In re Russell Wilson CHAPLAIN, Sr.
No. 78-5154.
United States Court of Appeals, Fourth Circuit.
May 7, 1980.
621 F.2d 1272
Argued Jan. 7, 1980.
AFFIRMED.
John F. Kane, Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN and SPROUSE, Circuit Judges.
K. K. HALL, Circuit Judge:
Russell Wilson Chaplain, Sr., appeals his conviction of criminal contempt summarily adjudicated by a district judge in the course of IRS subpoena enforcement proceedings against Chaplain and his daughter. We have carefully reviewed the record, have considered the controlling law relevant thereto, and affirm the conviction.
I.
Chaplain and his daughter, Suzanne Goldsticker, appeared pro se in the Unitеd States District Court for the Eastern District of Virginia on May 11, 1978, as defendants in a proceeding brought by the United States seeking enforcement against them of an Internal Revenue Service subpoena.1 During the hearing several disturbing and distracting factors and developments emerged. At the outset the district judge found it necessary to order a stenographer
Chaplain had asked the witness a question and then prevented his answering it, whereupon the following exchange occurred.
MR. CHAPLAIN: Judge, Your Honor, I don‘t want a lot of talk.
THE COURT: Mr. Chaplain, you asked the question he‘s answering.
MR. CHAPLAIN: Yeah, but he‘s аnswering a whole lot of strange phrases, and everything.
THE WITNESS: No. I‘m just—
MR. CHAPLAIN: I just want to know: What did you all—
THE WITNESS: I‘m just telling you—
THE COURT: Wait a minute. Hold it; hold it. Mr. Chaplain, let him finish answering the question.
MR. CHAPLAIN: All right, go ahead I have all day.
THE WITNESS: Anyway, Mr. Sheffer—
THE COURT: Mr. Chaplain, you‘re fined fifty dollars.
MR. CHAPLAIN: What for?
THE COURT: For contempt of court for a smart remark.
Moments later, the second conviction took place. When Chaplain temporarily stopped his questioning of the witness, the following occurred. We quote at some length, not because of the particular importance of the remainder of the exchange but because it is illustrative of the day‘s proceedings.
THE COURT: All right. You through?
MR. CHAPLAIN: No.
THE COURT: All right.
MR. CHAPLAIN: He set up there and stuttered and stammered, that other man.
I‘m trying to think—
THE COURT: That‘s another fifty dollars.
MR. CHAPLAIN: I got—I got some more—
THE COURT: That‘s another fifty dollars Mr. Chaplain. That‘s a hundred dollars you owe.
MR. CHAPLAIN: Judge, just—Judge, just—just continue—just do whatever you‘re going to do.
MRS. GOLDSTICKER: Now I‘m—
MR. CHAPLAIN: I just think this is unfair.
MRS. GOLDSTICKER: Daddy—It‘s my turn now? THE COURT: Well, he‘s—I don‘t know whether he‘s through or not.
MRS. GOLDSTICKER: Oh, excuse me.
MR. CHAPLAIN: Every time I say—what did I say then that was—
THE COURT: Every time you make a smart remark, it‘s going to be another fifty dollars.
You‘re here—up here to ask—
MR. CHAPLAIN: What—
THE COURT: —questions of this witness and not to comment on them, not to comment—
MR. CHAPLAIN: What did I say then that was a smart remark?
I mean, is this, what I‘m saying now, smart?
I‘m just asking: what did I say?
THE COURT: Go ahead. Ask the question, if you have any more questions.
Upon completion of the evidentiary portion of the proceedings, the district judge from the bench ordered enforcement of the subpoena, then turned to the contempt matter. Placing Chаplain in the Marshal‘s custody, he directed that Chaplain be taken to the Clerk‘s office to pay the fines, failing which he was to be confined until he made payment. Chaplain then paid the fine. Thereafter the judge entered a written order adjudging contempt in conformity with
II.
The power summarily to convict and punish for contempt of court is a general and universal attribute of judicial authority. Ex parte Robinson, 86 U.S. (19 Wall.) 505, 509 (1874). Inherent in federal judicial power, its current use is regulated by statute and rule.
III.
Chaplain first contends that we should reverse his conviction outright because, as a matter of law, the conduct for which he was specifically convicted and punished did not constitute contempt. He then says that in any event we should conclude as a matter of law that he could not have had the criminal intent requisite to convict him for the conduct charged. We reject both of these contentions on the basis that neither is established as a matter of law on the facts of record.
Consideration of these two issues requires that the conduct properly to be assessed as criminal contempt be first established. Relying upon Eaton v. City of Tulsa, 415 U.S. 697 (1974) (рer curiam), Chaplain contends that the conduct chargeable to him is narrowly and specifically that identified by the district judge as the basis of his adjudication of contempt, and that this consisted only of the two statements: (1) “I have all day“; and (2) “he [the witness] set up there and stuttered and stammered, that other man.”5 We do not believe that Eaton re-
The summary contempt power must be able constitutionally to respond to this sort of “nibble-to-death” obstruction as well as to the sufficiently obstructive single episode. See, e. g., In re DuBoyce, 241 F.2d 855 (3d Cir. 1957) (per curiam); United States v. Green, 176 F.2d 169 (2d Cir. 1949). Applying it, however, to this pattern while protecting the contemnor‘s due process rights poses problems for the trial judge and for reviewing courts. Both must be concerned that fair advance warning shall have been given to a possibly unaware contemnor that a contempt conviction may ultimately result from a “last-straw” repetition of identified conduct. See United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965); United States v. Green, 176 F.2d 169 (2d Cir. 1949). Both must be concerned with the responsibility of the trial judge as he tries without resorting to the contempt sanction to bring matters under control by “moral authority,” Sacher v. United States, 343 U.S. 1, 38 (1952) (Frankfurter, J., dissenting), or by less drastic coercive alternatives to contempt. See Illinois v. Allen, 397 U.S. 337 (1970). One of the problems of accommodation involves that one under discussion here: the form in which cumulative conduct is to be specified by the judge convicting upon what he considers a last-straw occurrence. Both the controlling rule,
Applying this rule to the instant case, we conclude that the conduct for which Chaplain was convicted is properly considered to be the entire course of his conduct from the time that the district judge warned him, App. 30, that further interruptions of the judge or unwarranted remarks to witnesses would result in his confinement. It is accordingly this range of conduct that we now assess in considering Chaplain‘s legal contentions.
Direct contempt justifying summary disposition is confined to exceptional circumstances involving acts “threatening the judge or disrupting a hearing or obstructing court proceedings.” Harris v. United States, 382 U.S. 162, 164 (1965). But it is also clear that acts having no element of violence, physical force, or vituperation may be adjudged disruрtive or obstructive within this principle. See, e. g., In re DuBoyce, 241 F.2d 855 (3d Cir. 1957) (per curiam); United States v. Green, 176 F.2d 169 (2d Cir. 1949). And, as we have earlier indicated, disruption or obstruction may be found in the cumulative impact of actions no one of which standing alone could be so found. It is only necessary that a contumacious act be “a volitional [one] done by one who knows or should reasonably be aware that his conduct is wrongful.” United States v. Marx, 553 F.2d 874, 876 (4th Cir. 1977) (quoting United States v. Seale, 461 F.2d 345, 368 (7th Cir. 1972)).
Upon the record we find that Chaplain‘s conduct and actions were disruptive and obstructive and clearly manifested the requisite criminal intent to sustain his summary contemрt conviction. In the administration of justice the judiciary must have and exercise authority and power over the control and conduct of judicial proceedings. Our laws of contempt have their roots in early English history. 4 Blackstone‘s Commentaries 284, 285. The Judiciary Act of 1789 manifested the early concern of the Congress that the courts should have and exercise this authority and power. More recently, through enactment of our current contempt statute,
AFFIRMED.
JAMES DICKSON PHILLIPS, Circuit Judge, concurring and dissenting:
On this appeal Chaplain raised several issues: whether the scope of the conduct charged to him in his summary convictions could properly be considered to extend past that specifically identified by the district judge at the time of the convictions; whether, properly considered as to scope, the conduct сharged could properly have been adjudged to constitute direct contempt; and whether in any event the district judge who adjudged him in direct contempt was disqualified at the time to do so. The majority holds against Chaplain on each of these issues. I fully concur with the holdings and with the court‘s opinion on all but the last issue. On that, I respectfully disagree, believing that, regrettably, the district judge had become so openly embroiled in personal controversy with Chaplain that his impartiality to adjudge guilt was reasonably open to question аnd that in consequence he was disqualified to convict summarily.
As the majority rightly points out, the judicial power summarily to convict and punish for contempt of court is an inherent power based upon a fundamental necessity in the administration of justice. Maj. op. 1275. Equally fundamental, however, and undoubtedly of even more eminent heritage is the right of any person accused of crime1 to have guilt adjudicated by an impartial tribunal. See Tumey v. Ohio, 273 U.S. 510 (1927). Of necessity, in summary contempt convictions, inherent judicial power may clash with individual right. So they do here where the impartiality of a sorely-pressed trial judge to adjudge guilt summarily was duly challenged below and here on appeal. The issue being thus squarely raised, we must try to strike the proper balance in this admittedly hard case.2
II
By its very nature the summary contempt power contemplates that it shall be exercised by the judge in whose presence the contumacious conduct occurs. Accordingly, the rule governing criminal contempt proceedings literally provides for disqualification of the judge only in cases of indirect contempt where “the contempt chаrged involves disrespect to or criticism of [the] judge,” and where a plenary proceeding may be provided.
“Embroilment” is of course simply a shorthand characterization of a complex human situation incapable of accurate general definition for all possible circumstances. Just as contumacious conduct is infinite in its possible variety, so must be the variety of conduct properly thought to constitute disqualifying embroilment of judge with contemnor. As the majority has rightly written, conduct may be contumacious without being violent, vituperative, or physically obstructive. By like token, disqualifying embroilment must be thought to include conduct not comparably dramatic. Referred to the undergirding prinсiple of impartiality in adjudicating criminal guilt that it implements, I would consider the
The logical consequence of this is plain, and should be flatly recognized: a judge may in effect lose the power of summary contempt by becoming so embroiled. See United States v. Meyer, 462 F.2d 827, 841 (D.C.Cir.1972). Assessing whether he has so far crossed the line that he cannot properly invoke the power lies of course with the trial judge himself in the first instance; but enforcement of the principle ultimately devolves upon the appellate courts. In this, they face the difficult task of assessing the matter on the bаsis of a cold written record. Undoubtedly this may sometimes lead to disservice to a conscientious trial judge, the more so because the record must be read with a view to appearances, and not to the ascertainment of actual bias. For it has been recognized that “‘[s]uch a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties,’ but due process of law requires no less.” Taylor v. Hayes, 418 U.S. at 501 (quoting In re Murchison, 349 U.S. 133, 136 (1955)).3 Notwithstanding the difficulty, the obligation оf review requires the assessment.
Fair monitoring of the principle also requires that the appellate court identify the conduct upon which it reaches its conclusion that particular conduct does or does not constitute disqualifying embroilment. Only so may standards emerge. This too poses a danger of disservice as particular words or conduct may be inadvertently lifted from true context. But again, the obligation of fair review requires this, particularly if disqualification is found. My review of the record leads me to concludе that the district judge should have disqualified himself here.
When the judge arrived in court, he found a second court reporter present at the behest of Chaplain. The judge immediately ordered the reporter to the back of the courtroom and stated in response to Chaplain‘s proffered explanation of his presence, “Well, if you‘re inferring that my reporter or this Court is going to misquote you—.” Later, when Chaplain attempted to explain his failure to have certain records with him by adverting to his lack of knowledge about the court‘s regulations, the judge commented, “Just because you‘re ignorant, Mr. Chaplain . . . .” When Chaplain insisted that he could produce evidence that the government had stolen the records in question, the judge suggested a continuance until the same afternoon so that he might obtain the evidence. Both Chaplain and his
As indicated in the majority opinion, it was following this warning that the judge sometime later, directly responding to two comments of a relatively innocuous nature when viewed in isolation, twice summarily convicted Chaplain of criminal contempt. On this record, applying the standard еarlier articulated, I would hold that the district judge had become so embroiled in controversy with Chaplain that his apparent impartiality had been compromised to the point that he was disqualified to convict summarily of direct contempt.4
III
Because I agree with the majority that Chaplain‘s conviction is not reversible as a matter of law, I would hold that he might, though he need not, be found guilty of direct contempt by another judge on the present or an expanded record. So holding I would vacate the judgment of convictiоn, remit his fine and remand for possible reprosecution by any of the persons authorized to prosecute for contempt under
I am authorized to state that WINTER and BUTZNER, JJ., join in this opinion.
Notes
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.
Counsel has not directed us to any case, nor has my research developed any, where disqualification for this reason has been found by an appellate court in respect of a summary conviction imposed immediately upon occurrence of the charged conduct. In both Taylor and Mayberry, for example, where disqualification was found, the conviction, though summary, had been delayed until the end of the proceeding. Accord, Paul v. Pleasants, 551 F.2d 575 (4th Cir. 1977) (not disqualified). In Howell v. Jones, 516 F.2d 53, 59 (5th Cir. 1975), and In re Williams, 500 F.2d 403, 405 (2d Cir. 1974) (per curiam), disqualification for this reason was considered in respect of immediate summary conviction but was found not required. While the remedy of disqualification is obviously much easier to apply to situations where the trial judge has not immediately acted, I see no difference in underlying princiрle as applied to the two situations.Of course, the option existed here to cite decisively for contempt and defer adjudication to a later time by another judge. While the obligation to disqualify may obviously not be based upon hindsight evaluations by appellate courts of the relative effectiveness of summary conviction or citation for deferred adjudication, the record here strongly suggests to me that the latter would have been at least as effectual here. There was no noticeable change in either the tone or the progress of the proceedings following the summary convictions. The whole proceeding lasted only about two and one-half hours.