Because of a single incident of tardiness, the trial judge
ordered petitioner into custody for the duration of his criminal
trial. The order, made without warning, hearing, or explanation,
resulted in the retention of petitioner in custody for the balance
of the trial in a jail 40 miles from the courtroom. Petitioner
contended that the incarceration was unjustified, that it
significantly interfered with his right to counsel, and that it
severely impeded his defense. The Court of Appeals affirmed
The trial court's order was punitive; because the
procedures for inflicting punishment had not been followed and
because the order could not be justified as having been made in
order to facilitate the trial, the order placed an unjustified
burden on the defense.
Certiorari granted; 374 F.2d 744, reversed.
Petitioner was tried on 18 counts of violating the mail fraud
statute, 18 U.S.C. § 1341, and one count of using an assumed name,
a violation of 18 U.S.C. § 1342. On the third day of trial, the
Government rested its case. This was earlier than it had announced
or than petitioner had anticipated. At recess time, petitioner
sought leave of the court to go to his office in order to gather
additional evidence for the defense. Permission for this was
granted. Forty-five minutes were allotted for the recess.
Page 389 U. S. 16
Petitioner, who had previously appeared promptly at every
session of the trial, was this time tardy by 37 minutes in
returning to court. Without warning, hearing, or explanation, the
trial judge ordered petitioner into custody for the balance of the
trial. Attempts by petitioner's counsel to offer explanations for
petitioner's lateness were to no avail.
Defense counsel was then advised that petitioner would be kept
in custody in a county jail located some 18 miles from the court.
In fact, petitioner was taken about 40 miles distant, to a
different jail. Counsel's endeavors throughout the trial to obtain
petitioner's release proved fruitless. Petitioner remained in
custody for the duration of the trial. He was convicted on seven
counts of mail fraud and given a sentence of one year and one day
on each count, the sentences to run concurrently. He was also fined
a total of $3,500.
Petitioner contended that his incarceration was unjustified, and
that it materially interfered with his right to counsel and
severely impeded his defense. The Court of Appeals for the Seventh
Circuit affirmed the conviction. 374 F.2d 744 (1967). We grant
certiorari, and reverse.
A trial judge indisputably has broad powers to ensure the
orderly and expeditious progress of a trial. For this purpose, he
has the power to revoke bail and to remit the defendant to custody.
But this power must be exercised with circumspection. It may be
invoked only when and to the extent justified by danger which the
defendant's conduct presents or by danger of significant
interference with the progress or order of the trial. * See Fernandez
v. United States,
81 S. Ct. 642 (1961) (memorandum
Page 389 U. S. 17
of MR. JUSTICE HARLAN in chambers); Carbo v. United
288 F.2d 282 (C.A. 9th Cir.191); Christobel v.
89 U.S.App.D.C. 341, 196 F.2d 560 (1951).
The record in this case shows only a single, brief incident of
tardiness, resulting in commitment of the defendant to custody for
the balance of the trial in a jail 40 miles distant from the
courtroom. In these circumstances, the trial judge's order of
commitment, made without hearing or statement of reasons, had the
appearance and effect of punishment, rather than of an order
designed solely to facilitate the trial. Punishment may not be so
Rule 42 of Fed.Rules Crim.Proc. (governing
the contempt power). We therefore hold that the order was
unjustified, and that it constituted an unwarranted burden upon
defendant and his counsel in the conduct of the case.
Accordingly, we grant certiorari and reverse the judgment.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
* It does not appear whether defendant was at large on bail at
the time of the order remitting him to custody. But the same
principle would apply if he had been at liberty on his own
Bail Reform Act of 1966, 18 U.S.C. §
3146 (1964 ed., Supp. II).