*1 judge might actions that defendant’s concluded well have premeditated, act deliberate to conceal his intended were killing appear defense. and make it self judgment will be affirmed. of the District Court Matter of In the TAUBER, Appellant N. JOSEPH
v.
A. GORDON
WALTER
No. 14,896
Appeals
United
Court of
States
Third Circuit
May
Reargued
25,
July
Decided
30,
See, also,
as, Islands, for Judge, Before and BIGGS, KALOD- McLAUGHLIN, Chief NER, STALEY, and HASTIE, GANEY, SMITH Judges FREEDMAN, Circuit
PER CURIAM:
During controversy the course of the trial of tax a civil in Virgin the District Court of the the court cited Islands, appellant, Attorney an Assistant General who trying Virgin for case the Government of Islands, summarily for and fined him criminal $100. summary procedure ap- entire of citation conviction pears' transcript proceedings im- verbatim mediately immediately after the recon- before following an off-the-record in discussion chambers: vened * * *
“IN CHAMBERS” Let the record show that “Court: the Government wanted back to call Charles Haim on stand Mr. as an adverse party grounds and the Court refused on the that was on he a half hours on cross- for three and stand witness elderly, very and has had a
examination and he’s sick man— reported go and had to to the Doctor as a stroke going him to be called back I’m not to allow Court, the stand.
“IN OPEN COURT” request I make to the Court must “Mr. Tauber: happened personally I would Chambers, of what view myself request like the assistance counsel to seek my placed on head threat that was because open and not court. chambers right you open placing If I’m here in court. “Court: *3 contempt right keep talking you now. I’ll fine for on private thing place, in there and it the first that was friendly you talking just kept perfectly and now until was you come out here —. (Interposing) Something put on the
“Mr. Tauber: your Honor. record, nothing put on the record. There was
“Court: taking About not stand. “Mr. Tauber: Mr. Haim go that we into “Court: Mr. Counsel asked Tauber, you something private and I told chambers and discuss put left the record that when we there that we could on go going permitted on to be not Haim was Mr. Charles the stand. deliberately another come out here started
“You argument. ($100.00) you for dollars going one hundred to fine
“Pm record so show. Let the of court. I out and— came here reason For the Tauber. “Mr. dollars for of court. one hundred I said “Court: way through through all this trial. your conduct It’s your deliberately just culminated It first. not This is meeting in chambers and start- coming after out here something. ing to discuss only of counsel. requested assistance I Tauber:
“Mr. fining you one you’ve I’m done and I know what “Court: hundred dollars. stay your the fine May request Honor I Tauber:
“Mr. appeal? your stay going on it. Go with I’m not “Court: No, case.” disposition the matter
Subsequently made its the court “throughout the recited in an order which more formal * * * continuously Joseph Tauber N. of the case rulings upon Court objected to and commented constantly “had been after had been made” said on con- his action bordered Court that admonished attempted episode of tempt”. also referred order set out we have of confidential which matter, disclosure appears as the culmination in the record, above as improper of conduct. Tauber’s course panel of appealed divided from that and a
Tauber Thereafter, action. court’s this court affirmed the district rehearing granted en banc. present the court before we has iden district court It that the will be observed only Tau particularity one occasion tified with quoted contemptuous. have We conduct was deemed ber’s *4 unable transcript then. are of occurred We full the what as an that time at anything said Tauber that to read any matter open confidential attempt to disclose If conviction the in chambers. discussed had been that occasion, contemptuous on behavior depends support it. not record does contempt order formal hand, the other
On contempt holding Tauber for a further reason as states “continuously ob “throughout trial” he fact that rulings court after of on the jected and commented to general beyond asser this But made”. had been said of mis- specify occasions or the items not court did tion the enough, individually behavior deemed serious or cumulatively, punishment contempt. to merit a as Such day general of behavior over a characterization seven enough satisfy specific requirement period to of is not 42(a) of Criminal that a Rule of the Rules Procedure ** summary contempt of recite the “order shall facts Transportation v. 7th Cir. Keeshin, 1961, See Co. Parmelee requirement than a 294 F.2d 314-315. This is more 310, formality. It is essential to disclosure of the basis of deci- particularity permit ap- to informed sion with sufficient pellate review. ably attorney, dis this district who case,
charged responsibility contempt support order on his to appeal despite participate this did the fact that he not proceedings give attempted specific in the district to court, meaning general language by order culling presenting from the record and to this court all of episodes questionable and con Tauber may tention between court and the court counsel which brought Certainly episodes thus in mind. have had unduly peevish persistent dis our attention disclose equivocal putation, and difficult as several acts, as well they paper occurred which as on the record, characterize deliberately might impressed as dis orderly ruptive But enumeration of trial.1 counsel’s in his view after the afforded event, occurrences which, proper cannot for a be substituted basis throughout cation of conduct any other conviction of crime specification and a to read that than the aware of all that are mentioned hereafter dissenting opinion we generalized are single *5 trial, convinced record and wrongdoing upon one that, cannot be sustained. A criminal reference without the record is mistaken in its assertion that noted on that a in footnote 2. It is in the simply review, appears must stand or fall on the discloses, contempt conviction, which it is based. closes its majority opinion”. specification including not to have been eyes to a course of conduct light every such based on one “[t]his areWe of that awareness unpleasantries sufficiency occurrence other contemptuous, court refuses painfully specifi of the like specification by judge required of the facts upon actually predicated he order. which his
Though no court we have doubt that the district was subjected, as vexation,2 courts often to considerable are, during appellant’s episode we conclude that conduct immediately con- in chambers was not after the conference adequately speci- temptuous and that the court has not any contemptuous of a nature. For these fied other acts summary conviction must be set aside. reasons this It so will be ordered. Judge (dissenting): Circuit
McLAUGHLIN,
clearly
appellant,
The record here
establishes that
an
attorney representing
party
a
in the trial of a civil action,
guilty
contemptuous
of a course of
deliberate,
day
persisted throughout
to
the seven
which
justice.
administration
trial and
obstructed the
complete
that
court was
further
reveals
The
record
opinion
dissenting
during
this trial
the troubled course of
asserts that
attorney”.
patient
dealing
“the
with the
No doubt
court was most
provoked by
attorney’s persistence
arguing
court was
had been made.
after
However,
beings, judges
react
to
as human
sometime
provoked
vexation with retorts
a
irritation that are
show of
both
So,
provoking.
point
argued
in this case at one
counsel
that
power
refund”,
circumstances the court did not have “the
to order a [tax]
only thing
power
and the court retorted: “The
I have the
to do is what
occasion, upon
completion
I
ever
choose to do.” On
of the
another
shortly
midday,
following colloquy
examination of a witness
before
occurred:
your
plans
may
Honor,
I
if
Honor
to recess at 12
“Mr. Tauber: Your
ask
because—
“Court: I’ll run the court.
only asking your Honor—
“Mr. Tauber: I’m
“Court:
“Mr. Tauber: I
“Court:
you
going
I
have
tell
what I’m
to do.
don’t
only
your
question.
asked
Honor a
you
any
asking
I
know what
asked. You didn’t
business
place.”
in the first
throughout
greatly
apparent
displeased
the trial
court was
It is also
making
proof
offers of
when the court
insisted
sustained
that counsel
testimony.
response
proffered
proof
objections
to one such offer of
* * *
style
particular
doing things
not like that
stated “I do
to tell
court
ruling
you
proof
put
an
I
want to make
offer of
me after made
* *
subsequent
warning:
offer was cut
One
off with the
“If
it in the record
you keep on,
you
your
going to sit
down and call off
I’m
examination.”
multiplied.
simply
point
be
We cite them
Such instances could
to make the
intimation,
dissenters,
that, contrary
entire
course of this trial
by exchanges
between
and counsel that were
was marked
acrimonious on both sides.
heated and
*6
attorney.
dealing
patient
con-
the
The latter
most
with
continuing
argue
stantly persisted
had
to
after the court
ruling. Appellant
patently con-
made its
committed other
temptuous
turning
judge,
his back on the
actions such as
disobeying
throwing a book
and
of
down
the direct order
by referring
topic
court
to a
the court had held
the
judge
right
was not to
or
be discussed. Whether the
wrong
appellate
trial
His
his
was for the
court.
authority
simply
to
not to
make them was
be flouted
be-
petulant disappointment
of
cause
at his decisions.
majority’s quoted phase
pro-
The
of
the district
ceedings unmistakably
question of
reveals that the
witness
being
Haim
Charles
to
stand had
dis-
recalled
been
posed of in
and
chambers
that
court had had
result
stenographer.
recorded
With that
incident closed
fully protecting
disagreed
the record
Tauber in the event he
ruling,
guise
asking
with the court’s
under
Tauber,
judgment
was in
counsel,
of the court
more
once
attempting
reopen
using
a decided issue instead of
proper appeal channel. The court’s comment on this was
deliberately
“You have
come out here
started another
argument.”
light
trial-long
attitude of the
In the
attorney,
justified
considering
episode
the court was
continuing an ill concealed defiance
part
tactic of
as
rulings.
The court at
time
of the court’s
single
contempt,
as
not for a
incident but
Tauber in
held
your
through
“It’s
con-
and there stated,
court then
way through
trial.”
duct all the
this
majority
trial acts of Tauber
concedes
several
“* * *
they
brought to
attention
which as
occurred
our
deliberately
might
impressed
dis-
as
orderly
ruptive
trial.”
this court refused
However,
though
it
its
court,
these because the
based
consider
throughout
holding upon
did
not
trial,
Tauber’s
“* * *
or occasions of
the items
misbehavior which
detail
enough
individually
deemed serious
cumulatively
or
punishment
merit
contempt.”
While effort was made to
explain some of the trial incidents none of them was denied.
et al. v.
Sacher,
United
States,
U.S.
1, 5,
S.Ct. 451,
(1952)
Plainly, punishment Tauber’s salutary. was deserved and setting There is no valid excuse for aside the conviction at this time. This court has long. record which is not appellants It throughout is the trial that formed judgment the basis the district court. This court of eyes to simply closes its record and read refuses single every noted one other than occurrence acting passing on majority opinion. In the court is not so consciously refusing a district appeal. It merits is admittedly hearing judge on his full of this circuit fair, do should for his The least we reasons decision. meritorious jurisdiction parties justice is to to both retain in common purpose appeal to court for the district remand the having judge particularize the actions further contemptuous appellant to be held upon which he made his order.
Judge Judge dis- in this GANEY concur STALEY and sent. RUIZ, Appellant
SANTOS VALENTIN
v.
*8
AMERICA
UNITED STATES OF
No. 15,825
Appeals
United States Court of
Third Circuit
August
8,
Submitted
August
Decided
31,
See, also,