Redman v. United States

CAVANAH, District Judge. In May, 1934, Henry J. Sullivan was placed on trial in the United States District Court for the District of Arizona upon an indictment charging him with the willful attempt to defeat and evade his income tax due the United States, and appellant was one of the panel of jurors summoned to attend. On the 15th of that month the trial began and appellant was called in the jury box for examination on the voir dire and was accepted as one of the jurors in the case. The examination of appellant, as far as the same relates to the charge here, was conducted by the judge and the assistant United States attorney. He has been adjudged guilty of criminal contempt in obstructing justice in that, it is claimed, he gave false answers in response to questions affecting his qualifications as a juror. The basis for the charge of contempt is found in the information filed by the United States attorney, wherein it is stated that appellant gave false answers to two questions propounded to him by the court and the assistant United States attorney touching his qualifications to serve as a trial juror. The question propounded by the court to all the jurors, to which appellant made no answer, was: “Let me ask you this, gentlemen: Is there in the minds of you any reason why, or that suggests itself to you as a reason why, you could not sit, or might not be properly able to sit, in this case, other than or in addition to the matters you have already been questioned about; anything relating to your own physical condition, for instance, or anything that might interfere with your exercising your duties as jurors?” And the question propounded to appellant by the United States attorney was: “Q. You believe that you could go into-the jury box and consider the evidence and render a fair and impartial verdict on the evidence? A. Yes, sir.” Further, it is charged that appellant, contrary to his oath, refused to accept or follow the instructions given by the court as to-the law of the case. From the view we have taken of the-case, we will dispose of only the assignments oi error relating to appellant’s right to a jury trial and the insufficiency of the evidence to support the charge of contempt. The demand for a jury trial is untenable, when we find that this proceeding is brought under section 725 of the Revised Statutes, now Jud. Code, § 268 (28 USCA §,' 385), where a juror is charged with misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice, and does not come within the class of contempts where trial by jury is allowed under the Clayton Act (28 USCA §§ 386, 387), for the Clayton Act declares that it shall not be construed to relate tocontempts committed m the presence of the court, or so near thereto as to obstruct the administration of justice. Clark v. United States, 289 U. S. 1, 53 S. Ct. 465, 77 L. Ed. 993; United States v. Dachis (D. C.) 36> F.(2d) 601; Bowles v. United States (C. C. A.) 50 F.(2d) 848. A trial juror is not only within the presence of the court, but he is under the general supervision and control of the court, and the section under which this proceeding is brought is extended to any misbehavior of a trial juror in his capacity as such, if it tends to obstruct the administration of justice. In re May (D. C.) 1 F. 737. In considering whether the evidence is sufficient to warrant adjudging one guilty of contempt, we must apply the principle that the power of the court to punish for contempt should be used with caution, and deliberation. In re La Varre (D. C.) 48 F.(2d) 216. It is punishable as a contempt for a juror to conceal or make a misstatement upon a voir dire examination if its tendency and design are to obstruct the [128] processes of justice, and the court may consider his conduct during the deliberations of the jury which is not a denial of any lawful privilege; but when considering such conduct the court should take into consideration all of the questions propounded and answers given and the discussion in the jury room, in order to fairly determine the state of mind of the juror. We turn then to the record before us and the evidence there, when considered as a whole, and are unable to say from it that there is sufficient evidence of guilt to warrant the punishment of appellant for contempt, for it must be remembered that we are dealing with a situation where a layman is being interrogated by numerous questions framed by the court and counsel in words which he might have conscientiously thought he understood when answering and yet they conveyed a different thought. However, the entire examination of appellant reveals the fact that he did not conceal that he had an opinion, for he often answered, when interrogated, that he entertained an opinion and that it would require evidence to remove it. He told the court and counsel that he formed an opinion from what he had read in the newspapers and heard about the case, but, if accepted as a juror, he felt he could, after hearing the evidence, lay the opinion aside and render a verdict on the evidence. His numerous answers as to having an opinion were frank, and he answered the question set forth in the information, propounded to him by the United States attorney, without hesitation, and as to the one propounded by the court directed to all of the jurors he gave no answer. Although clearly giving the information he did in his answers, as to having an opinion, he was not challenged by either party. He did not know the defendant Sullivan and nothing appears that he was in any way interested in the outcome of that case. Now, as to what occurred in the jury room: It seems that some of the jurors, in their discussion of the case, referred to their experience in making income tax returns, and appellant, during the discussion, referred to an experience a company he was working for at one time had in making an income tax return. He never hád to make an income tax return for himself and has not had any trouble with the government. Tjhe discussion does not indicate that because of the experience of the company it caused him to vote as he did. As to the further charge, that he said he would not follow the instructions of the court, it is fair to say, from the evidence, that he did not mean that he would not do so, for the discussion in that regard related to the weight or effect to be given to a check, as to it being a payment of money. He expressed himself that “he couldn’t feel that a check was legal tender, and therefore he couldn’t consider it as being paid until the money was paid on the check.” In making such an expression he seems to have been right. While it developed that appellant voted for an acquittal of the defendant, there were other jurors who did also, and a disagreement of the jury resulted. Should the government have no further evidence than that disclosed in this record, tending to establish guilt of the charge of contempt of appellant, the trial 'court is ordered to dismiss the action. Reversed.