*2 objections pause, response to these was to WRIGHT, BROWNING, Before GOOD- offending sen- skip the remainder SNEED, HUG, WALLACE, WIN, tence, text.1 prepared and return his FLETCHER, FARRIS, SCHROEDER, argument his line of contin- Several times NORRIS, Circuit BOOCHEVER and objection the same ued another on Judges. grounds immediately made and was almost sustained. FARRIS, Judge: Circuit argument, At the close of Gustafson’s appeals T. Robert Gustafson exchange following occurred: against by him the contempt order entered close, Now I must but [GUSTAFSON]: A panel court. this court divided do, you I want to know that before I reversed. See about this strongly Julio Zamora feels principal proper Because resolution of you prayers case and his have been conditions under which presented issue —the just will and merciful verdict. render summarily impose may a federal court children, For wife and his too— his important just and criminal —is Objection, your WITTMAN: MRS. in the orderly of the courts administration honor— circuit, this we districts fifteen embraced you THE COURT: Mr. Gustafson — limited en banc granted rehearing by this cannot, gentlemen, base a ver- ladies and see 9th We now affirm. panel, Cir.R. 25. any sympathy dict whatsoever. based I. GUSTAFSON’S CONDUCT case, render must you and the verdict facts, six represented one of criminal the facts and Gustafson be based on conspiring nothing else. charged defendants 6,1978, smuggle aliens. December after just trying On I was MR. GUSTAFSON: trial, honor, closing days more than twelve I’d like to have a say, your Gustafson, began. representing and his two arguments ruling on it —for wife children, too— argue, pre- read his the first defendant transcription subsequently responses delay filed with this court. Gustafson’s of the trial 1. Because of a objections podium proceedings, be determined can submitted his Gustafson transcript podium Appel- comparing text. with the text as an exhibit Federal under transcript 10(c). late Procedure The trial objection, and conspiracy WITTMAN: MRS. Same made defense coun- your sel argument honor. in closing any without basis whatsoever, court would lose nothing to
THE
That has
do
COURT:
children,
control it
over
wife,
participants
has
in a
with it.
his two
noth-
His
trial as
as the
general.
well
courtroom in
ing.
It’s
facts of the case.
*3
behavior,
Such
such misconduct will not
you. La-
MR.
Thank
GUSTAFSON:
by
court,
be tolerated
and under the
gentlemen
jury,
dies and
of
have
I
I
circumstances.
do not think it should
just presented you,
have been
you
any
tolerated
court.
presented,
opera-
example
prosecu-
tion between the bench and
I
Accordingly,
adjudge that attorney
quashing
tor in
and
this
quelling
evidence
Robert T.
of
guilty
Gustafson
criminal
of a
do
trying
defense counsel
his level
contempt
I
as described below.
further
client,
going
best for
and I
am
have
reading
state
of
that a
this record cannot
rely upon you
give
every
him
bene-
adequately
and does not
reflect
the true
client,
fit
every
my
despite
of
doubt to
intensity of the hostility and discourte-
those efforts.
ousness displayed by
attorney
this
during
you
and I
you,
hope
Thank
have a
his closing argument
jury
to the
in the
'
Merry Christmas.
above entitled case all in
pres-
the court’s
ence.
remark,
Following Gustafson’s final
the.jury
court excused
and recessed the
The
then
the particu-
certificate
describes
day.
trial for the
After the
left the
lars of Gustafson’s disobedience to the
courtroom,
summarily
the court
held Gus
rulings
court’s
closing allegation
and his
contempt
imposed
tafson in
and
a fine of
judicial misconduct.
It continues:
paid
$250. Gustafson
the fine. At
I further
find that summary vindication
beginning
day,
of the next
counsel for all
pres-
said misbehavior in the actual
the remaining defendants moved for a mis
ence of five other
counsel
defense
trial, contending
argument
that Gustafson’s
prosecutors
two
left the
no
court
alterna-
had “hopelessly
jury against
alienated” the
tive
to summarily punish
but
said attor-
their clients. The motion was denied. We
ney by
imposition
of a fine of $250.00
upheld
Aya
that denial in United
States
jail.
or three
in
days
la-Ayala,
(9th
1979)
heard courtroom misconduct
Gustafson.
II.
OF
CONTEMPTUOUSNESS
GUS-
42(a).
generally
Fed.R.Crim.P.
TAFSON’S CONDUCT
provides
part:
certificate
in
Section
pro-
the Criminal Code
I find that
constituted
[misconduct]
vides:
this
court and was of such an
A court of the
shall
United States
have
accusatory
directly
nature as to
affront
punish
imprisonment,
fine or
dignity
decorum
discretion,
its
of its
firmly
States District Court.
believe
other,
authority,
none
as—
require
if
cannot
those
obey
(1)
who are
its
any person
courtroom
Misbehavior of
in its
court,
and if this court is
near
sit
or so
thereto as
obstruct
idly by
justice;
when accusations of misconduct
the administration of
1972)
(7th
(“The
its
un
officers
Cir.
(2)
F.2d
Misbehavior
transactions;
McConnell,
their official
re
implication of
mistakable
370 U.S.
[In
Tested presence contemptuous. jury He made to the and in the tafson’s behavior was spectators charge ju ignored objections by sustained and counsel. repeatedly inherently judicial speed of his dicial bias obstructed the the court to the and content undermining ability function the court’s judge’s in argument. disregarded He regulate plainly contemptu It trial. was permissible argument. Al structions as to ous. See Barnes v. 241 F.2d though attempts he to rationalize his behav 252, 1956) (dictum) law (“Any by collaterally challenging judge’s ior charge made to a yer would know that rulings, remedy his for error the district judge in had judge open court judge appeal or from was mandamus up made his mind before case started tried, judgment being final case not court.”); flagrant contempt see ... Sacher v. United by disobedience. 248-49, Buckley, In re 10 Cal.3d also 72 S.Ct. 1207-08, 1213, 110 Cal. P.2d performance judge acted in the 127-28, denied, Rptr. cert. judicial duty to ensure an unbiased 3202, 41 Where, and an accurate record. as Court, (1974); Superior Hume v. 17 Cal.2d here, an attorney disobeys the rul court’s 513, 110 (1941); Alex P.2d 673-74 ings instructions, he or she" commits Sharpe, A.2d ander meaning “misbehavior” within the of sec (Me.1968). 401(1). tion Pennsylvania v. Local (3d Cir.) (“We not OF III. APPROPRIATENESS SUMMA- slightest doubt flouting a trial RY PROCEDURE judge’s commands is the essence of ob justice.”), Federal Rule of Criminal Procedure structing the administration governs adjudicating 54 which the method contempt, provides: criminal Seale, United States (a) A Summary Disposition. plainly criminal fall the express within language contempt may punished be if summarily 42(a), of Rule and constitute contemptu- he judge certifies that saw or heard ous conduct. Rule was never in- constituting tended to be limited situations where a that it was committed in the actual witness language, uses scurrilous presence of the court. order of con- physical threatens or creates overt disor- tempt shall recite facts and shall be disrupts der and thereby a trial. All that signed by entered of rec- judge is necessary is that the certify that ord. he “saw or the conduct constituting heard (b) Disposition upon Notice and Hear- the contempt that it was committed ing. pro- A except criminal presence actual the court.” Re- (a) vided in of this subdivision rule shall spondents do contest these re- prosecuted on The notice notice. shall quirements here. are met hearing, place state time and al- Id. at at (footnotes lowing prepara- for the a reasonable time omitted). concluding After the wit- defense, shall tion state the nesses’ acts were intentional and obstructed constituting the essential facts criminal judicial duty, id. 315-16 & n. contempt charged describe it as such. S.Ct. at 1806 & n. given orally by The notice shall held adjudication that summary prop- open court in er: or, application defendant of the Unit- *5 The of an refusal to attorney attorney ap- comply ed States or face-to-face with the court’s itself pointed by purpose, by the court for order af- constituted an court, order or an an to show cause order of front to the and when that kind The is arrest. defendant entitled to a refusal disrupts ongo- and frustrates an by jury any trial in in which act ing case an proceeding, here, it as did Congress provides. so He is entitled to contempt must available to vindicate provided admission to bail in as these the authority the court as well as to contempt charged rules. If the involves provide the recalcitrant witness with disrespect to or of a judge, criticism some testify. incentive to Whether such judge is disqualified presiding from at necessary incentive is in particular a case trial hearing except with the de- is a matter wisely the Rule leaves to Upon fendant’s consent. a verdict or discretion of the trial court. finding guilt shall enter the court an Id. (citation at at S.Ct. fixing order punishment. omitted). and footnote by The certificate prepared the district Wilson, Under pre absolute judge requirements here meets the two ex- requisites summary punishment to of con plicitly 42(a). set princi- forth in Rule tempt 42(a) are the requirements in Rule pal issues in this case are whether there are that the contemptuous behavior be seen or prerequisites other summary adjudica- to by heard judge and be committed in the so, and, of contempt tion if whether they actual of the court. When these met were here. satisfied, requirements are the trial is Wilson, In United discretion, empowered, in its to invoke sum S.Ct. mary procedures. discretionary power upheld a Court district court’s is not to be exercised district court summary contempt against order directed except in limited circumstances after dis two witnesses who to testify refused when passionate consideration. ordered to do judge. so began analysis by noting Court its that the After holding requirements 42(a) of Rule were met: appropriate, Court in Wilsondistin
Respondents’ answer, guished refusals al- case before from Harris though States, disrespectfully, 352, 15 delivered U.S. S.Ct. Harris, macious from the or- disrupting In a witness derly progress cer- of a criminal trial. answer grand jury refused before a immunity. grant of questions after a tain Id. We review for such abuse of discretion brought before The witness was then light principles un of the fundamental summarily held district court 42(a) derlying power. “Rule answer the same refusing to contempt for exceptional ‘for circumstanc reserved that, Wilson, the Court noted questions. States, es,’ at Harris v. United testify, by the refusal when confronted (quoting Brown v. Unit S.Ct. at easi- could “rather grand jury in Harris ed S.Ct. [inquiry], one ly suspend action on (1959)). The rule to be is contempt] [plenary turn to another while applied the contemnor’s conduct when 42(b) complet- proceedings under Rule are orderly threat open, “such serious at 1807. ed.” 421 at summary pun procedure that instant and contrast, deemed refusal of the Court ishment, distinguished from due and de much serious testify more trial witness ., necessary.” . . procedures liberate [is] 319, 95 procedure. Id. at orderly threat U.S. at Harris Thus, Wilson omitted). at 1808. (citation at 354 Rule immediate action to be the need for sidered those “except is to be unusual applied [in] distinguishing Harris. a crucial factor where envisioned situations holding its in Wil- protect necessary Court’s instant action of this factor in importance son reflects itself.” Id. at judicial institution discretionary the trial court’s determination summary punishment: propriety proceedings are Summary trial, judge, with the ongoing In an procedure: unique to criminal otherwise counsel, waiting, all jurors, and witnesses jury, prosecutor, functions inconsistent reme- 42(a) provides appropriate united in one individual. discourage witnesses from
dial tool to long poten the manifest Courts have noted comply Illinois, refusals g., tial for E. Bloom *6 contumacious abuse. prevent 1477, 1484, to lawful orders essential 20 L.Ed.2d U.S. Where proceedings. of the parte Terry, breakdown Ex however, essence, (1888). the time is not of the L.Ed. 405 more provisions may special of courtroom misconduct carries Where contemptuous judge, we are appropriate personal to deal with insult to the trial judge’s the sound principle the distortion of We adhere to watchful for conduct. “ power adequate only possible discretion. least ‘[t]he be used in proposed’ to the end should Moreover, summary contempt dispenses contempt cases. guarantees the of notice and with usual Id. Leslie, hearing. Groppi (1972). 92 S.Ct. trial court’s deci We review the special to en- We therefore must take care summary contempt proce sion to invoke judges summary sure that trial invoke dures, including of the its consideration tempt with consideration and only careful action, for an abuse of need for immediate good reason. discretion: hand, recognize we that the power, authority As all under On other with impose summary can to con punish summarily to determination however, abused; tempt, assuming requirements are appeals, of the courts met, trial wisely primarily is left can with of discretion with- deal abuses Wilson, at restricting judge. Rule in 421 U.S. out contradiction nature terms, unduly are their express and without 1806-07. Trials its generally Sacher v. Unit contentious. See limiting of the trial firmly prevent contu- ed swiftly act and begins As contention 1950),
L.Ed. disorder, into disobedience or develop position is in the best
trial court L.Ed. 1375 of fur avoidance there exists a need for immediate against whether ther bias Gustafson’s client dignity and author- penal vindication reason good was a for the brief Fur delay. the court. out their ity carrying ther, delay prevent did not the summa trial, responsibility fair heavy ensuring ry adjudication deterring from further con judges ability must have the tempt Gustafson or the other counsel. quickly authoritatively incip- and act to halt morning, When trial continued the next ient disorder. proper had decorum been reestablished. Where record demonstrates that the opinion panel May filed on judge did not fully trial consider rela- judgment is withdrawn and the of plena- appropriateness summary tive and is district court affirmed. adjudication contempt, must inde- ry we pendently evaluate the need for BOOCHEVER, Judge, Circuit with whom time, procedures. give At the we same HUG, SCHROEDER, FLETCHER and great explicit deference judge’s to a trial NORRIS, Judges join, Circuit dissenting: that plenary procedures determination are I respectfully dissent because: I differ inadequate summary procedures majority’s (1) with the elimination of an necessary. exigency prerequisite for dispensing with Here, the trial judge realized requirements basic due notice appropriate opportunity adju- to be heard before an promote judicial when needed to func (2) contempt; dication of characterization specifically tion. He found the misbe court’s dispense decision to havior left him no to sum alternative but process requirements those due discre- punish. finding supported marily (3) tionary; reviewing standard of both the record and the circumstances. based on decision abuse of discretion. Throughout closing argument, Gustaf I believe that Additionally, the certificate openly Court’s disregarded son had rul judging in contempt Gustafson fails to set ings just directives. He closed had mandating adju- forth reason charge with a argument judicial bias. dication, that there were no exceptional Although day’s proceedings had con justify dispens- circumstances in this case to cluded, counsel for five codefendants had ing with and opportunity notice to be heard. give yet closing arguments, their rebuttal, prosecution yet had give its *7 I. FACTS yet jury. had to instruct contempt, unpunished, if Gustafson’s left Gustafson, Judge a retired Advo- Naval have
might
spawned other misconduct.
cate,
appointed
represent
to
one of
provides
a sound basis for the immedi
in
complex conspiracy
several defendants
temperate
taken
ate and
action that was
presented
case. He
closing argument
his
here.
the court
text,
from a
which he
so fast
prepared
read
reporter
The fact
that
the court
and the district
that
the district
contempt
judge repeatedly requested
him to slow
imposing
excused
before
summary
render
also
to his
inappropri
does not
action
down. Gustafson
referred
times,
ate. Exercise of the
and children
summary
client’s wife
several
de-
power
spite
need not
Penn
prosecution objections,
warnings
be immediate. See
and
sylvania v. Local
jury sympathy
552 F.2d
from the court that
for the
Cir.),
denied,
(3d
jury’s
cert.
play
S.Ct. defendant could
no role in the
(1977);
v. Unit
After
MacInnis
deliberations.
the court sustained
1951),
prosecution objections,
ed
Thank presented jail. or in just you, days or I three jury, $250.00 have exam- with an presented, you have been arguments ap- two Gustafson raises the bench between operation ple of first, that his conduct peal. He contends quell- quashing in and prosecutor and the second, contemptuous, that the of a counsel defense ing this evidence improperly relied on sum- client, level for his to best trying do find him mary procedure in Rule in you rely upon have to going to and I am hold contempt. summary I would every doubt every benefit of give him case, inappropriate in this procedure was client, those efforts. my despite the issue of whether not reach hope you, you I Thank contemptu- was in fact Gustafson’s Merry Christmas. ous under § 18 U.S.C. jury, point court excused the At this day, ordered Gustaf- trial for the recessed PREREQUISITES THE EXER- II. FOR summarily held to come forward son CONTEMPT CISE OF SUMMARY stating: contempt, him POWERS the re- By reason of THE COURT: argument relative to your marks made in summary power unlike prosecution, you the court and to proceedings. other Federal courts criminal contempt of court and hereby held in preserve have the inherent order pay- You are make fined $250. proceedings.1 and decorum in court Ex And un- tomorrow. ment 5:00 o’clock 289, 303, 9 Terry, parte you do, will be incarcerated you less long recog L.Ed. 405 It has been days. three contempt power nized that because to the immediately apologized body combines one individual or func Gustafson prosecutor jury, court. con judge, tions to “the tempt citations are limited least required by Federal Rule of Criminal As power adequate pro the end possible judge prepared 42(a), the district Procedure Dunn, (6 posed.” Anderson was filed certificate which 204, 231), Wheat. portions days eleven later. material Abascal, majority set forth in the the certificate are Cir.), cert. one opinion. certificate contained The substan referring to the need for sentence contempt citation tive basis for the issued adjudication, as follows: 401(1), is 18 U.S.C. which to Gustafson § summary vindica- further find empowers punish a federal fine in the actual tion for said misbehavior imprisonment “[mjisbehavior any per other counsel presence of five defense in its or so near thereto as to left the court no son prosecutors and two justice.”2 summarily punish said obstruct the administration of alternative but Comment, Contempt: (2) A Misbehavior its officers their 1. But see Counsel transactions; Summary Suggestion Elimi Power official nated, (1980) (arguing (3) Duq.L.R. its Disobedience or resistance to lawful judicial writ, order, rule, decree, *8 contempt process, not an inherent is or com- power, as violative of be eliminated should mand. process rights). statutory due There is no limit on the sentence imposed contempt. for criminal Punishment provides in 2. 18 U.S.C. full: 401 § by summary procedure Rule the in Federal of A court of United States shall however, 42(a), is limited Criminal Procedure imprisonment, punish by at fine or its prison term of the con to a six-month because discretion, contempt authority, of its jury right for “serious stitutional to a other, and none (1) as— Illinois, 194, U.S. Marthaler, 210- crimes.” Bloom v. 391 presence any person of in its Misbehavior (1968). 571 11 See United States v. near the adminis- or so thereto as obstruct 1104, (9th F.2d 1105 justice; tration of
1025 is question appeal prevent The in this whether the ishment is essential to ‘demoraliza- tion properly authority’ ”). to the sum- of the court’s district court resorted See also 3 procedure Wright, in of Criminal C. Federal Practice mary Federal Rule and Procedure: 707, 42(a) (1969). at in Criminal 165 § Procedure to find Gustafson con- tempt. limiting 42(a) basis for beyond its language literal is 42(a), the due only pre
On the
of Rule
clause
face
of the fifth
amendment of
requisites
a
United
for
citation
States Constitution. Even a minimal
judge
are
fine
contempt
that the
see or hear
imposed
contempt
deprivation
for
is a
presence
and that it be committed in
property, and 18 U.S.C.
401 authorizes
§
interpretations
the court.3 Judicial
of the
imprisonment
Additionally,
as well.4
a
rule, however,-indicate
something
that
more
tempt
against
citation
as
lawyer,
occurred
42(a) may
is required.
be in
here, can
long-term profes-
create serious
“exceptional
voked in
circumstances.” Har
problems
sional
attorney,
for the
whose
162, 164,
ris v. United
382 U.S.
86
moral
practice
may
fitness to
law
be drawn
(1965).
S.Ct.
15
240
In
question.
into
See Ramirez v. State Bar of
our own circuit we have twice noted that
California,
28 Cal.3d
619 P.2d
169
punishment
under Rule
contempts
Cal.Rptr.
(1980);
ABA
Code
Profes-
narrowly
is
limited.
States v.
United
Responsibility,
sional
Disciplinary Rule 7-
Powers,
1980);
F.2d
106(C)(6). Although
concept
of what
Abascal,
F.2d
States
process is
in
required
given
situation is
(9th Cir.), cert.
422 U.S.
flexible, the
requirements
fundamental
(1975).
S.Ct.
prior notice
hearing
are almost invari-
courts, however,
been entirely
have not
ably
Leslie,
Groppi
mandated.
404 U.S.
formulating
clear in
a heightened standard.
merits
where more serious
proceedings
circumstances,”
States,
v.
criminal
Brown
United
It is
potentially involved.
deprivations are
41,
539, 548, 3
359 U.S.
54
S.Ct.
[79
Court
surprising that
thus not
(dissenting opinion),
L.Ed.2d
such as
609]
recognized that due
consistently
has
disrupting a
threatening
acts
or
of
on the
a fundamental
limitation
hearing
obstructing
proceedings.
after Rule
summary contempt.6 Shortly
light
We
Ibid.
reach that conclusion in
effect,
42(a) took
the Court held that
long
“the concern
demonstrated
the use of
limited
Constitution
Congress and this
over the
both
Court
where “immediate
situations
power”,
of the
possible
abuse
prevent
‘demoral
punishment is essential
ibid.,
light
wording
and in
of the
authority’
of the court’s
before
izaiton
Rule.
Oliver,
257, 275,
333
68
In re
public.”
U.S.
499,
164,
508,
(1948) (quoting
682
at
92 L.Ed.
U.S. at
86 S.Ct.
Court
382
S.Ct.
536,
States,
517,
267
v. United
U.S.
Cooke
stated that:
also
390, 394,
(1925)).
1027
principle Summary
ous conduct. We adhere to the
Contempt Power:
Critique
A
“
only
possible
least
Perspective,
that
ade-
a New
(1978).
88 Yale L.J. 39
‘[t]he
quate
proposed’
to the end
should
extensive
an
discussion of United States
Wilson,
used in
cases. Anderson v. v.
the author concludes that
204,
Dunn,
231,
6
poned
completed.
until the trial is
charges
notice
offender
and at
summary opportunity
least a
to adduce
Professor Kuhns’
study
exhaustive
argument
guilt
evidence or
relevant
summary contempt gives cogent reasons for
punishment.
limiting the exercise
the power
to situa-
Kuhns,
of genuine necessity.
tions
Commentary
arguable
extraordinary
tempt
It is
remedy
the distinction between
is an
that must be
merely
narrowly
Wilson and Harris
Taylor
Hayes,
the initial
limited. See
testify
2697, 2703,
refusal
in Harris occurred outside the
U.S.
courtroom,
Leslie,
(1974);
while Wilson involved “direct
Groppi
con-
897
502-03,
404 U.S.
tempt.”
however,
interpretation,
582, 586-87,
Such an
ren-
92 S.Ct.
opinion superfluous.
ders much of the
States,
Wilson
(1972);
Harris
opinion
majority
Sections III and IV of
352, 353,
(1965);
demonstrating
devoted to
there was no
1, 8,
Sacher v. United
Harris,
immediacy
need for
but
there
Oliver,
(1952);
96 L.Ed.
In re
orderly procedure”
awas
“serious threat
257, 274-76,
92 L.Ed.
Wilson.
.
is
that
Although there
Harris, concluding:
punished
can be
without
son
contempts
Court’s discussion
opportunity
or
to be
charges
an
notice of
teaching
simply
The
of Wilson is
that
little
com-
heard,
has
to
procedure
a
such
42(a)
necessity
is
and
Rule
a rule
its
the
it,
with
basic
inconsistent
mend
is
“narrowly
is
It fills
application
limited.”
fairness,
likely
bring
to
and is
notions of
penal vindica-
need for immediate
“the
Accordingly,
disrespect upon
court.
dignity
of the
the court” and
tion
opportunity
a
to
least
brief
notice and at
stop
permits
swiftly
to act
to
as a
be afforded
matter
be heard should
ob-
which
to intentional
conduct
amounts
standard,
Nothing in
how-
this
of course.
Thus,
proceedings.
of court
struction
ever,
plenary
a
trial of con-
implies that
summary
ex-
power
impose
contempt
required.
is
tempt charges
“compelling
rea-
ists
where there
Justice, Spe
ABA
for Criminal
Standards
and where
remedy,”
son for an immediate
n
Judge,
6-4.4
§
of the Trial
cial Functions
inappropri-
is no
need its use is
there
such
(2d
1980) (footnote and citation omit
ed.
ate.
(numbered
7.4 in the
ted). This
§
standard
(footnotes omitted).
Id.
The court
at 1248
edition)
approval
with
first
has been cited
on to find that
time was not of the
went
Court,
Fifth Circuit
case,
of the
essence
the facts
under
Hayes,
Taylor v.
418 U.S.
and this circuit.
pro-
court should have
therefore
2697,
8, 41
488,
8,
2703 n.
499 n.
42(b).
under Rule
ceeded
Brannon, 546
F.2d
L.Ed.2d 897
a
First
reached
similar result
Circuit
Abascal,
1249;
v.
509 F.2d
United States
Bankruptcy
Court summa
interpreting
denied,
Cir.),
752,
(9th
cert.
755 n. 7
procedure,
directly
ry contempt
which
fol
(1975).
45
684
Rule of
lows 18 U.S.C.
Federal
§
either
opinions since Wilson
Circuit court
Fernos-Lopez
42.
v.
Criminal Procedure
a
explicitly support
require-
implicitly or
District Court for the District
States
prior to
“compelling
need”
summa-
ment
Rico,
(1st
of Puerto
599 F.2d
1091-92
In United
ry contempt procedures.8
denied,
Cir.), cert.
1977),
(5th Cir.
Brannon,
F.2d 1242
re
The court
a
court reversed
contempt citation issued
summary
versed a
closing
after
it was issued
citation because
instructions, find
for failure to follow court
compel-
was no
argument,
thus there
did not
process.
ing
conduct
due
contemnor’s
ling
dispensing
need for
with
contempt
summary
directly
not
the issue whether
have
not reach
Circuit we
Ninth
compliance
pre-
appropriate
we
because
found
dealt with the issue since Wilson.
was
Finally,
procedures.
circuit limited
indicate that this
the Rule
Wilson cases
42(a)
exceptional
Cardoza,
(9th
Just
circumstances.
F.2d
Rule
Cir.
Hawk
Wilson,
given
prior
that in
1978),
this court held
addition
was
we found that the contemnor
42(a),
requirements
explain
Rule
“it
opportunity
adequate
literal
his conduct
punishment
appear
summary
issued,
that ‘immediate
must
also
citation was
as each
prevent
of the
is essential
process
demoralization
no
due at the
further
was
therefore
Abascal,
authority.’
court’s
United States
conclusion
trial.
denied,
(9th Cir.),
cert.
509 F.2d
States,
tions
where
action
III. STANDARD OF REVIEW
judicial
protect
institution
itself.”
authority
There is little direct
on the
Yet
need for
an exigency
somehow the
evaluating
standard of review for
a district
requirement
is deemed
to be a
but
not
merely
contempt
court’s
type
exercising
some
of basis for
citation.13
In
above,
discretion.
cases discussed
where a summary
supra.
contempt);
Mars,
See
cases cited in note 7
United States v.
551 F.2d
711,
(6th
1977) (refusal
provide
Cir.
10. The Fourth Circuit affirmed a
con
exemplar
“exceptional
handwriting
is an
cir-
tempt
pro
citation issued to a
se defendant who
justifying summary contempt,
cumstance”
but
constantly interrupted
ignored
judge,
certificate).
requires
orders,
badgered
obey
refused to
1272,
Chaplain,
witnesses.
In re
621 F.2d
11. Harris v. United
382 U.S.
-
Cir.) (en
(4th
banc)
denied,
1275-77
cert.
354,
352,
(1965).
86 S.Ct.
I to both the character- Rule the reciting abuse issue a the facts consti- ization of the standard of review as certificate determining the the va v. discretion of trial court United 431, contempt power whether exercise of is nec- the essary provide a an in- recalcitrant witness In Sacher v. United testify. centive is also a somewhat There (1952), the does cryptic in the mention of abuse discretion judge to cite hold the trial has discretion final sentence of :Wilson or the time it occurs for at authority power, As with all under overriding con “The at the conclusion of trial. sideration is the abused; 42(a) summarily punish can efficiency integrity and however, appeals, can the courts of deal process, immediate trial and if the deems restricting without abuses of discretion Rule in inexpedient be allowed discre action he should terms, express of its contradiction procedure in this case tion follow the taken unduly power limiting without [waiting Id. rendered].” until verdict firmly pre- swiftly and trial to act at States v. 455. Accord United at disrupting from vent contumacious conduct Schiffer, 1965). Sach orderly progress of a criminal trial. however, address, ulti whether the er not does to “abuses It is not whether the reference clear summary contempt is to cite for mate decision applies finding of con- to the of discretion” tempt, stan of discretion under an abuse reviewed summary punishment the use of compel Sacher indicated The facts of dard. ling seem, however, proceedings. It would course counsel’s entire the defense need: warnings, in Wilson’s detailed discussion conduct, repeated somewhere in the face of summary compelling possi need action refer- delay for disrupt tended to appellate be made to the standard ence would bly mistrial. cause a if court had intended of abuse of discretion the v. Wil reference in States There is a 1806-07, applied. 316-17, son, that standard to 95 S.Ct. at at tutirig procedural be the contempt. safe- case when contempt occurs “in the critically presence guard important. of the court” as required by Fed.R. Marshall, 42(a). The majority 374-75 Civ.P. construe Marshall, 1971). In we certificate as implying necessity indicated 42(a) summary punishment to prevent certificate must recite the similar attorneys. other detail “to fail facts sufficient determine inference, see any if but that was upon whether the conduct which convic- intention, court’s should been contemptuous, factually rests was ex- tion pressed in Id. the certificate. legally; 376-77. whether it was such char- [and] Kelley Everglades District, acter, Drainage circumstances, and occurred in such permit conviction under L.Ed. 1485 42(a) (footnote .. Id. at .. omit- ted).14 majority apparently finds “full offending fact that conduct oc- appropriate- consideration the relative curred in attorneys other adjudication” plenary ness in itself an indication of compelling the judge’s comment misbehav- need, and there were no other factors set left ior him “no alternative but to summari- satisfy forth to the requirement specifici- ly punish.” conclusory If statement ty for the Rule certificate. Thus the constitutes “full for the consideration” ex- certificate was to support insufficient ercise of the awesome to act as summary contempt order. judge, prosecutor without afford- *14 V. THE LACK OF
ing JUSTIFICATION opportunity a to be defendant heard FOR THE SUMMARY can in CONTEMPT every be case where a found PROCEEDING to punish summarily. elects Apparently, reason, admonishes, that for Marshall “con- majority The the issue reaches wheth- clusionary language general citations to er Gustafson’s conduct contemptuous. was the récord are insufficient.” Id. While I issue, would not reach majority’s why comments illustrate a hear- compelling Because a for an need imme- ing required. majority was The has deter- prerequisite diate a remedy summary officer, mined that this retired appar- naval contempt, the certificate under ently inexperienced trials, in civilian clearly must indicate that need. intentionally violating the court’s order Here there is no indication in the certificate rapid his in pace reading prepared his argu- any compelling there was need for ment jury. Certainly to the whether the summary contempt. judge’s The exact violation presented was intentional an issue words were summary “that vindication for of fact which could be resolved fairly in presence said misbehavior the actual furnishing after Gustafson an opportunity prosecu- five other defense counsel two to be heard. tors left the court no alternative but summarily punish .. .. language Similarly, majority concludes that his merely alleged persistent indicates argument prohibited topics re- temnor’s conduct occurred in the veals pattern “an unmistakable of deliber- of other counsel. This will almost ate always Again, inexperienced disobedience.” Pearce, In doing North affirmatively Carolina sons ap- for his so must pear. L.Ed.2d upon Those reasons be based must imposed require- The objective similar concerning information identifiable ments to assure that an increased sentence part conduct on the of the defendant occur- imposed upon successfully one who had at- ring original sentencing after time of prior tacked a conviction not be motivated proceeding. upon And the factual data vindictiveness. The court stated: which increased sentence based must record, part In order to assure the absence of such made so that the con- motivation, legitimacy we have concluded whenev- stitutional the increased sen- judge imposes er a may fully a more appeal. severe sentence tence reviewed on trial, upon a defendant after a new rea- independent hearing Prior notice and an present argu- sincerely seeking
attorney,
client,
well
prepare
could
Gustafson to
of his
would have allowed
on behalf
ments
arguments
conduct,
were
that,
explain
perhaps
his additional
his
believe
defense
sustain-
purview of
order
more
not within
to become
detached.15
allow
Illinois,
objection. At least Gustafson
ing
prior
Bloom v.
See
opportunity
been afforded
should
majority ap-
explanation.
Lewis,
to offer an
generally In re
501 F.2d
such conduct
to find
parently is able
1974),
“beyond
willful disobedience
constitute
1106,