*2 POOLE, ANDERSON, Before HUG and Judges. Circuit HUG, Judge: Circuit his convic- Rylander appeals Richard W. fail- willfully tions of criminal *3 ing with the district court’s order in produce corporate various documents to Internal Revenue sum- response Service at a hear- failing monses and for be held ing to show cause he should not difficulty The initial arose contempt. in corpo- certain when the IRS tried to obtain and documents from rate records investigate in order to the tax returns of pres- of which he had been corporations two ident. He did not the records summons, contending to an response IRS that he did not them. The efforts possess to enforce the summons and IRS genesis sanctions form the obtain of this case. the in highlights problems

This case interrelationship volved in the of civil and contempt. criminal was tried for civil and criminal both proceeding. Ry same In United - lander, -, I), (1983) (Rylander reversing (9th Cir.1981), Supreme 656 F.2d 1313 reversed this court and affirmed the Court frequently civil citation. Courts difficulty distinguishing have between civil See, contempt. e.g., and criminal Powers, (9th Cir.1980). the distinction is Procedurally, contempt proceed crucial because criminal re contempt proceedings, unlike civil ings, amend quire protections such as sixth counsel, the amendment right ment fifth stand, the right not to take the witness a reasonable doubt” burden of “beyond instances, and, proof, in some trial. This case illustrates demand a Harbison, III, Sacramento, Cal., Joseph F. trying civil and the difficulties for defendant-appellant. together. cases Horn, E. Murray, JoAnn John F. Charles I

Brookhart, D.C., Washington, plaintiff- appellee. FACTS simple a mat-

The facts demonstrate how complex into case. very ter can mushroom Respondents, how a district tion over and it is It is understandable there- calendar, contact with busy whose hereby fore in the form of numerous brief the case was (Dick) that Richard Rylan- ORDERED months, period many procedures over der, shall on Monday, Sr. Febru- complexities could overlook some of 4,1980 at 10:00 ary a.m. before Joan Van subtleties. Berg, person Den or other designated by purposes, began our this case on Jan- Petitioner, For at the office of the Internal 4, 1979, when the Internal Revenue uary Street, Revenue Service at 801 I Room (“IRS”) issued administrative sum- Service 292, Sacramento, California, and then and directing Rylander, pres- monses Richard as there inspection Petitioner’s Realtors, Company, ident of copying records described Inc. and Affiliated Investments and Mort- IRS summonses attached hereto as Ex- gage Company, before an IRS B, hibits A and rec- except following agent give testimony regarding his tax ords described in Exhibit A:1 *4 corporations. and that of the two liability The order require Rylander give did not to required Rylander The summonses also to to testimony, only produce documents. The produce corporate various documents. Rylander appeared on 4. He February sought pur- were testimony and documents not, however, bring did with him any of the into investigation suant to an documents the by demanded IRS. After tax for the liability years federal income being informed of his fifth amendment through Rylander 1973 1977. When failed rights, Rylander stated that he was not the summonses, the Govern- comply president corporation of either and that he petitioned ment the district court for en- had none of the corporate documents 7402(b) forcement and under U.S.C. §§ then sought. He refused to answer any (cid:127)7604(a). questions. The district court issued orders on No- The district court subsequently issued an 1979, 20, directing Rylander vember and February requiring order on 14, appear January before the court on 10, 1980, appear on March and show cause show why and cause the administra- why he should not be held in tive summonses should not be enforced. January failure to the order of Rylander returned the orders to the court enforcing the summonses. The order with a cover letter that he stating was not that service by February be made president the of either corporation and that per- 20. The marshall was unable to effect had, therefore, he been improperly served. by service and a new February sonal He at the appear hearing. did February show cause order was issued on judge proceeded The district in Rylan- by was made mail in accord- Service and, 15, 1980, der’s absence on is- January ance with on that date. Fed.R.Civ.P. stating: sued an order required Rylander That show cause order proof The Court heard an offer of and March 24 cause he why on and show oral the is- testimony argument and on should not be held in of the Janu- (1) personal jurisdiction sues of over the ary why 15 order and he should not immedi- respondent corporations (2) pos- and IRS the records. He was also ately produce requested session of records in the sum- response to file a written to the directed Upon monses. consideration of the fore- petition by March 17. going, by as well as the Declarations filed response not file a or Rylander did Respondent Rylander, peti- the verified However, 24 Ry- on March 24. on March Berg, tions of Petitioner Van Den and the three-page son Edwin filed a state- remaining proceedings, records these lander’s ment, by Rylander which had dictated jurisdic- the Court finds that it does have been produced excepting certain records in 1975 which 1. The records to be were certain rec- possessed. January ords from to December the IRS telephone Oregon Sunday, appearing over the on with one of the court-appointed March 23. The statement informed the lawyers. Although Rylander would not ex- just court that he had received word the counsel, plicitly waive his he chose requested order and could not subsequent himself in represent proceed- He be rescheduled. also ings and the district court found he had appeared February stated he had on “knowingly, intelligently, competently records, he had not refused to waived counsel.” produced but that he had no records be- demanded a trial. This cause he had no records. was denied because district court deter- petition The filed a Government penalty imposed mined that if a were it March civil and criminal seeking both imprisonment would not exceed six months’ contempt. petition Based on that the court also moved to disqualify $500. an order on March 28 for issued the district judge, alleging preju- bias and show why adjudged cause he should not be dice. This motion also was denied guilty of criminal he district court. adjudged guilty should not be of civil con- for failure to tempt documents. On October court portion concerning of the order crimi- non-jury conducted a combined trial on specify particu- nal what civil and criminal contempt charges. The lar acts or orders were the basis for Government’s evidence showed that Rylan- did, however, charge. refer to the president der had been of both petition. Government’s The petition clearly Realtors, Company, Inc. and Affiliated *5 produce identified the failure to the records Mortgage Company Investments and from It February 4. also discussed the failure corporate until 1977. He had filed 24, on March although was income tax years returns for those singled not out. The return date on this identified him as the of both cor- president 15, April order was at- Repeated addition, porations. opened In he had bank tempts personal at service failed and the accounts, checks, signed written correspon- district the court continued matter until dence, contracts, applica- executed and filed May and issued another yet order government agencies tions with on behalf to show why cause he should not be held in entities, prior of both business all to 1980. contempt. both civil and criminal The or- The Government offered no direct proof specified der that constructive service be the sought documents were in exist- made certified mail. by publication and On ence in Rylander’s possession or control May Rylander appear, when the on or after It January contended judge district issued a bench warrant proof that such was unnecessary because his arrest. presented evidence created an inference appointed The district court counsel to that the documents existed Rylan- and that represent Rylander, Rylander because had possessed der them. Rylander, appearing in not obtained counsel on his own and the propria persona, introduced no evidence and district appropriate court believed it that he refused to participate proceedings, counsel, be represented by even though Ry- stating only judge the district was complete lander refused to a financial dis- disqualified hearing the case because closure statement on fifth amendment judge personally against was biased grounds. Rylander discharged two court- him. appointed lawyers, believing them to be in- The district court found guilty effective and less than zealous in their rep- contempt pro- of criminal for his failure resentation of him. He then filed a de- by the or- duce the documents as appointment mand for of “competent and January enforcing der of the summonses effective counsel.” The district told contempt that his also of criminal for his guilty choices were representing himself, choice, obtaining counsel of his or show failure to addition, Timmons, fixed. In 24. In conditional and re cause on March at 124. supra for his continued contempt was held in civil the documents. failure trial, At the conclusion of his produced his was ordered incarcerated until he appeal, Rylander challenges In this the summoned records or testified as to contempt convictions. criminal The purpose he could not do so. of this coercive, order was so the indefinite incar II contempt. ceration was for civil This order AND CIVIL CONTEMPT CRIMINAL ultimately upheld by Supreme was The difference between criminal and I, - U.S. at -, Court. clear. The always civil at 1554. S.Ct. result in citations for same conduct Rylander was also sentenced to six contempt. both civil and imprisonment, upon months’ to commence Workers, 330 v. United Mine the civil contempt his release from incarcer- (1946). 91 L.Ed. 884 ation, court’s or- disobeying distinction between the two forms of con documents, der to the summoned lies in the effects of the tempt intended imprison- and to an additional six months’ Asay, punishment. court’s ment, run with concurrently the first six 614 F.2d Punish sentence, for failing month at the ment for civil is intended to be 24, 1980 show hearing. March cause These whereas compensatory, either coercive two concurrent six month sentences were purpose contempt punish of criminal nature, punitive imposed vindicate punitive. ment is court, authority of the and therefore were in United explained We difference punishment contempt. for criminal Powers, (9th with these two criminal citations Cir.1980): which we are concerned here. Punishment for civil is usual- penal- considered to be remedial. The

ly Ill designed to enforce ty compliance OF THE EVIDENCE SUFFICIENCY *6 Timmons, In re a court order. 607 F.2d many grounds urged the for reversal Of 120, (5th Cir.1979). 124 that For reason we turn first to his claim that by Rylander, civil is contempt punishment conditional We the evidence was insufficient. address obeys and must be lifted if the contemnor first, this issue because if there was not the order of the court. v. Shillitani Unit- conviction, support to sufficient evidence 1531, States, 364, ed 384 U.S. 86 16 S.Ct. jeopardy the fifth amendment’s double (1966). punish- The term of a retrial. Burks v. United clause bars contempt ment for civil cannot extend States, 1, 18, 2141, 2150, 437 98 57 U.S. S.Ct. proceedings the trial since at the beyond (1978). 1 L.Ed.2d termination of the trial the contemnor’s can no longer purged. actions be Shillita- A. Failure to Produce ni, supra at 86 S.Ct. at 1536. criminal con contempt Rylander’s contempt is established when

Criminal stems from his produce there is a clear and definite order of the viction for failure order, court, knows of the failure to turn over the summoned docu the contemnor 4, 1980, February the as willfully disobeys the contemnor the ments to IRS of by Tel. Tel. the district court’s order Chapman order. v. Pacific & 193, 195 Cir.1979). A federal court Co., (9th January The 613 F.2d its authori contempt It as criminal penalty punitive punish, is in nature. serves to its lawful ty, of the court and disobedience or resistance authority vindicate the established with upon compliance does not terminate order. Criminal is un- when it is shown that the defendant punishment the The court’s order. 1002 offense, prove including all elements of the and definite court order

aware of a clear order, the order. United disobeys ability comply beyond an with the willfully Powers, at 627. The 629 F.2d The Government’s bur- States v. reasonable doubt. case is whether the in the summons substantially issue in this den was less primary establish, beyond Thus, proceeding. pos- was sufficient even if evidence enforcement doubt, Rylander willfully that a reasonable session or control was established January order of the court’s disobeyed proceeding, summons enforcement the as to preclusion Government cannot assert the ability lacked Rylander If contempt proceed- that issue in order, he not with the court’s could comply ing. violated it. willfully be have found to Thus, with the court’s comply inability There was evidence in the record complete order defense. See would be comply was unable to Rylander Joyce, did not order because the documents either therefore relevant It his possession exist or were not within existed whether the summoned documents Ry- Two testified as to control.2 witnesses possession or Rylander’s and were within February appearance lander’s at the IRS 15, 1980, the date January control between office, where stated that he was order, and Feb court issued its produce unable to the summoned documents which the upon the date ruary addition, In because he did not have them. required production. order by Ry- statement dictated three-page son, Edwin, by lander and filed at that, contends The Government evi- March 24 was admitted into pos claim lack of because said dence. In statement pro enforcement session at the summons and was that he had no such documents judicata pre of res ceeding, the doctrine therefore unable to them as or- argument cludes the that the documents did evidence, 4. This even February dered on possession or were not within his exist Government, cre- though introduced I Although or control. Rylander’s factual as to question ated a Maggio held that under Supreme Court ability January order. Zeitz, 401, 92 68 S.Ct. L.Ed. did (1948), prior proceeding preclude prove Ry- The tried to Government to the possession lack of defense the documents lander was able to citation,-U.S. at-, civil that he had been the by showing previously at the same is not true S.Ct. corporations. two officer of the principal type the criminal citation. The showed that evidence Government’s Maggio was preclusion approved issue of the two president had been in civil apply only intended to and 1977. corporations between 1972 at 407. proceedings. 333 U.S. various performed that he had also showed *7 preclu- of issue elementary principle It is an corporation prior to acts on behalf of where the may only sion that it be asserted evidence that 1980. There was no direct no great- as to that issue is proof burden of sought were in existence the documents where prior proceeding er than it was or control on Rylander’s possession in Miller, Wright, A. the issue was decided. C. January after 1980. Practice and Proce- Cooper, & E. 18 Federal corpo as a former Rylander’s Emerald status (1981); dure see One Lot States, officer, light in of his particularly rate v. United 409 U.S. Cut Stones or control the 489, 492, (1972) possess claim that he did not 34 L.Ed.2d 438 documents, to establish be is not sufficient curiam). contempt pro- In the criminal (per ability pro- his to to a reasonable doubt required yond was ceeding, Government upon part not of the record document was Rylander’s include 2. This evidence does not judgment. Contempt,” Purgation its which was district court based “Oath in of which the Rylander This filed after had been sentenced. January edge in to appear duce the summoned documents order on the follow- asserts, however, arise from ing day. inferences that He that corporation relationship with the past good letter his to willingness indicated faith simply enough not on facts strong are court comply inquiry, with the order. The case to establish a reasonable beyond therefore, of this whether willfully is he acted an with the court’s ability comply doubt to failing to on March 24. appear there Accordingly, we hold that was order. is evidence in There sufficient the record Rylander evidence to convict not sufficient support to the district court’s conclusion contempt pro- for his failure to of criminal failure to Rylander’s appear that was will- summoned duce the documents. good ful. faith comply While a effort to is a with the order defense to a of charge Appear to B. Failure “delaying tactics or contempt, indifference second criminal con- Rylander’s to the are not.” order appear results from his failure at viction to Baker, 641 F.2d at 1317. The record hearing. the March 1980 show cause evidence replete Rylander’s with of disre- Following Rylander’s failure to gard attempts for the court’s to enforce its order January the district court’s orders. at least six Despite attempts documents, the summoned him with or- personally serve show cause appear court ordered him district ders service repeated by publi- mail and and show cause he March cation, never appeared before the When the contempt. be held should It is undisputed court. that Rylan- efforts to repeated United States Marshal’s of der was aware the March 24 show cause serve the order on personally hearing. failure to appear any His at time unsuccessful, hy were the order was served belies after that date his contention that he to Rule of the Federal pursuant mail faith good willingness had a to comply. Rules Civil Procedure. Indeed, judge was the district at the March 24 but his son appear hearing, warrant issue a bench to obtain three-page filed a statement dictated the court. presence before Oregon. over the telephone from that We the evidence was suffi- conclude discussed, As we have previously cient to convict order in knowledge or notice of the court his failure to at the March hear- of that question and a willful disobedience ing. order are the essential elements of criminal Powers, 629 contempt. IV Disobeying F.2d at an order at a cause like hearing, show disobedience ISSUES PROCEDURAL order, other court in a any can result have there Because we concluded Doug conviction. See evidence to support was insufficient First Realty Corp., lass v. National for failure to contempt conviction (D.C.Cir.1976). Contrary Rylan documents, and a retrial on the summoned be held in der’s assertion that he could not barred, therefore we charge discuss personally because he was not Ry- urged by the other relief grounds order, knowledge served actual lander in relation to his conviction for only is all neither required; the order March 24 failure to show is neces personal formal notice nor service hearing. cause *8 support to a conviction for sary criminal Baker, 641 contempt. United v. F.2d States 1316-17 Combining Criminal and Civil Con- A. tempt Trials March

Rylander concedes that his argues that the district letter requesting 1980 to the court combined his trials on the improperly his actual knowl- court proof continuance of 1004 pear 42(b) Joint- with Rule of the contempt charges.

civil and criminal contempt and criminal Rule civil Federal Rules of Criminal Procedure. ly trying unless ground not a for reversal charges 42(b) requires the notice “state the preju- to result in substantial it is “shown constituting essential facts the criminal v. Mine Work- dice.” United United States it as such.” contempt charged and describe 299-300, ers, at 698-99. at 42(b) U.S. Rule “simple required by notice” to demonstrate such Rylander has failed rigid requirements is less than the to which safeguards None of the prejudice. information, it but formal indictment defendant was entitled as a criminal he was still of the basis apprise must defendant therefore do not reverse compromised. We v. contempt charge. for the ground. Robinson, Cir.1971). on this (9th not contain the Although the notice need combining the Although civil “criminal,” word there must be some indica- case was not reversi criminal trials in this that a tion that the defendant is aware error, problems trials entail joint ble such charged. criminal United think it would that lead us to and hazards Workers, v. Mine States United try to the civil and criminal usually be wiser at 697. 67 S.Ct. many There are safe charges separately. guards in a applicable of the charge The clearest notice trial right such as the proceeding, Rylander was contained against cases, counsel, right right in some brief, nine pretrial days filed Government’s stand, the “be not to take the witness trial, argued which that he explicitly before proof, a reasonable doubt” burden of yond of criminal guilty should be found contempt pro in a civil apply which do not on March 24. for his failure to ceeding. These differences create unfore less clear was the show cause Somewhat when civil and criminal con problems seen order, contempt pro which initiated the Thus, al tempt charges jointly. are tried ceeding inquired why Rylander as to here, it was not reversible error we though should not be held in “criminal practice do civil trying not endorse therefor.” That order punished court and contempt charges jointly. and criminal petition, to the Government’s referred which, why Rylander in its recitation of B. Recusal to show cause he should be ordered rejected The district court properly contempt, not be held in included a should Rylander’s request pursuant for recusal at the statement of his failure Rule of the Federal Rules of Criminal in violation of the district March 24 Procedure and 28 U.S.C. 144. The con § court’s order. tempt charges did not involve criticism of of whether the show cause Regardless the trial as for recusal under petition, order and the stand- Government’s 42(b). Rylander’s pretrial Rule affidavits alone, notice, constituted sufficient ing contain no “specific allegations tending fact pretrial sufficiently ap- brief Government’s an personal stemming show bias charges to meet the prised Rylander source,” extrajudicial required by as requirements 42(b). of Rule See Sibla, 144. United U.S.C. Robinson, 449 F.2d at 930. Cir.1980). (9th F.2d The record district judge indicates that the conducted Right D. to Counsel in a fair proceedings impartial these Indeed, he showed pa manner. unusual argues that he was denied his tience and tolerance. to counsel in the sixth amendment appointed court. The district court Charge C. Notice of the and, af- attorney represent Rylander an attorney, ap- discharged that the notice ter Rylander contends who was also attorney, contempt charge ap- pointed for failure a second

1005 subsequently discharged by Ry- Rylander. possible that this was not clear to Rylander requested lander then that the district court until the Government pretrial brief, filed its appoint an attorney Rylander’s choosing. after had waived counsel. There Instead, gave the district court is also no indication in the record that Ry- being the choice of represented by one of lander possible understood the penalties at lawyers the two who had been previously the time he waived counsel. The district himself, appointed, hiring counsel repre- judge did not discuss the penalties that senting rep- himself. chose to might be imposed until he took up the mo- himself, resent permitted and was to do so jury trial, tion for a after waiver after the district court found that he had of counsel. “knowingly, intelligently, competently and Because the record does not indicate that waived counsel.” Rylander understood the nature of the

Although a criminal defendant charges or the possible penalties at the time himself, has a right represent Faretta v. counsel, he waived we reverse the convic- California, 806, 807, 2525, 422 95 U.S. S.Ct. tion and remand for a new trial. (1975), 45 L.Ed.2d 562 the decision to do so must be made and intelli knowingly E. Trial Jury Harris, gently. United States v. 683 F.2d Finally, Rylander argues he had a (9th Cir.1982). “Before waiving constitutional right to a jury trial which right counsel, the defendant must be was abridged the district court. aware of the charges nature of the and the There is a sixth amendment possible penalties, dangers as well as the right serious, to a trial by jury in but not disadvantages of self-representation in petty, criminal contempt cases. Bloom v. a complex experience area where pro Illinois, 194, 198, U.S. 88 S.Ct. fessional training helpful.” are most Id. 1480, 20 (1968). L.Ed.2d 522 Whether a The preferred procedure is for the district criminal contempt petty is serious or is de judge to ensure that a waiver is made termined by severity of the penalty knowingly and intelligently by discussing States, authorized. Frank v. United defendant, record, on the the na 1503, 1505, 23 89 S.Ct. L.Ed.2d ture of charges, possible penalties, (1969). If the charged un and the dangers self-representation. Id. der a statute that authorizes a maximum where, It is an unusual case absent such a penalty greater than or six months’ $500 colloquy, knowing and waiver intelligent imprisonment, there is a trial of counsel will be found. Id. regardless of the penalty actually imposed. Although the district judge exhibit Hoffman, 454, 476-77, Muniz v. 422 U.S. great patience ed with Rylander on the 2178, 2190-91, 45 (1975). S.Ct. matter of Rylander’s representation, he ne Absent a specific statutory authorization of glected to discuss with the nature penalty, maximum severity of the charges possible penalties and the penalty actually imposed determines wheth prior accepting the waiver of counsel. er was serious or petty. Furthermore, the record does not indicate States, Frank v. United 395 U.S. at understood the nature of the penalty 1505. Where no maximum charges or possible penalties at the time is specified, a contemnor be sentenced he waived counsel. In numerous documents up to six months’ imprisonment court, filed in the district Rylander claimed fined as much as without a jury trial. $500 not to charges against understand the him. 1506; Id. at 89 S.Ct. at It may well not have clear lay been to a Hamdan, person the Government’s petition the orders to show cause that Rylander’s The two contempt charges failure to appear March 24 would be the case were tried jointly.

basis for a contempt charge. quite charge failing the summoned *10 POOLE, refusal to Rylander’s Judge, dissenting.

documents arose Circuit issued comply pursuant with a summons conspicuous This case is a illustration of Punishment for disobedi- U.S.C. § the capacity of a determined individual lit specifical- ence to a section 7602 summons is erally to thumb his nose at a district court ly controlled 26 U.S.C. §§ escape being later called to account penalty which authorize a maximum judges because are tripping unable to avoid $1,000 year imprisonment of or one of over themselves with legal technicalities. Thus, any contempt charged both. have, Try as I I simply agree cannot that as a to a section result of disobedience defendant, history this whose of utter defi summons is a offense and carries serious orders, ance legal process of and court right jury with it the to a trial. spread record, across a again clear to be request for a trial therefore should jury bailed out on the grounds that he did not have granted. been act knowingly intelligently when he only If had been tried on rejected appointed two court lawyers, tried contempt charge, second he would not personally-known to insist that a lawyer be have a to a right had trial. That and, appointed public expense denied charge, appear failure to on March luxury, represent elected to himself. brought was under 18 401(3).3 U.S.C. § phase In an earlier of this same case specify That statute does not a maximum defendant became the beneficiary judi penalty. There was therefore no right to technicality cial when this circuit reversed jury trial because he was neither sentenced adjudication the trial court’s of civil con imprisonment to more than six months’ nor tempt. United v. Rylander, fined more than $500. I). (Rylander (9th Cir.1981) The Su Rylander’s contempt preme Because we reverse Court overruled and reversed us and conviction for failure to on another reinstated the judgment. ground, question we do not reach the of Rylander, - U.S. -, whether, II). charge because that was tried (Rylander (1983) We are jointly produce charge, failure to about to again. reward him a jury failure to afford him trial would agree I can was not shown require remand, reversal. On since he can- sufficiently to have had actually possession not be retried on the failure to produce disputed corporate during records charge, Rylander will not be entitled to a period although critical he was the presi- jury trial so long as he is not sentenced to dent the corporation. presumption more than six months’ imprisonment or that because he directed the corporation he fined more than $500. records, had personally possession of the inadequate. V But on March he deliberately failed to CONCLUSION response to the court’s order to We reverse Rylander’s contempt convic- show cause. He was tried on that charge tion for failure because the evi- majority and the concludes that he had dence was insufficient. We reverse the duty appear, notice of both the the na- conviction for failure to scheduled, proceeding ture of the and the because Rylander’s sixth amendment to have When he was ability appeared. to counsel was violated. The case is re- the court finally brought involuntarily, manded for further on the fail- proceedings ordinary contempt to hear an proceeded ure to appear contempt charge. judge appointed lawyer case. The REVERSED and REMANDED. the defendant. dis- represent charge failing only punish- 3. Unlike the because that section authorizes documents, charge requirements summoned could not ment for disobedience to the brought 7604(b), have been under 26 U.S.C. summonses. appointed him. The the trial charged ify judge. His adamant refusal to lawyer second to defend him. with any order of the court was discharged lawyer. Clearly, Rylander part pattern. of a I find it difficult *11 could that act and as keep up indefinitely comprehend how we expect obedience to be able to fend clearly, might indefinitely valid court orders if we tolerate willful and then him any gave off trial. The his contumacy. Rylander sustained is shown as option: lawyers take either of the first two crafty a and person. rejec- deliberate The go or it alone. tion of counsel by corporation this president cannot be called the decision of a novice. Rylander went it alone and was convict- principle That is protect intended to reasons, ed. For two both of which I be- unwary, ratify deliberate disobedi- lieve are wrong, majority has set aside a simple ence to and uncomplicated order to majority says conviction. First come to court at a certain time. that the court did not explain pitfalls his own being counsel. Harris, cites cases such as United JURY TRIAL (9th Cir.1982) authority. F.2d as its majority holds that Rylander was The facts in Harris are vastly different. entitled to a jury trial because that Harris was tried under 26 7203 for U.S.C. § contempt charge arose from his refusal to failing to file income tax returns for three with a summons issued the Inter- by It was a he years. jury represent- trial and nal pursuant Revenue Service to 26 U.S.C. ed himself. He knew of his to counsel 7602. The majority reasons that disobe- § but represent twice stated that he wished to dience punished under § himself. He not know anything did about a and authorizing a misde- § § trial, jury nothing challenges, about nothing $1,000 meanor penalty of as much as or a about cross-examination and making objec- year’s imprisonment, Therefore, or both. opinion tions. The Harris states that his says the majority, “any “opening” statement was a rather largely charged as a result of disobedience to a meaningless objection to the law and pro- 7602 summons is a serious offense § and ceedings. charge A 7203 has ele- many § with it the right carries to a jury trial.” calling ments for skill in learning pre- (Op. p. 16). The majority is confused. He sentation. An layman untutored is not was not in disobeying a sum- generally equipped to handle the intricacies disobeying mons but a court order. trial, of a not in a crimi- especially The Internal Revenue code sections make nal tax case. it a crime to disobey Congress a summons. But the only similarity to this case is thát procedures has established to compel com Rylander had refused when or- pliance summons to IRS’ be by dered the court in a proceeding which agency fore that records was merely ancillary to a tax trial. Since give testimony. and/or There are defenses he was notified to and there is no requirement. to that See United States v. reason shown why appear, he did not Rylander, - U.S. -, U.S. case would seem by well described the lan- (1983) (passim), which can be guage Harris agency proceedings asserted in the or in has, however, “this court held that a fail- any proceedings pur court convened for the ure the district court to describe all [of pose enforcing obligation. But when not, the elements of will in every waiver] a court issues an order or other process case, necessitate reversal.” person purpose bringing for the him into Whatever defense chose to of- court where his defenses or mitigation may fer, heard, he invoking judicial had to have a valid reason for not be the court is its when he knew he should. and even if the entire world knows appearing Rylan- power, der presented part perfect no excuse and took no the defendant has a and com itself, proceedings except disqual- his effort to the summons he still plete defense to refuses,

must he come. If it is not of hare and merely adjudication, game “a played mission, to the disappointment agency’s I, it is at 1555 hounds.” 103 S.Ct. This, disobedience to valid court process. Bryan, as from United (quoting thought I no disputed, plain one act of 94 L.Ed. 70 S.Ct. contempt under 18 U.S.C. 884). It is now time for an end. motion, initiated the court on or sua 42, Fed.R.Crim.P.,

sponte, under Rule or on

application of the United States Attorney attorney an appointed by the court for purpose. In such a proceeding,

agency standing except has no as the court *12 direct, purpose for the is not remedial benefit,

for the agency’s punitive but QUEETS vindicate the court’s own dignity. INDIANS, al., BAND OF et Plaintiffs-Appellees, The district court denied Rylander here jury trial on such authorities as Muniz v. Hoffman, al., STATE OF et WASHINGTON (1975). view, In its however Defendants-Appellants. outrageous Rylander might inbe refusing to respond to the process, court’s he still TRIBE, MUCKLESHOOT INDIAN was liable to punishment only under the tax Plaintiff-Appellee, statutes. This is at odds with logic both and policy. The district court Ry- advised WASHINGTON, al., The STATE OF et lander that subject he would be only to a Defendants-Appellants. fine of or confinement, six months $500 both. That is the limit of petty offense. 83-3644, Nos. 83-3646. Petty offenses do not carry Appeals, Court of trial. sentence was within Ninth Circuit. those bounds. I dissent from the majority’s reversal and its awarding him a jury trial. Argued Aug. Submitted Finally, although it may only be advisory Sept. Decided dictum and district judges may wish to accept the advice with caution and reserva-

tions, I do not associate with the majority’s

teaching that it practice is bad to combine

civil and criminal contempt hearings. Com-

bined hearings are common in district court

contempt cases, of which many arise in the

course of labor case injunctions. Because

they involve almost the evidence, identical

and, especially cases, in labor because of the

need to bring a speedy end to labor dis-

putes, it would be burdensome on the par-

ties expensive charges against judicial

resources to require two trials with the

same evidence and witnesses. The majority

supplies no empirical basis for its an- preference

nounced and therefore I would

belabor it no further.

Rylander has again, once Supreme as the

Court said in reinstating his civil contempt