Before SCHNACKENBERG, KILEY and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Marlin W. Johnson, agent in charge, Chicago office of the Federal Bureau of Investigation, defendant, has appealed from an order imposing a fine on him for criminal contempt entered by the district court, described by it as a summary commitment order, after he was called as an adverse witness by Sam Giancana, plaintiff, pursuant to 28 U.S.C.A., rule 43(b), during the hearing of the above-entitled case. Johnson refused to answer certain questions put to him by plaintiff's counsel and was fined $500 by the court*fn1
The court's order recites five specifications of occurrences at a hearing on July 15, 1963, upon which the court relied in adjudging Johnson guilty of criminal contempt of court. We now consider these specifications in numerical order.
Plaintiff's attorney, George N. Leighton, showed Johnson a copy of a telegram marked plaintiff's exhibit 5 for identification and asked if on June 25, 1963 he had received the original thereof. The witness replied:
"Your Honor, I respectfully decline to answer the question based on instructions from the Attorney General of the United States and pursuant to departmental Order No. 260-62."
Mr. Lulinski (government counsel) stated: "It is a part of the official file of the Federal Bureau of Investigation, and as such, with respect to that, Mr. Johnson as a subordinate of the Federal Bureau of Investigation, as a subordinate in the Department of Justice, is, by law, bound by the orders and directions of the Attorney General with respect thereto."
The court instructed the witness to answer the question. His answer was that
"* * * upon the direction of the Attorney General of the United States, I respectfully submit that I must decline to answer the question under his instructions, pursuant to departmental Order 260-62."*fn2
When Johnson was asked whether he had occasion to call attorney Leighton at his office on June 25, 1963, he answered:
"Your Honor, again I decline to answer the question, based upon instructions of the Attorney General of the United States under Departmental Order 260-62."
"Will you tell me what his instructions were in regard to a question such as this, that does not require you to consult the files of the FBI?"
"Your Honor, my instructions are 'nor to give any testimony in this matter.'"
The court instructed the witness to answer and the witness replied:
"Your Honor, in accordance with the instructions of the Attorney General, I respectfully decline to answer under Departmental Order 260-62."
Relying on order 260-62, the witness declined to answer the following question by Mr. Leighton:
"Mr. Johnson, did you not in a conversation with me by telephone in the afternoon of June 25, 1963, tell me that you were not going to remove from the residence of Mr. Sam Giancana the 24-hour surveillance of FBI Agents that you had placed there? Did you not say that to me?" Johnson based his refusal on an instruction contained in a teletype from the Attorney General addressed to the United States Attorney, Chicago, under date of July 15, 1963, which, as read by the witness, stated:
"Your attention is directed to Department Order No. 260-62 which supersedes Order No. 3229. In connection with the matter under which Special Agent Marlin Johnson is now under subpoena, he is instructed to abide by Order No. 260-62. Johnson is instructed not to produce any of the documents ...