Allis, In re, 74--1695

• Decision Date: 10 March 1976
• Docket Number: No. 74--1695,74--1695
• Citation: 531 F.2d 1391
• Parties: In re Nicholas R. ALLIS, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1391

531 F.2d 1391

In re Nicholas R. ALLIS, Appellant.

No. 74--1695.

United States Court of Appeals, Ninth Circuit.

March 10, 1976.

Rehearing and Rehearing In Banc

Denied May 13, 1976.

Michael Lightfoot (argued), Los Angeles, Cal., for appellant.

William D. Keller, Asst. U.S. Atty. (argued), Los Angeles, Cal., for appellee.

OPINION

Before HUFSTEDLER and SNEED, Circuit Judges, and THOMPSON, ^* District Judge.

BRUCE R. THOMPSON, District Judge:

This is an appeal from an order holding defense counsel in contempt of court for tardiness. Annexed to this opinion is a transcript of the proceedings which states with precision exactly what occurred.

The Court's oral adjudication was followed by a written order filed March 6, 1974, which parroted the oral findings in all material respects. The written order contains the following preface:

'After notifying Nicholas Allis, Esq., of the nature of the proceeding and after affording him an opportunity to consult with counsel and an opportunity for himself and counsel to be heard, the Court finds said Nicholas Allis, Esq., to have been in direct contempt of court and certifies that the Court saw and heard the conduct constituting the contempt and that it was committed in the actual presence of the Court.'

Thereafter, Allis filed a motion to vacate the contempt order and the motion was denied. This appeal followed.

It is probably too late for an effective argument that tardiness of counsel is punishable summarily under Rule 42(a), Federal Rules of Criminal Procedure, as conduct committed in the actual presence of the Court. Persuasive appellate court opinions have sustained the view that it is not counsel's absence from the courtroom at the appointed hour which constitutes the contempt, if any. Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928 (1971); In Re Lamson, 468 F.2d 551 (1st Cir. 1972); United States v. Willett, 432 F.2d 202 (4th Cir. 1970); United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973). The import of these cases is that the contempt consists not in the absence from the courtroom but in the reasons for the attorney's presence elsewhere, and the presence elsewhere was, of course, not in the actual presence of the Court, a requirement for summary disposition under Rule 42(a), Federal Rules of Criminal Procedure. The absence-presence contention has its fascinating aspects. We, nevertheless, agree with the conclusion reached in the Delahanty case, supra:

'We find that this matter should not have been dealt with summarily. While the absence of Appellants was obvious to the Court, the reasons for their absence were not. The Court did provide an opportunity for an explanation of their absence, but only after the Court had found Appellants to be in contempt. As the Supreme Court has stated, summary disposition of contempt under Rule 42(a) is "for exceptional circumstances' * * * such as acts threatening the judge or disrupting a hearing or obstructing court proceedings.' Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965). We find no exceptional circumstances in this case justifying summary disposition.' Delahanty, supra, at 398.

The Government relies primarily on In Re Gates, 156 U.S.App.D.C. 88, 478 F.2d 998 (1973), and In Re Niblack, 155 U.S.App.D.C. 174, 476 F.2d 930 (1973), which reject the Sykes and Willett, supra, rationale and proclaim tardiness of counsel to be summarily punishable as direct contempt in the actual presence of the Court. With this conclusion we respectfully disagree.

Absence (tardiness) alone is not contempt. The reasons for the default are important. A contempt is a wilful disregard or disobedience of public authority and the requisite wrongful intent may be inferred from an attorney's reckless disregard of his obligations to the Court. Sykes, supra, at 930; Delahanty, supra, at 398. If an explanation for tardiness is made which is inconsistent with wilful disobedience, a hearing must be held, if the facts are disputed, or, if the explanation is accepted there is no contempt.

So, to the extent the district court relied upon Rule 42(a) for summary adjudication of misconduct in the actual presence of the Court, we believe it was in error. But the district court did not rely solely upon Rule 42(a). It notified Allis of the charges and afforded him the opportunity to consult with counsel and an opportunity for himself and counsel to be heard. The issue is whether this procedure was consonant with the requirements of Rule 42(b), Federal Rules of Criminal Procedure, which provides:

'(b) Disposition upon Notice and Hearing. A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. The defendant is entitled to a trial by jury in any case in which an act of Congress so provides. He is entitled to admission to bail as provided in these rules. If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. Upon a verdict or finding of guilt the court shall enter an order fixing the punishment.'

A 'reasonable time for the preparation of the defense' varies with the circumstances. Presumably, no one would contend that a witness who fails to respond to a subpoena, or a juror who fails to respond to a summons, would not be entitled to more than ten minutes' notice of the charges to prepare a defense. But here we are dealing with an attorney at law, an officer of the court. We are concerned with the efficient administration of the court's business, which is a responsibility of the attorney as well as of the judge. Here, the court, at the outset, notified Allis that there was imminent likelihood that he would be held in contempt. He told him that the sentencing of Spencer had been set for 1:15 o'clock p.m. at Allis' special request. Allis agreed. He told him that Allis had been tardy on previous occasions and had been strictly admonished. Allis agreed. A recess was then taken for ten minutes and Allis conferred with counsel, who appeared with him at the subsequent hearing. When the Court asked him what his excuse was for failure to meet the commitment at a time set at 'your own instance and for your own convenience,' Allis replied: 'I don't really have an excuse * * *. It was my fault * * *. I did forget it.'

This was sufficient to warrant a finding of reckless disregard of his responsibilities as an attorney and to justify the adjudication for contempt. The procedures were in conformity with the requirements of Rule 42(b). No extension of time to prepare a defense was warranted in these circumstances and none was requested by Allis or his counsel. The facts were clear and undisputed. At no time was an indication given of the availability of other witnesses or evidence to support a defense of justification or excuse.

On the facts, the instant case is similar to In Re Niblack, 155 U.S.App.D.C. 174, 476 F.2d 930 (1973), in which the lawyer's tardiness, which was not an isolated instance, was held summarily punishable as a direct contempt in the actual presence of the Court. While we have disapproved the analysis by the Niblack Court, we do approve the result. We discern no justification under the circumstances disclosed by this record and the Niblack opinion for requiring an elaborate proceeding when the only end in view is to get the attorney, as an officer of the Court, to focus some attention on the importance of being prompt and of devising a system which will avoid tardiness and complicating delays in the administration of the business of the Court.

Affirmed.

APPENDIX

LOS ANGELES, CALIFORNIA, WEDNESDAY, MARCH 6, 1974, 1:15 P.M.

THE COURT: Good afternoon, gentlemen.

THE CLERK: Criminal Case 74--295--IH, United States of America vs. James Edwin Spencer.

Will counsel please make their appearances.

MR. VON DER AHE: Good afternoon, your honor. Vincent Von Der Ahe appearing on behalf of the Government.

THE COURT: I see Mr. Spencer is here. Where is Mr. Allis, your counsel? Do you know?

DEFENDANT SPENCER: No, I don't, sir.

THE COURT: Has anyone heard from him? Mr. Clerk, have you?

THE CLERK: No, your Honor.

THE COURT: How about you, Mr. Von Der Ahe?

MR. VON DER AHE: No, I have not, your Honor.

THE COURT: Let the record show that it is now 1:22. The case was set for 1:15. My secretary called his office at 1:15 and was told that he was on his way down here.

I have no alternative but to recess until the gentleman appears. We will give give him a minute or two.

Go ahead and sit down, Mr. Spencer.

It is 1:25. We will be in recess.

(Recess.)

THE COURT: For the second time call the case.

THE CLERK: Criminal Case 74--295--IH, United States of America vs. James Edwin Spencer.

Counsel, please make your appearances.

MR. VON DER AHE: Good afternoon, your Honor. Vincent Von Der Ahe appearing for the Government.

MR. ALLIS: Good afternoon, your Honor. Nicholas Allis for Mr. Spencer. I apologize for being late.

THE COURT: We will discuss that later, Mr. Allis. The court has been out once. The matter was set for 1:15 at your special request, as I remember it.

MR. ALLIS: Yes, it was, your Honor.

THE COURT: And the clerk indicates that you failed to arrive until 1:35.

Now, first, let's proceed to the matter at hand.

THE COURT: Now, Mr. Allis, I correctly stated the facts, have I not?

MR. ALLIS: Yes, you have, your Honor.

THE COURT: Mr. Allis, one other fact needs to be...