*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, 350 F.2d 843 *2 Joseph Washington, L. appellant D.C., for Rauh, Jr., Esq., Almeric L. Thom- Esq., Charlotte Amalie, St. Christian, Virgin appellee

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) 96 L.Ed. 717 (the certificate of *7 equivalent of the district matter) court’s in this “* * * opinion in Mr. Justice Jackson states the incor- porates, by pages of 13,000 the reference, record.” He goes say summary on to “The in certificate full and of reported prac- relevant evidence have been below.” That accepted Supreme largely tice was the Court and is appeal. similar to what we this There, as here: questions “It is relevant of law to observe that the behavior punished as a of Appeals’ judgment result the Court of has these place characteristics: It took presence in the immediate of the trial judge; it consisted of breaches of decorum and disobedience in the presence jury of the rulings upon trial; of his orders and professional misconduct was lawyers, it was that of or of a layman acting lawyer. as his addition, own conviction is not based on an hasty isolated instance of speech contumacious or behavior, but long-continued a course of conduct in the face warnings of regarded by that it contemptuous. was the court as deportment nature of the merely personal was not such as to offend judge, prejudiced sensitivities of the expeditious, but it orderly dispassionate conduct of the trial.” major ofOne difficulties Sacher was that the dis- judge completion trict awaited holding of the trial before attorneys contempt. concerned That was for the sound reason that prejudice the court did not wish to coun- jury. sel present before the In the instance there no jury problem and no of that sort to be avoided.

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, 365 F.2d 500