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NILVA V. UNITED STATES, 352 U. S. 385 (1957)

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U.S. Supreme Court

Nilva v. United States, 352 U.S. 385 (1957)

Nilva v. United States

No. 37

Argued November 8, 13, 1956

Decided February 25, 1957

352 U.S. 385


In connection with a trial for conspiracy to violate the Federal Slot Machine Act, the court issued subpoenas duces tecum directing a corporation owned by one of the defendants to produce certain records of purchases and sales of slot machines. Petitioner, who was a vice-president of the corporation and an attorney of record for its owner, appeared on behalf of the corporation, produced certain records, and stated that they were all of the subpoenaed records that he could find. Under court order, all records of the corporation were impounded by a Federal Marshal, and among them were found records of purchases and sales of slot machines which petitioner had not produced. On the day after conviction of the defendants, the court ordered petitioner to appear four days later and show cause why he should not be held in criminal contempt for obstructing the administration of justice on three specifications. After a hearing, petitioner was found guilty of criminal contempt on all three specifications, and was given a general sentence of imprisonment. On appeal, the Government abandoned two of the specifications, but contended that the sentence should be sustained on the third.


1. The conviction of criminal contempt on the third specification is sustained. Pp. 392-396.

(a) A criminal contempt is committed by one who, in response to a subpoena calling for corporate records, refuses to surrender them when they are in existence and within his control. P. 352 U. S. 392.

(b) The evidence reasonably supports the conclusion that the records covered by the third specification were in existence and were within petitioner's control. Pp. 352 U. S. 392-394.

(c) Although petitioner testified at his trial that he attempted in good faith to comply with the subpoenas, this testimony was subject to appraisal by the trial court, and the record contained sufficient basis to justify the court in concluding that petitioner's failure to comply with the subpoena was intentional, and without "adequate excuse" within the meaning of Rule 17(g) of the Federal Rules of Criminal Procedure. P. 352 U. S. 395.

(d) In the circumstances of this case, and in view of the wide discretion on such matters vested in the trial court, petitioner's chanroblesvirtualawlibrary

Page 352 U. S. 386

claim that he was not allowed adequate time to prepare his defense is unfounded. P. 352 U. S. 395.

(e) Trial of petitioner before the trial judge who initiated the contempt proceeding was not improper, because Rule 42(b) of the Federal Rule of Criminal Procedure requires disqualification of the trial judge only when "the contempt charged involves disrespect to or criticism of a judge," the contempt here charged was not of that kind, and there is no showing in this case of an abuse of discretion in failing to assign another judge. Pp. 352 U. S. 395-396.

2. Since petitioner's general sentence followed his conviction on three original specifications and the Government has abandoned two of them, the trial court should be given an opportunity to reconsider the sentence; and the sentence is vacated and the case is remanded to the trial court for that purpose. P. 352 U. S. 396.

227 F.2d 74, 228 F.2d 1, judgment vacated and case remanded to the District Court.

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