Potter Stewart

“ It is asserted that only a legal issue is involved here-the scope of immunity-so that there was no need to give petitioner time to prepare a defense under Rule 42 (b) . [25] But this overlooks the right of petitioner to present evidence in extenuation and to show what other courts had done in similar circumstances. This argument also neglects the importance of affording the judge an opportunity for reflection. A judge should not be forced-or goaded into spur-of-the-moment decisions where the imprisonment of a person is in the balance. ”

“ The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrepect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. ”

“ It is quite obvious that much of the sentence was for some reason collateral to that investigation. It is not sufficient for the purpose of increasing punishment to act on the suspicion that the refusal of the witness to testify may redound to the interest of a racketeer, and on that basis deny him the protections that Congress has seen fit to accord to all witnesses before grand juries. If such factors are to play a part in the sentence the witness is entitled to a hearing on notice. ”

“ While experience has shown the necessity of recognizing that courts possess this authority, experience has also proven that restrictions appropriate to the purposes of the power must fence in its exercise. ”

“ But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding: Provided, That no person so testifying shall be exempt from prosecution and punishment for perjury committed in so testifying. ”

“ In fact, petitioner's counsel objected to the procedure and asked that he be served in 'open court' with notice of the charges. There is no indication of any change in this situation after the refusal to answer and before the actual contempt proceeding. The Assistant United States Attorney has stated that in fact there were no spectators in the courtroom on April 8. A secret proceeding is no less secret because the defendant is allowed to have counsel. ”

“ The petitioner argues alternatively that even if some immunity is granted by Part II to a grand jury witness, the immunity is not commensurate with that of Part I, and that its scope is therefore constitutionally insufficient. The contention is that § 305 (d) provides immunity from prosecution only for offenses related to violations of the Motor Carrier Act itself because of the clause appearing at the beginning of the section-'So far as may be necessary for the purposes of this chapter.' See footnote 3. ”

“ Also, the judge took no time to consider the bail question. After a minimum of argument by counsel, the judge denied bail pending appeal. [29]
Shortcuts in criminal procedure are always confusing [30] and dangerous, but they are particularly so here, because if sanctioned by this Court, prosecutors throughout the federal system will be tempted to do all they can to make Rule 42 (b) a dead letter. The contempt power traditionally has been utilized sparingly and only when necessary to uphold the dignity of the courts. ”

“ And, shortly thereafter, the Court adopted this viewpoint. See Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11. The importance of procedural regularity often lies in advising the defendant of the procedure he must expect and giving him time to prepare. Also, judicial reflection is an invaluable by-product of procedures that are designed to be no more precipitous than necessary to meet the demands of the situation. ”

“ The Court's opinion observes that the judge may reduce the sentence within 60 days of the termination of these proceedings under Rule 35. But that power has been held to be discretionary, Flores v. United States, 9 Cir., 238 F.2d 758; Miller v. United States, 5 Cir., 224 F.2d 561, and does not in any sense make a term in the penitentiary comparable to a jail commitment for civil contempt. Exercise of Rule 35 power does not make petitioner any less a convicted criminal. Also, the failure to invoke civil contempt indicates that the judge intended the sentence to be punitive and not coercive. ”