Douglass v. First Nat. Realty Corp.

Decision Date03 March 1976
Docket NumberNo. 73-1137,73-1137
Citation177 U.S.App.D.C. 409,543 F.2d 894
CourtU.S. Court of Appeals — District of Columbia Circuit

Mark P. Friedlander, Washington, D. C., for appellant.

No appearance was entered and no brief was filed on behalf of appellee.

Before LEVENTHAL and ROBINSON, Circuit Judges, and OSCAR H. DAVIS, * Judge, United States Court of Claims.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.


This appeal brings before us a judgment of the District Court holding appellant in contempt and imposing a fine of $5,000. The event precipitating this ruling was appellant's failure to appear in court responsively to a show cause order. The judgment is attacked on grounds that the order was not properly served on appellant and that the fine assessed against him is excessive. Our examination of the record discloses a substantial evidentiary foundation for the conclusion that appellant had ample knowledge of the order. 1 Our study of the relevant case law reveals, however, that the amount of the fine surpasses the constitutional limit on monetary penalties consequent upon nonjury contempt adjudications against individuals. 2 Accordingly, we adjust the fine to eliminate that difficulty, and affirm the judgment as so modified.


Six years ago Lathrop Douglass recovered a judgment against First National Realty Corporation, 3 of which appellant was president. 4 In an effort to realize on the judgment, Douglass attached assets allegedly belonging to First National Realty, including a piece of Maryland land Parcel M which First National Realty had theretofore conveyed. For reasons unimportant to the problems at hand, the District Court ruled that the transfer was legally a nullity.

Title to Parcel M was then held by Beltway-Greenbelt Properties, Inc., in which appellant was a principal. 5 On that basis, the District Court entered an order directing appellant to obtain execution and recordation of a deed reconveying Parcel M to First National Realty within fourteen days. When, a month later, appellant had not complied, the court entered an order commanding First National Realty and appellant, as its president, to appear and show cause why they should not be adjudged in contempt. 6

Appellant did not appear at the time specified in the show cause order. 7 A bench warrant was then issued and executed, and appellant was brought before the District Court later in the day. At a hearing then conducted by the court, sitting without a jury, the inquiries centered on the charges set forth in the show cause order, and, as well, the lack of a timely appearance by appellant in response to that order. 8 Appellant was represented by counsel at the hearing, 9 and testified freely in his own behalf.

At the conclusion of the hearing, the District Court adjudged appellant in contempt and fined him $5,000 for his failure to appear earlier. The court also specified an increasing scale of monetary penalties, and a possible term of imprisonment ultimately, to follow in the event of appellant's continued noncompliance with the court's previous order to effect the reconveyance of Parcel M. 10 This appeal is from the order effectuating that action. In this court, appellant questions only the method by which the show cause order was served and the $5,000 fine which the District Court levied, 11 and we limit our review accordingly. 12

We find that appellant's first challenge cannot survive the legal effect of the evidence adduced at the hearing. A copy of the show cause order had been served on First National Realty, and another copy had been posted on the front door of appellant's residence when the marshal's knock went unanswered. Appellant's sole explanation is that he never saw the order; that during the period following posting, he invariably entered the house through the adjoining garage, and never had occasion to look at the front door. We are satisfied, however, that in light of other circumstances proved at the hearing, the District Court was not obliged to accept that claim.

The evidence made it plain that First National Realty's attorney knew of the show cause order and communicated the essence of the order to appellant. Several days before the hearing, counsel asked appellant whether he had been served, and utilized the opportunity to inform appellant of the hearing that was to ensue. Counsel also sought, apparently unsuccessfully, to arrange a meeting with appellant two days before the date of the hearing. The evidence also left room for an inference that when the marshals came for appellant with the arrest warrant, he tried to run away. 13 Indeed, appellant testified that he was told that there was to be a hearing, but that he was under the impression that he did not have to be present.

To be sure, one cannot be contemptuous of a court order unless he has knowledge of it. 14 But the evidence left no doubt that appellant was made aware of the show cause order and of the hearing scheduled thereon. Moreover, the evidence fully warranted the inference that appellant himself a lawyer was at no loss to recognize his obligation to respond thereto. In this milieu, one might discern a hollow ring to appellant's protestation that he never actually saw his copy of the order. 15 At least the District Court was not persuaded, 16 and we think the evidence sustains the conclusion it reached.


Moving on to appellant's contention that the fine imposed by the District Court was too high, we pause briefly to recount the salient facts. The delinquency for which the fine was levied was appellant's failure to appear obediently to the show cause order. The evidence leading to the adjudication of contempt on that account was heard and appraised without a jury. The amount of the fine was $5,000. The question thus posed is whether a penalty of that magnitude was constitutionally permissible without trial by a jury.

Since civil contempt engenders no right to a jury trial, 17 our initial assignment is to determine whether the proceeding culminating in the fine was civil or criminal in character. 18 The pivotal inquiry in this regard, the Supreme Court instructs, is "what does the court primarily seek to accomplish by imposing sentence?" 19 If the purpose is to coerce compliance, the penalty is civil; 20 if the goal is punishment for past disobedience, the exaction is criminal. 21

In the case at bar, the District Court's objective is manifest. At the conclusion of the hearing, the court announced, "I find (appellant) in contempt of Court and fine him $5,000 for failure to appear this morning." 22 Similarly, the judgment of contempt specified that appellant "shall pay a penalty of five thousand dollars ($5,000.00) for contempt of the" show cause order, 23 and directed the fine to be paid "by check to the benefit of the Treasury of the United States." 24 There was no provision affording appellant an opportunity to purge himself and thereby avoid the payment. 25 These characteristics of the fine contrasted sharply with the distinct provisions of the judgment directing other payments, expressly denominated "civil penalties in terrorem," 26 to be made "into the Registry of this Court subject to further order of the Court" 27 in the event that appellant persisted in noncompliance with the court's prior order to effect a reconveyance of Parcel M to First National Realty. 28

Beyond peradventure, then, the adjudication of which appellant complains was wholly criminal in nature. 29 It follows that, in considering whether the jury-trial guaranties of the Constitution 30 had a legitimate role in this case, 31 we must treat appellant's contempt as we do any other criminal offense. 32 This does not mean, however, that a charge of criminal contempt invokes the right to jury trial irrespective of the penalty involved. 33 That right extends broadly to "serious" crimes, 34 but not at all to "petty" offenses, 35 and to criminal contempts precisely by that measure. 36 Thus the next problem confronting us is which of these two categories embraces appellant's contempt. 37

The classification of a particular offense as serious or petty is normally to be accomplished by looking to the maximum punishment authorized therefor. 38 That is because "(i)n such case, the legislature has included within the definition of the crime itself a judgment about the seriousness of the offense." 39 For contempts of the type committed by appellant, however, Congress has set no ceiling on punishment. 40 And for jury-trial purposes in situations of that kind, the Supreme Court has formulated the applicable test: "When the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense." 41 Here, we reiterate, the penalty exacted was a $5,000 fine, and our remaining burden is to determine whether it best evidences a serious or a petty transgression.

This is not a simple task. 42 The Court has frequently held that the maximum term of imprisonment imposable in non-jury criminal proceedings is six months. 43 But, as the Court noted less than eight months ago, it "has as yet not addressed the question whether and in what circumstances, if at all, the imposition of a fine for criminal contempt, unaccompanied by imprisonment, may require a jury trial if demanded by the defendant." 44 Moreover, as the Court has observed,

the boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt...

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    ...accomplish by imposing sentence?" Shillitani v. United States, supra, 384 U.S. at 370, 86 S.Ct. at 1535; Douglass v. First National Realty Corp., 543 F.2d 894, 898 (D.C. Cir. 1976). If the purpose is either to coerce compliance or compensate for injuries suffered by a private party, the con......
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    ...622, 626-28 (1966); United States v. Spectro Foods Corp., 544 F.2d 1175, 1182-83 (3d Cir. 1976); Douglass v. First Nat'l Realty Corp., 177 U.S. App.D.C. 409, 412-13, 543 F.2d 894, 897-98 (1976); Hoffman v. Local 888, Beer Drivers & Salesmen's Union, 536 F.2d 1268, 1273 (9th Cir. 1976); IBM ......
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  • Summary Contempt Power in the Military: A Proposal to Amend Article 48, UCMJ
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    ...States v. Versaglio, 85 F.3d 843, 945-47 (2d Cir.), on reh'g modified, 96 F.3d 637 (1996). 78. See Douglas v. First Nat'l Realty Corp., 543 F.2d 894, 900 n.38 (D.C. Cir. 1976). 79. Cheff v. Schnackenberg, 384 U.S. 373, 378-80 (1966). 80. Frank v. United States, 395 U.S. 147, 149-50 (1969); ......
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