Hipp, Inc., Matter of, Nos. 92-1622

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore POLITZ, Chief Judge, DAVIS and BARKSDALE; POLITZ
Citation5 F.3d 109
Docket Number92-1638,Nos. 92-1622
Decision Date21 October 1993
Parties29 Collier Bankr.Cas.2d 1496 In the Matter of HIPP, INC., Debtor. David Oles, Appellant.

Page 109

5 F.3d 109
29 Collier Bankr.Cas.2d 1496
In the Matter of HIPP, INC., Debtor.
David Oles, Appellant.
Nos. 92-1622, 92-1638
Summary Calendars.
United States Court of Appeals,
Fifth Circuit.
Oct. 21, 1993.

Page 111

David Oles, pro se.

Joe W. Hayes, Templeton, Smithee & Hayes, Amarillo, TX, for appellant.

Delonia A. Watson, Asst. U.S. Atty., Dallas, TX, Marvin Collins, U.S. Atty., Amarillo, TX, Mark Nichols, Asst. U.S. Atty., Richard H. Stephens, Dallas, TX for U.S.

Appeals from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, DAVIS and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

Convicted of criminal contempt under 18 U.S.C. Sec. 401(3) for violating an order of the bankruptcy court, David Oles appeals. We find no error and affirm.

Background

In April 1984, Hipp, Inc. filed a Chapter 11 bankruptcy and Thomas Griffith was appointed

Page 112

trustee. On October 2, 1987 Griffith filed an adversary proceeding against Phoenix Grain, Oles, and Redonda Carter, 1 seeking damages and the turnover of certain property to the Hipp estate. In November 1987, Griffith petitioned the bankruptcy court for injunctive relief against Oles and others, specifically seeking an order directing them to withdraw lis pendens filed against the Hipp estate so that certain property could be sold. On November 9, 1987 the bankruptcy court held a hearing on the matter; Oles and his counsel were present. The court orally granted an injunction directing Oles to remove the lis pendens he had filed and to take no action which would interfere with the sale of the property. That order was reduced to writing and entered on December 15, 1987.

Not only did Oles fail to withdraw the lis pendens previously filed, he filed several additional lis pendens against property of the Hipp bankruptcy estate. The trustee filed a motion to avoid Oles' lis pendens and for contempt. Oles was convicted of contempt following a hearing in the bankruptcy court and de novo review in the district court. We reversed and remanded to the district court, holding that the bankruptcy court lacked jurisdiction to conduct the criminal contempt proceedings. 2 Upon remand, a criminal contempt proceeding, prosecuted by the United States Attorney, was commenced in the district court. Convicted of criminal contempt and sentenced to six months imprisonment, Oles timely appeals.

Analysis

Sufficiency of the Evidence

A criminal contempt conviction for disobedience of a court order requires proof beyond a reasonable doubt of: "(1) a reasonably specific order, (2) violation of the order, and (3) the willful intent to violate the order." 3 Oles contends that the order at issue was not reasonably specific. 4 "Determining whether an order is specific requires a factual inquiry into the reasonableness of the order's specificity, given the context in which it was issued." 5

Oles first alleges that the bankruptcy court's order directing him to remove the lis pendens was unclear. The order provided:

David Oles, individually, is ordered to file withdrawals of the two notices of lis pendens which he filed on--or which he filed and are dated October 22, 1987. And those withdrawals are to be filed in all places where that notice of lis pendens was filed. And he is to file withdrawals of any and all other notices of lis pendens with respect to the property under consideration.

Oles asserts that he did not know whether he was to withdraw the lis pendens filed on October 22, 1987 or those dated October 22, 1987. The record reflects that as of the date of the hearing Oles had two notices of lis pendens against Hipp estate property, both of which were dated and filed on October 22, 1987. There could be no confusion as to which should have been withdrawn and even if there were any ambiguity it was remedied by the additional directive that Oles withdraw "any and all other notices of lis pendens with respect to the property under consideration." 6

Page 113

Oles next contends that the court's oral order that he "not take any action of any nature whatsoever to interfere with the [sale] of the Tulia property" did not clearly and unambiguously prohibit him from filing additional lis pendens. He points out that it was not until the order was reduced to writing that the bankruptcy court specifically stated that he file no additional lis pendens. 7

As the government underscores, the one type of interference expressly prohibited was the filing of additional lis pendens. The bankruptcy court made abundantly clear before entering the order that the filing of the lis pendens notices already had interfered with the trustee's ability to sell the property:

With respect to the notice of lis pendens, Judge Felsenthal held a hearing on the [sale] of this property free and clear of liens and interest. Phoenix Grain was fully aware of that, actually participated in it. This, of course, includes the lease claims of Phoenix Grain.

Judge Felsenthal established an appeal bond. Rather than post the bond the parties set out to scuttle the [sale] by filing adversary proceedings and notices of lis pendens.

There can be no doubt that these actions were designed to circumvent the appeal bond and to frustrate the [sale]. [Emphasis added.]

Thus, Oles' argument that the order provided him with insufficient notice that he should file no further notices of lis pendens rings hollow. We conclude that Oles knowingly violated the bankruptcy court's order.

Oles also argues that the bankruptcy court's order was unlawful because the court had no personal or subject matter jurisdiction over him. 8 He makes the bald assertion that (1) there was no evidence he had filed a proof of claim or had acted to convert property of the estate to his own use, and (2) he was in personal bankruptcy and the automatic stay in his bankruptcy rendered the November 9, 1987 bankruptcy court order in the Hipp proceedings void. 9

These arguments lack merit. The bankruptcy court had jurisdiction over Oles pursuant to the adversary proceeding brought by the trustee. This was a core proceeding regarding interests in property of the estate. 10 It is too firmly established to admit of debate that an injunction issued by a court having subject matter and personal jurisdiction must be obeyed, regardless of the ultimate validity of the order. 11 There is

Page 114

no suggestion that Oles appeared only specially at the November 9, 1987 hearing or that he ever invoked any jurisdictional defense in the adversary proceeding. That Oles may have thought that the order was unlawful did not somehow authorize him to disregard it. 12

Sixth Amendment Claim

The court appointed William McKinney to represent Oles in the contempt proceeding. Oles contends that he developed a substantial conflict with McKinney and that his sixth amendment right to counsel was violated when the district court refused to dismiss McKinney and appoint substitute counsel. When the court declined to appoint new counsel Oles decided to proceed pro se. He claims, however, that his decision to do so was not voluntary because it was made only when the district court presented him with the choice of McKinney or no counsel.

If Oles validly asserted his right of self-representation 13 there can be no sixth amendment infringement. A valid assertion of the right to self-representation is made only if the defendant has knowingly and intelligently waived the right to counsel, and made a request to proceed pro se which is clear and unequivocal. 14 Oles unequivocally stated his position thusly: "[I]f [McKinney] is not allowed to withdraw, I am going to have to exercise my right of self-representation." To determine whether the right to counsel has been knowingly and voluntarily waived, the court must evaluate the circumstances of each case as well as the background of the defendant. 15

The first circumstance we must consider is whether the district court erred in denying McKinney's request to withdraw. We find that it did not. Oles contends that McKinney's motion to withdraw and motion for continuance demonstrated that an irreconcilable conflict had arisen. He notes that he and counsel had a substantial disagreement regarding how the case should be defended and contends that in the motions McKinney ridiculed him and published confidential communications. Review of the motions demonstrates that McKinney did not reveal the substance of any disagreements with Oles, but only that he "refused to participate in actions of [Oles] which counsel regards as unsubstantiated, illegal, frivolous and unethical."

After conducting a hearing on the motions the district court determined that "there is ... nothing to suggest to me that any other counsel would be better able to do what he wants done than Mr. McKinney is, or that appointment of another lawyer would make any difference at all in this proceeding." We have previously defined the contours of the right to appointed counsel as follows:

A defendant is entitled to counsel capable of rendering competent, meaningful assistance in the preparation and trial of the pending charges, including appropriate evaluation and advice with reference to a plea of guilty. A defendant is not entitled to an attorney who agrees with the defendant's personal view of the prevailing law or the equities of the prosecutor's case. A defendant is...

To continue reading

Request your trial
85 practice notes
  • Hoffenberg v. Grondolsky, Civil Action No. 09-4784 (RMB)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 14, 2011
    ...Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999); United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999); Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993). This is true even if the judge consistently made adverse rulings against the party, see McCalden v. California Library A......
  • In re Wilborn, Bankruptcy No. 03-48263-H4-13.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • February 17, 2009
    ...whether disqualification is appropriate. See, e.g., United States v. Mizell, 88 F.3d 288, 299 (5th Cir. 1996) (citing Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir.1993)). For the reasons set forth below, the undersigned judge believes he has an affirmative duty not to recuse himself in th......
  • Petta v. Rivera, No. 95-40157
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 9, 1998
    ...approach," as, for example, when a court must apply conflicting legal standards to the two prongs of the test. See, e.g., Rankin, 5 F.3d at 109 & n. 7. With those principles in mind, we now turn to the merits of Rivera's qualified immunity defense. We review de novo the denial of Rivera's m......
  • Petta v. Rivera, No. 95-40157
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 16, 1998
    ...approach," as, for example, when a court must apply conflicting legal standards to the two prongs of the test. See, e.g., Rankin, 5 F.3d at 109 & n. 7. With those principles in mind, we now turn to the merits of Rivera's qualified immunity defense. We review de novo the denial of Rivera's m......
  • Request a trial to view additional results
85 cases
  • Hoffenberg v. Grondolsky, Civil Action No. 09-4784 (RMB)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 14, 2011
    ...Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999); United States v. Arena, 180 F.3d 380, 398 (2d Cir. 1999); Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir. 1993). This is true even if the judge consistently made adverse rulings against the party, see McCalden v. California Library A......
  • In re Wilborn, Bankruptcy No. 03-48263-H4-13.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • February 17, 2009
    ...whether disqualification is appropriate. See, e.g., United States v. Mizell, 88 F.3d 288, 299 (5th Cir. 1996) (citing Matter of Hipp, Inc., 5 F.3d 109, 116 (5th Cir.1993)). For the reasons set forth below, the undersigned judge believes he has an affirmative duty not to recuse himself in th......
  • Petta v. Rivera, No. 95-40157
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 9, 1998
    ...approach," as, for example, when a court must apply conflicting legal standards to the two prongs of the test. See, e.g., Rankin, 5 F.3d at 109 & n. 7. With those principles in mind, we now turn to the merits of Rivera's qualified immunity defense. We review de novo the denial of Rivera's m......
  • Petta v. Rivera, No. 95-40157
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 16, 1998
    ...approach," as, for example, when a court must apply conflicting legal standards to the two prongs of the test. See, e.g., Rankin, 5 F.3d at 109 & n. 7. With those principles in mind, we now turn to the merits of Rivera's qualified immunity defense. We review de novo the denial of Rivera's m......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT