In re Osborne

• Citation: 344 F.2d 611
• Decision Date: 16 April 1965
• Docket Number: No. 19496.,19496.
• Parties: In the Matter of Wm. Bryan OSBORNE, Contemnor, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

344 F.2d 611 (1965)

In the Matter of Wm. Bryan OSBORNE, Contemnor, Appellant.

No. 19496.

United States Court of Appeals Ninth Circuit.

April 16, 1965.

Bruce I. Hochman, Beverly Hills, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Sec.; J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Sec.; Robert L. Brosio, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG, and DUNIWAY, Circuit Judges.

BARNES, Circuit Judge:

This proceeding grew out of the trial of one Memphry M. Carter, Jr., No. 33404-CD in the Southern District of California on charges of forging government checks. The visiting judge presiding was the Honorable John F. Kilkenny, sitting by regular assignment from the District of Oregon. Appellant represented Carter as counsel. His client was acquitted on one count, and convicted on two. The trial lasted one and one-half days.

After sentence, the court conducted a summary contempt proceeding, under Rule 42(a) (18 U.S.C.). Appellant was found guilty, was fined $200.00 and sentenced to ten days confinement. The judgment of contempt appears in the margin.¹

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Jurisdiction of this appeal rests on §§ 1291 and 1294 of Title 28, U.S.C.

The judgment of contempt clearly discloses facts showing the appellant herein acted in a contemptuous manner toward the court in its presence, and the presence of the jury, i. e., "in open court." The appellant's language is quoted in the judgment, and no attack is here made on the authenticity of the quotations.²

When the court attempted to require the trial to continue in taking of evidence after twelve noon, appellant objected. Shortly after the beginning of the cross-examination of a witness the appellant requested that the noon recess be taken, in order that the appellant could organize his own documents. When the court directed the appellant to continue his cross-examination, counsel refused and continued to refuse, despite repeated directions by the court to proceed with the examination of the witness. The appellant later added another reason for the need of a recess, namely that the jury was hungry. Finally, a third reason, the need to interview a defense witness was added. In the course of the repeated refusals to follow the directions from the bench the appellant accused the court of being antagonistic and treating the appellant in the same way as the noted Mr. Belli was treated in a certain Dallas, Texas trial.

Appellant first urges that there was no contemptuous act. He urges that because this was a criminal trial, his convenience at the trial, and not the court's, should be considered paramount by us. Nowhere does he point out wherein his client's rights were not respected by the court. On January 13, 1964, the case had been set down for trial on March 31, 1964. Appellant knew of the trial date setting. At the trial on March 31, 1964, he stated he needed time "to examine documents." They were not named nor described. No showing of "surprise" occasioned by reason of the witness's testimony was shown, nor attempted to be shown, nor even suggested. Appellant said much more than that he desired "to examine documents," as is shown above. Appellant changed his ground for his unwillingness to proceed. He was contemptuous in what he said and in the manner in which he said it, and we so hold.

Appellant secondly urges there was no contempt in view of the "provocation" on the part of the trial court. This seems obviously an afterthought by appellant's counsel, seeking to avail himself of the theory expressed in Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). That case does not aid appellant's posture. There the conduct of the judge was characterized by the Supreme Court as having "hardly reflected the restraints of conventional judicial demeanor." Here no such, nor any, lack of judicial restraint is shown. Quite the opposite appears from so much of the record as is before us.³

As a third reason for us to believe no finding of contempt was proper, appellant urges that we should not prevent counsel from the fearless, vigorous and effective performance of his duty. We completely agree. Sacher v. United States, 343 U.S. 1, 12, 13, 72 S.Ct. 451, 96 L.Ed. 717 (1952). But such a theory does not require us, nor the court below nor any court to countenance the conduct displayed by appellant in this case. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962) is likewise inapplicable. There McConnell was pressing a legal contention, which in no way "creates an obstruction which blocks the judge in the preformance of his judicial duty." Here the appellant created just such an obstacle.

At no time was appellant in the court below attempting to preserve a legal point, or any legal contention. He simply refused to permit the district judge to run his court, and by sly statements obviously made an attempt to influence the jury in his client's favor.

Assuming the contempt existed, the trial court erred, says appellant in not setting the matter for hearing under Federal Rules of Criminal Procedure 42 (b). Panico v. United States, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963). Panico permits such a hearing but does not require it. This contempt was committed in the actual presence of the court. He saw the conduct and heard the language. Such contempt may be summarily punished.

But the court here delayed the summary judgment until after the verdict was returned and the client Carter was sentenced. He did this "in the interest of fairness and justice" to the defendant. The time elapsed was from April 1st to May 14th, 1964, due to the trial judge's physical absence from the Southern District of California. Appellant states the contention (of fairness to the client Carter) is debatable. We do not see how. We think delay was not only proper, but laudable on the part of the trial judge. The word "summarily" in the rule does not require a hasty determination. Hallinan v. United States, 182 F.2d 880 (9th Cir. 1950).

Finally, appellant urges the sentence was excessive. We note, as appellant requests, that in both Offutt and McConnell, supra, the courts of appeal saw fit to reduce the jail sentences there imposed. We need not even determine if the sentence is severe. For a sentence, even a severe one, is within the court's discretion. In re Maury, 205 F. 626, 632 (9th Cir. 1913); Hallinan v. United States, supra, 182 F.2d at 888. Nor is the ten day jail sentence cruel or unusual punishment; nor does it shock our respective or collective consciences.

Although not raised by appellant nor mentioned by appellee, we must consider a further point. The power of the court is to punish by fine or imprisonment (18 U.S.C. § 401), and not both. The statute so says, and being criminal, must be strictly construed. In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500 (1943); United States v. De Simone, 267 F.2d 741 (2d Cir.), cert. granted 361 U.S. 125, 80 S.Ct. 253, 4 L.Ed.2d 167 (1959) (cause remanded with instructions to dismiss the proceedings as moot); MacNeil v. United States, 236 F.2d 149, 61 A.L.R.2d 1075 (1st Cir.), cert. denied 352 U.S. 912, 77 S.Ct. 150, 1 L.Ed.2d 119 (1956); Ex Parte Davis, 112 F. 139 (5th Cir. 1901).

This is a charge of contempt initiated by the trial court of its own motion for the vindication of the court's authority, and the punishment of a public wrong. It is therefore criminal contempt, and not civil contempt, and not both. MacNeil v. United States, supra.

It is therefore one contempt, and can be punished once, by either confinement or fine.

We affirm the judgment of contempt, vacate the sentence, and remand the matter to the district court for resentencing.

1 OF CONTEMPT AND SENTENCE"

"The undersigned Judge of the Court certifies as follows:

"(1) That on March 31, 1964, the jury trial of Case No. 33404-CD, United States v. Memphry M. Carter, Jr., was commenced. The defendant was represented by William Bryan Osborne.

"(2) The defense counsel in the course of the trial at numerous points in the proceedings made statements in Court directed to the Court which went far beyond the realm of energetic advocacy on behalf of his client. The statements of counsel which are referred to below were stated in open Court, in the presence of the jury in a tone of voice and general manner which must be characterized as surly, defiant and contemptuous.

"(3) The defense counsel's conduct of his case may be typified by an incident which occurred on the first morning of the trial. The counsel for the prosecution had just completed the direct examination of the chief Government witness, Nathan Keynard, the payee of the check which the defendant was charged with forging and uttering. After commencing his cross-examination counsel for the defense requested that the noon recess be taken. The defendant's counsel expressed the desire to examine numerous documents, apparently records of the defendant which he had brought to Court, prior to continuing his examination.

"When the Court instructed counsel to continue, counsel replied.

"MR. OSBORNE: We will go until I get finished, which may be 5:00 o'clock this afternoon then, I would like to take a recess to get organized.

* * * * *

"MR. OSBORNE: I have a number of documents to look through in respect to my examination.

* * * * *

"When the Court noted that counsel should have previously examined his exhibits and again directed counsel to continue, counsel replied:

"MR. OSBORNE: I think I am entitled to rely upon the normal court hours.

* * * * *

"The Court repeated its direction and counsel stated:

"MR. OSBORNE: Your Honor, I would again request a recess.

"Again told to proceed, counsel replied:

"MR. OSBORNE: Your Honor, it's time for the recess.

"THE COURT: No, it's not, counsel.

"MR. OSBORNE: I know you are running this Court, your Honor. However...