In re Gates

Citation600 F.3d 333
Decision Date26 March 2010
Docket NumberNo. 09-4125.,09-4125.
PartiesIn re Bryan GATES, Jr., Appellant. United States of America, Plaintiff-Appellee, v. Nicholas Sanchez Hernandez, Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Bryan Gates, Jr., Winston-Salem, North Carolina, for Appellant. Terry Michael Meinecke, Office of The United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney, L. Patrick Auld, Assistant United States Attorney, Office of The United States Attorney, Greensboro, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and KING and GREGORY, Circuit Judges.

Reversed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KING and Judge GREGORY joined.

OPINION

TRAXLER, Chief Judge:

Bryan Emery Gates, Jr., appeals his contempt conviction under 18 U.S.C. § 401(3) for failing to appear in court on time for a plea hearing. We conclude that the district court erroneously imposed punishment in a summary proceeding without affording Gates notice or a meaningful opportunity to respond to the charges against him. For the reasons that follow, we reverse.

I.

Gates, an attorney practicing in North Carolina, was appointed by the district court to represent Nicholas Sanchez Hernandez with respect to federal criminal charges in a ten-count indictment filed in the Middle District of North Carolina. On December 2, 2008, Hernandez pled not guilty to all counts. The district court entered a general scheduling order applicable to all cases arraigned in the Middle District of North Carolina during December 2008, requiring that any plea agreements be filed by December 31, 2008, and preliminarily setting all change of plea hearings for January 5, 2009.

Hernandez ultimately pled guilty to five counts in the indictment. The district court scheduled and rescheduled Hernandez's plea hearing three times, relying on the office of the United States Attorney to notify Gates of the date and time. As was apparently common practice, Mr. Owens, a staff employee of the United States Attorney, communicated the hearing schedule by telephone rather than formal, written notice.

On January 5, despite the fact that Hernandez had not yet agreed to the terms of a plea agreement, the government requested that the district court direct him to appear for a change of plea hearing in accordance with the date established by the general scheduling order. Because Hernandez was in state custody at the time, the government moved for, and the district court granted, a Writ of Habeas Corpus Ad Prosequendum to secure Hernandez's presence for a change of plea hearing. On January 7, 2009, Hernandez appeared for the hearing, but, having no written plea agreement in place, "elected not to enter a plea of guilty." J.A. 3.

State officials subsequently transferred custody of Hernandez to federal agents. On January 29, 2009, the government moved for an order of detention; by this time, however, Hernandez had decided to change his plea on five of the ten counts and signed a waiver of his right to a detention hearing. Although a plea agreement still had not been filed, the district court proceeded to schedule a change of plea hearing for Monday, February 2, 2009, which was also the trial date.

On Thursday, January 29, however, the district court decided to reschedule Hernandez's plea hearing for the morning of Friday, January 30—the next day. When the court called Hernandez's case at 10:50 a.m. Friday morning, shortly after the government filed the signed plea agreement, neither Gates nor Hernandez was present. The district judge inquired whether the government notified Gates of the last-minute scheduling change:

THE COURT: Have you had communication with Mr. Gates?
AUSA: I have not personally spoken with him. My understanding was that... he left some time ago from his office to appear in court this morning.
THE COURT: Had you previously given him notice that the case was scheduled for ... a change of plea today?
AUSA: Our office did ... yesterday afternoon.... I checked with Mr. Owens the staffer who oversees scheduling matters in our office, who indicated that he had spoken to Mr. Gates and let him know that it was on for this morning.
THE COURT: For the record, show that this matter is being called. Mr. Gates has not yet appeared, even though he had been given earlier advice yesterday to be in court this morning.... The Court will note that this is not the first time Mr. Gates has not made a timely appearance in the court after having advice that his case was scheduled for trial.

J.A. 6-7.

Gates arrived in court fifteen minutes later and attempted to explain his tardiness to the district court:

THE COURT: Mr. Gates, on this occasion and other occasions we've been trying to find you for matters before this Court and you're always not here on time. What is your explanation today?
MR. GATES: ... This morning—the last message I got was that this case was on for change of plea on Monday February 2.
THE COURT: Did you get a message yesterday about this case from Mr. Owens in the U.S. Attorney's office?
MR. GATES: I got a message yesterday that said it may be rescheduled for today and I was awaiting to hear further.
When I talked with Mr. Owens this morning, he said, "I left a message with your assistant saying that it had been changed." My assistant has the day off, so I couldn't ask her about that.
.... She did come in personally referring to January 29, the day before the hearing and tell me that ... there was the possibility that this case was going to be rescheduled for today.
THE COURT: And what effort did you make to find out?
MR. GATES: I waited to hear for when that would be confirmed....
THE COURT: You didn't pick up the phone to call somebody to find out since you knew there might be some confusion as to being scheduled today?
MR. GATES: I interpreted the message... as a warning that this may be in the works.
THE COURT: The Court does not accept the explanation you're giving ... and finds that the action that you're taking in delaying this matter on this occasion and your appearance on other occasions in the matter delayed the Court, having to inquire into your whereabouts, to call and find you to be here. The Court finds that to be contemptuous conduct ....
That does not affect your client's actions... but just your conduct of continued failure to appear in a timely fashion. You made no effort to follow up. To suggest to the Court that you sat back and waited for somebody to tell you whether or not your case is scheduled for trial is just not acceptable.

J.A. 7-10 (emphasis added). Having concluded Gates's conduct was contemptuous, the district court imposed a $200 fine against Gates.

On appeal, Gates argues that because his alleged contempt was committed, if at all, outside of the district court's presence, the court was precluded from summarily imposing contempt sanctions. Instead, Gates claims he was entitled, at a minimum, to reasonable notice and a chance to prepare a defense against allegations that his failure to be on time for Hernandez's hearing, as well as his failure to appear on other unspecified occasions, constituted criminal contempt under 18 U.S.C. § 401(3). Moreover, Gates argues that because the record contains no evidence of the kind of intentional conduct required for a criminal contempt conviction under § 401(3), there is no reason for us to remand for a plenary contempt hearing. We conclude that on both points Gates is correct.

II.

Gates did not object to the summary procedure employed by the district court in its consideration of criminal contempt sanctions against him, nor did he specifically challenge the sufficiency of the evidence to satisfy the elements of a criminal contempt offense. Thus, the plain error standard of review applies. See Fed. R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). We recognize, however, that until the very moment the district court imposed a fine against Gates, it was not at all clear that the district court was contemplating criminal contempt sanctions. The district court simply asked Gates to explain why he failed to make a timely appearance for Hernandez's plea hearing. The court did not indicate that contempt sanctions were a possibility, and we see nothing in the record suggesting that Gates should have understood that the court was weighing the possibility of a contempt citation. Under the circumstances, Gates's failure to raise a timely objection to the court's summary contempt proceeding is understandable.

Nonetheless, as reasonable as Gates's response may have been, the issues before us on appeal were not raised or tested below, and therefore we are constrained to apply the plain error standard of review. See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also United States v. Neal, 101 F.3d 993, 996 (4th Cir.1996) (reviewing for plain error the district court's failure to appoint an independent prosecutor to pursue contempt sanctions); United States v. Hawkins, 76 F.3d 545, 552 (4th Cir.1996) (per curiam) (considering whether the district court's notice of contempt proceedings was so inadequate that its issuance constituted plain error). Accordingly, we must determine whether (1) the district court committed an error, (2) whether the error committed is plain, and (3) whether the district court's error "affects substantial rights." Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks and alteration omitted). Even if these prerequisites are satisfied, however, "Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affects the fairness, integrity or public reputation...

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