Gustafson, In re

• Decision Date: 25 June 1981
• Docket Number: No. 78-3732,78-3732
• Parties: In re Robert T. GUSTAFSON, Esquire
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1017

650 F.2d 1017

In re Robert T. GUSTAFSON, Esquire

No. 78-3732.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 15, 1981.

Decided June 25, 1981.

Robert T. Gustafson, Chula Vista, Cal., for appellant.

Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal. (on the brief), Michael H. Walsh, U.S. Atty., Judith S. Feigin, Asst. U.S. Atty. (argued), San Diego, Cal., for appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, WRIGHT, GOODWIN, WALLACE, SNEED, HUG, SCHROEDER, FLETCHER, FARRIS, BOOCHEVER and NORRIS, Circuit Judges.

FARRIS, Circuit Judge:

Robert T. Gustafson appeals a summary contempt order entered against him by the district court. A divided panel of this court reversed. See 619 F.2d 1354 (9th Cir. 1980). Because proper resolution of the principal issue presented the conditions under which a federal court may summarily impose criminal contempt is important to just and orderly administration of the courts in the fifteen districts embraced by this circuit, we granted rehearing by this limited en banc panel, see 9th Cir.R. 25. We now affirm.

I. GUSTAFSON'S CONDUCT

Gustafson represented one of six criminal defendants charged with conspiring to smuggle aliens. On December 6, 1978, after more than twelve days of jury trial, closing arguments began. Gustafson, representing the first defendant to argue, read his presentation from a prepared text. He read it so fast that the trial judge or the court reporter requested that he repeat words or slow down at least nineteen times. On some of these occasions, he continued at so rapid a pace that he was almost immediately cautioned again. After it became apparent that Gustafson could not be slowed down, the trial judge stopped the court reporter and relied solely on a tape recording for transcription.

After Gustafson summarized the evidence, he began his conclusion, still reading from his prepared text. The prosecution made a series of objections to Gustafson's line of argument, arguing principally that he was seeking the jury's sympathy and that he was leading the jury to believe that it would be asked to impose punishment on the defendants. These objections were all sustained. On several occasions Gustafson's response to these objections was to pause, skip the remainder of the offending sentence, and return to his prepared text. ¹ Several times his line of argument continued and another objection on the same grounds was almost immediately made and sustained.

At the close of Gustafson's argument, the following exchange occurred:

(GUSTAFSON): Now I must close, but before I do, I want you to know that Julio Zamora feels strongly about this case and his prayers have been that you will render a just and merciful verdict. For his wife and his children, too

MRS. WITTMAN: Objection, your honor

THE COURT: Mr. Gustafson you cannot, ladies and gentlemen, base a verdict based on any sympathy whatsoever. The case, and the verdict you render must be based on the facts and only the facts, nothing else.

MR. GUSTAFSON: I was just trying to say, your honor, and I'd like to have a ruling on it for his wife and his two children, too MRS. WITTMAN: Same objection, your honor.

THE COURT: That has nothing to do with it. His wife, his two children, nothing. It's the facts of the case.

MR. GUSTAFSON: Thank you. Ladies and gentlemen of the jury, I have just presented you, or you have been presented, with an example of the operation between the bench and the prosecutor in quashing and quelling this evidence of a defense counsel trying to do his level best for his client, and I am going to have to rely upon you to give him every benefit of every doubt to my client, despite those efforts.

Thank you, and I hope you have a Merry Christmas.

Following Gustafson's final remark, the court excused the jury and recessed the trial for the day. After the jury left the courtroom, the court summarily held Gustafson in contempt and imposed a fine of $250. Gustafson paid the fine. At the beginning of the next day, counsel for all the remaining defendants moved for a mistrial, contending that Gustafson's argument had "hopelessly alienated" the jury against their clients. The motion was denied. We upheld that denial in United States v. Ayala-Ayala, 610 F.2d 822 (9th Cir. 1979) (mem.); United States v. Ayala-Carapia, 610 F.2d 822 (9th Cir. 1979) (mem.), cert. denied, 444 U.S. 1089, 100 S.Ct. 1051, 62 L.Ed.2d 776 (1980); and United States v. Carapia, 610 F.2d 823 (9th Cir. 1979) (mem.).

The district judge prepared a certificate of contempt stating that he had seen and heard courtroom misconduct by Gustafson. See generally Fed.R.Crim.P. 42(a). The certificate provides in part:

I find that the (misconduct) constituted contempt of this court and was of such an accusatory nature as to directly affront the decorum and dignity of the United States District Court. I firmly believe that if this court cannot require those who are in its courtroom to obey the court, and if this court is required to sit idly by when accusations of misconduct and conspiracy are made by defense counsel in closing argument without any basis whatsoever, this court would lose any control it has over the participants in a trial as well as the courtroom in general. Such behavior, such misconduct will not be tolerated by the court, and under the circumstances. I do not think it should be tolerated by any court.

Accordingly, I adjudge that attorney Robert T. Gustafson is guilty of criminal contempt as described below. I further state that a reading of this record cannot and does not adequately reflect the true intensity of the hostility and discourteousness displayed by this attorney during his closing argument to the jury in the above entitled case all in the court's presence.

The certificate then describes the particulars of Gustafson's disobedience to the court's rulings and his closing allegation of judicial misconduct. It continues:

I further find that summary vindication for said misbehavior in the actual presence of five other defense counsel and two prosecutors left the court no alternative but to summarily punish said attorney by the imposition of a fine of $250.00 or three days in jail.

Gustafson appeals, contending that his conduct was not contemptuous and that, even if it was contemptuous, the district court improperly used a summary procedure to find him in contempt. The United States disputes both contentions. The panel avoided ruling on the contemptuousness of the conduct, holding that summary adjudication of contempt was inappropriate.

II. CONTEMPTUOUSNESS OF GUSTAFSON'S CONDUCT

Section 401 of the Criminal Code provides:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice (2) Misbehavior of any of its officers in their official transactions;

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

18 U.S.C. § 401 (1976). Because lawyers are not court "officers" within the meaning of section 401(2), Cammer v. United States, 350 U.S. 399, 404-05, 76 S.Ct. 456, 458-59, 100 L.Ed. 474 (1956), only the first category of conduct is at issue here. This category is limited to behavior that in some manner "actually obstruct(s) the district judge in 'the performance of judicial duty.' " In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 1291, 8 L.Ed.2d 434 (1962) (quoting Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656 (1919)) (summary exercise of § 401(1) power). Moreover, to be punishable as criminal contempt, the misbehavior must be willful. United States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980); In re Farquhar, 492 F.2d 561, 564 (D.C.Cir.1973); see also United States v. Marx, 553 F.2d 874, 876 (4th Cir. 1977) (§ 401(3) contempt); In re Floersheim, 316 F.2d 423, 428 (9th Cir. 1963) (same).

Tested against this standard, Gustafson's behavior was contemptuous. He repeatedly ignored objections sustained by the court to the speed and content of his argument. He disregarded the judge's instructions as to permissible argument. Although he attempts to rationalize his behavior by collaterally challenging the judge's rulings, his remedy for error by the district judge was by mandamus or appeal from final judgment in the case being tried, not by disobedience. Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952). The judge acted in the performance of his judicial duty to ensure an unbiased jury and an accurate record. Where, as here, an attorney disobeys the court's rulings and instructions, he or she commits "misbehavior" within the meaning of section 401(1). See Pennsylvania v. Local 542, 552 F.2d 498, 509 (3d Cir.) ("We have not the slightest doubt that flouting a trial judge's commands is the essence of obstructing the administration of justice."), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977); United States v. Seale, 461 F.2d 345, 371 (7th Cir. 1972) ("The unmistakable implication of (In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962),) is that defiance of the court's order to cease questioning would have actually obstructed the proceedings."); see also United States v. Afflerbach, 547 F.2d 522, 525 (10th Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977); In re Dellinger, 461 F.2d 389, 399 (7th Cir. 1972).

Moreover, at least some of Gustafson's disobedience was willful beyond a reasonable doubt. Considering only his persistently rapid pace, it is difficult to quell reasonable doubts that Gustafson intended to disobey. His pace, however, was not his only disobedience. When his persistent argument on prohibited topics is also considered, an unmistakable pattern of deliberate disobedience...