Holloway, In re

• Decision Date: 11 June 1993
• Docket Number: No. 92-3085,92-3085
• Citation: 995 F.2d 1080,302 U.S.App. D.C. 12
• Parties: In re James R. HOLLOWAY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1080

995 F.2d 1080

302 U.S.App.D.C. 12

In re James R. HOLLOWAY.

No. 92-3085.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 12, 1993.

Decided June 11, 1993.

[302 U.S.App.D.C. 13] Appeal from the United States District Court for the District of Columbia (91cr00183).

Elliott Schulder, Washington, DC, argued the cause for appellant.

Ann Simon, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With her on the briefs were Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Asst. U.S. Atty., Washington, DC.

Three organizations filed a joint amicus curiae brief. Elizabeth Taylor, Washington, DC, was on the brief for Public Defender Service for District of Columbia. (James W. Klein, Washington, DC, also entered an appearance.) William B. Moffitt, Alexandria, VA, was on the brief for the Nat. Ass'n of Criminal Defense Lawyers. Roger M. Adelman, Washington, DC, was on the brief for the Criminal Law and Individual Rights Section of the District of Columbia Bar.

Before: MIKVA, Chief Judge, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by Chief Judge MIKVA.

STEPHEN F. WILLIAMS, Circuit Judge:

On October 8, 1991, in the course of a six-defendant drug trial (United States v. Rascoe ), District Judge Norma Holloway Johnson entered an oral order holding one of the defense counsel, James R. Holloway, in criminal contempt. Judge Johnson later that day issued a written order and certificate of contempt pursuant to Fed.R.Crim.P. 42(a). On March 10, 1992, Judge Johnson imposed sentence in the form of a $1,000 fine. Because we find that there was an adequate basis to support the contempt conviction and no procedural error, we affirm.

Sufficiency of the Evidence

Judge Johnson convicted appellant under 18 U.S.C. § 401, which provides that:

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.

Neither the contempt order, the contempt certificate, nor the record indicates which of the three subsections Judge Johnson invoked. Subsection (2) is clearly inapplicable: an attorney is not an "officer" of the court within the meaning of 18 U.S.C. The elements of contempt under § 401(3) are straightforward. First, the alleged contemnor must "[d]isobe[y] or resist[ ] ... [the] lawful writ, process, order, rule, decree, or command" of the court. 18 U.S.C. § 401(3). Of course, the relevant order or command must be sufficiently "clear and unequivocal at the time it is issued." Traub v. United States, 232 F.2d 43, 47 (D.C.Cir.1955). Whether an order is clear enough depends on the context in which it is issued and the audience to which it is addressed. See, e.g., United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir.1991); accord United States v. Turner, 812 F.2d 1552, 1567 (11th Cir.1987) ("[e]ven an egregiously vague order may be thought adequate to cover conduct so gross as to fall within its core.").

                §   401(2).   See Cammer v. United States, 350 U.S. 399, 404-05, 76 S.Ct. 456, 458-59, 100 L.Ed. 474 (1956);  In re Brown, 454 F.2d 999, 1003 (D.C.Cir.1971).   Because we find the conviction valid under subsection (3), we need not address subsection (1). 1
                

Second, although § 401(3) does not explicitly mention mens rea, wrongful intent is necessary. The disregard of authority must be willful; willfulness " 'may be inferred if a lawyer's conduct discloses a reckless disregard for his professional duty.' " In re Farquhar, 492 F.2d 561, 564 (D.C.Cir.1973) (quoting Sykes v. United States, 444 F.2d 928, 930 (D.C.Cir.1971)); see also United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974) (stating that criminal contempt requires "a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful") (emphasis added) (internal quotations omitted). While the reviewing court may not affirm if the cited conduct has not been contumacious, see United States v. Lumumba, 794 F.2d 806, 811 (2d Cir.1986), the analysis of intent properly encompasses the contemnor's behavior in related incidents such as disobedience or resistance to other orders of the court. See id.; see also Farquhar, 492 F.2d at 564 (contrasting aberrational with recurrent lapses when analyzing intent).

In deciding whether the evidence is sufficient to support a contempt conviction, we use the familiar standard for any criminal conviction, asking whether "a fair-minded and reasonable trier of fact [could] accept the evidence as probative of a defendant's guilt beyond a reasonable doubt". In re Joyce, 506 F.2d 373, 376 (5th Cir.1975); accord In re Brown, 454 F.2d 999, 1008 (D.C.Cir.1971).

The key colloquy--set forth verbatim in Judge Johnson's certificate of contempt and in Appendix A to this opinion--occurred during Holloway's direct examination of Officer Darrell Young, conducted by Holloway on behalf of his client, Kelvin Rascoe. Before that passage, Young testified that he prepared an arrest form for Rascoe--known as a "PD 163"--that contained a narrative statement of facts relating to the arrest and alleged offense. Young also confirmed the earlier testimony of Officer Edward Truesdale, who said that Young, in preparing the statement of facts for his PD 163, had relied on information provided by Truesdale and a third officer. In addition, Young confirmed Truesdale's testimony that Young had not personally observed any of the events reported in Young's PD 163. See Tr. 10/8 at 70-71, 74, 76-77; see also Tr. 9/30 at 48-49.

After eliciting that evidence, Holloway proceeded to ask Young a series of questions regarding what information did and did not appear in the fact statement of his PD 163. See Tr. 10/8 at 72-73. Following an objection, the court ruled the line of inquiry impermissible because Young had no personal knowledge about any of the information in the statement. See id. at 73. This ruling led to a question from Holloway, to which Young replied unequivocally, "I don't have any personal knowledge of the crime being committed"--namely, the "transaction ... indicated Now we come to the incident that is at issue and is quoted in full in Appendix A. First, Holloway asked the court for permission to mark for identification a document in the court's own case files--a "Gerstein statement", i.e., an affidavit filed to provide a proper basis for the judicial finding of probable cause that Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), requires to justify restraint after an arrest. That document contained a narrative statement to which yet another officer, Robert Condit, had sworn after Young completed his PD 163. Holloway stated that he wanted to show Young the Gerstein affidavit to enable Young to compare it to his PD 163 and to offer an opinion on whether Condit photocopied the statement of facts from Young's PD 163 onto the Gerstein affidavit. The Court ruled that such an opinion would be "totally irrelevant". Tr. 10/8 at 78.

[302 U.S.App.D.C. 15] in that first paragraph [of the PD 163]." Id. at 77 (latter quotation taken from appellant's question).

Holloway responded that he wanted to have Young make the comparison in preparation for a planned examination of Condit about where he obtained the information for his Gerstein statement. Although it is difficult to tell exactly what Holloway was trying to achieve by having Young compare the statement of facts from his PD 163 with the text of Condit's Gerstein affidavit (which contained an obvious photocopy of the PD 163's statement), as best as we can tell Holloway was pursuing this inquiry in a roundabout effort to avoid an earlier evidentiary ruling of the court. Whether that was his purpose or not, Judge Johnson's prior ruling is worth a look, as it parallels her ruling here and thus illuminates Holloway's state of mind.

In the prior ruling, the judge barred Holloway from attempting to impeach Officer Truesdale--the only witness with firsthand knowledge of the events surrounding the arrest--with the contents of Young's PD 163. See Tr. 9/30 at 50-51, 55-56. Truesdale had testified that when he confronted Rascoe while executing the search of the house, Rascoe was tossing ziplock bags containing white rocks into the air and onto the floor. Holloway confronted Truesdale with the PD 163 that Truesdale had prepared for Rascoe's girlfriend/codefendant, in which Truesdale stated that he saw Rascoe tossing ziplock bags containing white rocks onto the floor; Truesdale's PD 163 did not mention his tossing them into the air. See id. at 55-56. If Holloway could have confronted Truesdale with Young's PD 163, in which Young also stated that Rascoe was tossing the bags onto the floor (i.e., he too omitted any "into the air" reference), he could have reemphasized the "discrepancy" that he had already shown in Truesdale's testimony. Judge Johnson properly refused to allow such questioning, which would have been cumulative and which in any event lacked a foundation such as a showing that Truesdale saw Young's PD 163 and adopted it, a possibility Truesdale expressly denied. See id. at 49. Putting that aside, however, it appears that Holloway wanted Young to attest that Condit's affidavit contained a photocopy of the statement of facts from Young's PD 163 so that Holloway later could revisit the "into the air" discrepancy when questioning Condit.

Regardless of where Holloway may have been trying to go with his examination, ² Judge Johnson informed him that he must first establish a foundation by inquiring whether Young had ever seen the...