for Parmelee asked counsel for defendants to stipulate that
plaintiff would have introduced certain evidence of conspiracy had
it been allowed to do so. Defense counsel refused to stipulate,
however, insisting that Parmelee's counsel prepare their record by
following the procedure set out in Rule 43(c) of the Federal Rules
of Civil Procedure, which requires that, before an offer of proof
is made, questions upon which the offer is based must first be
asked in the presence of the jury. [
Footnote 3]
Page 370 U. S. 232
Unwilling to risk dismissal of their appeal for failure to
follow Rule 43(c), Parmelee's counsel proceeded to produce and
question witnesses in the presence of the jury in order to lay the
proper foundation for their offers of proof of conspiracy. But,
during the process of this questioning, the judge ordered it
stopped, and directed that any further offers of proof be made
without first having asked questions of witnesses in the presence
of the jury. This ruling placed Parmelee's counsel in quite a
dilemma, because defense counsel was still insisting that all
offers of proof be made in strict compliance with Rule 43(c), and
there was no way of knowing with certainty whether the Court of
Appeals would treat the trial court's order to dispense with
questions before the jury as an excuse for failure to comply with
the Rule. Petitioner therefore not only sought to make clear to the
court that he thought defense counsel's objection was "right,"
[
Footnote 4] but also
repeatedly insisted that he be allowed to make his offers of proof
in compliance with the Rule. [
Footnote 5] Following the trial, the judge charged
petitioner and his co-counsel Freeman in a number of specifications
with being guilty of contemptuous
Page 370 U. S. 233
conduct during the course of the trial. After separate hearings,
both lawyers were summarily found guilty by the trial judge on all
specifications. Both appealed to the Court of Appeals, which
reversed all of Freeman's convictions, [
Footnote 6] reversed two of petitioner McConnell's
convictions, but, with Judge Duffy dissenting, sustained the
conviction of petitioner on Specification 6 -- the specification
based on petitioner's insistence that he be allowed the make offers
of proof in compliance with Rule 43(c). [
Footnote 7] Even as to this conviction, however, the
Court of Appeals held that the jail sentence imposed by the trial
judge should be reduced to a fine of $100. As in
Offutt v.
United States, [
Footnote
8] the "importance of assuring alert self-restraint in the
exercise by district judges of the summary power for punishing
contempt" prompted us to bring the case here. [
Footnote 9]
The statute under which petitioner was summarily convicted of
contempt is 18 U.S.C. § 401, which 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 -- "
"(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice. . . ."
This section is based on an Act passed in 1831 [
Footnote 10] in order to correct serious
abuses of the summary contempt power that had grown up, and was
intended as a "drastic delimitation . . . of the broad undefined
power of the inferior federal courts under the Act of 1789,"
[
Footnote 11] revealing
"a Congressional
Page 370 U. S. 234
intent to safeguard constitutional procedures by limiting
courts, as Congress is limited in contempt cases, to 'the least
possible power adequate to the end proposed.' [
Footnote 12]"
"The exercise by federal courts of any broader contempt power
than this," we have said,
"would permit too great inroads on the procedural safeguards of
the Bill of Rights, since contempts are summary in their nature,
and leave determination of guilt to a judge, rather than a jury.
[
Footnote 13]"
And we held long ago, in
Ex parte Hudgings, [
Footnote 14] that, while this
statute undoubtedly shows a purpose to give courts summary powers
to protect the administration of justice against immediate
interruption of court business, it also means that, before the
drastic procedures of the summary contempt power may be invoked to
replace the protections of ordinary constitutional procedures,
there must be an actual obstruction of justice:
"An obstruction to the performance of judicial duty resulting
from an act done in the presence of the court is, then, the
characteristic upon which the power to punish for contempt must
rest. This being true, it follows that the presence of that element
must clearly be shown in every case where the power to punish for
contempt is exerted. . . ."
Thus, the question in this case comes down to whether it can
"clearly be shown" on this record that the petitioner's statements
while attempting to make his offers of proof actually obstructed
the district judge in "the performance of judicial duty."
The Court of Appeals answered this question by sustaining
Specification 6 only on the basis of petitioner's
Page 370 U. S. 235
last sentence in the colloquy set out in the specification. That
specification reads:
"On April 27, 1960, in the presence and hearing of the jury,
after the Court had instructed the attorneys for plaintiff to
refrain from repeatedly asking questions on subjects which the
Court had ruled [were] not admissible, in the presence of the jury,
as distinguished from an offer of proof outside the presence of the
jury, the following occurred:"
" By Mr. McConnell: Now you are trying to tell us we can't ask
these questions. We have a right to ask these questions, and until
we are stopped from asking these questions, we are going to ask
them, because it is in our prerogative in doing it."
" By the Court: I am now stopping you from asking the questions
about conversations with Mr. Cross, because I have ruled
specifically, definitely and completely that it is not an issue in
this case."
" By Mr. McConnell: We have a right to ask them."
" By the Court: You can offer proof on it."
" By Mr. McConnell: We have a right to ask questions which we
offer on this issue, and Your Honor can sustain their objection to
them.
We don't have a right to read the answers, but we have a
right to ask the questions, and we propose to do so unless some
bailiff stops us."
(Emphasis added.)
The record shows that, after this colloquy, petitioner's
co-counsel asked for a short recess, that, following this recess,
petitioner did not continue to ask questions which the judge had
forbidden, and that, in fact, he did not ask any more such
questions again throughout the remainder of the trial. We agree
with Judge Duffy, who dissented below, that there was nothing in
petitioner's conduct sufficiently
Page 370 U. S. 236
disruptive of the trial court's business to be an obstruction of
justice. It is true that petitioner stated that counsel had a right
to ask questions that the judge did not want asked, and that "we
propose to do so unless some bailiff stops us." The fact remains,
however, that the bailiff never had to interrupt the trial by
arresting petitioner, for the simple reason that, after this
statement, petitioner never did ask any more questions along the
line which the judge had forbidden. And we cannot agree that a mere
statement by a lawyer of his intention to press his legal
contention until the court has a bailiff stop him can amount to an
obstruction of justice that can be punished under the limited
powers of summary contempt which Congress has granted to the
federal courts. The arguments of a lawyer in presenting his
client's case strenuously and persistently cannot amount to a
contempt of court so long as the lawyer does not in some way create
an obstruction which blocks the judge in the performance of his
judicial duty. The petitioner created no such obstacle here.
While we appreciate the necessity for a judge to have the power
to protect himself from actual obstruction in the courtroom, or
even from conduct so near to the court as actually to obstruct
justice, it is also essential to a fair administration of justice
that lawyers be able to make honest good faith efforts to present
their clients' cases. An independent judiciary and a vigorous,
independent bar are both indispensable parts of our system of
justice. To preserve the kind of trials that our system envisages,
Congress has limited the summary contempt power vested in courts to
the least possible power adequate to prevent actual obstruction of
justice, and we think that that power did not extend to this
case.
Reversed.
MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITE took no part in
the consideration or decision of this case.
Page 370 U. S. 237
[
Footnote 1]
This action was brought under the Clayton Act, §§ 4 and 16, 38
Stat. 731, 737, 15 U.S.C. §§ 15, 26, and charged violations of §§ 1
and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1,
2.
[
Footnote 2]
Radiant Burners, Inc. v. Peoples Gas Light & Coke
Co., 364 U. S. 656,
364 U. S. 660;
Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.
S. 207.
See also Radovich v. National Football
League, 352 U. S. 445.
[
Footnote 3]
Rule 43(c) provides in part:
"In an action tried by a jury, if an objection to a question
propounded to a witness is sustained by the court, the examining
attorney may make a specific offer of what he expects to prove by
the answer of the witness. The court may require the offer to be
made out of the hearing of the jury. The court may add such other
or further statement as clearly shows the character of the
evidence, the form in which it was offered, the objection made, and
the ruling thereon. . . ."
[
Footnote 4]
Since our disposition of this case does not turn on whether
petitioner was correct in thinking that Rule 43(c) absolutely
requires that all offers of proof in jury trials be based on
questions before the jury, we express no opinion on that
question.
[
Footnote 5]
The district judge did not change his ruling, and ultimately
gave judgment for defendants on the grounds that plaintiff had not
proved public economic injury, and that the facts alleged in the
complaint and the proof offered at the trial did not constitute a
violation of the antitrust laws.
186 F.
Supp. 533. The Court of Appeals for the Seventh Circuit
affirmed the decision on this latter ground. 292 F.2d 794.
[
Footnote 6]
292 F.2d 806.
[
Footnote 7]
294 F.2d 310.
[
Footnote 8]
348 U. S. 348 U.S.
11,
348 U. S.
13.
[
Footnote 9]
368 U.S. 936.
[
Footnote 10]
4 Stat. 487. The present wording of § 401 comes from the 1948
revision and codification of Title 18. 62 Stat. 701.
[
Footnote 11]
Nye v. United States, 313 U. S. 33,
313 U. S.
45.
[
Footnote 12]
In re Michael, 326 U. S. 224,
326 U. S.
227.
[
Footnote 13]
Ibid.
[
Footnote 14]
249 U. S. 249 U.S.
378,
249 U. S.
383.
MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
dissenting.
With respect to the contempt count that was sustained by the
Court of Appeals, this case involves nothing more than an ordinary
exercise of the District Court's contempt power in aid of
maintaining discipline and decorum in the courtroom. The most, I
think, that could appropriately be said of the conviction on this
court is that petitioner's unlawyer-like conduct did not merit a
jail sentence. The Court of Appeals has removed all basis for
criticism on that score by reducing the sentence to a $100 fine. In
other respects, its opinion displays an alert regard for the
undoubted fact that the contempt power should always be exercised
circumspectly and dispassionately, particularly when called into
play by the conduct of an attorney in the course of sharply
contested litigation.
I can hardly believe that the Court intends its opinion to mean
that only a physical obstruction of pending judicial proceedings is
punishable under 18 U.S.C. § 401. For a court's power to punish
summarily for contempt has always been available as a sanction
against the use of abusive and insulting language in a courtroom.
See, e.g., Offutt v. United States, 348 U. S.
11;
Fisher v. Pace, 336 U.
S. 155,
336 U. S.
159-160;
Ex parte Terry, 128 U.
S. 289,
128 U. S.
307-309. And it can scarcely be supposed that Congress'
enactment of 18 U.S.C. § 401 was intended to abrogate this power,
even as the forerunner to that section was construed in
In re
Michael, 326 U. S. 224,
326 U. S. 228.
Cf. Ex parte Hudgings, 249 U. S. 378,
249 U. S.
383.
This routine intra-circuit affair presents nothing calling for
the exercise of this Court's supervisory power, and the case would
have been much better left with the Court of Appeals by a denial of
certiorari.
I would affirm.