United States v. Seale

• Citation: 461 F.2d 345
• Decision Date: 11 May 1972
• Docket Number: No. 18246.,18246.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. SEALE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

461 F.2d 345 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Bobby G. SEALE, Defendant-Appellant.

No. 18246.

United States Court of Appeals, Seventh Circuit.

Argued February 9, 1972.

Decided May 11, 1972.

Leave to File Petition for Rehearing Denied July 6, 1972.

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Elizabeth B. DuBois, Eric Schnapper, Jack Greenberg, Michael Meltsner, New York City, Marshall Patner, Thomas R. Meites, Chicago, Ill., Anthony G. Amsterdam, Stanford, Cal., Charles R. Garry, Benjamin Dreyfus, Francis J. McTernan, San Francisco, Cal., for defendant-appellant.

James R. Thompson, U. S. Atty., Gary Starkman, Jeffrey Cole, James Breen, Royal Martin, Jr., Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.

Before FAIRCHILD, CUMMINGS and PELL, Circuit Judges.

CUMMINGS, Circuit Judge.

Defendant Seale and seven other persons were indicted for violating the Federal Anti-riot Statute and for conspiracy to violate it (18 U.S.C. §§ 2101 and 371).^* When Seale and his co-defendants were arraigned on April 9, 1969, Charles R. Garry of the California Bar informed the district judge that he would represent Seale and defendants Hoffman, Weiner, and Froines at the trial. September 24, 1969, was fixed as the trial date.

At pretrial proceedings on August 27, 1969, co-counsel William Kunstler advised the judge that the defendants would be represented "by a trial team," and that Mr. Garry was chief counsel and "essentially will be representing Seale assuming that he Garry gets back in time from a gall bladder operation." A continuance of the trial date, requested on the grounds of pretrial publicity and conflicting litigation schedules of counselors Kunstler and Garry, was denied.

On September 9, 1969, Garry requested a postponement of the trial date until November 15 because of the necessity of his undergoing a gall bladder operation at the conclusion of a California trial in which he was then engaged. This postponement was also denied. The court noted that Messrs. Michael Tigar, Irving Birnbaum, and Stanley Bass had also entered appearances for Seale, and therefore concluded that it was unnecessary to give Seale an opportunity to secure other counsel in place of Garry. In response to the complaint that these attorneys were engaged solely for special pretrial work or were only local counsel and were never intended to function as trial counsel, the trial judge stated there was no such thing as a limited appearance in a criminal case.¹

At the commencement of the trial proceedings, Mr. Kunstler filed a written appearance on behalf of Seale² and three other defendants. He qualified his statement of representation to the court by saying that all defendants took the position they were not fully represented in Mr. Garry's absence and asked that each defendant be permitted to make a statement to that effect. The court disallowed the request. Co-counsel, Mr. Weinglass, informed the court that Seale was in fact without counsel but, relying on the appearances filed in Seale's behalf, the court stated that was not a fact and refused to hear argument on that point. When Seale was introduced to the group of prospective jurors, the court informed them that Seale was represented by Messrs. Garry, Tigar, Birnbaum, and Bass. Asked if there was additional counsel for Seale, Mr. Kunstler stated he had filed an appearance, and the court included Mr. Kunstler in the list of Seale's counsel.

On September 26, after the jury had been impanelled but prior to hearing the evidence, the court denied Seale's motion requesting a continuance until Garry could be present to represent him and requesting dismissal of his attorneys of record in the event no continuance was allowed. On the same day, after the opening statements of defense counsel, Seale unsuccessfully attempted to make his own opening statement, and Kunstler refused to make an opening statement on Seale's behalf on the ground that Kunstler was not Seale's attorney. The court announced:

"If any defendant here has any rights which he perceives to have been violated by going ahead with this trial with lawyers that have appearances on file, without the attendance of Mr. Garry, their rights are there."

Thereafter the trial judge relied completely on Kunstler's written appearance as counsel for Seale as being dispositive of Seale's claim he was not represented and of Kunstler's protestations that he did not in fact represent Seale. On this basis the court refused to permit Seale to represent himself. Accordingly, Seale's October 20 pro se motion to represent himself was denied, as was Kunstler's October 22 motion to withdraw as counsel for Seale.

On subsequent occasions Seale vehemently complained that his Sixth Amendment right to counsel of his choice and his right to represent himself were being denied. Several times Seale attempted to represent himself. He was bound and gagged on the afternoon of October 29 in an effort to maintain courtroom decorum. This was a measure deemed permissible in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. However, his restraints were removed on November 3.

On November 5, after six weeks of trial, the court sua sponte declared a mistrial as to Seale, and his trial was severed from that of his co-defendants.³ Acting under Rule 42(a) of the Federal Rules of Criminal Procedure, the court simultaneously adjudged Seale guilty of sixteen acts of contempt, resulting in a sentence of three-month terms apiece, or a total of four years' imprisonment.⁴ Seale claims that nearly all sixteen acts arose out of his objections to Garry's absence and his attempts to represent himself at the trial.

In the certificate of contempt, the trial judge found that each of the 16 specified acts of contempt

"constituted a deliberate and wilful attack upon the administration of justice in an attempt to sabotage the functioning of the Federal judicial system; that the misconduct was of so grave a character as to continually disrupt the orderly administration of justice."

The legal standards relating to the acts of contempt charged will be discussed later in this opinion.

Contempt Trial Before Another Judge

In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532, Mayberry's pro se defense to criminal charges was marked by brazenly contemptuous conduct, including an insolent, personal attack on the trial judge. The judge did not act instantly, but waited until the conclusion of Mayberry's trial to cite him for contempt. The Supreme Court reversed and remanded for a contempt hearing before another judge, holding that where the trial judge is the object of personal vilification carrying potential for bias and he does not act instantly to cite for contempt, he may not, as a matter of due process, sit in judgment on the alleged contemnor. Rather, the defendant is entitled to a hearing before a judge other than the one he has reviled.

The Government concedes that the aspersions cast upon the trial judge by Seale were of the same character as Mayberry's.⁵ Our review of the record finds the concession well taken. However, the Government seeks to avoid Mayberry's disqualification requirement on the ground that the trial judge was justified in personally citing Seale as an emergency measure to prevent a complete breakdown of the trial and to salvage the proceedings against the remaining defendants. We cannot agree.

The mistrial and severance of Seale were the emergency measures taken to insure a fair and orderly trial of the other defendants. Seale was cited for his past conduct as a finale just before he was released from the courtroom. It is argued that this was necessary for its deterrent effect on the remaining defendants who had already indicated their propensity toward misbehavior. At least in the absence of personal embroilment (a matter which we do not reach), the trial judge could have cited Seale for contempt instantly even though he was personally attacked. Mayberry, supra at 463, 91 S.Ct. 499; see Johnson v. Mississippi, 403 U.S. 212, 214, 91 S.Ct. 1778, 29 L.Ed.2d 423; Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed. 2d 353. The need for order in the courtroom to be achieved through the deterrent effect of an immediate citation of the contemnor is thought to override the possibility of bias on the part of the trial judge. See United States v. Meyer, 149 U.S.App.D.C. ___, 462 F.2d 827 (1972).⁶ However, the deterrent effect on the remaining defendants is speculative by comparison.

We have no doubt that the able trial judge would have asked another judge to preside at Seale's contempt hearing if Mayberry had been handed down before the contempt citation date.⁷ More importantly, there is nothing to indicate that summarily finding Seale in contempt upon declaration of the mistrial would be a more effective deterrent to misconduct by the other defendants than simply bringing home to them the fact that their former co-defendant had been charged with contempt and was bound over for a later hearing under Rule 42(b) of the Federal Rules of Criminal Procedure. Any generalized deterrent effect on the remaining defendants is simply too tenuous and improbable a ground to overbalance the inherent possibility of prejudice to Seale in the trial judge's acting himself.⁸ "The normal constitutional presumption in favor of a due process hearing is therefore controlling." United States v. Meyer, supra at ___, 842. Consequently, we hold that Mayberry directly controls this case and makes it incumbent upon a different judge to preside at Seale's contempt hearing on remand.

Jury Trial

In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, the Supreme Court held that the Sixth Amendment right to trial by jury applies to serious criminal contempts. In the case of criminal contempts, as with other crimes, the relevant criterion of seriousness is the penalty involved. Id. at...