Gustafson, In re

• Decision Date: 30 May 1980
• Docket Number: No. 78-3732,78-3732
• Citation: 619 F.2d 1354
• Parties: In re Robert T. GUSTAFSON, Esquire.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1354

619 F.2d 1354

58 A.L.R.Fed. 1

In re Robert T. GUSTAFSON, Esquire.

No. 78-3732.

United States Court of Appeals Ninth Circuit.

May 30, 1980.

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

Judith S. Feigin, Asst. U. S. Atty. (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 ELY, WRIGHT and FERGUSON, Circuit Judges.

FERGUSON, Circuit Judge:

This appeal presents the issue of when a court may issue a summary contempt order against a lawyer for conduct and remarks in his closing argument to the jury. We hold that while the defendant-lawyer's remarks in this case may have been contemptuous under 18 U.S.C. § 401, ¹ summary disposition under Fed.R.Crim.P. 42(a) was improper and the court should instead have proceeded under Rule 42(b).

Robert Gustafson represented a defendant in a complex conspiracy case. He read his closing argument to the jury from a prepared text. He read it so fast that several times the court was forced to request that he slow down so that the court reporter could transcribe the proceedings. The court was unsuccessful, and eventually it directed the reporter to stop stenotyping and rely, instead, on a tape recorder for transcription.

On a number of occasions during Gustafson's argument the government raised and the court sustained objections to improper statements.

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. Thereafter the court filed a certificate of contempt pursuant to Rule 42(a).

Criminal contempts are divided into two classes: direct contempts, which occur in the presence of the court, and indirect contempts, which occur outside the presence of the court. See United States v. Marshall, 451 F.2d 372, 373-74 (9th Cir. 1971). A narrowly limited class of direct contempts may be punished under the summary procedures of Rule 42(a). Most direct contempts, however, and all contempts occurring outside the presence of the court, must be disposed of in accordance with the notice and hearing requirements of Rule 42(b). 3 Wright, Federal Practice and Procedure, § 709 at 171-72.

Fed.R.Crim.P. 42 provides as follows:

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

(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.

On its face, Rule 42(a) establishes just two prerequisites to imposition of summary punishment, both relating to the direct nature of the contempt. This rule, however, is not read literally to mean that the occurrence of a contemptuous act in the actual presence of the court is the only prerequisite to exercise of the summary contempt power. See 3 Wright, Federal Practice and Procedure, § 707 at 165. Both the Supreme Court and the circuit courts of appeal have emphasized that summary contempt is reserved 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). See, e. g., In re Weeks, 570 F.2d 244, 246 (8th Cir. 1978); United States v. Mars, 551 F.2d 711, 714 (6th Cir. 1977); In re Allis, 531 F.2d 1391, 1392 (9th Cir.), cert. denied, 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976); United States v. Delahanty, 488 F.2d 396, 398 (6th Cir. 1973). Moreover, because summary contempt fills "the need for immediate penal vindication of the dignity of the court . . . ," Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925), it is confined to "unusual situations . . . where instant action is necessary to protect the judicial institution itself." Harris v. United States, supra, 382 U.S. at 167, 86 S.Ct. at 356. See Johnson v. Mississippi, 403 U.S. 212, 214, 91 S.Ct. 1778, 1779, 29 L.Ed.2d 423 (1971); Schleper v. Ford Motor Co., 585 F.2d 1367, 1371 (8th Cir. 1978); United States v. Abascal, 509 F.2d 752, 756 (9th Cir.), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); United States v. Snider, 502 F.2d 645, 657 (4th Cir. 1974); Jessup v. Clark, 490 F.2d 1068, 1071 (3d Cir. 1973); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972).

In United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975), the Supreme Court outlined the exceptional circumstances in which a court may properly impose summary contempt. Wilson involved the orderly refusal of two witnesses to testify at trial even after having been offered immunity from prosecution under 18 U.S.C. §§ 6002-6003. After a warning from the trial judge that they would be held in contempt if they did not comply with the court's order to testify, the witnesses persisted in their refusals and were summarily held in contempt. The Court determined that the witnesses' contemptuous refusals to testify constituted a literal "breakdown" in the prosecution's case, and that summary contempt was therefore appropriate:

The face-to-face refusal to comply with the court's order itself constituted an affront to the court, and when that kind of refusal disrupts and frustrates an ongoing proceeding, as it did here, summary contempt must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify.

Id. at 316, 95 S.Ct. at 1806 (emphasis added) (footnote omitted).

In holding that summary contempt was appropriate, the Court in Wilson distinguished the case before it from Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). In Harris, a witness before a grand jury refused to answer certain questions after a grant of immunity under 18 U.S.C. § 6002. The witness was then brought before a district court judge and summarily held in contempt for refusing to answer the same questions. ² As Wilson noted, summary contempt was not appropriate in Harris because there was "no compelling reason for an immediate remedy," Wilson, supra, 421 U.S. at 318, 95 S.Ct. at 1807:

(N)othing in this case indicates that petitioner's refusal was such an open, serious threat to orderly procedure that instant and summary punishment, as distinguished from due and deliberate procedures, was necessary.

Harris, supra, 382 U.S. at 165, 86 S.Ct. at 354 (citation omitted).

In Harris, the Court concluded that summary action was not necessary because "swiftness was not a prerequisite of justice . . . . Delay necessary for a hearing would not imperil the grand jury proceedings." Id. at 164, 86 S.Ct. at 354. In Wilson, however, the Court determined that time was of the essence and summary action was appropriate, because the delay necessary for a hearing pursuant to Rule 42(b) would have imperiled the ongoing trial. Wilson noted that although a grand jury can easily suspend action on one of the numerous cases before it at any one time while a 42(b) proceeding is held, a trial court cannot be expected to suspend action and then reconvene at a later time:

In a trial, the court, the parties, witnesses, and jurors are assembled in the expectation that it will proceed as scheduled. . . . Delay under Rule 42(b) may be substantial, and all essential participants in the trial may no longer be readily available when a trial reconvenes.

Wilson, ...