Blackmer v. United States, 284 U.S.

421 (1932)

Syllabus
Case

U.S. Supreme Court

Blackmer v. United States, 284 U.S. 421 (1932)

Blackmer v. United States

Nos. 200 and 201

Argued January 5, 6, 1932

Decided February 15, 1932

284 U.S. 421

CERTIORARI TO THE COURT OF APPEALS

OF THE DISTRICT OF COLUMBIA.

Syllabus

1. A citizen of the United States residing in a foreign country continues to owe allegiance to
the United States and is bound by its laws made applicable to his situation. P. 284 U. S.
436.
436.

2. The power to require the return of absent citizens in the public interest is inherent in
sovereignty, and what in England was the sovereign prerogative in this respect pertains,
under our constitutional system, to the national authority, exercisable by Congress, to
prescribe the duties of the citizens of the United States. P. 284 U.S. 437.

3. One of the duties of such absent citizens to the United States is that of attending its
courts to give testimony when properly summoned, and Congress may provide for the
performance of this duty and prescribe penalties for disobedience. P. 284 U. S. 438.

4. Questions of authority in such cases are not questions of international law, but of
municipal law. P. 284 U.S. 437.

5. The Act of July 3, 1926, provides that, when the testimony of a citizen of the United
States residing in a foreign country is needed by the Government in a criminal case, the
court in which the case is pending may issue a subpoena to be served upon him personally
by an American consul with a tender of money to cover his necessary expenses of travel to
and from, and attendance upon, the court; that, if he refuse or neglect to appear as directed
by the subpoena, the same court, upon proof of service and default, may issue its order
directing him to appear before it at a designated time to show cause why he should not be
adjudged guilty of contempt

Page 284 U. S. 422

and be punished; that this order may direct that property of the witness in the United
States be seized and held to satisfy any judgment that may be rendered in the contempt
proceeding; that, after such seizure, the order to show cause and for sequestration shall be
served on the witness personally by such consul and shall be published in some newspaper
of general circulation in the district where the court sits, and that, on the return day of the
order, or later, proof shall be taken, and if the charge of recusancy shall be sustained, the
court shall adjudge the witness guilty of contempt and impose upon him a fine not
exceeding $100,000, which, with the costs, may be satisfied by sale of the property levied
upon, to be conducted upon notice and in the manner provided for sales upon execution. In
contempt proceedings for failure to obey subpoenas, held:

(1) The absent witness is bound with notice of the statute. P. 284 U. S. 438.

(2) The method provided by the Act for acquiring judicial jurisdiction to render a personal
judgment includes due notice and opportunity to be heard, and satisfies the due process
clause of the Fifth Amendment. Pp. 284 U. S. 438-439.
(3) Service of the subpoena in a foreign country invades no right of the foreign government,
and the citizen has no standing to invoke such supposed right. P. 284 U. S. 439.

(4) The function of a consul in serving the subpoena and the order to show cause is merely
that of an agent of the government for conveying actual notice to one of its citizens; it need
not be sanctioned by a treaty. Pp. 284 U. S. 439-440.

(5) In criminal contempt proceedings, due process does not require that the respondent be
present at the hearing and adjudication if he was duly notified and had adequate
opportunity to appear and be heard. P. 284 U. S. 440.

(6) The contempt proceeding being valid, the provisional remedy of seizing and applying
property to secure payment of the penalty is also constitutional. P. 284 U. S. 441.

(7) The fact that enforcement of the penalty may depend on seizure of property does not
imply unconstitutional discrimination between those contumacious absentee witnesses
who have property in this country and those who have not. Id.

(8) A provisional or final levy on property, as provided in the statute, to satisfy liability of
the owner is not an unreasonable search and seizure. Id.

Page 284 U. S. 423

(9) The question whether the statute grants the right to subpoena foreign residents in
criminal cases to the government only, and thereby violates the provision of the Sixth
Amendment guaranteeing accused persons compulsory process for witnesses, will not be
considered at the instance of a recalcitrant witness. P. 284 U. S. 442.

(10) Where the subpoena served was issued at the request of the government upon a
statement as to the materiality and importance of the expected testimony sufficient to give
the court jurisdiction to issue it, it binds the witness unless set aside upon proper petition,
and the question whether the showing was otherwise sufficient cannot be raised in defense
against proceedings to punish his disobedience as contempt. Id.

(11) It is not necessary that the subpoena issued under the statute show on its face that it
was so issued. Id.

(12) Where a witness has been served with subpoena under the statute, and has defaulted,
service of an order directing him to show cause, at a time and place stated, why he should
not be adjudged guilty of contempt, and providing for seizure of his property to be held to
ti f j d t th t b d d i t hi i th di ff d ti
satisfy any judgment that may be rendered against him in the proceeding, affords notice
sufficient to inform him of the character of the charge and of the hearing at which he will
have opportunity to present his defense. P. 284 U. S. 443.

(13) Where two subpoenas are issued for appearances at different times, a seizure of
property in connection with the first is not vacated by the seizure of the same property in
connection with the second. Id.

(14) A witness subpoenaed to attend on a day named, and not to depart the court without
leave of the court or the district attorney, cannot excuse his refusal to come upon the
ground that the trial did not begin on the day specified in the writ, but on a later day to
which the case was continued. Id.

60 App.D.C. 141, 49 F.2d 523, affirmed.

Certiorari to review decrees sustaining fines imposed on the petitioner Blackmer as

Page 284 U. S. 433

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

The petitioner, Harry M. Blackmer, a citizen of the United States resident in Paris, France,
was adjudged guilty of contempt of the Supreme Court of the District of Columbia for
failure to respond to subpoenas served upon him in France and requiring him to appear as
a witness on behalf of the United States at a criminal trial in that court. Two subpoenas
were issued, for appearances at different times, and there was a separate proceeding with
respect to each. The two cases were heard together, and a fine of $30,000 with costs was
imposed in each case, to be satisfied out of the property of the petitioner which had been
seizer by order of the court. The decrees were affirmed by the Court of Appeals of the
District, 49 F.2d 523, and this Court granted writs of certiorari.

The subpoenas were issued and served, and the proceedings to punish for contempt were
taken, under the provisions of the Act of July 3, 1926, c. 762, 44 Stat. 835, U.S.C. Tit. 28, §§
711-718. [Footnote 1] The statute provided that,

Page 284 U. S. 434

whenever the attendance at the trial of a criminal action of a witness abroad, who is "a
iti f th U it d St t d i il d th i " i d i d b th Att G l
citizen of the United States or domiciled therein," is desired by the Attorney General or any
assistant or district attorney acting under him, the judge of the court in which the action is
pending may order a subpoena to issue, to be addressed to a consul of the United States
and to be served by him personally

Page 284 U. S. 435

upon the witness with a tender of traveling expenses. §§ 2, 3. Upon proof of such service
and of the failure of the witness to appear, the court may make an order requiring the
witness to show cause why he should not be punished for contempt, and, upon the issue of
such an order, the court may direct that property belonging to the witness and within the
United States may be seized and held to satisfy any judgment which may be rendered

Page 284 U. S. 436

against him in the proceeding. §§ 4, 5. Provision is made for personal service of the order
upon the witness and also for its publication in a newspaper of general circulation in the
district where the court is sitting. § 6. If, upon the hearing, the charge is sustained, the
court may adjudge the witness guilty of contempt and impose upon him a fine not
exceeding $100,000, to be satisfied by a sale of the property seized. § 7. This statute and
the proceedings against the petitioner are assailed as being repugnant to the Constitution
of the United States.

First. The principal objections to the statute are that it violates the due process clause of
the Fifth Amendment. These contentions are: (1) that the "Congress has no power to
authorize United States consuls to serve process except as permitted by treaty;" (2) that the
Act does not provide "a valid method of acquiring judicial jurisdiction to render personal
judgment against defendant and judgment against his property;" (3) that the Act "does not
require actual or any other notice to defendant of the offense or of the government's claim
against his property;" (4) that the provisions "for hearing and judgment in the entire
absence of the accused and without his consent" are invalid, and (5) that the Act is
"arbitrary, capricious and unreasonable."

While it appears that the petitioner removed his residence to France in the year 1924, it is
undisputed that he was, and continued to be, a citizen of the United States. He continued to
owe allegiance to the United States. By virtue of the obligations of citizenship, the United
States retained its authority over him, and he was bound by its laws made applicable to him
in a foreign country. Thus, although resident abroad, the petitioner remained subject to the
taxing power of the United States. Cook v. Tait, 265 U. S. 47, 265 U. S. 54-56. For
disobedience to its laws through conduct abroad, he was subject to punishment in the
courts of the United States. United States v. Bowman,

Page 284 U. S. 437

260 U. S. 94, 260 U. S. 102. With respect to such an exercise of authority, there is no
question of international law, [Footnote 2] but solely of the purport of the municipal law
which establishes the duties of the citizen in relation to his own government. [Footnote 3]
While the legislation of the Congress, unless the contrary intent appears, is construed to
apply only within the territorial jurisdiction of the United States, the question of its
application, so far as citizens of the United States in foreign countries are concerned, is one
of construction, not of legislative power. American Banana Co. v. United Fruit Co., 213 U.
S. 347, 213 U. S. 357; United States v. Bowman, supra; Robertson v. Labor Board, 268 U.
S. 619, 268 U. S. 622. Nor can it be doubted that the United States possesses the power
inherent in sovereignty to require the return to this country of a citizen, resident elsewhere,
whenever the public interest requires it, and to penalize him in case of refusal. Compare
Bartue and the Duchess of Suffolk's Case, 2 Dyer's Rep. 176b, 73 Eng.Rep. 388; Knowles v.
Luce, Moore 109, 72 Eng.Rep. 473. [Footnote 4] What in England was the prerogative of
the sovereign

Page 284 U. S. 438

in this respect pertains under our constitutional system to the national authority which
may be exercised by the Congress by virtue of the legislative power to prescribe the duties
of the citizens of the United States. It is also beyond controversy that one of the duties
which the citizen owes to his government is to support the administration of justice by
attending its courts and giving his testimony whenever he is properly summoned. Blair v.
United States, 250 U. S. 273, 250 U. S. 281. And the Congress may provide for the
performance of this duty and prescribe penalties for disobedience.

In the present instance, the question concerns only the method of enforcing the obligation.
[Footnote 5] The jurisdiction of the United States over its absent citizen, so far as the
binding effect of its legislation is concerned, is a jurisdiction in personam, as he is
personally bound to take notice of the laws that are applicable to him, and to obey them.
United States v. Bowman, supra. But, for the exercise of judicial jurisdiction in personam,
there must be due process, which requires appropriate notice of the judicial action and an
opportunity to be heard. For this notice and opportunity, the statute provides. The
authority to require the absent citizen to return and testify necessarily implies the authority
to give him notice of the requirement. As his attendance is needed in court, it is appropriate
that the Congress should authorize the court to direct the notice to be given, and that it
h ld b i th t f f b Ob i l th i t ld b
should be in the customary form of a subpoena. Obviously, the requirement would be
nugatory if provision could not be made for its communication to the witness in the foreign
country.

Page 284 U. S. 439

The efficacy of an attempt to provide constructive service in this country would rest upon
the presumption that the notice would be given in a manner calculated to reach the witness
abroad. McDonald v. Mabee, 243 U. S. 90, 243 U. S. 92. The question of the validity of the
provision for actual service of the subpoena in a foreign country is one that arises solely
between the government of the United States and the citizen. The mere giving of such a
notice to the citizen in the foreign country of the requirement of his government that he
shall return is in no sense an invasion of any right of the foreign government, and the
citizen has no standing to invoke any such supposed right. While consular privileges in
foreign countries are the appropriate subjects of treaties, [Footnote 6] it does not follow
that every act of a consul, as, e.g., in communicating with citizens of his own country, must
be predicated upon a specific provision of a treaty. The intercourse of friendly nations,
permitting travel and residence of the citizens of each in the territory of the other,
presupposes and facilitates such communications. In selecting the consul for the service of
the subpoena, the Congress merely prescribed a method deemed to assure the desired
result, but in no sense essential. The consul was not directed to perform any function
involving consular privileges or depending upon any treaty relating to them, but simply to
act as any designated person might act for the government in conveying to the citizen the
actual notice of the requirement of his attendance. The point raised by the petitioner with
respect to the provision for the service of the subpoena abroad is without merit.

As the Congress could define the obligation, it could prescribe a penalty to enforce it. And
as the default lay in disobedience to an authorized direction of the court, it

Page 284 U. S. 440

constituted a contempt of court, and the Congress could provide for procedure appropriate
in contempt cases. The provision of the statute for punishment for contempt is applicable
only "upon proof's being made of the service and default." § 4. That proof affords a proper
basis for the proceeding, and provision is made for personal service upon the witness of the
order to show cause why he should not be adjudged guilty. For the same reasons as those
which sustain the service of the subpoena abroad, it was competent to provide for the
service of the order in like manner. It is only after a hearing pursuant to the order to show
cause, and upon proof sustaining the charge, that the court can impose the penalty. The
petitioner urges that the statute does not require notice of the offense, but the order to
petitioner urges that the statute does not require notice of the offense, but the order to
show cause is to be issued after the witness has failed to obey the subpoena demanding his
attendance and the order is to be made by the court before which he was required to
appear. This is sufficient to apprise the witness of the nature of the proceeding, and he has
full opportunity to be heard. The further contention is made that, as the offense is a
criminal one, it is a violation of due process to hold the hearing, and to proceed to
judgment, in the absence of the defendant. The argument misconstrues the nature of the
proceeding.

"While contempt may be an offense against the law and subject to appropriate punishment,
certain it is that, since the foundation of our government proceedings to punish such
offenses have been regarded as sui generis, and not 'criminal prosecutions' within the Sixth
Amendment or common understanding."

Myers v. United States, 264 U. S. 95, 264 U. S. 104-105. See also Bessette v. Conkey, 194 U.
S. 327, 194 U. S. 336-337; Michaelson v. United States, 266 U. S. 42, 266 U. S. 65-66; Ex
parte Grossman, 267 U. S. 87, 267 U. S. 117-118. The requirement of due process in such a
case is satisfied by suitable notice and adequate opportunity to appear and to be heard. Cf.
Cooke v. United States, 267 U. S. 517, 267 U. S. 537.

Page 284 U. S. 441

The authorization of the seizure of the property belonging to the defaulting witness and
within the United States, upon the issue of the order to show cause why he should not be
punished for contempt (§ 5 of the Act) affords a provisional remedy, the propriety of which
rests upon the validity of the contempt proceeding. As the witness is liable to punishment
by fine if, upon the hearing, he is found guilty of contempt, no reason appears why his
property may not be seized to provide security for the payment of the penalty. The
proceeding conforms to familiar practice where absence or other circumstance makes a
provisional remedy appropriate. See Cooper v. Reynolds, 10 Wall. 308, 77 U. S. 318. The
order that is to be served upon the witness contains the direction for the seizure. The
property is to be held pending the hearing, and is to be applied to the satisfaction of the
fine if imposed and unless it is paid. Given the obligation of the witness to respond to the
subpoena, the showing of his default after service, and the validity of the provision for a
fine in case default is not excused, there is no basis for objection to the seizure upon
constitutional grounds. The argument that the statute creates an unreasonable
classification is untenable. The disobedience of the defaulting witness to a lawful
requirement of the court, and not the fact that he owns property, is the ground of his
liability. He is not the subject of unconstitutional discrimination simply because he has
property which may be appropriated to the satisfaction of a lawful claim.
property which may be appropriated to the satisfaction of a lawful claim.

Second. What has already been said also disposes of the contention that the statute
provides for an unreasonable search and seizure in violation of the Fourth Amendment. It
authorizes a levy upon property of the witness at any place within the United States in the
manner provided by law or rule of court for levy or seizure under execution. A levy in such
a manner, either provisionally

Page 284 U. S. 442

or finally, to satisfy the liability of the owner, is not within the constitutional prohibition.

The petitioner raises the further and distinct point that the statute limits the availability of
the subpoena to the government, and that, "by excluding defendants in criminal
prosecutions" from the right to such a subpoena, it violates the provision of the Sixth
Amendment that the accused shall have "compulsory process for obtaining witnesses in his
favor." We need not consider whether the statute requires the construction for which the
petitioner contends, as, in any event, the petitioner, a recalcitrant witness, is not entitled to
raise the question. Nelson v. United States, 201 U. S. 92, 201 U. S. 115; Southern Railway
Co. v. King, 217 U. S. 524, 217 U. S. 534; Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571,
235 U. S. 576; Blair v. United States, supra, at p. 250 U. S. 282.

Third. The statute being valid, the question remains as to the procedure in its application
against the petitioner. He insists that the showing for the issue of the subpoenas requiring
him to attend was inadequate. But the "proper showing" required was for the purpose of
satisfying the court that the subpoenas should issue. The petitions in the instant cases were
presented to the judge of the court by the official representatives of the government, and
their statement as to the materiality and importance of the testimony expected from the
witness was unquestionably sufficient to give the court jurisdiction to issue the subpoenas,
and, unless they were vacated upon proper application, the petitioner was bound to obey.
Nor was it necessary that the subpoenas should "identify" themselves with the statute
under which they were issued. The petitioner, as a citizen of the United States, was
chargeable with knowledge of the law under which his attendance as a witness could be
required. It was sufficient that the subpoenas required his attendance to testify on behalf of
the United States at the time and place stated.

Page 284 U. S. 443

Equally unavailing is the objection that, after the petitioner had refused to appear in
response to the subpoenas, the orders to show cause why he should not be punished for
contempt did not specify the offense. As the statute prescribed, he had been served with the
contempt did not specify the offense. As the statute prescribed, he had been served with the
subpoenas and had defaulted, and he had also been served with the order which directed
him to show cause why he should not be adjudged guilty of contempt and provided for the
seizure of his property to be held to satisfy any judgment that might be rendered against
him in the proceeding. The notice which he thus received was sufficient to inform him of
the character of the charge against him and of the hearing at which he would have
opportunity to present his defense. The petitioner also insists that the seizure which was
made in case No. 200 was abandoned by virtue of the seizure of the same property under
the order issued in No. 201. But the second levy was not antagonistic to the first. The
proceedings were consistent.

In No. 201, the contention is made that the petitioner was subpoenaed to attend on April 2,
1928, and that the case in which his testimony was desired was not tried until April 9, 1928.
There is no suggestion that the petitioner appeared on April 2, 1928, in compliance with
the subpoena, and the record shows that the case in which he was subpoenaed was
continued by the court until the later date. The subpoena contained the usual provision
that the witness was "not to depart the court without leave of the court or district attorney."
Cf. R.S. § 877, U.S.C. Tit. 28, § 655. It was the duty of the petitioner to respond to the
subpoena and to remain in attendance until excused by the court or by the government's
representatives.

Decrees affirmed.

MR. JUSTICE ROBERTS took no part in the consideration and decision of this case.

[Footnote 1]

The Act is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That whenever letters rogatory shall issue out of any court of the
United States, either with or without interrogatories addressed to any court of any foreign
country, to take the testimony of any witness, being a citizen of the United States or
domiciled therein, and such witness, having been personally notified by it according to the
practice of such court, to appear and testify pursuant to such letters rogatory and such
witness shall neglect to appear, or having appeared shall decline, refuse or neglect to
answer to any question which may be propounded to him by or under the authority of such
court, to which he would be required to make answer were he being examined before the
court issuing such letters, the court out of which said letters issued may upon proper
showing order that a subpoena issue addressed to any consul of the United States within
t i hi h h it b di h it t b f th
any country in which such witness may be, commanding such witness to appear before the
said court at a time and place therein designated."

"Sec. 2. Whenever the attendance at the trial of any criminal action of a witness, being a
citizen of the United States or domiciled therein, who is beyond the jurisdiction of the
United States, is desired by the Attorney General or any assistant or district attorney acting
under him, its judge of the court before which such action is pending, or who is to sit in the
trial of the same, may, upon proper showing, order that a subpoena issue, addressed to any
consul of the United States within any country in which such witness may be, commanding
such witness to appear before the said court at a time and place therein designated."

"Sec. 3. It shall be the duty of any consul of the United States within any country is which
such witness may be at the request of the clerk of the court issuing any subpoena under this
Act or at the request of the officer causing such subpoena to be issued, to serve the same
personally upon such witness and also to serve any orders to show cause, rules, judgments,
or decrees when requested by the court or United States marshal, and to make a return
thereof to the court out of which the same issued, first tendering to the witness the amount
of his necessary expenses in traveling to and from the place at which the court sits and his
attendance thereon, which amount shall be determined by the judge on issuing the order
for the subpoena and supplied to the consul making the service."

"Sec. 4. If the witness so served shall neglect or refuse to appear as in such subpoena
directed, the court out of which it was issued shall, upon proof being made of the service
and default, issue an order directing the witness to appear before the court at a time in such
order designated to show cause why he should not be adjudged guilty of contempt and be
punished accordingly."

"Sec. 5. Upon issuing such order, the court may, upon the giving of security for any
damages which the recusing witness may have suffered, should the charge be dismissed
(except that no security shall be required of the United States), direct as a part of such
order that the property of the recusing witness at any place within the United States, or so
much thereof in value as the court may direct shall be levied upon and seized by the
marshal of said court in the manner provided by law or the rule of the court for a levy or
seizure under execution, to be held to satisfy any judgment that may be rendered against
such witness in the proceeding so instituted."

"Sec. 6. The marshal, having made such levy, shall thereupon forward to the consul of any
country where the recusing witness may be a copy of the order to show cause why such
witness should not be adjudged guilty of contempt with the request that said consul make
service of the same personally upon the recusing witness, and shall cause to be published
service of the same personally upon the recusing witness, and shall cause to be published
such order to show cause and for the sequestration of the property of such witness, in some
newspaper of general circulation in the district within which the court issuing such order
sits, once each week for six consecutive weeks."

"Sec. 7. On the return day of such order or any later day to which the hearing may by the
court be continued, proof shall be taken, and if the charge of recusancy against the witness
shall be sustained, the court shall adjudge him guilty of contempt and, notwithstanding any
limitation upon the power of the court generally to punish for contempt, impose upon him
a fine not exceeding $100,000 and direct that the amount thereof, with the costs of the
proceeding, be satisfied, unless paid, by a sale of the property of the witness so seized or
levied upon, such sale to be conducted upon the notice required and in the manner
provided for sales upon execution."

"Sec. 8. Any judgment rendered pursuant to this Act upon service by publication only may
be opened for answer within the time and in the manner provided in § 57 of the Judicial
Code."

[Footnote 2]

"The law of Nations does not prevent a state from exercising jurisdiction over its subjects
traveling or residing abroad, since they remain under its personal supremacy."

Oppenheim, International Law (4th ed.) vol. 1, § 145, p. 281; Story, Conflict of Laws (8th
ed.) § 540, p. 755; Moore's International Law Digest, vol. 2, pp. 255, 256; Hyde,
International Law, vol. 1, § 240, p. 424; Borchard, Diplomatic Protection of Citizens
Abroad, § 13, pp. 21, 22.

[Footnote 3]

Compare 13 U. S. 9 Cranch 388, 13 U. S. 422-423; Rose v. Himely, 4 Cranch 241, 8 U. S.

[Footnote 4]

See also Hyde, op. cit., vol. 1, § 381, pp. 668, 669.
[Footnote 5]

The instant case does not present the questions which arise in cases where obligations
inherent in allegiance are not involved. See Pennoyer v. Neff, 95 U. S. 714; Galpin v. Page,
18 Wall. 350, 85 U. S. 369; Harkness v. Hyde, 98 U. S. 476, 98 U. S. 478; Riverside & Dan
River Cotton Mills v. Menefee, 237 U. S. 189, 237 U. S. 193; McDonald v. Mabee, 243 U. S.
90, 243 U. S. 92; Wuchter v. Pizzutti, 276 U. S. 13.

[Footnote 6]

Cf. Dainese v. Hale, 91 U. S. 13, 91 U. S. 15-16; In re Ross, 140 U. S. 453, 140 U. S. 462-463.
See also U.S.C. Tit. 22, § 71 et seq.; Hyde, op. cit., § 488, pp. 828-832.

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