Parmelee Transportation Company, a Delaware Corporation v. John L. Keeshin, in the Matter of Criminal Contempt of Thomas C. McConnell

DUFFY, Before SCHNACKENBERG Judges. CASTLE, Circuit Judge. SCHNACKENBERG, Circuit McConnell, respondent, Thomas C. has appealed from an order district by Judge court entered Julius H. Miner thereof, 30, D.C., 1960, on June F. 533, Supp. adjudging guilty him of crim- sentencing inal him to con- period days finement for a on ten each specifications of three described said contempt order, said sentences to run concurrently. acts of con- tempt occurred in connection with the trial of the ease of v. Keeshin Parmelee et al.1 Specification fol- reads as

1. lows: April prior to the “On although jury, Thomas of a selection statement, McConnell, his own C. transcript previ- read the had hearing in at which the ous the cause suggested motion own its given sepa- consideration injury public of the issue ration although sug- trial,

gestion made motion been any any attorney for defendant at case, hearing in the Mr. Mc- stated as follows: Connell “ 'This a forum where should be could lawsuit tried being penned in and without hemmed appeal An in this 1. case was decided in this on as case No. June F.2d restrictions, 445, 453, L.Ed.2d of artificial 77 S.Ct. a lot in with other counsel on the up dreamed given side, whereby arewe that, We hold record before- opportunity this what to tell validly court, specification 5 does not ” is about.’

this lawsuit charge respondent with not did court. Respondent he contends that contention jury before right makes

pleadings, cated tion lic special mate issues attorney tion specification and that site duct but that the segregate sible, ants the he position 5 L.Ed.2d 358. Nevertheless the Radiant Burners ceded that take the right said: Coke the We to that it was separation on had read the injury end that it be ^[*] * -» “ for denied, ^[*] by respondent. Co., to prove that from find it most to divide denial of public ^[*] read into recover.” In separation had plaintiff position prerequisite ft 364 U.S. for can of the the defendants had made the McConnell respondent issue the court public for made a unnecessary respondent trial was irrelevant. go injury, trial, established. case, legal issues “under Rule briefs any Plaintiff public injury reading court to v. hence it anything trial, made that difficult, fact, Peoples injury grounds, seems to have contumacious view of the correct suggestion which the While no defense its and was the court when the is then said separate the briefs specific opposed for was establishment referred issue of supported if not Gas proposed to as others, plaintiff arguing and “that public had indi- S.Ct. pleadings Miner, prerequi- Light & arguing such; defend- had impos- allega- legiti- to pub- This that 21,” con- mo- in- so unless proof on it. ean We don’t have a answers, because right not an offer which the ping you about these are for jury, are jury definitely to tions we are edly asking questions on doing it. and cause Court admissible, right “ “ ‘By ‘By “‘By “‘By “On ask proof plaintiff ‘By questions, stopped sustain their trying hearing as on this Specification 6 conversations questions. it April had instructed these issue Mr. the Court: distinguished to Mr. McConnell: We Mr. McConnell: outside but we have I following is some Court ask have ruled to 27,1960, in the McConnell: to Court: questions, and until we- in this case. in them. issue, going to ask of the and we completely tell us we asking refrain bailiff questions our the had ruled objection asking We occurred: and Your Honor- presence I presence of the- jury, reads prerogative in You can offer from an am now propose the stops have a from specifically,, these We Mr. which we- that it Now them, attorneys can’t after the questions- read as presence subjects was us.’ repeat- have Cross, follows: them. ques- to do right stop- have- offer you: ask ” ask not the be- is. a. issue, not a was relevant it evi- As in our indicated No.. charge specification from the dent the case Parmelee v. Keeshin referring respondent al., was ar- before court et was on trial guments pleadings proposed respondent in the briefs and when make offers presence proof he and that defendants substantial outside the jury. rejection used, Upon for the which he defendants’ basis ordered, Supreme holding suggestion, plaintiff’s view of stated, Burners, supra, Respondent proceed. Radiant well as Rado- trial League, proof Football vich National 352 that offers would involve issues, experience, expenditure monopoly out or the conspiracy and why so, be of time modern have to to learn “will it advised he lawyer jury”. may simply of civil presence read rules outside the made procedure according practice correct. responded: “That is The court ruling.” rule book. If my there is area That is practice court by now covered which is not was sim- explained that he Respondent rules, probable a new record laying a basis ply promulgated rule will be in due time. wished appeal and mak- he was offers show attempted reproduce record ing. We have the essence of turbulence under which pro- required pro usual to act in attempted follow He rights. ques- tecting putting a his client’s is not of cedure, consists purpose presence of the of this to decide whether in the witness tion to a made, an he objection is correct his statement of the and, jury when rights presence substantial of his client. are out of the We proof made offer of here question concerned Finally admitted with the court jury.2 respond- respondent by attorney whether as an con procedure followed this properly ducted attempt as he himself by cases” in an “the required ent was represent right However, his client. It later the was his as “read them”. duty firmly of well as respectfully his offers record several from struck charges plaintiff’s bearing advance rights. upon claims and assert its proof doing, In so monopoly, reason he for the had as much spiracy and right nothing charges be in the do with courtroom and to act that these as did injury. right, public He had a question when the court ruled he could not intro although respondent, It is obvious that evidence, duce proof to make offers of maintaining his difficulty, was with thereof, that, ap to the end in case of an despite position, the shift client’s peal, proper might a basis for a review rulings submission as to the court’s appear in presiding the record. The meth- case. The proof in a offers of punish had a respondent accord is in followed od for contumacious violation of his long-established practice in An- duty as a pro member of the bar in this glo-Saxon incident em- and this courts ceeding. punish Power to great importance trial phasizes is one sparingly which must used be generally. lawyers experience for court Ironically, only clearly when it is demonstrated respondent’s adherence respondent’s that the conduct is contuma respect in had learned this what he bring cious and tends to the administra being jail. led his ordered to the courts justice tion of disrepute; into Tather than Fundamentally adequate sub- there is when his conduct is that of k determined trial for in the heat a contested stitute practitioner acting level-headed who is experience. prior Of these course respectfully to the court under consider money days, can made when more be pressure able lengthy important in a lawyers courtrooms, num- outside trial. lawyers rapid- experienced ber provides: 18 U.S.C.A. § decreasing. So, synthetic ly supply “A court of United shall States capsule experience in form to take punish by power to have fine im- experience, place have rules of trial we discretion, prisonment, at its such 43(c), as 28 U.S.C.A. Rule authority, contempt of its and none just pills supra, as have vitamin other, as— always for meals which substitute prepara- “(1) any person taken considerable time Misbehavior eating. So, now, presence well as in with- in its or so near thereto tion as 43(c). recogni: Rule 2. This U.S.C.A. procedure finding court said: re which This case was cited justice; that element true, upon an act done ance In Ex as to obstruct in punish ^[*] In Michael, “An obstruction 39 S.Ct. every the case at bar the order L.Ed. which the that it follows (cid:127)» is, parte ” judicial duty appeal * case respondent’s must then, 30. 337, 339, * *” contempt is Hudgings, must where the was taken contains power to rest. This administration clearly 224, 228, presence 63 L.Ed. resulting characteristic conduct tended approval in In 249 U.S. presence of punish for n exerted— perform- shown 66 S.Ct. being from V378, no ! .no further that he took the until proof record and right cusable contumacious conduct. While events did not clash, respondent insist court for use theory in his method of upon is in court was uttered 6 and physically rely only superior the court proceeding. to make such stopped by upon pursuing is we now rests these words that enough alone that wrong, that, protection defy quote extent upon position if the court making a court precipitate made it clear when a court review. His the court to the this threat was inex- Even if he was premise support specification indicates that he physical his could will record, than that he a record and the course of of review. protection require bailiff. that he prevent infringes proposed force called his redress adequate intended physical an af- action needs point This him did to to obstruct or continued obstruct the firmance of the order from which this appeal justice, although we administration of has shall, been taken. We how- ever, do punishment not base our decision on this omis- reduce the thereunder sion. Rather think a that its absence fine of we $100. strongly indicated that district court Specification 7 reads: support could find in no record for “Repeatedly during the course of Actually appears such a statement. it the trial Thomas C. McConnell con specifications upon ducted himself in a contumacious order was based until were not made by employing manner a tone voice question several weeks after trial in indicating contempt and an attitude had occurred. and defiance of the Court and dis specification 6, that, As to we hold regarding admonitions of Court exception of one statement attributed respect to his conduct before respondent, nothing with which he is jury.” charged supported by proof has been specification, without This citation disrespect. contumaciousness or support any part it, the record exception specification 6, in general require by an answer re- too spondent just referred, charges which we have ruling by definitive or a respondent said: otherwise, If were court. the law “ * * * We don’t required have a would be determine whether answers, to read justified being a we have order was without questions, single fact, and we to a word directed or deed propose spoken to do so performed unless some bailiff to have been stops us.” accused. As one said in re- gard charge: to such theory holding respond- The whole “* (cid:127)» * repre- immune his conduct in The conclusions ent good senting judge, unsupported by specific facts, his client in faith is satis- permitted contempt proceeding fied when he make rec- in a direct bear respectful weight in manner ord in no whatsoever.” complaining proceeding Hassakis, 6 Ill. witness People Andrews rel. ex the same To before 11. N.E.2d 2d A.L.R. in 154 summarized effect are cases expresses “The Rule itself no limitation, contrary and infer- filed nothing in a brief inescapable. find cited ence is almost al- We It is support attorney any contempt most States inevitable that justifies contempt presence orders of specification committed in the fact, judge seeks during that brief a trial will be argument that, against inasmuch dignity shelter au- offense imposed thority. as concurrent were sentences At a so court is up- specifications, judge on each of several much the and the so holding is suffi- of an order on one much that the terms two interchangeably cient. are used count- gen- opinions less in this specification does We hold erally law, in the literature of the of law contempt constitute as a matter one is since recites conclusions mere of the other. It cannot be that sum- alleged contempt is facts on which the mary punishment only for such based. contempts minor as leave the contends Respondent may indifferent and be evaded required fairness fundamental Judge adding hectoring, de- abusive act disqualify himself Miner fiant conduct toward the This, he contempt matter. ing in the interpretation individual. Such an considered Miner says, is because nullify, practice, would personal at contempts as a the purports grant.” it time, and, himself, the same at upon tack supra, States, In Offutt v. United emergen “no was that there conceded he cy growing proceeding court considered a it.” about of criminal where Offutt out a trial upon particularly Respondent relies From the trial counsel. defendant’s 11, 75 States, 348 U.S. United v. Offutt Supreme follow- Court the of the Murchison, 11; In re 11, L.Ed. 99 S.Ct. ing appears, of facts 348 U.S. statement 623, L.Ed. 133, 99 75 S.Ct. 349 U.S. 12, page page at at 75 S.Ct. 12: Cir., States, 1 942; Farese v. and * * outset, Almost from the 315, 312, A.L.R.2d 42 F.2d 209 judge presiding a clash between general direct rule that a is a manifest, petitioner and which, became against not suffi court is contempt say, colored the it fair to judge disqualify court or cient to throughout its 14 course of the Colorado, State Patterson thereof. increasing personal days, 556, 463, 454, 51 L.Ed. 27 S.Ct. U.S. 205 again overtones. again petitioner for admonished 3 42(a) discussing rule disregard rulings deemed what he States, 343 U.S. v. United said 1, Sacher outside allow- behavior other 456, 96 L.Ed. 717: 72 S.Ct. aggressive advocacy, limits able consequences ad- the Rule is him of and warned “A construction deny by way punishment for which would vocated summarily punish a conduct invited. On the con- which such interchanges hand, tempt personal himself these be- other mark- except, perhaps, counsel were a moment when tween court necessary by expressions and revealed an at- to forestall abortion ed it is hardly only recourse, re- reflected the trial. His titude judicial de- said, of conventional is to become accuser straints 42(a). rule 3. 18 U.S.C.A.

316 person- characterization we do not find meanor. Such that he was abiding ally necessity controversy re- involved in derives from with the reading spondent leading rulings impression or that in his left appealed to the orders ac- from he entire record. by pei'sonal enmity tuated toward either trial, after of the “At the close lawyers contempt. held in Accord- deliberation, the for had retired ingly we do not feel case that the Offutt procedure acting judge, under the requires upon us record before 42(a) Fed- prescribed by Rule there should be a remandment for retrial Procedure of Criminal eral Rules judge. may another before Whatever authority involving of Sach- have been the reasons that caused States, 1 [72 er v. United to commit the errors which 717], found 96 L.Ed. S.Ct. have recounted in cases Nos. guilty petitioner of criminal 13175 and the recox*dsbefore us tempt certificate the basis afHxmatively enmity personal rebut containing Rule,

filed under findings judge against harbored two ‘contumacious, and un- respondents before him. during open ethical conduct trial,’ him commit- and ordered We, therefore, hold that custody days ted failing court did not err in questions to refer Dis- Marshal for the United States to the executive trict of Columbia. assignment hearing committee for have said charge the should conduct of of the approval U.S., The court In In come petitioner. escent even sive that impersonal quick to fairly posed. Appellant’s conduct hours. ported the -» ord four rare “The Court great provocation reversing, ^[*] to sit in the second punishment from does invite the judge permitted himself to be- against judges. The record is page personally embroiled temper *»» * * present flareup, not a show of evan- herein irritation —a modicum pointed It concluded instead considered who 15 75 S.Ct.: commitment, * * * judge. Each authority The support the the of that must has not been in entire appeal, imposed assignment findings amply out at record Appeals found petitioner. representing ” apart that ‘the while what we page hearing suggested discloses penalty im- the sentence be days responded the other. law, with reduced persua- allowed 17 of 348 cannot on the that sup- rec- not the the the scribed other than in therefor was based the issue of In does the it guage order of tion such effect. Nor stand or fall on the unless it trial giving tack He refers to this tribe without tions honest and cedure herein fair and plaintiff herein, their will course of intimidating, Inasmuch as the this “ * that it showed the justice.” contains some aforesaid, him respect, ** in the dominate supports respondent’s and that he was improper behavior, In addition to the contempt”. unprofessional, upon impartial any support preface kind of Both we are insulting, defiant, un- the order without preface characterizes language: the upon the embarked or court’s order attorneys prefatory Court and specifications, indicate that impressed administration course prejudice We cannot fair regard now under specifications. “incapable unimportant, punishment unethical, conduct court’s hearing upon as “a for the specifica- remarks record.” conten- foist pro- must an give lan- dia- the de- the' at- on plaintiff’s McCon- v. difficulties the counsel in MacInnis reasoning preserve trying nell encountered in Cir., F.2d States, rights. attorneys his client’s S.Ct. The denied certiorari plaintiff were frus- driven to a sense of L.Ed. 708: tration due to rul- the District Court’s ** “* remarks court’s The ings on proof. offers of such cir- Under ver- after counsel addressed cumstances, it is understandable that admirably returned been dict attorney might things say which should judge and poise of show not have been said. I think that was the upon the based the sentence situation in the case at bar. certifi- contained statements However, circumstance. majority frame in their does cate general not adequately present setting reference The court’s throughout which the counsel McConnell statement was conduct either made. He indicate not addressed the Court trial does as fol- right or the lows: “We have judgment questions upon we issue, rests offer punishment therefor this and Your appel- Honor found can objection sustain The court their conduct. contemptuous them. We don’t lant’s statements have a to read answers, fit punishment to measured we ask questions, remarks court’s propose the offense. to do so unless fact explanation of some stops bailiff constitute us.” McCon- nell’s than the other conduct statement during occurred counsel’s reading of deposition was such contemptuous remarks of Howard E. Simpson, president contemptuous statements the Baltimore & Ohio Simpson Railroad. condoned.” would not be was a defend- ant. plaintiff’s One of attorneys was the reasons which accordance reading portions Simpson’s adverse ex- stated, order from which we have lay amination to the foundation for an taken is reversed appeal been this has proof. offer of The statement made McConnell, respondent ex- C. to cept Thomas McConnell was followed imme- almost only as specification 6 therein toas diately by a recess. When the court ses- cause it is affirmed sion resumed, Mr. McConnell com- in- district remanded to the plied with ruling, the Court’s and did imposed sentence structions to vacate persist asking particular ques- impose a fine thereof in lieu tions. paid specification to be on said $100 might vigor- be noted that counsel’s McConnell to the Thomas C. preserving ous insistence on his client’s pursuant clerk district of rights fruit, bore later law. changed ruling. Counsel was then part part and in af- Order reversed permitted questions pres- ask firmed remanded with instructions. precedent ence of the aas condition proof to the offers of made in accordance Judge (dissenting DUFFY, Circuit 43(c), with Rule Federal Rules of Civil part). Procedure. agree majority I with the has had much trial ex- Mr. McConnell Specifications under convictions perience. under the stress of the Even agree I and 7 reversed. also should be exasperating such as en- conditions he failing not err in Miner did countered, he should never have threaten- assign Committee to the Executive asking questions to continue ed charges con- hear although rulings, the Court’s he view tempt. rulings were incorrect. certain felt recess, Specification he had had when time After the I as to would also reverse down and consider majority opinion cool describes apologized to the used, he should

Court. com- Nevertheless, did McConnell Mr. point At that order. ply the Court’s the con- interference was .there obstruc- nowas There trial. duct justice. administration

tion for criminal view, my conviction also Specification 6 should tempt under reversed. CAULEY, Appellant, Charles

Robert America, STATES

UNITED Appellee. No. 17302. Cauley, pro. per. Robert Charles Luckey, Atty., C. E. Joseph U. S. Appeals States United Buley, Atty., Portland, E. Asst. U. S. Ninth Circuit. Or., appellee. Sept. HAMLIN, Before MERRILL and KOELSCH, Judges. Circuit Judge. HAMLIN, Circuit Cauley, appellant Charles here- Robert charged in, an indictment filed in District Court United States Oregon with eleven violations District of laws of the States. of the narcotic by jury convicted After a counts, September eleven on all 17, 1957,he was sentenced years imprison- a term of six count, each the sentences run ment on concurrently. appeal was taken No this conviction. years three later and while in Over appellant, propria persona,

prison, filed under 28 2255 to a motion U.S.C.A. va- § judgment and sentence thereto- cate the imposed fore appellant (1) motion hearsay evidence on was convicted alone; federal officer the word prop- (2) he was denied the

Case Details

Case Name: Parmelee Transportation Company, a Delaware Corporation v. John L. Keeshin, in the Matter of Criminal Contempt of Thomas C. McConnell

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Oct 5, 1961

Citation: 294 F.2d 310

Docket Number: 13175

Court Abbreviation: 7th Cir.