# Ungar v. Sarafite/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinions Douglas Goldberg
United States Supreme Court
376 U.S. 575
Ungar v. Sarafite
Argued: Feb. 24, 1964. --- Decided: March 30, 1964
The appellant, Ungar, was adjudged guilty of criminal contempt for his conduct as a witness in a state criminal trial in a hearing presided over by the judge before whom the contempt occurred at trial. The New York Court of Appeals affirmed the conviction, 12 N.Y.2d 1013, 1104, 239 N.Y.S.2d 135, 240 N.Y.S.2d 168, 189 N.E.2d 629, 190 N.E.2d 539, and we noted probable jurisdiction to consider whether the procedures seemingly authorized by § 750 and 751 of the New York Judiciary Law, McKinney's Consol.Laws, c. 30, were consistent with the Due Process Clause of the Fourteenth Amendment. 375 U.S. 809, 84 S.Ct. 51, 11 L.Ed.2d 46. We have decided that the constitutional objections which this record shows to have been seasonably tendered to the New York courts and decided by them are without merit.
The contempt proceeding grew out of the trial of Hulan Jack for conspiracy to obstruct justice and for violation of New York's conflict of interests laws. Ungar, a lawyer, was an important prosecution witness, familiar with the matters on which the charges were based and immune fro prosecution for his testimony on these matters before the grand jury. From the outset of the second Jack trial, Ungar, a hostile prosecution witness, engaged in much wrangling with the prosecutor over the form of the questions asked and was unresponsive to various questions. Although counsel for the defendant did not object, the witness believed that the prosecutor's questions presented the defendant's case in a bad light or failed to elicit the whole truth. On several occasions the trial judge instructed the witness to answer the questions as they were asked, if he could, but not to rephrase the questions or to offer testimony gratuitously. When Ungar failed to heed these instructions, the judge admonished him in chambers 'to confine his answers to the questions' and to leave the defense to the accused's counsel; he warned the witness that he would hold him to the natural consequences of his acts. The pattern, however, continued. On November 25, the third day Ungar was on the stand, the court instructed him to give a responsive answer to a question of apparent significance to the State's case. Thereupon Ungar, before answering, requested a recess, claiming that he was being 'pressured and coerced and intimidated into testifying' and that he was being 'badgered by the Court and by the District Attorney.' When the court granted a short recess but refused Ungar permission to leave the stand, the following ensued:
'The Witness: I can't testify, I'm sorry, your Honor. I am not in any physical or mental condition to testify.
'The Court: Mr. Witness, no one asked you anything. Nobody is questioning you. You are not testifying. We have taken a recess for about three minutes of silence, and we will take a few minutes.
'The Witness: I would like to leave the stand, your Honor.
'The Court: No, you may not leave the stand.
'The Court: Proceed, Mr. Scotti.
'The Witness: I am not going to answer questions, your Honor. I am not going to testify in this confusion, and the Court nor anyone else will make me testify in this emotional state. I am absolutely unfit to testify because of your Honor's attitude and conduct towards me. I am being coerced and intimidated and badgered. The Court is suppressing the evidence.
'The Court: You are not only contemptuous but disorderly and insolent.'
The judge called a recess, during which coun el for the defendant requested the court to appoint a doctor to determine whether Ungar was malingering or incapable of testifying. Upon resumption, Ungar represented that he obtained his own medical assistance, the court agreed with Ungar that he was competent to testify, and denied the request. Ungar testified for another day without further incident.
The Jack trial ended on December 6, 1960, and during the afternoon of December 8, 1960, Judge Sarafite, the trial judge, pursuant to the New York procedure governing nonsummary trial of contempts, had served on Ungar a showcause order charging that Ungar's remarks from the stand on November 25 constituted a willful and disruptive contempt of court and ordering that the appellant appear on December 13 at 10 a.m. to defend against the charges. Judge Sarafite, presiding at the hearing, denied several motions for a continuance, and Ungar's retained counsel was permitted to withdraw upon informing the court that he had agreed to undertake the defense only if Ungar could obtain a continuance. After exhibits material to the charges were admitted into evidence, Ungar was asked to defend. He declined, arguing that a continuance and a hearing before another judge should be granted. The court found Ungar guilty of contempt and, taking into consideration Ungar's emotional state from the stress of the Jack trial, sentenced him to 10 days' imprisonment and imposed a fine.
The Appellate Division of the New York Supreme Court dismissed the appeal, the state procedure for review of nonsummary contempt proceedings, and denied the petition under Article 78, Civil Practice Act, the procedure for review of summary contempt convictions, both without opinion. 16 A.D.2d 617. The New York Court of Appeals affirmed, also without opinion. 12 N.Y.2d 1013, 239 N.Y.S.2d 135, 189 N.E.2d 629. It denied the appellant's motion for reargument, the only part of the record before this Court in which appellant's federal constitutional claims were asserted, and granted in part appellant's motion to amend the remittitur to show that certain constitutional questions were passed upon in the appeal. Treating both the appeal and the Article 78 proceeding identically, the Court of Appeals ruled in the amended remittitur that rights under the Fourteenth Amendment had been raised and passed upon and stated that 'appellant argued that such rights were violated by (1) the trial judge's refusal to grant an adjournment of the contempt proceeding upon proof of the engagement of his counsel; (2) the trial judge's invoking of summary power under section 751 of the Judiciary Law (Consol.Laws, c. 30), seven days after the end of the trial during which the contempt was committed, and (3) the same trial judge's presiding in the resulting contempt proceeding even though he was the judge 'personally attacked." In response to the third contention, the court ruled that the appellant's remarks were not a personal attack upon the judge. 12 N.Y.2d 1104, 240 N.Y.S.2d 169, 190 N.E.2d 539.
We have determined that the appeal must be dismissed for want of jurisdiction. The Jurisdictional Statement contains a statutory attack on the validity of § 750, Judiciary Law, as unduly vague, and on § 751 as authorizing a judge who is personally attacked to preside over a contempt hearing and as authorizing summary proceedings after the trial in which the contempt occurs. Nothing in the record shows that these issues were tendered to the Appellate Division or the Court of Appeals prior to the motion for reargument or to amend the remittitur. Only the latter was granted and then only in part. Therefore the amended remittitur is determinative in this Court on the constitutional issues raised and necessarily passed upon in the state courts. Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3. That remittitur speaks of rights asserted and passed upon under the Fourteenth Amendment and does not indicate that a state statute was 'drawn in question' and sustained over constitutional objections. See Mergenthaler Linotype Co. v. Davis, 251 U.S. 256, 259, 40 S.Ct. 133, 134, 64 L.Ed. 255; Charleston Federal Savings & Loan Assn. v. Alderson, 324 U.S. 182, 185-186, 65 S.Ct. 624, 627, 89 L.Ed. 857. The appeal is accordingly dismissed. Treating the appeal as a petition for certiorari, certiorari is granted, 28 U.S.C. § 2103, Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287, 79 S.Ct. 1157, 3 L.Ed.2d 1234, limited, however, to the three constitutional issues which the amended remittitur states petitioner had argued and which, we assume, were the constitutional questions the New York Court of Appeals passed upon.
Petitioner, Ungar, claims his constitutional rights to a fair hearing were violated because his contemptuous remarks were a personal attack on the judge which necessarily, and without more, biased the judge and disqualified him from presiding at the post-trial contempt hearing. The New York Court of Appeals rejected the claim and we see no error in this conclusion. Assuming that there are criticisms of judicial conduct which are so personal and so probably productive of bias that the judge must disqualify himself to avoid being the judge in his own case, we agree with the New York court that this is not such a case.
It is true that Ungar objected strongly to the orders of the court and to its conduct of the trial during his examination. His final outburst, the subject of the contempt, was a flat refusal to answer, when directed by the court, together with an intemperate and strongly worded comment on the propriety of the court's ruling. But we are unwilling to bottom a constitutional rule of disqualification solely upon such disobedience to court orders and criticism of its rulings during the course of a trial. See Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415. We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions. Apparently because Ungar was being required to answer the questions asked rather than some others which he would rather have answered and because he was directed to cease volunteering testimony, Ungar claimed he was being 'badgered' and 'coerced' and that the court was 'suppressing the evidence.' This was disruptive, recalcitrant and disagreeable commentary, but hardly an insulting attack upon the integrity of the judge carrying such potential for bias as to require disqualification.
Nor is there anything else of substance in this record which shows any deprivation of petitioner's right to be tried by an unbiased and impartial judge without a direct personal interest in the outcome of the hearing. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942. The Court in the latter case held that a judge acting as a one-man grand jury investigating crime could not convict for contempt witnesses who he believed testified falsely or inadequately before him in secret grand jury proceedings and is not controlling here. For both In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, and Murchison make abundantly clear that the Court was not dealing therein with the traditional category of contempts committed in open court, which cannot be likened to the so-called contempts committed in in camera grand jury proceedings, especially when the latter the founded upon perjury charges.
Unlike Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767, and Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11, which were contempt cases from lower federal courts in which the Court found personal bias sufficient to disqualify the judge from convicting for contempt, this record does not leave us with an abiding impression that the trial judge permitted himself to become personally embroiled with petitioner. Whatever disagreement there was between petitioner and the judge stemmed from the petitioner's resistance to the authority of the judge and its exercise during the trial. Petitioner was strongly admonished that his conduct was disruptive and disorderly and that he would be held to the natural consequences of his acts. But requiring petitioner to answer the questions put to him and to cease caviling with the prosecutor was fully in accord with the judicial obligation to maintain the orderly administration of justice and to protect the rights of the defendant on trial. Neither in the courtroom nor in the privacy of chambers did the judge become embroiled in intemperate wrangling with petitioner. The judge dealt firmly with Ungar, but without animosity, and petitioner's final intemperate outburst provoked no emotional reflex in the judge. See Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569. The characterization of the petitioner's conduct as contemptuous, disorderly, and malingering was at most a declaration of a charge against the petitioner, based on the judge's observations, which, without more, was not a constitutionally disqualifying prejudgment of guilt, just as issuance of a show-cause order in any criminal contempt case, based on information brought to the attention of a judge, is not such a prejudgment of guilt. Moreover, Judge Sarafite, although believing that Ungar's conduct was disruptive of the trial, did not purport to proceed summarily during or at the conclusion of the trial, but gave notice and afforded an opportunity for a hearing which was conducted dispassionately and with a decorum befitting a judicial proceeding. In these circumstances, we cannot say there was bias, or such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused.
Petitioner's additional attack upon the hearing afforded him centers upon the denial of his motion for a continuance which is said to have deprived him of his constitutional right to engage counsel and to defend against the charge. The State, among other arguments, denies Ungar's right to any hearing at all, relying upon Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717, as permitting the judge summarily to convict for contempt at the conclusion of trial. We do not and need not, however, deal with the circumstances in which a trial judge may or may not constitutionally resort to summary proceedings after trial. For in this instance, assuming a nonsummary hearing was required, the hearing afforded petitioner satisfied the requirements of due process. In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682; In re Green, 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198.
The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Torres v. United States, 270 F.2d 252 (C.A.9th Cir.); cf. United States v. Arlen, 252 F.2d 491 (C.A.2d Cir.).
Ungar was served with a showcause order on Thursday at about 5 p.m., the hearing being scheduled for the following Tuesday at 10 a.m. Ungar appeared with counsel at the appointed time. Two short continuances were then granted to allow another lawyer to appear for Ungar. When the latter arrived, the case was again called and counsel requested a one-week delay, informing the court that he was unfamiliar with the case because he had not been contacted until Saturday and because he was then busily engaged in trying another case. The court denied the motion for adjournment, being of the view that Ungar had been afforded sufficient time to hire counsel who would be available at the time of the scheduled hearing. We cannot say that this decision, in light of all the circumstances, denied petitioner due process. The five days' notice given petitioner was not a constitutionally inadequate time to hire counsel and prepare a defense to a case in which the evidence was fresh, the witnesses and the evidence readily available, the issues limited and clear-cut and the charge revolving about one statement made by Ungar during a recently completed t ial. Furthermore, the motion for continuance was not made until the day of the scheduled hearing and Ungar himself was a lawyer familiar with the court's practice of not granting adjournments.
After denial of the motion, counsel was permitted to withdraw and the hearing proceeded. Ungar himself then argued for a continuance on the same grounds as his counsel and on the additional ground that a few hours were needed to enable him to present medical proof and expert testimony showing no contempt was intended. He also referred to a snowstorm on the previous Sunday and Monday which allegedly had prevented any preparation with counsel. The motion was again denied and again we can find no denial of due process. Ungar asserted no reason why the testimony and medical proof, which he conceded were readily available and producible within hours, was not obtained between Thursday and Tuesday and presented in court at the time of the scheduled hearing, nor did he name the witnesses he would call nor did he give the substance of their testimony. The trial judge could reasonably have concluded that petitioner's reliance upon inclement weather was less than candid since Ungar's counsel's previous statement that he could not represent Ungar without an adjournment was grounded upon his engagement in another trial. These matters are, of course, arguable, and other judges in other courts might well grant a continuance in these circumstances. But the fact that something is arguable does not make it unconstitutional. Given the deference necessarily due a state trial judge in regard to the denial or granting of continuances, we cannot say these denials denied Ungar due process of law.
The judgments are affirmed.
Affirmed.

## Notes

* ↑ In explaining his conduct at trial, Ungar stated in his petition to the New York Supreme Court, Appellate Division: 'On the basis of facts known to petitioner, it is petitioner's belief and opinion that Hulan E. Jack is absolutely innocent of each and every of the crimes charged against him, including those of which he was found guilty at the second Jack Trial. Petitioner believes that in truth and in fact evidence available to the District Attorney of New York County, which would have created a reasonable doubt as to Mr. Jack's guilt or innocence, was deliberately and wilfully suppressed, as will appear more fully hereinafter. One of the grounds of petitioner's conviction for criminal contempt is petitioner's statement to the foregoing effect during a moment of great emotional stress and physical and mental exhaustion at the second trial of Hulan E. Jack on November 25, 1960.'
* ↑ The following incidents are typical:
* ↑ Section 750, Judiciary Law of New York, defines criminal contempt as:
* ↑ Douglas v. Adel, 269 N.Y. 144, 199 N.E. 35; People ex rel. Negus v. Dwyer, 90 N.Y. 402; Pugh v. Winter, 253 App.Div. 295, 2 N.Y.S.2d 9; People ex rel. Brewer v. Platzek, 133 App.Div. 25, 117 N.Y.S. 852.
* ↑ Appellant concedes that the Vagueness objection to the state statute was not explicitly argued to the Court of Appeals. The trial judge did not purport to invoke summary power under § 751, Judiciary Law, and the Court of Appeals expressly declined to construe § 751 to authorize a trial judge personally attacked to preside at the contempt proceedings.
* ↑ See also Fed.Rules Crim.Proc. 42(b): 'Disposition Upon Notice and Hearing. A criminal contempt (except one subject to summary disposition) * * * shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. * * * If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent.'
* ↑ The following excerpt from the discussion in the judge's chamber following persistent resistance to instructions to answer questions is probably the most intense disagreement between petitioner and the judge that occurred during the trial.
* ↑ This disposes of petitioner's second argument set out in the amended remittitur of the Court of Appeals that the invocation of summary power seven days after the end of the trial during which the contempt was committed denied due process.
* ↑ These requirements include the right to be adequately advised of charges, a reasonable opportunity to meet the charges by way of defense or mitigation, representation by counsel, and an adequate opportunity to call witnesses.
* ↑ Ungar was also told after his outburst on November 25 'to keep himself available' for further proceedings.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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