(concurring in the result).
I concur in Judge WASHINGTON’S opinion including Parts I, II, III, IV and so much of Part V as deals with the corrected sentence. I also agree that for the sake of clarity the judgment should be modified to recite mere failure and refusal to appear, although I would construe the words “to answer proper questions” as a statement of purpose rather than as a charge of failure and refusal to answer proper questions.
However, I do not agree with the portion of the opinion which deals with the positions taken by the United States Attorney and by the sentencing court for the reasons: (1) there are no facts before us from which any conclusions can be drawn as to the motivating factors which prompted their actions; and (2) absent such facts I do not believe it should be the function of an appellate court to indicate the procedure or the strategy which an attorney (whether for the prosecution or the defense) should have adopted or the type of sentence which the trial judge should have imposed, unless their actions were beyond the limits of reasonable discretion.
Concededly, De Simone was served on April 28, 1958, he failed to appear on May 7, 1958, the grand jury then issued a presentment for criminal contempt, he appeared on May 19, 1958, and he made no attempt to explain his failure to appear or to account for his whereabouts during the interval. Such conduct would seem to be somewhat inconsistent with subsequent protestations of a desire to purge the contempt. De Simone chose to disregard the law and to appear when it suited his convenience. The investigation of crime and law enforcement would scarcely be benefitted by permitting persons subpoenaed to adopt such an attitude. If the only consequence of a flagrant disregard of the subpoena is to be an opportunity to purge the contempt at the contemnor’s convenience there will be very little respect for the laws or the courts.
As to the failure of the United States Attorney to allow De Simone to present himself before a grand jury, quite apart from its being a matter of his judgment in the light of the facts as he knew them, he might well have felt that such action would be criticized as prejudicial to De Simone since a writ had been issued for his arrest.
Since the sentence was not beyond proper discretion no comment need be made. The trial judge saw De Simone, heard the testimony, and in all probability had the advantage of a probation report.