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UNITED STATES v. WRIGHT

June 18, 1981

UNITED STATES of America
v.
Joseph WRIGHT, et al. n*


This opinion deals with thirteen appeals from judgments of conviction for criminal contempt, 18 U.S.C. § 401. *fn1"

We sat together to hear arguments on certain issues of law which are common to most of the appeals: In post-argument consultation, we have reached agreement on those issues of law and our views are reflected in this opinion.

 We have not, however, joined forces for the consideration and disposition of appellants' respective challenges to the sufficiency of the evidence adduced by the Government against each of them: Each of us will address those issues in separate opinions to follow.

 I.

 Appellants were charged with criminal contempts, pursuant to 18 U.S.C. § 401, arising from their alleged violation, on June 3, 1980, of Judge Broderick's Order of April 1, 1980, prohibiting certain activity in the vicinity of the Whitman Park Townhouse project in South Philadelphia. *fn2" Resident Advisory Board (RAB) v. Rizzo, 425 F. Supp. 987, 1029 (E.D.Pa.1976) (Order), aff'd as modified, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908, 98 S. Ct. 1457, 55 L. Ed. 2d 499, 98 S. Ct. 1458 (1978).

 Having executed a waiver of the right to trial by a district judge, each of the appellants was tried by a federal magistrate. The Government moved in advance of trial to have any sentences imposed limited to a maximum of six months' incarceration and/or a $ 500 fine. Appellants all demanded jury trials which were denied. The trials were thereupon conducted to the bench.

 On appeal to this court, appellants do not argue that they had a constitutional entitlement to a jury trial. Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S. Ct. 2178, 2190, 45 L. Ed. 2d 319 (1975); Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 41 L. Ed. 2d 897 (1974); In re Scott, 605 F.2d 736, 738 (4th Cir. 1979). But they do assert certain statutory entitlements to a jury trial. Appellants also challenge the jurisdiction of magistrates to conduct trials of contempts, with or without a jury. Further, certain of the appellants contend that, even assuming the magistrates who tried them had jurisdiction, those magistrates should have recused themselves for the reason that they had already tried other persons charged with breach of Judge Broderick's April 1, 1980 Order. Finally, all of the appellants argue that the evidence presented was insufficient to support the verdicts. With certain exceptions relating to the sufficiency of the evidence, these issues are resolved against the appellants. However, we are constrained to reverse all the convictions for the reason that the waivers of district court trial executed by appellants were not in the form expressly mandated by Congress.

 Statutory Rights to Jury Trials

 Appellants rely on 18 U.S.C. §§ 402 and 3691 in support of their argument that these cases should have been tried to a jury. *fn3" These statutes provide that, when the behavior charged as contumacious also violates a provision of the federal criminal code or state criminal law, the defendant is entitled to a jury trial unless the alleged contempt constitutes

 
... disobedience of any lawful ... order ... entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States.

 Before us, then, is the question whether the action giving rise to Judge Broderick's April 1, 1980 Order is described by this exception to the general statutory entitlement to a jury.

 It is appellants' position that, on its face, the statute dispenses with a jury only where the United States is a plaintiff, for only then is the suit brought "on behalf of" the United States; here, since the United States (through the Department of Housing and Urban Development) was a defendant, appellants argue that the statutory dispensation did not come into play and hence that juries were required below.

 Of course, the dispensing language of the statute does not, in haec verba, require that the United States (or a federal agency) be a party "plaintiff." But "suit or action brought or prosecuted in the name of, or on behalf of, the United States" would seem at a minimum to contemplate that, whatever formal label attaches to the litigating status of the United States, the United States should at some point in the litigation assume a procedural posture functionally equivalent to that of a complaining party. And this common sense parsing of the statute is consistent with what we understand to be the legislative purpose animating the statutory language: That legislative purpose as it emerges from the legislative history was to permit non-jury trials where the concern of the United States in seeking, through contempt proceedings, to redress "disobedience of any lawful ... order," was enforcement of the judicially determined public interest as distinguished from enforcement of judicially determined private entitlements.

 The statutes at issue derive from Section 21 of the Clayton Act. See Revisor's Note to § 3691. The creation of the statutory right to a jury trial in criminal contempt cases was a response to Congress' belief in the second decade of this century that district judges were, at the behest of powerful private litigants, allowing the formidable federal judicial contempt power to be the instrument of private law enforcement to the detriment of weaker parties, most especially labor unions. ...


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