In re Contempt Order
| Decision Date | 31 March 2006 |
| Docket Number | No. 05-4191.,05-4191. |
| Citation | 441 F.3d 1266 |
| Parties | In re CONTEMPT ORDER, Eric D. Petersen, Assistant Utah Attorney General and Special Assistant United States Attorney, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the brief:* Wayne T. Dance, Assistant United States Attorney (and Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, UT.
Before KELLY, McKAY, and O'BRIEN, Circuit Judges.
Appellant Eric D. Petersen, a special assistant United States attorney, appeals from a summary criminal contempt order issued by a federal magistrate judge, and the subsequent denial of his appeal by the district court. Mr. Petersen was five minutes late to a pretrial detention hearing. He apologized to the court and fortunately was present in time to present the government's position. At the conclusion of the hearing, the magistrate judge informed Mr. Petersen that he was being fined $50.00 for his tardiness, and that he had one week in which to pay that fine to the clerk of the court. The district court, after ordering the magistrate judge to provide a written contempt order as required by Fed.R.Crim.P. 42(b) and 28 U.S.C. § 636(e)(2), denied the government's appeal.
The government moved for reconsideration because it had not had the opportunity to file a brief on appeal subsequent to the magistrate judge's written order. On reconsideration, the district court did not address the numerous authorities cited by the government to the effect that absent extraordinary circumstances, summary criminal contempt for mere tardiness is improper. Instead, the district court concluded that (1) Mr. Petersen's absence occurred in the presence of the magistrate judge, (2) repeated tardiness is not necessary for invocation of summary criminal contempt, and (3) the United States Attorney's office was well aware of the magistrate judge's "standing policy," i.e. "if an individual is late, zero to fifteen minutes, there's a $50 sanction that's payable to the court." Aplt.App. 53-55, 62.
On appeal, Mr. Petersen contends that the district court erred in denying his appeal from the criminal contempt order for three reasons: (1) the magistrate judge made no inquiry into, and no evidence informs, whether Mr. Petersen had the requisite mens rea for criminal contempt; (2) the magistrate judge, contrary to the statutory language of § 636(e)(2), did not personally observe the purportedly contemptuous behavior; and (3) the magistrate judge, also contrary to the statutory language of § 636(e)(2), failed to indicate how Mr. Petersen's late arrival constituted "misbehavior" that "obstruct[ed] the administration of justice." Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.
Where a magistrate court has issued a summary contempt order, we review for an abuse of discretion. Rodriguez v. IBP, Inc., 243 F.3d 1221, 1231 (10th Cir.2001). An abuse of discretion will be shown where the court's adjudication of the proceedings is founded upon an error of law, or a finding of fact that is clearly erroneous. Id. We must note, of course, the distinction between criminal contempt that is indirect and requires notice and an adversarial presentation including an opportunity to be heard, and direct criminal contempt that may be summarily punished. See Fed.R.Crim.P. 42(a)-(b).
While Congress has granted magistrate judges the ability to issue summary criminal contempt citations,1 and has restructured the language of Rule 42,2 the basic framework for direct summary contempt remains the same. Where, as here, the contempt alleged is direct in nature, Rule 42 instructs the magistrate judge to follow § 636(e)(2), which allows for the issuance of a contempt order where a person's "misbehavior... in the magistrate judge's presence ... obstruct[s] the administration of justice." 28 U.S.C. § 636(e)(2). The statute instructs that the mandates of Rule 42(b) must be followed as well, insofar as the magistrate must provide a written order, which must "recite the facts, be signed by the judge, and be filed with the clerk." Fed.R.Crim.P. 42(b). The distinction between direct and indirect contempt, coupled with the discretion allowed the magistrate judge, makes perfect sense, for direct contempt would have occurred in the judge's presence, and would allow the judge to issue such a summary order which would be a swift response to contumacious conduct that may portend a threat to a court's immediate ability to conduct its proceedings. See Int'l Union, UMWA v. Bagwell, 512 U.S. 821, 826, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994); United States v. Peterson, 456 F.2d 1135, 1139 (10th Cir. 1972).
While we are aware of the magistrate judge's "standing policy," the summary contempt order in this case is a paradigmatic instance of an abuse of discretion. First, by no stretch did the contempt occur within the presence of the court. Mr. Petersen simply was absent for five minutes. Just as the record contains not a scintilla of evidence suggesting that the United States Attorney's office (let alone Mr. Petersen, a special assistant) was aware of the magistrate judge's "standing policy," the facts in the record do not suggest that his mere absence was part of a series of larger events suggesting a conscious disregard of the court's procedures. 28 U.S.C. § 636(e)(2); see also In re Smothers, 322 F.3d 438, 440 (6th Cir. 2003) (); In re Chandler, 906 F.2d 248, 249-50 (6th Cir. 1990) (); United States v. Onu, 730 F.2d 253, 255-56 (5th Cir.1984) ().
Second, there is absolutely no indication that Mr. Petersen's tardiness, during a portion of the...
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