In Re Darwin Charles Brown

application for enforcement physically and transfer transmit shall certificate, together appli- with the papers herein, filed and all

cations now on file with Clerk

documents proceedings to the

this Court Ap- Court of United States Clerk peals Second Circuit.15 Judge, Tamm, dissented Circuit accordingly. Order opinion. filed BROWN, Appellant. In re Darwin Charles

No. 23037. Appeals, States Court District of Columbia Circuit. 17,1970.

Argued April

Decided Nov. pending already 15. While the instant motion was remanded been this case has Court, purpose before this the Board moved similar Board once requests have the case it for remanded to recon- now Board the one for light remand, sideration of its decision in Lin- doubts we serious another Division, Co., request den Lumber Summer & should Board’s whether However, granted. 190 N.L.R.B. No. L.R.R.M. 1305 Cir- since the Second (June 7, 1971). Whether such motion with the task be faced cuit will granted merits, viewing should be rests in the dis- we sound case on propriety cretion of the court. Ford Motor Co. on the clude that its views NLRB, 364, 369-370, Ac- should control. a further remand long cordingly, 83 L.Ed. 221 Cir- Since a to that shall transfer period already elapsed has remand since the al- motion for a cuit Board’s leged practice occurred, along papers unfair labor since and docu- the other legal purely separates issue this case ments in the case. Lumber, supra, from Linden and since Jackson, Washington,

Mr. Thomas S. Sehaller, C.,D. with whom Mr. James P. Washington, C., brief, onwas D. appellant. Washington, Edgar Bellinger, T. Mr. (appointed D. C. 42(b) Rules Federal under Rule appellee. Procedure), for of Criminal McGOWAN, and ROB- TAMM Before Judges. INSON, Circuit III, letter, ROBINSON, willingness expressed SPOTTSWOOD W. Judge: serve, pointed Circuit out that he was a member of the bar origin This case traces its to an un- specially so would to be admitted episode un- fortunate to which this court accept appointment. order knowingly made a substantial contribu- Upon response of arrival for full tion and which must bear its office, placed symbol clerk’s was the share of blame. an the Under review is appellant not on it to indicate that was attorney’s conviction of criminal a member of our bar. Because of an em- emanating tempt representa- from his error, however, ployee’s information indigent tion in the District Court of an was not card-file ros- transferred to the seeking client on a motion the latter’s result, by ter maintained the clerk. As a custody pending appeal. release an ap- appointing an order later was issued attorney Because the not member was indigent pellant in a for an counsel Court, of of the District the bar he was appeal. criminal Transmitted with the guilty cited for and found of of suggestions order was a checklist of court, and was sentenced to terma Legal instructions, by prepared Aid the jail. part Our the the affair was the Committee of the Bar Association of through appointment, error, clerical Columbia, custo- District which we attorney represent to client on marily ap- send a convenience to out appeal. pondering deeply After on pointed attorneys. called The checklist authorities, the record and the relevant attorney’s possibility attention to the find we conviction during securing freedom the client’s Accordingly, cannot stand. for rea- process, infor- review and included herein, discussed sons reverse. might mation as to such an how effort made.3 be Shortly thereafter, filed and August, the clerk of this court argued for in the District a motion Court practicing sent a letter form attor- appeal. pending the neys his client’s release inquir- in the District of Columbia denied, appellant motion was availability When represent as to their reconsideration, filed a motion for indigents appeal. follow-up letter on A signed was likewise failed. Each motion April, 1968, attorneys was sent in who by appellant Appellant as “Counsel for previously responded. had not One such Ap- Appointed by United Court appellant,1 letter reached who held mem- peals Cir- for the District Columbia bership courts,2 in the bars of several appellant make cuit.” At no time did though locally, not maintained and who pur- representation other as to reply an office In a District. you may qualify relief, able for such be 1. It seems the clerk’s first communica- obtain a on certain conditions August, release tion —of never re- 1967 —was custody.” It by or bail bond or limited appellant. ceived requirement of Fed.R. referred to the Appellant was member of the bars of App.P. 9(b) that motions for release Supreme Court appeal presented pending be to and dis- Appeals States Court judges prior posed to consid- trial Circuit, Ninth Dis- the United States appeals. It con- eration courts of trict California, for the Northern District of tinued : United States Court inquire Court file or Check District Appeals, Military and others. determine whether of trial counsel and ap- application pending release to the 3. The checklist directed attention peal provisions District made in the has been Bail Reform Act of and, so, II, seq. (Supp. with what If if results. 3146 et 18 U.S.C. § made, 1965-66), been such motion has and admonished that counsel desired, pending appeal it will “may lease the release of be able to obtain you necessary recognizance personal to file and pellant or un- District Court. appearance motion in the fails to If he secured bond. ported appear regard points, Dis- in the two or that with to the points trict Court. sentence. treat the other two We subsequent opinion. sections of this application subsequently-filed While a seeking pending release was II appointing the error in imposes Our Constitution on criminal discovered, appoint- the order of processes well known limitations which immediately ment Two vacated.4 legal systems. do not obtain in other later, Judge had months who surprising, then, is not that the Federal disposed appointed, motions of the bail Legislature responsively would act sponte, attorney apply sua for an general scope demarcate the of federal why appellant order to should show cause contempt. very held in court.5 Judiciary Act, Congress gave first application made, cause or- show power pun- federal courts unbounded issued, proceed- der was and matter 1831, contempt,6 ish criminal but in history, hearing. indicated, ed to appellant As we have early still in the Nation’s cir- guilty contempt was found exercise,7 cumscribed its and as re- so days and sentenced to serve 45 today. stricted it remains The current jail. followed, appeal This the Dis- with 8 authorizing statute Judge’s appellee. trict selectee as passed is based on Act in 1831 [the] in order to correct abuses serious Appellant grounds for submits three summary contempt power that had by (a) reversal of the conviction: grown up and was intended as a by appointment virtue of his “drastic delimitation ... prosecute his was authorized to power broad undefined of the in- application client’s release in the District ferior federal courts Act of under the Court; charge (b) that 1789,” revealing Congressional “a in- by judge should other have been heard safeguard tent pro- Constitutional ap- than the one he had before whom by limiting courts, cedures gress as Con- peared purpose; for that (c) and contempt cases, is limited in guilt prerequisite kind of intent possible power adequate ‘the least proven of criminal was not be- ” 9 proposed.’ the end yond Alternatively, a reasonable doubt. “ ‘ argues by that the sentence was For he exercise federal courts [t] any contempt power excessive and should reduced. We broader than that, beyond great permit think the contention toas in- . would too intent, grave ques- criminal procedural safeguards there are roads on the respects ap- Rights, tions as to contempts whether other the Bill of summary since pellant’s substantively nature, conduct amounted in their de- leave contempt. guilt to criminal judge We find it un- termination of to a rather ” 10 necessary appellant’s jury.’ to consider first than a appellant’s appointed (1964), quoted stead we his law- U.S.O. in text partner, following who was a member of our bar. note 11. infra latter, however, The because of the short- McConnell, 230, 233-234, In re 370 U.S. unfamiliarity ness of time and his 1288, (1962), quot- S.Ct. 8 L.Ed.2d case, open ap- moved court 224, Michael, In re pellant permitted himself be (1945) (footnotes 78, 90 L.Ed. 30 S.Ct. omitted). granted motion before We us. Michael, supra; also In re quest appellant presented argu- Nye 313 U.S. 45- ment. (1941). 42(b). 5. Pursuant to Fed.it.Crim.P. McConnell, supra 10. In re note 370 U.S. (1789). 1291, quoting 1 Stat. See Green at 165, 169, Michael, supra note 78 S. (footnote omitted). Ct. L.Ed.2d 672 66 S.Ct. at 79-80 7. 4 Stat. 487 distinguish then, divisions; starting point, does not Our among statute,

general them, presumably de- large part fense an provides: rested 401.11 It U.S.C. § failure contuma- of the evidence to show shall A court the United intent, prerequisite all cious im- power punish fine or three subdivisions.13 discretion, prisonment, at its other, authority, none tempt its affairs, state of In this we test as— conviction all three subdi long. any person need not (1) visions. detain us Misbehavior of One is clear that the second does presence or near thereto as to subdivision its so for, justice; as the not cover the situation at the administration bar obstruct Supreme held, attorney is Court has (2) Misbehavior of its offi- officer of the within the transactions; in their cers official ' meaning provision.14 of its We (3) Disobedience or resistance to look, then, 3 for a to subdivisions writ, process, order, rule, lawful de- basis for the conviction. cree, or command. Ill And it is from four within the corners provision of this that we must draw design of the first subdivision substance of the offense for which obvious is manifest. Its Section pellant has been convicted.12 purpose prevent of the obstructions is to terms, justice; of its administration Nowhere the record under does contemptu- the to be misconduct specify take to which of the three sub to ous such character “as must achieve sought divisions of was Section 401 to jus- the administration obstruct implemented in this case. Neither Hudgings16 parte the tice.” inAs Ex applica the order to show nor the cause Supreme Court declared: specific tion therefor makes a reference. performance to Judge An obstruction the The District stated that “[t]he resulting judicial duty an act question [appellant] is whether has wil is, presence the court fully done in presence the contemptuous in been the the then, upon which language the characteristic of the Court. That is the contempt must power punish statute;” to for the this would seem to invoke being true, it follows argument rest. subdivision, This first hearing suggested. presence of element Appellee’s brief every clearly where case shown mentions both the first and third sub- types defined 11. misconduct 18 U.S.C. as a codified com- panion provision, other.” application “and none three subdivisions has no operates only this where a “law- case. intent an essential 13. criminal While writ, process, order, rule, decree, ful or subdi- three each of the under element of a command” federal or District necessary explore visions, find wilfully disobeyed by Columbia court only in connection thereon evidence an act which is “of character such as to IV, See Part the third. infra. .with constitute also a criminal offense under neither other That for reasons is because statute of [a] the United States or un- can be subdivisions second first nor der the laws [a] State which the applied text this case. infra Assuming was act committed.” even that III, note Part 14 and infra. appellant’s appearance unlicensed infringed District Court a “rule” States, 350 Cammer “command” court within the mean- 404-408, L.Ed. 474 section, this see text at note infra 3,3, constituting we have found statute independent following swpra it an offense. 15. Text note imposes Section 401 itself limita- by extending contempt power tion power punish justice. contempt Appel- of the administration of ,17 appearance exerted. . . lant’s the District Court seeking as counsel on the motions release judge case, In that a trial held a wit- judicial disrupt proceedings, did not giving ness in criminal expense delay.22 produce cause On judge’s perjured what in the view was contrary, his activities moved the testimony. The held that to avoid along. pending appeal matter of release procedural safeguards of a full-dress accepted compliance his We efforts as a trial and convict the witness of requirement applications with the perjury, rather than add- “there must be presented of that kind first be perjury ed to the essential elements of court,23 way paving trial thus . further element of ob- application for consideration of the anew performance struction to the court in the immediately. Appellee con- duty.” of its Commitment wit- tends, however, that the administration power ness was held void for excess of justice may have been obstructed be- punishment imposed because “the might cause client later raise supposed perjury alone without an issue of ineffective assistance of any reference to circumstance or condi- upset conviction, counsel and giving tion it an obstructive effect.”19 appeal. we affirmed on But record application Hudgings cases finding before us contains neither nor arising 401(1) con- Section appellant’s representation evidence that McConnell,20 firmed which also on the motions for release was consti- resulted in reversal of a tutionally inadequate merely There, lawyer viction. had been or- was not a bar, member of the local dered to refrain from a certain line of any difficulty we would in event have questioning witnesses, to which proposition general- as a lawyer replied that he would not “unless ity. stops some point bailiff At us.” lawyer called, a recess was never and the Appellant, said, as we have had questions, returned to the forbidden so qualified practice in other of courts his threat was never fulfilled. The Su- high standing.24 litiga Participation in preme Court, relying Hudgings, em- litigation by tion—even criminal non — phasized “clearly it that must be shown” of simply by members the local bar ob justice” “an actual of obstruction taining leave of court is a common event attorney occurred.21 Since the not did in this and other courts. We never have question- resume the forbidden line of felt appearances that as a class these ing, the Court concluded that no such per obstructive; indeed, se ineffective interference had been shown. pointed out, permitted we have we us, In the case before was like- there application showing wise no of an actual obstruction Fletcher, App.D.C. 108, 383, 71 17. 107 Id. at 39 S.Ct. at 339. cert, denied, 666, 510, F.2d 308 60 U.S. 18. Id. 119, (1939) ; 84 S.Ct. L.Ed. 435 Bowles 384, Laws, App.D.C. 399, 19. Id. at 59 F.2d 39 at v. 45 669 S.Ct. 340. (1930). attorney In such eases the acts Supra 20. note. 9. disbarment, in defiance of the order of 234, 21. contempt authority at S.Ct. at 1291. and so the conferred by (3) of 401 becomes ex subdivision Compare In re McConnell In re irrespective any consequent of ercisable Michael, supra discussed in text at notes jus obstruction of the administration of 16-21. IV, tice. Part also See See infra. FedJR.App.P. 9(b). See supra 6, note Green 632, 168-172, 2, supra. distinguish, See note We of L.Ed.2d 672. course, attorney cases wherein a disbarred legal representation. g., undertakes E. recently punish contempts prevails Quite it than as crimes release.25 court can federal courts.29 Those cases fed representation aof held that acoepted guideposts de attorney not for the not a eral defendant cision to made here. of did not the federal bar member of assistance.26 amount to ineffective itself brought Thus we are back rep Moreover, appellant did not since expressed. Absent the conclusion earlier any trial, or on the client resent any finding to warrant a evidence appeal aspect than other actual obstruction the administration release, how fail see motion for we justice, there can be violation collaterally representation could be We first subdivision Section 401. con produce a reversal attacked to theoretical, actual, think clear not application And both the viction. since any test, obstruction and that disposed appeal were for release prec proven claimed obstruction must be long representa ago, calibre appellant may isely.30 Here, have while completely application on that tion engaged in the unauthorized moot. showing law, there has been no actually occurred. such obstruction apparently presented issue to us The conviction, therefore, Appellant’s cannot previously federal arisen has be sustained under subdivision 1. system. lawyers appear realize We membership and local bar without IV have been held without leave remaining statutory basis some state courts. upon appellant’s could conviction instances, however, have the courts those possibly be sustained is the third subdi- proceeded specific upon of a the basis vision of That subdivision Section 401. authorizing statute,27 con a broader punish as a authorizes federal courts to here,28 tempt than statute “[djisobedience contempt any expansive judicial power view more Fitzpat g., 29. E. Bar Ass’n v. Bessemer supra. 4, note 733, rick, 735-737 So. Ala. F.Supp. 26. Farr (1940) ; Bar Ass’n v. Au Rhode Island (W.D.Mo.1970), aff’d, 436 Ass’n, A. 55 R.I. tomobile Serv. cert, (8th Cir.), denied, F.2d ; (1935) re 100 A.L.R. 29 L.Ed.2d Morse, 550, 552, 126 A. 98 Vt. appellee cites The authorities Murphy But see A.L.R. 527 argument repre Townley, N.W. 67 N.D. was a violation of client’s sentation (1937). opposing fed For the 860-862 support rights not Sixth do Amendment law, supra. II, And see eral see Part proposition. Like own decision our App.D.C. 255, Mozie, 82 Heiskell 65 v. in Harrison v. United App.D.C. 230, 123 U.S. contempt (1936), sustaining the F.2d 861 they (1965), F.2d 214 359 Municipal Court of conviction in lawyers. laymen posing all involved laya real estate District of Columbia of by appellee, the the two state cases cited prosecuting agent behalf of argument ineffective assistance dispossession landlord-principal action particular on the counsel was decided violation of the court’s rules. Section Higgins Parker, facts 354 involved. v. that court involved since 401 not cert, denied, 668, 888, 191 S.W.2d Mo. was not court of States” “[a] United 902, 66 S.Ct. 327 U.S. point opinion observes, and, “[n]o as the (1946) ; People Cox, 12 Ill.2d municipal power is made of (1957). N.E.2d 22-23 punish committed court presence.” Matthews, g., Id. at 82 F.2d 27. Idaho E. (1936) ; In re 863. P.2d Bailey, 111 A.L.R. 365, 146 Mont. P. supra See also text at notes 15-21. McClure, U.S.App.D.C. g., Oregon re Bar E. ex rel. State State ; (1971) States v. F.2d 836 Lenske, P.2d 243 Or. 1965). cert, (7th Sopher, denied, F.2d 415 (1965), Cir. 253-254 1028, 16 L.Ed.2d usually writ, process, which its sanctions from or to its draws resistance lawful decree, pause, order, rule, other ever, do not how- or At sources.33 We command.” question appellant appeared Dis- to consider the for there the time in the apply- Court, specified an even serious obstacle to more trict its Rule 96 person in the subdivision 3 circumstances who is not member “[n]o engage here. “shall the Bar of” that court general practice of law in the Dis- The foundation for the criminal only theory trict of Columbia.” protect power need to is the underpin on which subdivision 3 would judicial process impositions, from wilful the conviction is that it was activated particularly designed those to hobble a violation of Rule 96. machinery justice.34 normal Where wrongful intent, there remedial is no theory, however, That like others qualities gener of civil would herein, discussed difficulties. encounters ally appear not rele to be the most arises, outset, question There at the fully adequate. vant That but also to be noncompliance whether a with Rule 96 setting would so in seem all the more is a disobedience of “rule” within the long standing congressional of a will to meaning every of subdivision 3. Since restrict to “the least federal courts other directive which the subdivision possible contempt] power ade [criminal speaks process, order, “writ, of— quate proposed.”35 to the end To re decree, or command”—is one which power serve exercise of that to conduct specifically particular per- addressed to a acutely demanding it adhere is but to group traditionally son or and one which underlying policy spirit to the through has been enforceable the con- legislative grant.36 tempt power, may be that the “rule” to which subdivision 3 refers is the rule then, surprisingly, Not one process in the sense—the rule to show degree wrong finds that a of intentional cause, nisi, the rule and the like—rather doing ingredient is an of the offense of general, standing than a rule contempt.37 Only recently supra following See text note 11. legislative history totally unilluminat- ing. Compare, however, language 32. Rule 96 read : (“rule (1964) . . . 18 U.S.C. person No who is not a member of the brought entered in suit or action Bar of the United States District Court States”). . Use for the District of Columbia shall en- contempt power the criminal to vindicate gage general practice in the of law in ar- violations rules Columbia, repre- the District of or shall power guably expand beyond would sent or hold or himself herself out di- congressional contemplation given and in rectly indirectly being entitled or produce results. cases would monstrous engage general authorized has, however, been held that a tele- practice of law in the District of Co- photographer’s contempt con- vision news apply This rule shall lumbia. viction for of what was de- disobedience practice before other federal courts or against standing court order nominated departments, government executive taking photographs in the court- boards, commissions, agencies, or to building house could be rested on subdi- holding right out of the Seymour States, United vision 3. v. before such other federal courts or ex- (5th 1967). F.2d 629 373 Cir. departments government ecutive boards, commissions, agencies. 34. the cases cited 38-40. See notes infra superseded 11, Rule 96 was on March Dunn, (6 Wheat.) 35. Anderson v. 19 U.S. present 1969, by 93(j), Rule which is of (1821). 204, 231, 5 242 See al general purport change the same with some II, supra. so Part exemption respect of the earlier attorneys maintaining reg- Nye States, supra Compare law offices or 36. v. United 9, 810, ular 51-52, connections with established law of- 61 note 313 S.Ct. U.S. fices in the District. 85 L.Ed. 1172. present phraseology 33. 38-40, The is derived from 37. See the cases cited 395, 385, findings 46. in 1 L.Ed.2d The toto are: S.Ct. 415 77 (1957) ; is The Court finds that Mr. Brown United States ex Shell rel. Oil Court, Corp., a Bar of Barco not member this 430 F.2d 1002 Co. (8th vice, 1970). pro he was not admitted hac Cir. disregard contemptuous a of the District as with sure that and cannot be we That conclu Judge fun- District Court’s Rule 96. The more equated the two.47 sion, however, think, the con fortified question, is whether is damental side-by-side that when laid sideration the evidence adduced beyond appointment in finding read hearing with the order a could sustain conjunction appellant Justice with Criminal enter- doubt reasonable meaning 64,48 of Rule 96 is Act of 19 intent. be- a contumacious We tained fully precise.49 An inferred fact not. lieve that it does fact,-50 proven find with a must its nexus Surely we have the events and a of crime cannot rest conviction far would that effect. So recited not have guilt supports more evidence that no regard anything ap they in reflect than innocence.51 they mind, pellant’s as con are state of any oth- abiding though referred to perhaps Nor have we been sistent with in view er record which our misplaced appointment events of confidence in our Uncertainty otherwise, also office in the District. the rules of this Court appellant in fact arises a motion before the Court sponded Porter; suggestions from this that he of Daniel the case argued which ho took as his commission to a motion to this Court and special presence in a in the District Court on November Court’s licar capacity. light, 1968; In this our instructions action was wilful. that his appellant, appointed, may guilty as counsel we verdict of The. enters a Court applicability beyond have beclouded the of the a reasonable for act doubt contempt. District Court him. rules to noting, too, question dealing that “be It seems worth his with the may punished wilfulness, fore one considered Court has order, violating apply terms of such court that wo in all crim- the standards specific, juries. order bo clear and and should inal cases uncertainty the minds leave no doubt or During argument, judge gave 47. oral whom it is addressed.” Mc those to a clue as to his definition of wilfulness. States, v. United Farland F. Ho said: (7th 1933). NLRB v. Deena See Cir. think, question, It is a not of wheth- (6th Artware, Inc., 261 F.2d obnoxious, personally er been he has sufficiently 1958) (order def “not Cir. anything kind, you of that inite”) and citations therein. would suggesting. question is whether standing that a seem to follow wilfully contemptuous in been he has rule, order, than a court no less presence of the That Court. requirement before its meet language When statute. an exercise of violation could summon person Court, appears knowing contempt power. the criminal admitted, argues is not mo- lie tion, presence Johnson, United States v. U.S. 54, 62-63, App.D.C. he is unauthorized to be there and F.2d 1168- appearance is wilful. U.S.App. (1964), 51. Carter 3006A 78 Stat. U.S.C. 231-232, F.2d 612- the Act is that D.C. The relevance of (1957), requirement in note 4 cases cited it that counsel contains appointed indigent therein. for an have member- ship in the local bar. Appellee points to a conviction suffered, presents previously sec Brown had The construction Rule 96 (D.C.Cir. 19,460 Dec. No. difficulties in the circumstances of this United 2, 1906), cert, denied, pitched case it to “the terms (1967), general practice District,” aas L.Ed.2d 472 of law in the might 32, supra, arguably have influenced see circumstance note and thus application apply special formal his action since does not the area of a probably appointment would admission received. ns brought light. separate pro- The conviction This is reinforced evidence, put not, however, and the into vision ing, Rule allow- judge exception rigors took show record does not to the formal ns an judicial attorney admission, plead- it. We must accord notice of to file disregard Appellee ingly also ings papers though has it. even he has no supply beyond contempt power hearing, a rea- could an inference could here purpose. required sonable intent exercised for that doubt We hold present. Appellee relies, appar- that it not. could ently did, stip- upon the District judgment appealed from is re- contempt hearing ap- ulation at the versed, and case remanded to pellant authority that he lacked knew District Court with directions to dis- appear in the District Court otherwise charge the order to show cause. appointment may than as our order of Reversed. it, stipulation have conferred but nothing. adds little or question throughout The essential TAMM, Judge (dissenting): Circuit litigation has significance, context, been the in total Appraisal of conduct to consti- gave appointment always tute criminal of court is stipulation order. The negate does not tend to judicial difficult the dearth of good faith belief that the order constituting definition of the elements authority armed him with incidental prohibited the Judge conduct. The District move for his client’s release in the Dis- present in our case acted initi- trict Court. And whatever could said ating contempt proceedings these approach as to what a more careful 42(b) authority of Rule of the Fed- accomplished, would have Procedure, eral Rules of Criminal say probe cannot deeply that his failure more procedural that rule is and authoritative authority to enter the District prohibited rather than definitive of Court makes for the kind of intent that statutory duct. The of con- definition is essential to a conviction criminal tempt appears federal courts contempt.53 Code, Title 18 of the United sec- States provision tion 401.1 This serves basical- recently haveWe voiced our ly upon a limitation the area in which agreement lawyer “that a held must be judge may punish a authority. of his high accountability standard of Green v. may deliberately recklessly that he L.Ed.2d 672 authority dignity flout the (1958), adequately recounts the histori- court,”54 and that “if he does so he perspective cal and makes this statute subject disciplinary should be ac widely trepidation understandable the tion.” The District author Court has danger continuing regarding held ity, course, to maintain its freedom arbitrarily too broad law, from unauthorized punish summarily contempt nothing herein is to be taken as judges. hands of contrary. indication to the The sole is presented appeal whether, general terms, then, sue on this criminal con- evidentiary showing doing on the tempt made at the of acts which consists alluded several times to the fact Id. F.2d at at pellant testify did not at hearing. (1964) contempt proceeding : Since the 1. 18 U.S.C. nature, A court of the shall inference from power jiunisli im- that occurrence fine or can be tolerated. Grif- prisonment, discretion, California, fin at such con- other, tempt authority, none of its L.Ed.2d 106 as—(cid:127) requisite may 53. “The intent of course be any person (1) in its Misbehavior lawyer’s inferred if a conduct discloses a presence to ob- near thereto as so disregard professional reckless for his justice; the administration struct duty.” Sykes supra (2) Misbehavior of its officers U.S.App.D.C. note F. ; their official transactions 2d at 930. The evidence does not reach (3) resistance to its Disobedience or level here. rule, decree, writ, process, order, lawful Id. 444 F.2d at or command. court, judicial power disrespect proc- of as of the its is an attribute evidence judge. indispensable a inherent and and which “obstruct esses or its rules justice, or to the bring of tend administration Nevitt, supra, at 455. The re F. disrespect.” Black’s court into the long ago Supreme the described Court 1957). Dictionary (4th Law ed. It contempt power the as follows: nature of prosecuted embraces conduct which is contempts power punish The to for preserve power “to and vindicate the the courts; its existence inherent in all courts, punish dignity for of the and to preservation or- the of is essential to orders”; pow- the of their disobedience judicial proceedings, and the der in to nature, “punitive and the er in [its] orders, judgments, enforcement government, people courts, the and the courts, and writs the and conse- of prosecution.” In interested [its] quently to due of the administration (8th Nevitt, Cir. re F. justice. the courts of The moment 1902). “A involves called ex- the States were into personal injury. of It di- no element jurisdiction and istence invested with against dignity power of rected the and subject, they pos- any over became court, parties private have little the and power. of sessed this proceedings for its if interest in the Wall.) Robinson, (19 parte Ex punishment.” 459.) {Id. frightening historic fear the The Williams, also 36 Miss. Watson v. power punish will be to for (1858): heretofore, has, re- as indicated abused imprison power for fine and The to Congressional upon restraint sulted in history contempt, of earliest the from authority, of since sec- the exercise this regarded jurisprudence, as a has been power confines the tion 401 of Title 18 necessary a and attribute of incident punish factu- to the three enumerated no more which it could without re- al “and none other.” As a situations judge. exist than without judges punitive limit ac- sult their record, power of in all inherent courts by Congress; permitted but tion to that coexisting with them the wise and authority exercising curtailed provisions A the common law. inher- their act area where courts effectually power court without power ent derives not protect against assaults itself congress , . . . acts orders, lawless, or to enforce grant from the to them of all against re- judgments, decrees judicial power of the nation section it, parties would be cusant before constitution, which article 3 of stig- disgrace legislation, and judicial power of declares that “[t]he age upon it. which invented ma United States shall be vested one Congress placed the exclusive has supreme and such inferior sponsibility for admission congress may as the from time courts jurisdiction the United of law in this and The time ordain establish.” for the District District Court States grant judicial power (1967).2 11 D.C.Code Columbia. § ex vi these courts responsibility, In exercise of that authority termini them vested pub- promulgated and had District Court to enforce to their orders obedience provided punish its local Rule lished and to disobedience de- herein authority by incidents tempt fine time of the their imprisonment, scribed qualification, examination, (1967) admis-

2. 11 D.C.Code : membership persons in its District sion United States censure, suspension, may bar, and their the District of make Columbia proper respecting expulsion. . rules deems great potential public person who is not a member misunderstand- [n]o prac- of the exact of individual the Bar of United States status titioners. the District Columbia While condition has re- engage general practice patina time, of of in the ceived the and while this shall Columbia, majority or in the of vast of of the law the members specialized represent meticulously or himself or her- avoid shall hold bars being directly misrepresentation indirectly or and self out to their status engage conscientiously accept in the entitled or authorized to to be- refuse cases general practice yond compe- of law the District their areas of and apply tence, danger This shall not there of Columbia. rule still the exists practice to before other federal courts isolated the Dis- cases non-member of government accept departments, professional or trict Bar will em- executive boards, commissions, agencies, ployment or to in a field in which or of the law holding right practice the out of to skill has not been tested and certified the ex- other admission to the There can before such federal courts or local bar. government abnegation departments proper no or of the District ecutive agencies.3 responsibility boards, commissions, public, Court’s to the or bar, judiciary prevent and the to part quoted rule was The latter of the Although it unfortunate occurrences. jurisdiction required by having authority would seem that “specialized there are numerous bars” prescribe to the the rules for admission practice members either before whose bar the District Court would (e. agencies, g., administrative various alleviating oppor- powerful hand in practicing Bar” “Communications law, illegal practice ex- tunities of Federal Communications before taught perience has that control Commission) government de- or before of are two reins and control horse (e. prac- partments g., the “Patent Bar” things. Court, different The District ticing only before Patent Office constantly then, prob- deal with Appeals), of and Patent Court Customs recog- lems of real situation while lawyers specialist in addition to those nizing ignorance public’s of practice other who before the several parent. enough “It is not the doors courts located the District of Colum- temple justice open; it is are Court, (e. Claims, g., Court Tax bia ways approach be essential Military etc.). Appeals, There King, kept clean.” Hatfield v. naturally considerable confusion 162, 168, 479, 477, L.Ed. 481 22 S.Ct. 46 just public mind as to is embraced what generic “lawyer,” ad- term and the confronting Court, predeces problems like its ministrative The District dealing prevent sor, inexperienced with District Court in its is not efforts arising being problems in its ef public from as to the the multifold misled many ways approach” keep persons “the exact who are forts status “clean,” “lawyers,” author specialized purposes and its its facilities strictly “general practice in accord ized bar’s who not admitted are professional law,” complex susceptible established standards. are U.S.App. Morgan States, efforts, easy United 114 final its solution. cert, 13, (1962), statutory de then, properly discharge F.2d 234 D.C. 309 984, 1353, nied, 14 L. simultaneously responsibilities 380 85 S.Ct. U.S. to rec- (1965); v. Hen ognize incongruous Ed.2d 276 and tolerate a most (1959); Off resulting D.C., F.Supp. regrettable 474 son, 179 from the situation 69, U.S.App.D.C. States, “lawyers” 98 many Washington v. United utt fact that (1956); v. United Jones bar, F.2d 69 the District 232 local not members U.S.App.D.C. F.2d 109,151 acutely to the must remain alert present 93(j) replaced on March Rule 3. Local Rule 96 was object purpose tempt with the U.S. (1945); Klein v. exacting a character (1945); from the witness App.D.C. 106, 151 F.2d testimony would the court U.S.App. Laughlin States, 80 truthful; cert, and thus to be denied, deem 151 F.2d D.C. potentiality pass come to would 265, 90 U.S. wrong result oppression would Eicher, U.S.App. (1945); Laughlin v. when the citizen freedom of (1944), and the de cert. F.2d 700 D.C. in a would called as witness nied, S.Ct. gravely imperiled. Fletcher, (1945); L.Ed. 1985 (1939), cert. App.D.C. F.2d Indeed, provision when the . . . 593, 84 denied, directing of the commitment Laws, (1940); v. L.Ed. Bowles punishment en- continue to be should (1930), cert. App.D.C. is, 45 F.2d 669 contempt, the until forced the denied, S.Ct. U.S. impression perjury, purged, the was Miller, (1931); L.Ed. 1452 Brown necessarily it assumed was arises App.D.C. 330, 286 F. 994 power to the wit- existed hold the pun- in confinement the ness Judge’s here con- The District decision give a ishment until he consented to attempt achieve these stituted to another testimony of which character salutary goals, a I it was believe per- opinion of the would not be court begin with, agree with valid To I one. jured. attorney’s appear- his that an conclusion knowing 340.) ance in has no author- (249 In at at U.S. “ appear ity to isbehavior [m] [commit- rather the noted that Michael Court presence or so near ted the being court’s] summar- than tried for thereto as obstruct the administration to in- petitioner ily, the “could have been 401(1). my justice.” U.S.C. a [perjury], event dicted for in which by majority opinion, proper the eases cited jury tribu- would been compel say do not a conclusion. different nal or other witnesses to whether he parte Hudgings, 226-227, Ex 249 U.S. (326 at told the truth.” (1919) say 79.) S.Ct. to went on L.Ed. at It then S.Ct. Michael, following: 326 U.S. S.Ct. (1945) pri- 90 L.Ed. 30 were based True, upon the Act of 1831 carries marily grounds are not all which purpose leave the courts to face the alleg- present relevant to our case. ample power protect adminis- to edly contumacious conduct involved in justice against immediate tration giving per- these cases was a witness’ interruption But of its business. holding jured testimony. this history in the Act’s references to that conduct did not constitute when Congression- case, Nye supra, reveal a physical there was obstruction safeguard al constitutional intent justice,4 Supreme administration courts, by limiting procedures con- clearly appre- was motivated gress cases, is limited hension that intimi- witnesses would be adequate to possible power “the least opposite if dated result were reached. proposed.” Anderson end Thus, Hudgings, said: the Court Dunn, 204, 231. The exercise 6 Wheat. true, conception it If were would broader federal courts permit follow that when court entertained tempt power than would opinion witness testi- great procedural inroads on too fying untruthfully power would safeguards Rights, since Bill of summary na- impose punishment contempts

result in their for con- (cid:127) rendering question 4. There his was no obstruction of the adminis- before false justice each tration case on the merits case. decision judge testimony concluded that ture, guilt allegedly McConnell’s and leave determination of conduct obstructed trial, was, course, possible judge jury. than a and it rather setting to determine at that we trial whether this con- Constitutional duct was in fact obstructive. must resolve the here raised. Where an issues attorney has defended an crim- (326 79, 80.) 66 S.Ct. at so, inal however, without to do Reading quotations these Mi- two deception gomay his undiscovered at tri- together, chael clear seems the Court al, yet inadequate form for an the basis by jury following felt that trial indict- representation of claim counsel “adequate” punish perjury ment was post-convic- can be raised on a motion for physical when there nowas obstruction long corpus tion or habeas relief after justice Congress and that therefore example the trial has been held. The grant must not have intended to give precisely case, is not our because the danger- unnecessary courts an and even appeared in here the District power punish ous this same conduct a motion for release contempt. also Clark pending appeal, client on bail 1, 11-12, this issue is now moot. I believe the ex- pos- The substantial ample does nonetheless demonstrate that sibility would that detrimental effects the rule laid down in McConnell was not contempt power summary result if the apply allegedly meant to the con- where punish perjury were thus used was tumacious that it conduct is such cannot paramount the in consideration both be the determined at trial whether ad- Michael, Hudgings for this rea- justice ministration of will be obstruct- son I do not believe these decisions cast ed, certainly and this in our true case. any light on the case before us. My example McConnell, I me into also feel that In re also leads ground distinguishing second 8 L.Ed.2d 434 Mc- (1961), majority In on which the seems to Connell. McConnell the con- reliance, through place temnor, by following greatest on his is not con- not allegedly asking ques- trolling contuma- threat tions, forbidden here. continue physical in a conduct involved McConnell was determined whether ob- cious attorney by justice In our a remark ef- struction occurred. made to the asking ques- example and in in fect that case discussed he would continue however, preceding judge paragraph, it is had im- tions which the ruled were vagaries proper. system which A recess was deter- short called after lawyer justice physically made, this mine ob- remark was and the whether Assume, carry example, did threat that in not out his structed. when judge case the had trial resumed. these our On facts District Su- preme during attorney’s the hear- discovered ing the course of Court reversed con- conviction, holding tempt not him was a an actual before justice required member of judge of the court. The obstruction of was be- the bar might person fore a held have discontinued the could be well hearing lawyer 401(1). properly until a admitted under section case, appointed Although language opinion actual, there would thus have been appears general rule, to set forth a I physical justice which was obstruction say do not believe the Court meant to 401(1). This actionable under section being physical obstruction the admin- case, extremely diffi- find it I justice istration of be shown say cult to go conduct should that identical 401(1) every bring into case to section merely unpunished the Dis- operation. supra, McConnell, judge aware of it at trict was not (Harlan, 82 S.Ct. 1288 it the time occurred. dissenting). why J., reason reach One I for distin- this final basis that such a The third and conclusion is rule would guishing to the defi- relates McConnell unworkable in some circumstances. “ phrase profound in- nition isbehavior tern” that a more sense [m] [ing] justice. . the administra- obstructed the administration of obstruct (Id. 476.) justice.” phrase tion of I read this which, encompassing conduct while it summary, I then believe may physically a trial not obstruct charged conduct which with judicial appeal, threatens nonetheless danger poses disruption serious system as a whole. The conduct involved judicial process the ently inher- and is also so threat, pose does not such a McConnell system judicial detrimental to the lawyer’s appearance in but I believe a it obstructs the administration of disregard complete of that justice regard without whether does, regarding court’s rules admission disruption Accordingly, occurred. should held thus contumacious Judge correctly believe the District 401(1). Support section cluded that such conduct is actionable is found in several belief federal cases. 401(1).5 under section Bowles United 50 F.2d 848 agree Judge’s I also (4th 1929), Cir. the Fourth Circuit held holding that the conduct at issue here it was for an individual dis- evidenced a contumacious intent. This barred the District of Columbia appellant, knowing that permission obtain a federal court’s member the bar of the District Court represent falsely by a criminal defendant appear and that he had no stating that he awas member of the bar conceivably provid- there other than that Significantly, of the District. “law- order, ed this court’s un- nevertheless yer’s” conduct did not the ad- obstruct lawyer dertook to act as a in the District justice ministration of in the narrow appearance Court. ca- While his sense in majority. which this term is used pacity informing without first the Dis- an Bowles not aberration may trict Court his exact status not law, supra, Allen, for in v. Clark se, contempt per be I believe the trier general Justice cited it for the Cardozo of fact was entitled to infer from this proposition “[djeceit by that an attor- appellant knowingly appeared action that ney may punished contempt be if authority. majority without The reach- the deceit is an abuse of the functions of opposite es the result because it feels (Id., his office.” 289 U.S. at 53 S.Ct. might appellant inno- well have been 468.) Temple, at United States v. 349 cently mistaken as to the effect of his (4th 1965) F.2d 116 likewise held Cir. appointment by support this court. lying attorney that an constitutes con- majority position, of its sets forth tempt. Finally, in United v. Hen- ingenious legal theory ap- a rather which son, F.Supp. (D.D.C.1959), our pellant upon could have relied in assum- lawyer District Court held that a com- gave authority appointment him his mitted dis- where he did not appear to ever, in the District Court. How- knowledge close to the court that a his credibility suppose it that strains juror had learned the facts of the case. legal appellant propound would this the- Temple, inAs Bowles and court did ory inquiring simply rather than as to though so even there had been no “tech- appear whether he authorized to was justice; appar- nical” obstruction of it impor- More motion. ently deeply tantly, support felt conduct “cuts so the evidence not does appear- sys- conclusion that he judicial believed his into the core of heart’s our Seymour States, attorney’s appearance F.2d in An the District (5th 1967). However, may I since Cir. in of Rule also violation qualifies 401(3) feel conduct this be actionable under section unnecessary 401(1), contempt any “[(Disobedience section defines as question. writ, me this for to decide court’s] or resistance lawful [the rule, process, order, deci'ee, command.” ings” against judge require District anee Court was author- him as to any way. as “an ized in his letter to actor in the involved events” to assigned appellant proceedings for clerk this said that have the dis (Brief specially position by judge. he to be admitted for “would have another thereby basically Appellant 22.) accept appointment,” indi- I an While at cating ap- against correctly proceedings believed an believe that that he attor indigent pointment represent neys pres an did committed convey appear not ence of the itself court the better subsequently judge non-participant court. he to have a The letter hold adjudication hearing, pre office ceived from the clerk’s contained the I am not represent pared appointing him to one order hold that this is absolute Porter, that Daniel order stated rule which in all this followed cases. appellant accept “a member the bar the mandate of Cooke v. United was (J.A. 8, 10) (Emphasis this 45 S.Ct. court.” 69 L. added.) (1925), Appellant Ed. was thus on notice not because it is binding upon me, appointed him the er- also because I the court rec ognize already assumption he inherent wisdom roneous fairness. In view of of its bar. member The Cooke doctrine holds that “where glaring appearing in the order mistake impracticable, conditions do make it not appointing appellant, it is difficult delay may injure pub or where the could me to how order understand private right, upon judge, lic or called original have altered belief contempt by per to act a case of required. special admission may, upon sonal him, attack without easily Consequently, it can I believe flinching duty, properly ask his his inferred entered judges that one of his fellow his take knowing pearance in the District Court (267 place.” 396; 45 S.Ct. authority to do full well did not have emphasis added.) This rule was relied signed his so. fact that upon by Suupreme in its more Appellant Ap- pleadings as “Counsel Ap- pointed by recent cases of States Court Offutt peals Cir- Columbia for the 348 U.S. L.Ed. 11 way cuit” in no convinces me Pennsylvania, (1954) Mayberry innocent. Viewed conduct was L.Ed.2d was, text, believe, perpe- action I (1971). Obviously Supreme large falsehood the selec- tration of a rulings area has in this been tion truth. of a small impelled to a balance between seek protect orderly process of tri need to ap- I the conduct which

Since believe al and the need to assure the fairness pellant charged is actionable un- with against contempt proceedings attor der and that statute poten neys prejudice bias sufficient evidence is establish feeling tially judge’s personal rooted in a willfully engaged in the he forbidden grievance against that counsel. Fun conduct, his con- I am inclined affirm damentally, ground purpose to avoid the fully explain my viction. To de affirmance, however, necessary Seze situation which confronted it is appeared 11, 1792, when December which ma- me to two issues discuss assembly, legislative jority necessary de- before French find it does not a court as had itself declared cide. legislature, appointed counsel well as a II. “I king, the convention: to his and told everywhere judges find look says appellant, contempt, “so entangled judge’s personal feel- accusers.” III. UNITED STATES America Finally, pleads sen- grossly imposed upon

tence him challenge exces- WILLIAMS, Appellant. Robert L. sive. I face in this to the trial court’s most action what is for me the No. 24769. aspect difficult of this case. Convinced Appeals, States Court from the record that District of Columbia Circuit. nevertheless, willful, am, I Argued Sept. 14, 1971.

unhappily cognizant fact of the basic Decided Dec. 1971. that clerical our court set error within motion the entire series of events result- As Amended Jan. must, appeal present to us. then, openly admit that I feel substan- tially disposing restricted in of this case. abstract, appellant’s

In the failure inquiry

make at least some affirmative status,

of us as to or as to his whether light

a mistake had been made in the appoint- own earlier statement that if “specially

ed he would have to be admit- (J.A. justifies 4), ted” a conclusion that insignifi-

our error was dwarfed into by appellant’s

cance Unfor- conduct.

tunately, abstractions refuse remain automatically

abstract but rather turn images,

into and we then confronted image serving

with the of this jail brought about, least sentence

initially, erroneous conduct within ignore family.

our own official I cannot culpability and,

our in this situation like

parricide law, pass in the Athenian my

over in silence. I am conscious of

responsibilities integrity to maintain the juridical procedures

of established them, recognize

anxious to fulfill but I “justice satisfy

also that

pearance justice.” Offutt supra,

at 13. part

Because of our facts lead-

ing up conviction and be- forty-five days

cause feel that in du- severe a

rance vile is event too

punishment appellant en- for the conduct

gaged in, I would affirm conviction suspend execution of the sentence

imposed him. U.S.C.

(1964); su- see Green v.

pra, 2 L.Ed.

2d notes infra Act, (1831). the 1831 4 Stat. 487 The 42. 1007 course, gauged pointed out that essential element of “[a]n context intent, spe appellant’s previous acknowledgment an of that offense either is general, to commit it. . this court that he cific or By was not a member of contempt definition, appointment dis its bar and only by is could serve on ‘wilful regard public special au or disobedience of a leave. ” 38 Knowledge thority.’ act one’s appellant appeared So it was that wrongful purpose to and a neverthe the District Court on behalf of cli- prerequisites do the act are to crim less appointed. ent for whom he had been In contempt, inal to most other crimes.39 doing so, he made it clear that he was though pursuit plausible faith of a Good ap- by there as counsel virtue of that mistaken alternative antithetical slight- and there is not pointment,44 unimpor contumacious however represented est indication that he ever intent,40 may tant of civil the context entitlement to be there in other beyond proof And a reason capacity. theory, The here as well as contempt.41 able doubt contemnor Court, in the District that this amounted possessed required intent must fore- to a of that court run a criminal pellant appearance made the with knowl- conviction.42 look, then, We to the record before us edge right that he had no to do so. We determine whether these conditions were may deciding assume, without that our met. appointment as counsel on appeal did not authorize him to handle Appellant appointed was an order Court, incidental motions the District indigent represent of this court to even a lack of actual Though litigant. by mistake, our issued would end the There matter. would impeccable order was on its face and the question main the crucial whether the appointment unequivocal. si-» We accompa- appearance unauthorized multaneously passed along nied and we contumacious intent,45 sugges- Bar Association checklist deem the record insufficient on that tions and instructions from which he support score to conviction. that, professional could see if in his judgment grounds pending first note that there was no ex- for release We intent; appeal press finding existed, ini- such relief was to be contumacious sought finding tially state in the District Court.43 significance must, of mind was that his was wilful,46 these events action Sykes States, U.S.App. Paper Co., 38. 41. v. 144 v. Jacksonville United Seo McComb 497, 53, 55, 928, (1971). 187, 191, D.C. 444 F.2d 336 69 93 L.Ed. 930 S.Ct. UMW, 258, 39. United States v. 330 U.S. 910, Stringfellow Haines, 303, 304, 677, 309 F.2d v. 91 L.Ed. 884 (2d 1962) ; (1947) ; v. Jackson, United States Cir. United v. States 309, Jackson, supra 39, note F.2d at 305, (5th 1970) ; F.2d In 308-309 Cir. 358, citing Winship, Marshall, re re 423 F.2d 1131-1132 (1970) ; (5th 1970) ; Sopher, S.Ct. 25 L.Ed.2d 368 Cliett Cir. Hammonds, supra 305 F.2d 418; 569-570 note F.2d at (5th 1962) ; Floersheim, Operating Co., F.Supp. Cir. re D. I. (9th 1963) ; Yates v. (D.Nev.1965). F.2d Cir. also Wilson v. See (10th States, F.2d Carolina, 586, 600, North 169 U.S. 1963). (1898) ; Cir. S.Ct. L.Ed. 865 Offutt U.S.App.D.C. 69, 72, v. United 3, supra. note See cert, 69, 72, denied, 232 F.2d 351 U.S. supra following See text note 3. 76 100 L.Ed. 786 supra 45. See text at notes 37-40. 42. Nilva

Case Details

Case Name: In Re Darwin Charles Brown

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 2, 1971

Citation: 454 F.2d 999

Docket Number: 23037

Court Abbreviation: D.C. Cir.