In re Brown

• Decision Date: 02 November 1971
• Docket Number: No. 23037.,23037.
• Citation: 454 F.2d 999,147 US App. DC 156
• Parties: In re Darwin Charles BROWN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

147 US App. DC 156, 454 F.2d 999 (1971)

In re Darwin Charles BROWN, Appellant.

No. 23037.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 1970.

Decided November 2, 1971.

Mr. Thomas S. Jackson, Washington, D. C., with whom Mr. James P. Schaller, Washington, D. C., was on the brief, for appellant.

Mr. Edgar T. Bellinger, Washington, D. C. (appointed by the District Court under Rule 42(b) of the Federal Rules of Criminal Procedure), for appellee.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This case traces its origin to an unfortunate episode to which this court unknowingly made a substantial contribution and for which it must bear its full share of the blame. Under review is an attorney's conviction of criminal contempt emanating from his representation in the District Court of an indigent client on a motion seeking the latter's release from custody pending an appeal. Because the attorney was not a member of the bar of the District Court, he was cited for and found guilty of contempt of that court, and was sentenced to a term in jail. Our part in the affair was the appointment, through clerical error, of the attorney to represent the client on the appeal. After pondering deeply on the record and the relevant authorities, we find that the contempt conviction cannot stand. Accordingly, for the reasons discussed herein, we reverse.

I

In August, 1967, the clerk of this court sent a form letter to practicing attorneys in the District of Columbia inquiring as to their availability to represent indigents on appeal. A follow-up letter was sent in April, 1968, to attorneys who had not previously responded. One such letter reached appellant,¹ who held membership in the bars of several courts,² though not locally, and who maintained an office in the District. In a reply letter, appellant expressed his willingness to serve, but pointed out that he was not a member of the bar of this court, and so would have to be specially admitted in order to accept an appointment.

Upon arrival of appellant's response in the clerk's office, a symbol was placed on it to indicate that appellant was not a member of our bar. Because of an employee's error, however, that information was not transferred to the card-file roster maintained by the clerk. As a result, an order was later issued appointing appellant as counsel for an indigent in a criminal appeal. Transmitted with the order was a checklist of suggestions and instructions, prepared by the Legal Aid Committee of the Bar Association of the District of Columbia, which we customarily send out as a convenience to appointed attorneys. The checklist called the attorney's attention to the possibility of securing the client's freedom during the review process, and included information as to how such an effort might be made.³

Shortly thereafter, appellant filed and argued in the District Court a motion for his client's release pending the appeal. When that motion was denied, appellant filed a motion for reconsideration, which likewise failed. Each motion was signed by appellant as "Counsel for Appellant Appointed by United States Court of Appeals for the District of Columbia Circuit." At no time did appellant make any other representation as to his purported authority to appear in the District Court.

While a subsequently-filed application seeking the release was pending in this court, the error in appointing appellant was discovered, and the order of appointment was immediately vacated.⁴ Two months later, the District Judge who had disposed of the bail motions appointed, sua sponte, an attorney to apply for an order to show cause why appellant should not be held in contempt of court.⁵ The application was made, the show cause order was issued, and the matter proceeded to hearing. As we have indicated, appellant was found guilty of contempt and was sentenced to serve 45 days in jail. This appeal followed, with the District Judge's selectee as appellee.

Appellant submits three grounds for reversal of the conviction: (a) that by virtue of his appointment by this court, he was authorized to prosecute his client's release application in the District Court; (b) that the contempt charge should have been heard by a judge other than the one before whom he had appeared for that purpose; and (c) that the kind of intent prerequisite to guilt of criminal contempt was not proven beyond a reasonable doubt. Alternatively, appellant argues that the sentence was excessive and should be reduced. We think that, beyond the contention as to criminal intent, there are grave questions as to whether in other respects appellant's conduct amounted substantively to criminal contempt. We find it unnecessary to consider appellant's first two points, or that with regard to the sentence. We treat the other two points in subsequent sections of this opinion.

II

Our Constitution imposes on criminal processes well known limitations which do not obtain in other legal systems. It is not surprising, then, that the Federal Legislature would act responsively to demarcate the general scope of federal criminal contempt. In 1789, in the very first Judiciary Act, Congress gave the federal courts unbounded power to punish for criminal contempt,⁶ but in 1831, still early in the Nation's history, circumscribed its exercise,⁷ and as so restricted it remains today. The current authorizing statute⁸

is based on the Act passed in 1831 in order to correct serious abuses of the summary contempt power that had grown up and was intended as a "drastic delimitation . . . of the broad undefined power of the inferior federal courts under the Act of 1789," revealing "a Congressional intent to safeguard Constitutional procedures by limiting courts, as Congress is limited in contempt cases, to `the least possible power adequate to the end proposed.\'"⁹

For "`the exercise by federal courts of any broader contempt power than this . . . would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury.'"¹⁰

Our starting point, then, is the general criminal contempt statute, 18 U.S.C. § 401.¹¹ It provides:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as —

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

And it is from within the four corners of this provision that we must draw the substance of the offense for which appellant has been convicted.¹²

Nowhere does the record undertake to specify which of the three subdivisions of Section 401 was sought to be implemented in this case. Neither the order to show cause nor the application therefor makes a specific reference. The District Judge stated that "the question is whether appellant has wilfully been contemptuous in the presence of the Court. That is the language of the statute;" this would seem to invoke the first subdivision, as the argument at the hearing suggested. Appellee's brief mentions both the first and third subdivisions; appellant does not distinguish among them, presumably because his defense rested in large part on an alleged failure of the evidence to show contumacious intent, a prerequisite under all three subdivisions.¹³

In this state of affairs, we test appellant's conviction by all three subdivisions. One need not detain us long. It is clear that the second subdivision does not cover the situation at bar for, as the Supreme Court has held, an attorney is not an officer of the court within the meaning of its provision.¹⁴ We must look, then, to subdivisions 1 and 3 for a basis for the conviction.

III

The design of the first subdivision of Section 401 is manifest. Its obvious purpose is to prevent obstructions of the administration of justice; by its terms, the misconduct alleged to be contemptuous must achieve such character "as to obstruct the administration of justice."¹⁵ As in Ex parte Hudgings¹⁶ the Supreme Court declared:

An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted. . . .¹⁷

In that case, a trial judge held a witness in criminal contempt for giving what in the judge's view was perjured testimony. The Court held that to avoid the procedural safeguards of a full-dress trial and convict the witness of contempt rather than perjury, "there must be added to the essential elements of perjury . . . the further element of obstruction to the court in the performance of its duty."¹⁸ Commitment of the witness was held void for excess of power because "the punishment was imposed for the supposed perjury alone without reference to any circumstance or condition giving it an obstructive effect."¹⁹

The application of Hudgings to cases arising under Section 401(1) was confirmed by In re McConnell,²⁰ which also resulted in reversal of a contempt conviction. There, a lawyer had been ordered to refrain from a certain line of questioning to witnesses, to which the lawyer replied that he would not "unless some bailiff stops us." At this point a recess was called, and the lawyer never returned to the forbidden questions, so his threat was never fulfilled. The Supreme Court, relying on Hudgings, emphasized that it must "clearly be shown" that "an actual obstruction of justice" occurred.²¹ Since the attorney did not resume the forbidden line of questioning, the Court concluded...