Before SPARKS, MAJOR and MINTON, Circuit Judges.
This is a proceeding initiated by John E. Johnson on behalf of the United States in the form of a petition for a rule upon William Goldstein to show cause why he should not be adjudged in contempt of this court. The petition alleges an obstruction of justice by reason of perjury asserted to have been committed by Goldstein, and is predicated upon Sec. 385, Title 28 U.S.C.A., the material portion of which provides:
Such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice.
The show cause rule issued and at the same time it was ordered that the Collector of Internal Revenue at Chicago make available certain records, documents and memoranda in his possession which, it is alleged, will furnish the proof of Goldstein's perjury.
A further order was entered appointing Vincent P. O'Brien and John M. Baker, two emiment and distinguished members of the Chicago Bar, as counsel to take charge of the proceedings and conduct the same on behalf of this court.
In response to the rule to show cause, Goldstein, by a motion to dismiss, challenges our jurisdiction. The government has moved that the order directed at the Collector of Internal Revenue be vacated on the ground that the records, documents and memoranda in his possession are of a confidential nature and that their production would be inimical to the public interest.
While the jurisdictional challenge is approached from numerous angles, the real question arises from Goldstein's contention that the facts alleged in the petition are insufficient, (1) to show perjury and (2) to show an obstruction to the administration of justice. For the purpose of the instant motion we must accept all material allegations of fact alleged in the petition.
The alleged perjury consists of testimony by Goldstein in the form of affidavits filed in this court in one of the numerous proceedings in the much litigated case of United States v. Johnson. The petition in great detail relates the history of this litigation in connection with and as relevant to the alleged perjury committed by Goldstein in this court. The reported decisions in the Johnson case are referred to, and by reference made a part of the petition. 123 Fed. (2d) 111; 319 U.S. 503; 142 Fed. (2d) 588; 149 Fed. (2d) 31; 327 U.S. 106. A reference to these decisions will disclose that this prolonged litigation has been due in the main to the persistent contention of Johnson that he was convicted upon the perjured testimony of Goldstein.
Particularly is this true as to the proceedings between June 7, 1943, when the Supreme Court affirmed the original conviction (319 U.S. 503), and February 4, 1946, when that court affirmed the action of the trial court in denying Johnson's motion for new trial (327 U.S. 168). In the last decision the Supreme Court emphasizes the long delay in the enforcement of the sentence imposed upon Johnson in face of the fact that it countenanced the proceedings which resulted in such delay by its failure in the first instance to send its unequivocal mandate direct to the District Court for execution. Instead, its mandate was sent to this court "without prejudice, however, to the consideration and disposition by the United States Circuit Court of Appeals for the Seventh Circuit of any motion filed under rule 2(3) of the criminal appeals rules." While we did not consider this as a command, we did think it a plain intimation by the Supreme Court that the newly discovered evidence purporting to show Goldstein's perjury was regarded by it as of some consequence. More than that, after this court affirmed the judgment of the District Court in denying the motion for new trial predicated upon such proof, the defendant petitioned the Supreme Court for certiorari. While such petition was pending before that court, Johnson presented additional new evidence as further proof of Goldstein's perjury. The Supreme Court deferred consideration of the petition, which was later dismissed, so that Johnson might a second time present this further newly discovered evidence to this court. Again we thought that the action of the Supreme Court indicated that this additional evidence was not without merit; otherwise, what could have been the purpose of giving Johnson a further opportunity to delay the execution of his sentence? We recite what has happened in this respect for the purpose of showing that the delay of which the Supreme Court complains in its recent decision cannot be properly charged to this court.
We shall briefly relate the facts alleged in the petition, which it is asserted disclose a plan on the part of Goldstein culminating in the perjury complained of. Johnson, Skidmore and Goldstein (and others) were jointly indicted, charged with income tax evasion. Goldstein was a personal friend as well as counsel for Skidmore, and as a witness before the Grand Jury, in his effort to protect Skidmore, gave certain testimony which resulted in his indictment for perjury returned by the Grand Jury during February 1940. Johnson's trial commenced in August 1940, and on the date it was called for trial the charge against Goldstein and Skidmore was dismissed. Shortly thereafter Goldstein took the witness stand for the government and gave testimony from which stems the perjury now alleged to have been committed in this court. Prior to the giving of this testimony Goldstein had given bond on the perjury charge, but afterward he was released upon his own recognizance. The perjury indictment against Goldstein remains untried although it has been pending in the District Court for more than six years.
In 1942, there was filed with the Chicago Bar Association, a duly designated agency of the Supreme Court of Illinois, a disbarment proceeding directed at Goldstein, a licensed attorney. That proceeding, for some strange reason undisclosed by the petition, remains undisposed of.
As the various court decisions will show and as the petition alleges, one of the material issues in the trial of Johnson, in fact the vital issue, was whether he was the owner of certain properties, including particularly that known as the Albany Park Bank Building, and certain escrow deposits, including a deposit of $7,500.00 with the State Bank and Trust Company of Evanston. The asserted perjured testimony of Goldstein with reference to the ownership of Johnson in these properties constitutes the basis for the numerous efforts on behalf of Johnson for a new trial. Twice the District Court has found that Goldstein did not commit perjury, and in each instance denied Johnson's motion for a new trial. The first denial was affirmed by this court on the theory that we were bound by the findings of the trial court. 142 Fed. (2d) 588. The second denial of the motion for a new trial was reversed by this court, one judge dissenting. 149 Fed. (2d) 31. A majority of this court concluded that the perjury of Goldstein was so thoroughly and completely established that the action of the trial court in denying the motion for a new trial was arbitrary and an abuse of discretion. The Supreme Court reversed our decision without a consideration, so far as the opinion discloses, of the merits of the controversy but upon the theory that we were without authority to review the action of the trial court. 327 U.S. 106.
The mandate of the Supreme Court, issued pursuant to its decision of June 7, 1943, containing its "without prejudice" provision, as heretofore related, was filed in this court July 6, 1943. On July 13, 1943, Johnson (and other defendants) filed in this court a motion that the case be remanded to the United States District Court to entertain a motion for a new trial. Said motion was predicated solely upon the alleged perjury of Goldstein committed at the trial, and in support thereof numerous exhibits and affidavits were submitted. The government submitted counter-affidavits including two affidavits by Goldstein, referred to in the petition as exhibits 8 and 9, which contain the alleged perjury committed in this court.
Exhibit 8 is an affidavit signed and sworn to before a Notary Public on September 8, 1943. It states, so far as here material, with reference to the income from the Albany Park Bank Building, that it "is being held by me until such time as I am released from the Internal Revenue Department which served me with a lien to hold all funds and property belonging to Wm. R. Johnson." As to the property itself, the affidavit states: "Theodore W. Goldstein holds title to the building in trust. The reason that title was not transferred to Wm. R. Johnson was that he requested me to let title remain in my son as he intended to organize a bank sometime in the future and did not want his name connected with it." Exhibit 9 is likewise an affidavit signed and sworn to before a Notary Public on September 10, 1943. Concerning the escrow deposit in the State Bank and Trust Company of Evanston, it states: "The $7,500.00 returned to me by the State Bank and Trust Company was not returned to Mr. ...