# Green v. United States (356 U.S. 165)/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinions Black Brennan
United States Supreme Court
356 U.S. 165
Green v. United States (356 U.S. 165)
Argued: Oct. 21, 1957. --- Decided: March 31, 1958
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE joins, dissenting.
I dissent because I do not believe that the evidence was sufficient to establish beyond a reasonable doubt the petitioners' guilt of the criminal contempt charged.
Petitioners were among 11 leaders of the Communist Party who were convicted of violation of the Smith Act, now 18 U.S.C. § 2385, 18 U.S.C.A. § 2385, on October 14, 1949. Both were sentenced to a fine of $10,000 and to five years' imprisonment, and were enlarged on bail pending appeal. The Court of Appeals affirmed the convictions on August 1, 1950, and this Court in turn affirmed on June 4, 1951. Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. On June 28, 1951, prior to formal receipt of the Suprme Court judgment, the District Court drew up a proposed Order on Mandate making the judgment of this Court that of the District Court. The last paragraph 'Further ordered, adjudged and decreed that the defendants personally surrender to the United States Marshal * * * on the 2nd day of July, 1951 * * *.' This proposed order was served on the attorneys for the 11 and they promised to bring their clients into court the following Monday, July 2, to begin serving their sentences. On Friday, June 29, the attorneys met with all the defendants and 'advised that they all should be present (in court on Monday) and * * * (were) assured they would be.' But by Monday four had absconded. Since seven were present, however, the Order on Mandate was signed, and the seven were taken off to serve their prison terms. The court canceled the bail of the missing four on July 3 and issued a bench warrant for their arrest. Two of the four, Hall and Thompson, were apprehended in 1951 and 1953 respectively and were convicted of criminal contempt. United States v. Hall, 2 Cir., 198 F.2d 726; United States v. Thompson, 2 Cir., 214 F.2d 545. The petitioners surrendered voluntarily in 1956 and were likewise convicted of criminal contempt. The contempt charged in each instance was a violation of 18 U.S.C. § 401(3), 18 U.S.C.A. § 401(3), by disobedience of the provision of the Order on Mandate, issued on the morning of July 2, 1951, requiring the surrender of all the Dennis defendants to the United States Marshal at 11:05 a.m. on that day. Significantly, at the time the judge signed the order he lined out the hour of surrender, appearing as 10:30 in the proposed order, and substituted 11:05, the time at which the order was actually signed. See the opinion of Judge Biggs in United States v. Hall, supra, 198 F.2d at page 732.
The most that can be said is that the evidence might have been sufficient to support conviction of the petitioners for bail jumping if that had been an offense at the time they fled. But bail jumping did not become a separate crime until three years after the petitioners' flight, when this void in the law highlighted by the petitioners' conduct-led the Department of Justice to secure the enactment of 18 U.S.C. § 3146, 18 U.S.C.A. § 3146. See H.R.Rep. No. 2104, 83d Cong., 2d Sess. But, in any event, bail jumping is not the offense charged, and, although it is certainly a most serious obstruction of the administration of justice, it is not in itself a criminal contempt.
The Court relates the criminal contempt charged to bail jumping by its use of § 3146 as support for the sentences imposed upon the petitioners. But bail jumping under § 3146 is proved merely by evidence that the accused willfully failed to surrender within 30 days after incurring a forfeiture of his bail. Much more, however, than evidence sustaining a conviction for bail jumping is necessary to sustain convictions for the contempts here charged of violating 18 U.S.C. § 401(3), 18 U.S.C.A. § 401(3), by willful and knowing disobedience of a single provision of the Order on Mandate of July 2, 1951. The indispensable element of that offense, to be proved beyond a reasonable doubt, Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797, is that the petitioners, who were not served with the order, in some other way obtained actual knowledge of its existence and command. Kelton v. United States, 3 Cir., 294 F. 491; In re Kwelman, D.C., 31 F.Supp. 23; see Wilson v. State of North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865.
Assessment of the sufficiency of the evidence bearing on the petitioners' knowledge requires that the precise time at which the order came into existence be kept clearly in mind. The Court of Appeals below fell into palpable error in reading the specifications to charge 'disobedience of the order of June 28.' 241 F.2d 631, 632. The order was not signed or entered until court convened after 10 o'clock on the morning of July 2. What happended on June 28 was tht the attorneys of the Dennis defendants were served with copies of a proposed order to be entered on July 2. But the attorneys' knowledge cannot be imputed to their clients. In re Kwelman, supra. The petitioners had absconded by July 2, and the record is completely silent as to their whereabouts from June 29 until they surrendered almost five years later. Concededly, direct evidence of knowledge by the petitioners of the order of July 2 is wholly lacking and the case for conviction rests entirely upon circumstantial evidence.
The proof upon which reliance is placed consists of evidence (1) that the petitioners knew on June 29, 1951, that the order was to be entered on July 2, and (2) that the petitioners made certain statements to the press at the time of their surrender almost five years later.
First. Manifestly, foreknowledge that an order might come into existence does not prove knowledge that it did come into existence. Even if the petitioners knew on June 29 that the order was likely to be signed on July 2, the most that can be said is that after July 2 the petitioners knew that the order was to have been entered. This, of course, is not the same as knowledge that the order had been entered, and it is the latter knowledge which the Government must prove beyond a reasonable doubt. Knowledge that the order had been entered, of course, could only be acquired by the petitioners after the order had come into existence on the morning of July 2; and that knowledge can hardly be inferred from the events which occurred prior to the moment the order was entered. See the opinion of Judge Biggs in United States v. Hall, 2 Cir., 198 F.2d 726, 733-735.
The Government's lack of confidence in the proofs to show actual knowledge is implicit in its effort to sustain the convictions on a theory of constructive knowledge derived from the events of June 28 and from the evidence that on June 29 the petitioners and the other Dennis defendants were told by the attorneys that they must be in court on July 2. The short answer to this contention is that the petitioners are not charged with disobedience of an order of which they had constructive knowledge but with disobedience of an order of which they had actual knowledge, and conviction can be had on the precise charge, or not at all. In any event, the sole authority relied upon by the Government is a dictum in Pettibone v. United States, 148 U.S. 197, 206-207, 13 S.Ct. 542, 546, 37 L.Ed. 419, to the effect that persons may be chargeable with knowledge of an order from notice that an application will be made for the order. But whatever its utility in civil cases, theories of constructive knowledge have no place in the criminal law. Not only is this forcefully demonstrated in Judge Biggs' opinion in United States v. Hall, supra, but the Pettibone dictum has not been followed in criminal contempt cases. Kelton v. United States, supra; In re Kwelman, supra.
Second. Since the evidence of knowledge that an order was to be entered is not sufficient to prove knowledge that the order was entered, what of the evidence of what was said by the petitioners at the time of their surrender? The Court refers to the petitioners' press releases in which they stated they would surrender to 'enter prison,' and to Green's further reference that he intended to 'go to the United States Marshal's Office.' But, of course, surrender could only have been to enter prison. Their statements prove no more than what the petitioners and everyone else knew had to happen when this Court affirmed their Smith Act convictions in 1951. And it can hardly be doubted that, after the many months these petitioners spend at their trial in the Foley Square Courthouse, both the location and function of the Marshal's Office was well known to them. That the Court must resort to these statements to find probative weight in the evidence demonstrates the inherent insufficiency of the proofs to show actual knowledge.
Nor do there appear other circumstances from which knowledge may be inferred. The Court's opinion gives the impression that the surrender order was an order in familiar and customary use, well known to the sophisticated in the criminal law. I doubt that even widely experienced criminal lawyers encounter this provision very often. The provision was not the occasion for the entry of the order of July 2. The purpose of that order, as its caption 'Order on Mandate' shows, was to enter an order in the District Court to give effect to the Mandate of this Court affirming the convictions of the Dennis defendants. But for the necessity of entering an order for that purpose there may well have been no surrender order. No statute or rule of court, even a local rule of the District Court, can be pointed to as requiring inclusion of the surrender provision. The bondsman who stands to lose the posted bail, not a surrender order, is usually counted on to produce the defendant. Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H.R. 8658, 83d Cong., 2d Sess. 14-19. This is not to say, of course, that the provision was in any way improper or illegal or served no useful purpose. Nevertheless its novelty is indicated when the Court must look to a provision of the bail bond as the only discoverable source of authority for the provision.
I can well understand why the Government should have desired to proceed against these petitioners for their serious obstruction of the administration of justice. In the absence of a statutory provision aimed directly at this conduct, the Government resorted to this attempt to punish that obstruction as a criminal contempt. However, regardless of the view taken on the underlying constitutional issue involved, the odiousness of the offense cannot be a reason for relaxing the normal standards of proof required to sustain a conviction under § 401(3). Believing that the proofs in this case fall short of that standard, I must dissent.
Mr. Justice DOUGLAS, though agreeing with the dissent of Mr. Justice BLACK, also agrees with Mr. Justice BRENNAN that the evidence will not sustain this conviction, whatever may be the view on the underlying constitutional issue.

## Notes

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