Results tagged “Criminal Contempt” from The Federal Criminal Appeals Blog

October 31, 2012

The Worst That Can Happen If You're Late To Court Just Got A Little Less Bad; the Fourth Circuit on Criminal Contempt For the Tardy

Robert Peoples is no stranger to car trouble.

After his release from prison, he brought three lawsuits against South Carolina prison officials for violating his civil rights.

On the day of jury selection for his civil rights suit, Mr. Peoples was late. The federal judge hearing the case told Mr. Peoples that he had to be in court the next morning by 9:30.

816170_tire_puncture.jpgThe next day, Mr. Peoples was late. The District Judge, Judge Currie, told him that if he was late again the case would be dismissed.

Mr. Peoples was on time the next day.

Though the day after that he called the courthouse fifteen minutes before he was supposed to be there. Mr. Peoples reported that he had a flat tire and that roadside assistance was on its way.

The district court, in an effort of largess that it would later regret, confirmed that Mr. Peoples had car trouble and dispatched the Marshals to give him a ride to court.

Judge Currie found that Mr. Peoples had left his house in time to get to court, but was delayed by an unanticipated event. The case was not dismissed for his failure to appear and prosecute the case.

The trial went on.

On April 12, sadly, Mr. Peoples was late again. The judge heard argument from the parties about whether to dismiss the case, then decided that Mr. Peoples was willfully late. Judge Currie dismissed the case with prejudice.

What Not To Do After Losing In Court

A person has a number of options when a judge rules against her. She can file an appeal. She can ask for reconsideration. She can decide it's tough marbles and go home.

Mr. Peoples did not pursue these options. Instead, according to the Fourth Circuit, he went into the

courtroom, and approached Deputy Clerk Sara Samsa, who was gathering jury certificates to bring to Judge Currie. Peoples interrupted Samsa and repeated several times, "Tell Judge Currie get the f--- off all my cases. I started to tell her something there. I started to tell her ass something today."

Moreover,

Although the audio of the recording is somewhat garbled, it also contains an additional statement from Peoples in which he tells Judge Currie to "straighten the f--- up" or "straight the f--- up."

(As an aside, I think this is a very dignified way of handling the profanity inherent in this opinion. One would expect such classiness from Judge Diana Motz.).

This caused quite a bit of trouble. Court security was called. Details of finishing the case's dismissal were delayed. The FBI was called to take a statement from the courtroom clerk.

Judge Currie issued a show cause order as to why Mr. Peoples shouldn't be held in contempt. Then Judge Currie recused herself from that proceeding, since the profanity had Judge Currie as its object.

The Varieties of Federal Criminal Contempt

There are two kinds of criminal contempt available to a federal judge - both are under Federal Rule of Criminal Procedure 42.

A 42(a) contempt proceeding is like a criminal trial - the person has a lawyer, has notice and opportunity to be heard, and a prosecutor is appointed.

A 42(b) proceeding is different. Rule 42(b) says that a court "may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies. . . ."

Mr. Peoples proceeding on his regrettable statements about Judge Currie was a 42(a) proceeding. He had a lawyer, notice of the charges, and a prosecutor was appointed.

Old Habits Die Hard

Sadly, Mr. Peoples had car trouble on his way to the contempt proceeding and was late. The judge said that there would be a second contempt proceeding on his tardiness after the first contempt proceeding.

He was found in criminal contempt on the first count having to do with his suggestions about how Judge Currie comport herself. (it's a fascinating read - please check out the opinion for how the court got there if you're interested)

With no break in the proceedings, but with a bit of time for Mr. Peoples to talk to his lawyer while court was still in session, the second contempt proceeding started.

Mr. Peoples was found in contempt of court in that proceeding.

A Summary Hearing

On appeal, in United States v. Peoples, the Fourth Circuit reversed that second contempt finding.

Because the procedural requirements of 42(a) weren't followed, the contempt finding was only allowable if it was a summary disposition for contempt.

And a summary contempt disposition is only allowable if it's for someone who does something contemptuous in the presence of the judge who issues the contempt order.

As the Fourth Circuit has said,

We, and the majority of our sister circuits, do not consider tardiness or absence from court to provide an adequate basis for summary disposition under Rule 42(b). See In re Gates, 600 F.3d at 339 (holding that mere tardiness, like failure to appear, does not occur "in the actual presence of the court" and therefore is not subject to summary punishment (internal quotation marks omitted)); see also In re Contempt Order, 441 F.3d 1266, 1268 (10th Cir. 2006) (explaining that attorney's failure to appear "by no stretch . . . occur[red] within the presence of the court"); In re Chandler, 906 F.2d 248, 249-50 (6th Cir. 1990) ("'A lawyer's failure to attend court is not a contempt in the presence of the court.'" (quoting United States v. Onu, 730 F.2d 253, 255-56 (5th Cir. 1984))); United States v. Nunez, 801 F.2d 1260, 1264 (11th Cir. 1986) (per curiam) ("[T]he majority of circuits which have considered the issue have concluded that counsel's tardiness or absence cannot be characterized as contempt in the presence of the court.").

So, Mr. Peoples second contempt finding could not stand and was reversed, even while his first contempt determination is still good.

If you're thinking about being late to court, think about Mr. Peoples. You may have your case dismissed against your wishes, but at least you can't be held in contempt on a summary disposition.

October 27, 2012

Short Wins - Pro Se Criminal Contempt Reversed And Other Cases

It's a dog's breakfast of victories in the nation's federal criminal appellate courts.

Personally, I love a good case on the district court's contempt power -- look to see the Fourth Circuit's contempt reversal in United States v. Peoples profiled in more depth a little later in the week. The case has everything -- a pro se litigant, a finding of contempt, and profanity (which is tastefully referred to in the opinion). It reminds me of another great pro se contempt case from last year. It reminds me, too, of the Sixth Circuit's relatively recent case on the limits of a district court's power to sanction a lawyer. Always good stuff.

Which is not to give short shrift to the two other wins from last week -- resentencing in an illegal reentry case and unsupported supervised release conditions in a federal sex case.

And, of course, this week the Supreme Court is hearing more arguments and it's a relatively criminal heavy week. Tuesday has a Padilla case, as well as a nice Fourth Amendment question -- can the cops detain someone incident to a search warrant if the person is not actually present when the search warrant is executed. Wednesday is dog sniff day.

Of course, that assumes that Frankestorm doesn't blow the Eastern Seaboard away. Wish us luck with that.

1155650_berlin_siegessule.jpgOn to the victories:

1. United States v. Peoples, Fourth Circuit: On appeal of appellant's two criminal contempt convictions, the Fourth Circuit held that, as to the second conviction, the district court committed plain error when it summarily imposed a contempt sanction for appellant's tardiness because the court failed to provide appellant with notice and an opportunity to be heard, and because this failure affected appellant's substantial rights.

2. United States v. Rodriguez-Escareno, Fifth Circuit: In illegal reentry case, the district court applied a 16-level enhancement to appellant's sentence because it considered his earlier crime, conspiracy to distribute methamphetamine, to be a "drug trafficking offense" under Guideline § 2L1.2(b)(1)(A)(i). The court erred in applying the enhancement because the elements of the conspiracy conviction under 21 U.S.C. § 846 are not consistent with the meaning of "conspiring" under the relevant Guideline: the Guideline requires an overt act, while § 846 does not. This was plain error because it was obvious and affected appellant's substantial rights: had his sentence been properly calculated, his Guidelines range would have been 15-21 months, as opposed to the 41-51 months determined by the court. Appellant's 48-month sentence was vacated and the case remanded for resentencing.

3. United States v. Child, Ninth Circuit: Appellant was convicted of attempted sexual abuse. A condition of supervised release prohibited him from residing with or being around children under age 18, including his daughters, and from socializing with or dating anybody with children under age 18, including his fiancée, without prior approval from his probation officer. The court failed to make specific findings on the record addressing the necessity of restricting appellant's ability to have contact with his children and fiancée. Because of the significant liberty interest implicated, these errors - as well as the absence in the record of any evidence supporting the condition - rendered the condition substantively unreasonable. The condition was also overbroad. For these reasons, the condition was vacated and the case remanded.

March 11, 2012

Why You Will Not Go To Jail For Using Comic Sans In A Pleading In Federal Court (Though Maybe You Should)

James Kimsey was not a lawyer.

But when Frederick Rizzolo was deep in a hard bit of contentious litigation, James Kimsey wanted to help out. Mr. Rizzolo's lawyers withdrew from the case. Mr. Rizzolo tried to go on without a lawyer, but his efforts were poor. One can imagine that Mr. Rizzolo felt the situation was bleak.

68920_law_education_series_5.jpgJames Kimsey came to the rescue. While not a lawyer, Mr. Kimsey had some prior legal experience - he was previously sanctioned for the unauthorized practice of law. He was also, apparently, willing to work for free.

Mr. Kimsey ghostwrote some of Mr. Rizzolo's pleadings in his civil case. He seemed to be acting a lot like a lawyer. He wrote a summary judgment motion. He cited to Erie Railroad Co. v. Thompkins. I suspect he even wore a blue suit with a red tie.

Unfortunately, Mr. Rizzolo's opposing counsel got wind of the help Mr. Kimsey was providing. He filed a "Motion to Reveal Pro Se Litigant Rick Rizzolo's Ghost Writer."

The Motion to Reveal went to a hearing. A United States Magistrate Judge determined that Mr. Kimsey was ghostwriting pleadings for Mr. Rizzolo. The Magistrate Judge referred a prosecution for criminal contempt to the United States Attorney's Office.

18 U.S.C. § 402

Mr. Kimsey was prosecuted under section 402 - the criminal contempt of court statute. Eighteen U.S.C. section 402 reads:

Any person, corporation or association willfully disobeying any lawful writ, process, order, rule, decree, or command of any district court of the United States or any court of the District of Columbia, by doing any act or thing therein, or thereby forbidden, if the act or thing so done be of such character as to constitute also a criminal offense under any statute of the United States or under the laws of any State in which the act was committed, shall be prosecuted for such contempt as provided in section 3691 of this title and shall be punished by a fine under this title or imprisonment, or both.

The government argued that Mr. Kimsey violated this, by breaking one of the standing local rules of the Court that says that only lawyers can practice law in federal court.

Mr. Kimsey asked for, and was denied, a jury trial. He was convicted. And, in United States v. Kimsey, the Ninth Circuit reversed, and dismissed the criminal contempt charges against Mr. Kimsey.

Mr. Kimsey's case was reversed for two reasons. First, he had a right to a jury trial that was not honored. Second, the Ninth Circuit held that violating a local rule does not subject a person to criminal contempt.

A Statutory Jury Right

Normally, if the most you can receive in prison is six months or less, you do not have a right to a jury trial. The constitutional right to a jury trial only kicks in after you are eligible for a sentence or more than six months.

However, Section 402 refers to 18 U.S.C. § 3691. Section 3691 grants a right to a jury trial. Thus, even though there was no constitutional jury trial right, there was a statutory jury trial right. And, Mr. Kimsey didn't get one.

So the case was remanded for that reason.

There Are Rules and Then There Are Rules

More significantly, though, the court of appeals held that a local rule is not the kind of rule that a person can be punished with criminal contempt for violating.

This was a straightforward question of statutory interpretation - does violating a "rule" mean (a) violating a local rule or a court rule (e.g., the Federal Rules of Civil Procedure) or (b) violating a rule directed at a specific person (or narrowly defined class of persons).

The district court assumed that it meant (a), as had the Ninth Circuit and Seventh Circuits earlier. Though, assuming isn't the same as deciding, so the Ninth Circuit reconsidered the question here. Moreover, the D.C. Circuit had actually decided that "rule" for these purposes means something directed at a specific person.

The court of appeals looked at what the dictionary says -- though sadly the dictionary from the time that section 402 was made law has both definitions. So, the Ninth Circuit had to turn elsewhere.

A Word Is Known By The Company It Keeps

The appellate court, implicitly following up on Judge Posner's observations about statutory interpretation and reading words in context, noted that,

although standing court rules already existed in the early twentieth century,9 and so, based on etymology alone, it would not be inconceivable that § 402's use of the term "rule" referred to them, this possibility is severely under- mined by the application of a basic canon of statutory interpretation: "The canon, noscitur a sociis, reminds us that a word is known by the company it keeps, and is invoked when a string of statutory terms raises the implication that the words grouped in a list should be given related meaning."

Noting that the string of words in section 402 is actually "any lawful writ, process, order, rule, decree, or command of any district court of the United States" and that each of these is an action directed at a person specifically - except perhaps "rule" - the court of appeals read "rule" to mean something directed at a person specifically too.

You Will Not Probably Go To Jail For Using Comic Sans

The court of appeals also reasoned that allowing a criminal contempt prosecution for violating a local rule would lead to a deliciously absurd result:

If "rule[s]" encompass local court rules, then . . . a court would be able to fine or imprison attorneys for, let's say, failing to conform to local rules specifying the width of margins, appropriate typeface, or kind of paper used for pleadings. See, e.g., D. Haw. L.R. 10.2 ("All documents presented for filing shall be on white opaque paper of good quality . . . with one inch margins . . . ."); C.D. Cal. L.R. 11-3.1.1 ("A monospaced [type]face may not contain more than 10-1/2 characters per inch."); C.D. Cal. L.R. 11.3.2. ("All documents shall be submitted on opaque, unglazed, white paper (including recycled paper) not less than 13-pound weight."). It is at least exceedingly unlikely that Congress intended to authorize convictions of criminal contempt for disobeying ministerial, generally applicable requirements forbidding low-quality paper or excessively small type.

Though I suspect some workers in some court's Clerk's offices would not see criminal sanctions for using the wrong font or paper as a bad result.