Pesquera v. United States

JOHNSON, Circuit Judge. This is a writ of error to the District Court of the United States for the District of Porto Rico, in which the reversal of a judgment upon an information for contempt is sought. The facts, briefly stated, are as follows: Pesquera, the plaintiff in error, was the prohibition director for the island of Porto Rico. His office was in the same building in which the District Court was held, and directly above the grand jury room. Arthur G. Mayo was sworn in as a member of th'e grand jury on June 12, 1922. On July 11th following he made application to Pesquera for appointment as a prohibition agent under him, and thereafter continued to serve upon the grand jury until it was discharged in the-latter part of October of that year. Previous to his application the grand jury some time in June, 1922, had considered charges against Pesquera. After the return of the latter from the United Statés, where he had been during the month of June, he [759] was informed that these charges had been made, and told that they were not sufficient to authorize his indictment. Later other charges were brought against him and investigated by the grand jury, and on October 39, 1922, that body voted to indict him, and the indictment was finally passed upon and returned into court October 21st. While the charges against him were being investigated, Mayo, who was known to Pesquera to be a, grand juror, was a frequent caller at his office. Upon information filed by the district attorney, Pesquera and Mayo wore cited to appear before the judge of the District Court and a rule to show cause was issued, to which both answered, and a hearing was had, which lasted four days, at which both testified, and both were found guilty of contempt. In their answers and in their testimony they admitted that Mayo called upon Pesquera while charges against the latter were under investigation by the grand jury, but claimed that these calls were made for the purpose, on the part of Mayo, to find out whether his application had \met with approval at Washington, as he had been told by Pesquera that his application had been forwarded there for that purpose one week after he had filed it, and that Pesquera had nothing more to do with it. It was admitted that the statement made by Pesquera to Mayo that he had forwarded his application was not true?, and that it was not forwarded to Washington until October 19th, the day upon which a vote was taken in the grand jury upon the indictment of Pesquera. It also appeared in testimony that when this vote was taken Mayo challenged the result announced, and claimed that the vote against the indictment should have been ■one more than was announced; but, upon being told that that would make no difference with the result, he made no further objection. Mayo also testified that on October 21st, before a session of the grand jury held that evening, at which the indictment was finally passed upon, he was told by Pesquera that his .appointment as a prohibition agent had been •made. This information was false, as his appointment was not made until October 33, T922, and a commission was not issued until November 2d following. The power of a District Court of the United States to punish for contempt, and the acts which constitute such contempt, have been fixed by Congress in section 725, U. S. Revised Statutes (section 268, Judicial Code [Comp. St. § 3245]), which, so far as applicable, is as follows: “The said court shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority : Provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice.” This, being a proceeding for criminal contempt, is reviewable only by writ of error. Bessette v. W. B. Conkey Co., 194 U. S. 324, 338, 24 S. Ct. 665, 48 L. Ed. 997; Grant v. United States, 227 U. S. 74, 78, 33 S. Ct. 190, 57 L. Ed. 423. The only question presented by the record before us, therefore, is whether there was sufficient competent evidence to sustain the finding of guilt made by the District Judge. In Bessette v. W. B. Conkey Co., supra, the court said: “Such review must, according to the settled law of this court, be by writ of error. Walker v. Dreville, 12 Wall. 440 [20 L. Ed. 429]; Deland v. Platte County, 155 U. S. 221 [15 S. Ct. 82, 39 L. Ed. 128]; Bucklin v. United States, 159 U. S. 680, 682 [16 S. Ct. 182, 40 L. Ed. 304, 305]. On such a writ only matters of law are considered. The decision of the trial tribunal, court or jury, deciding the facts, is conclusive as to them.” See, also, Sona et al. v. Aluminum Castings Co., 214 F. 936, 942, 131 C. C. A. 232; Schwartz v. United States, 217 F. 866, 870, 133 C. C. A. 576; Oates v. United States, 233 F. 201, 206, 147 C. C. A. 207. After a careful study of all the testimony which was heard by the judge below, who had the advantage of seeing the witnesses and judging their credibility, we cannot say as a matter of law that the testimony and reasonable inferences to be drawn therefrom were not sufficient to sustain a finding that both Mayo and Pesquera were guilty of contempt. The failure of Pesquera to forward Mayo’s application to Washington, while he led the latter to believe that it had been done,. furnished ground for belief that his purpose in so doing was to keep in touch with Mayo, thus affording opportunity for frequent visits of Mayo to his office while the matter of his indictment was under consideration, and also of causing Mayo to feel indebtedness to him. That the application was not forwarded until the very day upon which a vote upon his indictment was taken by the grand jury, and that Pesquera» told Mayo upon October 21st, before the grand jury had finally disposed of the indictment against' [760] him, that he had been appointed, lend strength to the belief that Pesquera hoped and intended to influence, not only Mayo, but through him other members of the grand jury, to vote against his indictment. Nothing is more essential to the administration of justice in our courts than that juries should approach the performance of their duties totally unbiased by. any personal interest or desire to serve the interests of another. The presiding judge in his opinion evinced a desire and a purpose to be entirely fair with the respondents, and there is nothing in the ease pointing to any arbitrary action upon his part. With the opportunities afforded him, he was in a vastly better position than this court to pass Upon the evidenee presented, and to make such reasonable inferences as might be legitimately drawn therefrom. The judgment of the District Court is affirmed.