*1 JOLLY, and EMILIO Before WIENER GARZA, Judges.
M. Circuit
BY THE COURT: Khan Lodhi’s for
Mahmood motion appeal pending
release is DENIED. The §
provisions of 18 U.S.C. 3143 and Fed. 9(b),
R.App.P. govern the release and pending
detention of defendant conviction,
appeal judgment from
apply appeals revoking super from orders pending appeal of an
vised release. Release revoking supervised release will be
granted only upon showing exceptional Lacy,
circumstances. United States v. See (5th Cir.1981) (interpreting 1966). Exceptional Bail Act of Reform raising include the
circumstances of substan upon appellant
tial claims which the has a success, high probability of a serious deterio Larson, Jr., Orleans, LA, Herbert V. New incarcerated, any ration of health while Dallas, TX, Massey, appellant. J. Jeffie for delay process appeal. unusual Id. Fawer, pro Michael S. se. exceptional Lodhi has not shown that cir- According- cumstances warrant his release. Meltzer, Counsel, Special Ellen Michael D. ly, pending appeal Lodhi’s motion for release Love, Frank, Attys., David A. Trial U.S. is DENIED. Lodhi’s motion for a bond Justice, Div., Sect., Dept, of Crim. Fraud hearing also is DENIED. DC, Wortham, Washington, Atty., Bob U.S.
Beaumont, TX, plaintiff. America, Plaintiff, UNITED STATES of WISDOM, BARKSDALE, Before GARZA, Judges. EMILIO M. Circuit WEST, Sr., Bruce R. Defendant. GARZA, Judge: EMILIO M. Circuit Fawer, Appellant. Michael S. No. 93-4319. appeals Michael Fawer his conviction and sentence for criminal of court in Appeals, United Court of States § violation of 18 U.S.C. Because Fifth Circuit. contemptu- Fawer’s cited conduct was not i.e., disobey Fawer did ous — any way immi- court order or in obstruct nently jus- threaten the administration of tice —we reverse.
608 Cir.) (5th 253, West, Sr., (quoting Harris v. United 255 who Bruce represented Fawer 352, 354, States, 162, 164, con- 86 S.Ct. charges of fraud and 382 U.S. on prosecuted was denied, trial, (1965)), 469 U.S. During the L.Ed.2d 240 cert. fraud. 15 spiracy to commit 182, summarily 856, Fawer for L.Ed.2d 116 punished 105 S.Ct. 83 court district pursuant to Fed. not contend that the of court Because Fawer does contempt criminal by ar- 42(a), citing Fawer’s continued discretion invok court abused its district R.Crim.P orders, 42(a), court’s summary procedures of the of Rule ing the gument, disobedience The court initial- hearing procedures behavior. disrespectful opposed to the notice and 42(b), but pay to a $200.00 Fawer ly forth in Fed.R.Crim.P. sentenced set to a twelve-hour changed the of discretion oc later address whether an abuse appeal that on Instead, contends jail Fawer is limited to term. curred. our discussion support his to insufficient was deciding the evidence the evidence was sufficient contempt conviction. contempt criminal convic support to Fawer’s criminal tion. con which Fawer was under The statute contempt allows a district of criminal
victed contempt, In the district its certificate imprisonment, at fine or “punish court “finding contempt court stated that its authority discretion, contempt of its such its specifically to the conduct of sentence relate ” any person its [misbehavior ... as by Exhibit ‘A.’ Ex- Mr. Fawer disclosed to obstruct thereto as presence or so near transcript A an unofficial of that hibit justice.” 18 U.S.C. the administration immediately portion proceedings of the trial Tulsa, (1988); City Eaton v. § see also 401 summary contempt preceding or- the court’s 1228, 1229, 698, 39 94 S.Ct. 415 U.S. The court further stated that der.1 district (1974) (holding that the conduct L.Ed.2d 693 contempt for contin- was found in his “Fawer contempt conviction underlying a criminal obey failure to the argument ued and for his imminent, merely constitute an “must Court,” conduct which “consti- Orders of this jus administration of likely, to the threat intentional, ob- tuted actual and material tice”). specific of a court The disobedience judicial proceedings struction of the then contempt criminal in a can also result disrepect for this [sic] session and total 401(3); e.g., § see 18 U.S.C. conviction. See Court.” (5th F.2d 644 Cir. Boyden, In re 675 reviewing conduct cited After 1982). criminal conviction “[F]or supporting its criminal con- district court as stand, light [viewed the evidence order, any find instances tempt we cannot government] must to the most favorable willfully disobeyed or- Fawer a court where willful, act and a contemptuous show ‘both a ” sentencing Fawer to a twelve- der. Prior to contumacious, of mind.’ reckless state term, jail the district court instructed hour McCargo, 783 F.2d 510 v. United States scope not to exceed the of direct (5th Cir.1986) v. Hilb (quoting United States cross- when he conducted his examination Cir.1980)). (5th urn, 1177, 1180 F.2d Franks. The examination of witness Jack contempt may punished be “A criminal government concedes that Fawer did not dis- judge that he saw summarily if the certifies “questions obey Fawer’s this order since constituting the con- conduct or heard the scope were not outside the of direct examina- in the actu- tempt that it was committed tion.” court. The order of con- al Fawer was also ordered $200.00 and shall be tempt the facts shall recite day. government by p.m. of record.” signed by and entered 42(a). argues that Fawer’s stated refusal procedures for Fed.R.Crim.P. “The to the willful contempt charges are court-ordered fine amounted summary disposition of order, thus circumstances, of a ... ‘exceptional reserved for support Faw- providing sufficient evidence to threatening judge or dis- such as acts disagree. obstructing pro- er’s conviction for We hearing rupting a ” shows, Onu, Fawer stated his inten- As the record ceedings.’ United States Appendix. 1. See (“[T]rial of not ing)
tion
fine—‘Tour
attorneys
ethically obligated
are
[pay
fine]”
will not
at most could
argue
court,
with the
to challenge
—which
its
characterized as an
insolent or defiant
attempt
change mind.”),
and to
its
disobeyed
remark. Fawer could not have
denied, _ U.S _,
cert.
1537, 128
114 S.Ct.
actually
court’s
order unless he
failed to
*3
(1994).3
L.Ed.2d 190
by
p.m.
day.2
the fine
5
Conse
We further
single
cannot find a
in
instance
quently,
pay
Fawer’s stated intention of not
Fawer’s cited conduct where Fawer’s collo-
ing the
could
not itself amount to the
quies with the district court obstructed or
disobedience of the
gov
court’s order. The
imminently threatened the administration of
upon
ernment’s reliance
United States v.
justice. Although
challenged
the au-
Giovanelli,
(2d Cir.),
with cert. APPENDIX 487 U.S. 108 S.Ct. 101 L.Ed.2d (1988); see Holloway, 883 also In portion re The proceedings of the trial re- (D.C.Cir.1993) (Mikva, J., dissent- provides flected Exhibit A following: paid 2. Whether Fawer ever the fine is not dis- record is limited to the conduct the trial court A, closed Exhibit the sole basis for the court's specifically upon finding relied in defendant finding contempt. We therefore need not con- Eaton, guilty of criminal See 415 U.S. question. cern ourselves with this 697, 698-99, 1228, 1230, 94 S.Ct. 39 L.Ed.2d (1974) (“[T]he question upon is not Moreover, 3. even were towe assume that the judge petitioner evidence the trial could find prior reasonably specific, court’s order was we guilty upon but what evidence the trial did would not be able to conclude from the record petitioner guilty.”). recognize find While we willfully contumaciously that Fawer acted in closely that uncited related conduct can be used disobeying that order. to determine if cited conduct is willful or contumacious, government government argues note that the also that Fawer's cited attempting this case contemptuous conduct amounted to use uncited conduct in behavior i.e., placed different to show that context Fawer's other the cited fashion — conduct not contemptuous. govern- described Exhibit A. When re- conduct was This the claim, viewing sufficiency our review of the ment cannot do. p.m.) at 4:29
(Jury the courtroom left in recess for will be THE COURT: Court BY MR. (Recess p.m. 4:47 from 4:29 15 minutes. correctly there was I understand Q. Did p.m.) involving property with some transaction Mr. Gann? AFTER RECESS your question to be I understood A. first of the two trans- only occurred Be seated. Skypoint? Dunes Bermuda and/or Fawer, in, jury Mr. bring the Before we including the others as well. Q. I’m engage you attempted to understand chronology get want trying to —I argument. in an reporter *4 them. you about ask and then deny I That’s inaccurate. MR. FAWER: ahead. A. Go it. Honor, object I would Your FRANK: MR. Anyway— THE COURT: I of voice. Fawer’s tone at Mr. under 403' wait, No, “anyway.” it’s not MR. FAWER: prejudicial. demeaning and its it’s think just telling you— I’m THE COURT: Honor, take I would Your MR. FAWER: that, heard and it’s MR. You FAWER: objection to that. inaccurate. your question confine THE COURT: to in that were referred Sit down. to transactions THE COURT: examination. direct denying Your Honor is MR. FAWER: objection. not his That’s MR. FAWER: me— demeaning. something I said He said down. THE COURT: Sit telling telling you, I’m I’m THE COURT: my- right to defend MR. FAWER: —the of this your questioning you confine self. witness— you bring Would John THE COURT: am, I Your Honor. That’s MR. FAWER: him here. Is he —I want Moore down asking about. precisely present. him about You asked THE COURT: you you telling you, I did am transactions, plural. didn’t, reporter is here do not. The No, I asked I didn’t. FAWER: MR. thing, he is not here to take to do one and transaction, Your Honor. Gann about the engaged arguments or be abuse to the bench. THE Come COURT: Now, recessed, I just before we counsel. (Side had between discussion was bar interroga- you your instructed to confine hearing out to the and counsel the Court that witness to transactions tion of the follows:) jury as direct examination. inquired about on were going take a 15- I am THE COURT: you him you I said asked You said were. recess, I’ll ask the court re- and minute transactions, plural. argued You about ques- that last if he can find porter to see do, me, you prone to have been with while we’re by Mr. Fawer tion asked you disputed did not. You told me recess. what— you do that? Can And I— MR. FAWER: REPORTER: Yes. THE COURT —I THE said. COURT: right. All THE COURT: I still do. MR. And FAWER: (The following occurred going to —I have I am THE COURT: follows:) jury as hearing of the tape. I am satisfied with to the listened gentlemen of THE Ladies COURT: "tape. what is on the going to take jury, at this time we are $200, you hereby you will I you to minutes. I remind a recess for 15 5:00 tomorrow by not later than check I have of the instructions keep in mind all clerk. afternoon to the you may now given you, and previously Honor, I will not. Your MR. FAWER: jury pass to the room.
Your Honor has not been threatened. No- body has been threatened. The last I time tape. I reporter listened to the looked, I have only been the one who has listened, it, played and called me over. I been threatened here. tape part asked on the and it is a THE COURT: The matter is closed. record I asked about the two other MR. closed, FAWER: It Gann transactions which very were the Your subject but I— matter the direct. I was pre- cisely within the confínes the direct. THE COURT: It’s closed. MR. May
And I away, as walked I reporter the court be heard about— said: back. Come It’s not—there’s more. No, THE COURT: sir. That was the sum and substance of it. MR. subject? FAWER: —the your I have not violated order and I sir. it, do I problem violate have being no MR. FAWER: the record— castigated or fined. But I did not. The THE COURT: You are ordered to sit speak record will for itself. down. then, THE right, All hereby COURT: your seat, sir, MARSHAL MOORE: Take *5 you jail to 12 in hours to be now. served at the conclusion of this trial. bring jury And the in. you may bring And jury the in. (Jury entered the p.m.) courtroom at 5:00 And the you argue next time with me THE seated, COURT: You be ladies made, ruling about a I have I will have and gentlemen jury, Fawer, and Mr. you. another for one you may your continue cross examination. MR. I FAWER: heard? be Appeal Record on vol. at 930-36. THE sir. COURT: BARKSDALE, RHESA HAWKINS MR. I forgot SIMPSON: where we are. Judge, Circuit dissenting: next, What’s Your Honor? Men at some time are masters of their fault, Well, Brutus, THE fates: The dear waiting COURT: we’re on the is not in stars, jury- our But in ourselves.... Shakespeare, Caesar, William Julius MR. act SIMPSON: still on we’re cross? sc. 1.134 right, All sorry. enemy have We met and he is us. in, Your jury before the comes I (ca. 1950). would —the Kelly, Pogo other marshals Walt courtroom, think, I may cause the Certainly, masters, large courts in are jury speculate that it’s because of ei- part, instance, however, of their fate. In this client, my ther —because I don’t appear working, legal justi- without speculate want my them that is client fication, against judicial pro- ourselves. The some sort of a anything threat or like that. obstructed; cess at trial must not be the trial And I don’t know what the Court can do in According- must ensure it is not. that terms cautionary of a instruction that’s ly, judge. much discretion vested in going better, things to make I but would obvious; they reasons are are illumined like to ask— by increasing lawyer incivility lack of professionalism. THE I think depends COURT: lot of it Such obstruction cannot be And, on the conduct of Mr. when it throughout contemptu- tolerated. becomes ous, trail, it must going swiftly. my remainder this but I am be handled To personnel lights, to have precisely happened sufficient that is this court- here. room to maintain order enforce the Not much need majority be said. The orders of the Court. *6 properly held he was dissent. respectfully
Accordingly, ANDREWS, Petitioner-
Maurice
Appellant, Director, COLLINS, Texas De- A.
James Justice, Institu-
partment Criminal Division, Respondent-Appellee.
tional
No. 93-4151. Appeals, Court of States
United
Fifth Circuit. notes “[t]he that MR. objection take strenuous can ... in a result criminal con- presence, to their tempt Maj.Op. well. slip conviction.” at opinion that Fawer judge stated The district 608. alia, for, “his inter was found of this Court....” Orders obey the failure cited; Fawer’s need be Only one instance p.m. 6:00 fine pay $200 stated refusal day. the next majority allows Fawer Unfortunately, the merely his he “stated out, concluding that an fine” and “could not intention of the court’s order unless disobeyed not have p.m. actually failed he opinion at 608- Maj.Op. day.” slip way day indeed if this is It is a sad judge in a district to shackle going we are obstruct lawyers at trial ensuring that justice. I was not the administration required to allow were courts aware that they to think about lawyers time Moreover, obey court order. going to were always lawyers taken that were I understood word; that he Fawer stated at their put an end to it. would his That was the Rubicon”. He “crossed choice, among And, his other choice.