Chaplain, In re, 78-5154

Citation621 F.2d 1272
Decision Date07 May 1980
Docket NumberNo. 78-5154,78-5154
PartiesIn re Russell Wilson CHAPLAIN, Sr.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Douglas Fredericks, Norfolk, Va. (Fredericks & Buckley, Norfolk, Va., on brief), for appellant.

John F. Kane, Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN and SPROUSE, Circuit Judges.

K. K. HALL, Circuit Judge:

Russell Wilson Chaplain, Sr., appeals his conviction of criminal contempt summarily adjudicated by a district judge in the course of IRS subpoena enforcement proceedings against Chaplain and his daughter. We have carefully reviewed the record, have considered the controlling law relevant thereto, and affirm the conviction.

I.

Chaplain and his daughter, Suzanne Goldsticker, appeared pro se in the United States District Court for the Eastern District of Virginia on May 11, 1978, as defendants in a proceeding brought by the United States seeking enforcement against them of an Internal Revenue Service subpoena. 1 During the hearing several disturbing and distracting factors and developments emerged. At the outset the district judge found it necessary to order a stenographer privately employed by Chaplain away from a position taken, at Chaplain's direction, alongside the official court reporter. 2 Throughout the approximately two hours of proceedings that followed, Chaplain's conduct posed incredibly difficult problems of control upon the district judge. While never engaging in acts of physical obstruction or directing any overt threats, insults or calumny at the judge, Chaplain continually interrupted him and other participants in the proceeding, refused to sit down when directed to do so by the judge, badgered witnesses, evaded questions from the bench, and generally refused to observe even minimal requirements of common civility, much less the decorum traditionally expected of participants in judicial proceedings. 3 His daughter's conduct, though more moderate, was of a like kind, and while not directly involved in this contempt appeal, clearly contributed to the climate in which the critical courtroom events led to the contempt convictions. After several ineffective attempts by the trial judge to bring Chaplain into order, the judge explicitly warned him that further interruptions of the judge or uncalled for remarks directed at witnesses would result in Chaplain's confinement. This had no discernible effect on Chaplain, who continued the course of querulous, argumentative interruptions and commentary. When these developments somewhat exhausted the patience of the judge, the first summary conviction took place during the course of Chaplain's cross-examination of a Government witness.

Chaplain had asked the witness a question and then prevented his answering it, whereupon the following exchange occurred.

MR. CHAPLAIN: Judge, Your Honor, I don't want a lot of talk.

THE COURT: Mr. Chaplain, you asked the question he's answering.

MR. CHAPLAIN: Yeah, but he's answering a whole lot of strange phrases, and everything.

THE WITNESS: No. I'm just

MR. CHAPLAIN: I just want to know: What did you all

THE WITNESS: I'm just telling you

THE COURT: Wait a minute. Hold it; hold it. Mr. Chaplain, let him finish answering the question.

MR. CHAPLAIN: All right, go ahead I have all day.

THE WITNESS: Anyway, Mr. Sheffer

THE COURT: Mr. Chaplain, you're fined fifty dollars.

MR. CHAPLAIN: What for?

THE COURT: For contempt of court for a smart remark.

Moments later, the second conviction took place. When Chaplain temporarily stopped his questioning of the witness, the following occurred. We quote at some length, not because of the particular importance of the remainder of the exchange but because it is illustrative of the day's proceedings.

THE COURT: All right. You through?

MR. CHAPLAIN: No.

THE COURT: All right.

MR. CHAPLAIN: He set up there and stuttered and stammered, that other man.

I'm trying to think

THE COURT: That's another fifty dollars.

MR. CHAPLAIN: I got I got some more

THE COURT: That's another fifty dollars Mr. Chaplain. That's a hundred dollars you owe.

MR. CHAPLAIN: Judge, just Judge, just just continue just do whatever you're going to do.

MRS. GOLDSTICKER: Now I'm

MR. CHAPLAIN: I just think this is unfair.

MRS. GOLDSTICKER: Daddy

It's my turn now?

THE COURT: Well, he's I don't know whether he's through or not.

MRS. GOLDSTICKER: Oh, excuse me.

MR. CHAPLAIN: Every time I say what did I say then that was

THE COURT: Every time you make a smart remark, it's going to be another fifty dollars.

You're here up here to ask

MR. CHAPLAIN: What

THE COURT: questions of this witness and not to comment on them, not to comment

MR. CHAPLAIN: What did I say then that was a smart remark?

I mean, is this, what I'm saying now, smart?

I'm just asking: what did I say?

THE COURT: Go ahead. Ask the question, if you have any more questions.

Upon completion of the evidentiary portion of the proceedings, the district judge from the bench ordered enforcement of the subpoena, then turned to the contempt matter. Placing Chaplain in the Marshal's custody, he directed that Chaplain be taken to the Clerk's office to pay the fines, failing which he was to be confined until he made payment. Chaplain then paid the fine. Thereafter the judge entered a written order adjudging contempt in conformity with Fed.R.Crim.P. 42(a). This appeal followed.

II.

The power summarily to convict and punish for contempt of court is a general and universal attribute of judicial authority. Ex parte Robinson, 86 U.S. (19 Wall.) 505, 509, 22 L.Ed. 205 (1874). Inherent in federal judicial power, its current use is regulated by statute and rule. Atwell v. United States, 162 F. 97, 102 (4th Cir. 1908). 4 The power rests on the proposition that a hearing to determine guilt of contempt is not necessary when contumacious conduct occurs in the actual presence of a judge who observes it, and when immediate action is required to preserve order in the proceedings and appropriate respect for the tribunal. If either of these conditions is not present, the use of summary contempt power may be inappropriate. See Dobbs, Contempt of Court: A Survey, 56 Cornell L. J. 183, 229 (1971).

III.

Chaplain first contends that we should reverse his conviction outright because, as a matter of law, the conduct for which he was specifically convicted and punished did not constitute contempt. He then says that in any event we should conclude as a matter of law that he could not have had the criminal intent requisite to convict him for the conduct charged. We reject both of these contentions on the basis that neither is established as a matter of law on the facts of record.

Consideration of these two issues requires that the conduct properly to be assessed as criminal contempt be first established. Relying upon Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974) (per curiam), Chaplain contends that the conduct chargeable to him is narrowly and specifically that identified by the district judge as the basis of his adjudication of contempt, and that this consisted only of the two statements: (1) "I have all day"; and (2) "he (the witness) set up there and stuttered and stammered, that other man." 5 We do not believe that Eaton requires so narrow a range of inquiry into the conduct properly to be considered here. In Eaton, the question was whether in addition to a single street vulgarism specifically cited by a state trial judge as contumacious conduct, account could be taken by a state reviewing court of follow-up conduct by the contemnor that was not specifically cited. 6 The court held, over a vigorous dissent, that under the circumstances, allowing consideration of the uncited follow-up conduct would unconstitutionally deny due process by sustaining conviction on a charge not made. Id. at 699, 94 S.Ct. at 1230. A critically distinguishing factor in Eaton was that, even on the widest view, the contumacious conduct properly chargeable to the contemnor was limited to a fairly discrete episode that occurred suddenly and not as the culmination of a continued pattern of conduct. 7 The decision cannot therefore fairly be applied as Chaplain would have it applied to the altogether different pattern of conduct in this case. The distinguishing feature here is a course of conduct in which a series of acts of interference and disruption marks the record.

The summary contempt power must be able constitutionally to respond to this sort of "nibble-to-death" obstruction as well as to the sufficiently obstructive single episode. See, e. g., In re DuBoyce, 241 F.2d 855 (3d Cir. 1957) (per curiam); United States v. Green, 176 F.2d 169 (2d Cir. 1949). Applying it, however, to this pattern while protecting the contemnor's due process rights poses problems for the trial judge and for reviewing courts. Both must be concerned that fair advance warning shall have been given to a possibly unaware contemnor that a contempt conviction may ultimately result from a "last-straw" repetition of identified conduct. See United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965); United States v. Green, 176 F.2d 169 (2d Cir. 1949). Both must be concerned with the responsibility of the trial judge as he tries without resorting to the contempt sanction to bring matters under control by "moral authority," Sacher v. United States, 343 U.S. 1, 38, 72 S.Ct. 451, 469, 96 L.Ed. 717 (1952) (Frankfurter, J., dissenting), or by less drastic coercive alternatives to contempt. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). One of the problems of accommodation involves that one under discussion here: the form in which cumulative conduct is to be specified by the judge convicting upon what he considers a last-straw occurrence....

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