U.S. v. Neal

• Decision Date: 27 November 1996
• Docket Number: No. 96-4108,96-4108
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Whitt NEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 993

101 F.3d 993

UNITED STATES of America, Plaintiff-Appellee, v. Whitt NEAL, Defendant-Appellant.

No. 96-4108.

United States Court of Appeals Fourth Circuit.

Argued Sept. 23, 1996.

Decided Nov. 27, 1996.

ARGUED: George Vernon Laughrun, II, Goodman, Carr & Nixon, Charlotte, NC, for Appellant. Clifford Carson Marshall, Jr., Office of the United States Attorney, Asheville, NC, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, James M. Sullivan, Assistant United States Attorney, Charlotte, NC, for Appellee.

Before WILKINS, Circuit Judge, BUTZNER, Senior Circuit Judge, and MICHAEL, Senior United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge WILKENS wrote the opinion, in which Senior Judge BUTZNER and Senior Judge MICHAEL joined.

OPINION

WILKINS, Circuit Judge:

Whitt Neal appeals an order of the district court finding him guilty of criminal contempt for failing to obey a subpoena. See 18 U.S.C.A. § 401(3) (West 1966). Because the district court committed plain error in failing to refer the matter to the United States Attorney or some other appropriate prosecutor, we vacate Neal's conviction and remand for further proceedings consistent with this opinion.

I.

Neal, an officer with the Charlotte-Mecklenburg Police Department, was responsible for coordinating law enforcement efforts regarding the activities of various abortion-protest groups. On January 25, 1996, Neal was served with a subpoena directing him to appear in federal district court on the morning of February 2, 1996 to testify as a witness in a civil lawsuit involving some of the protestors. Neal failed to appear in court pursuant to the subpoena. As a result, the district court issued an order requiring Neal to appear and show cause why he should not be held in contempt of court.

The district judge conducted the resulting hearing without the aid of a prosecutor, deciding himself which witnesses would testify against Neal. The court called four witnesses to the stand and conducted the direct examination of them. It is apparent that the court learned the substance of the testimony of these witnesses prior to the hearing through extrajudicial means. The principal witness against Neal was Christine Stole, the process server who served him with the subpoena. Stole testified on direct examination that when she gave Neal the subpoena he commented, "I'm going to throw this in the trash can." J.A. 19. During cross-examination, Stole conceded that she could not be sure he was referring to the subpoena. The court also called as witnesses two Deputy United States Marshals and Neal's supervisor, all of whom had conversations with Neal relating to his failure to appear.

Neal, who was represented and examined by counsel, testified that he did not intentionally disobey the subpoena. He claimed that he inadvertently overslept, having worked the night shift on the evening prior to February 2, 1996. Consequently, he argued, he lacked the requisite criminal intent for a contempt conviction. The district court conducted a brief cross-examination, during which Neal admitted that he received the subpoena and that he was aware that he was required to appear. Discounting Neal's explanation for not appearing, the court concluded that he wilfully disobeyed the subpoena. Neal was sentenced to a two and one-half day term of imprisonment.

II.

Neal contends that the district court erred in assuming the inconsistent roles of prosecutor and judge during the hearing. Because Neal failed to raise this objection below, we will reverse only if the district court committed plain error in failing to refer the matter to the United States Attorney or otherwise appoint a prosecutor. See Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993); United States v. David, 83 F.3d 638, 641 (4th Cir.1996). To reverse for plain error, Rule 52(b) requires us to find: "1) error; 2) that is plain; and 3) that affect[s] substantial rights." David, 83 F.3d at 641 (alteration in original) (internal quotation marks omitted). Even if these three requirements are satisfied, however, we will exercise our discretion to correct the error only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 732, 113 S.Ct. at 1776 (alteration in original) (internal quotation marks omitted).

A.

Our first inquiry is whether the district court erred in conducting Neal's criminal contempt hearing without the aid of a prosecutor. We conclude that it did.

It is well established that courts possess an inherent " 'power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.' " International Union, UMWA v. Bagwell, 512 U.S. 821, ----, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994) (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821)). Moreover, courts are vested with the power to initiate contempt proceedings to ensure that the judiciary is not utterly dependent upon the other branches of government to vindicate judicial authority. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795-96, 107 S.Ct. 2124, 2131-32, 95 L.Ed.2d 740 (1987) (holding that a court must possess the power to appoint a private prosecutor in a contempt action as means of self-protection). The contempt power, however, is subject to abuse. Bagwell, 512 U.S. at ----, 114 S.Ct. at 2559. Therefore, "only '[t]he least possible power adequate to the end proposed' should be used in contempt cases." Young, 481 U.S. at 801, 107 S.Ct. at 2134 (alteration in original) (quoting United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975)).

The power of a court to impose sanctions for civil contempt differs in several respects from its authority to impose sanctions for criminal contempt, including the procedural safeguards that must be followed. See Bagwell, 512 U.S. at ----, 114 S.Ct. at 2559. Proceedings for civil contempt "leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct." Id. In contrast, "criminal contempt [is] 'a crime in the ordinary sense' " and requires that the contemnor be afforded fundamental procedural safeguards. Young, 481 U.S. at 799, 107 S.Ct. at 2133 (quoting Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968)).

The procedures attendant to the prosecution of a criminal contempt charge depend largely upon whether the conduct constitutes direct or indirect contempt. See Young, 481 U.S. at 798, 107 S.Ct. at 2132-33. Direct, or in-court, contempt involves conduct occurring "in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court ... and where immediate punishment is essential to prevent demoralization of the court's authority before the public." In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948) (internal quotation marks omitted); see United States v. Willett, 432 F.2d 202, 204 (4th Cir.1970) (per curiam). Direct contempt may be punished summarily without notice and a hearing. See Bloom v. Illinois, 391 U.S. 194, 204, 88 S.Ct. 1477, 1483-84, 20 L.Ed.2d 522 (1968). In a summary proceeding for direct criminal contempt, "the otherwise inconsistent functions of prosecutor, jury and judge mesh into a single individual." ¹ Sandstrom v. Butterworth, 738 F.2d 1200, 1209 (11th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 787, 83 L.Ed.2d 781 (1985). Indirect, or out-of-court, contempt does not occur within the presence of the court and must be proven through the testimony of third parties or the testimony of the contemnor. See Willett, 432 F.2d at 204; In re Heathcock, 696 F.2d 1362, 1365 (11th Cir.1983). The inherent power of the court to punish indirect contempt is limited because conduct occurring out of the presence of the court does not "threaten[ ] a court's immediate ability to conduct its proceedings." Bagwell, 512 U.S. at ----, 114 S.Ct. at 2559. Thus, indirect contempt may never be punished summarily, see Cooke v. United States, 267 U.S. 517, 536-37, 45 S.Ct. 390, 394-95, 69 L.Ed. 767 (1925), but rather requires adherence to " 'more normal adversary procedures,' " Young, 481 U.S. at 798, 107 S.Ct. at 2133 (quoting Bloom, 391 U.S. at 204, 88 S.Ct. at 1483). ²

Among those procedures that are fundamental to our adversary system is the use of an independent prosecutor to pursue charges against a criminal defendant. It is axiomatic that the prosecution of crimes is not a proper exercise of the judicial function. See, e.g., In re Murchison, 349 U.S. 133, 137, 75 S.Ct. 623, 625-26, 99 L.Ed. 942 (1955); United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); see also Bagwell, 512 U.S. at ----, 114 S.Ct. at 2563 (Scalia, J., concurring) (noting that the idea "[t]hat one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers"); Young, 481 U.S. at 816, 107 S.Ct. at 2142 (Scalia, J., concurring in judgment) (emphasizing that the judicial power "does not include the power to seek out law violators in order to punish them--which would be quite incompatible with the task of neutral adjudication"). Thus, when the contumacious conduct at issue occurs out of the presence of the court or does not interfere with an ongoing proceeding immediately before the court, the inherent contempt power does not permit a judge to dispense with a prosecutor altogether and fill the role himself. In re Murchison, 349 U.S. at 136-39, 75 S.Ct. at 625-27 (holding that the judge violated the Due Process Clause of the Fourteenth...