Jaques, In re, 84-3221

• Decision Date: 06 May 1985
• Docket Number: No. 84-3221,84-3221
• Citation: 761 F.2d 302
• Parties: In re Leonard C. JAQUES, Attorney, Attorney-Appellant. Ali S. AHMED, Plaintiff, v. REISS STEAMSHIP COMPANY, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 302

761 F.2d 302

53 USLW 2589

In re Leonard C. JAQUES, Attorney, Attorney-Appellant.

Ali S. AHMED, Plaintiff, v. REISS STEAMSHIP COMPANY, Defendant.

No. 84-3221.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 25, 1985.

Decided May 6, 1985.

Leonard C. Jaques, pro se, and Mark R. Bendure (argued), Gromek, Bendure & Thomas, Detroit, Mich., for attorney-appellant.

Robert N. Dunn, Detroit, Mich., for defendant.

Before MERRITT and WELLFORD, Circuit Judges, and HILLMAN, District Judge. ^*

MERRITT, Circuit Judge.

In this action, Leonard Jaques, an attorney, appeals from an order by District Judge Ann Aldrich holding him in contempt for his failure to appear before Judge Aldrich on the first day of trial in an admiralty case in which he represented the plaintiff, Ali Ahmed. 580 F.Supp. 737 (1984). The District Judge found that Jaques' failure to appear was unjustified. She ordered Jaques to pay the government's cost of compensating the 22 person venire panel called to sit on the trial date and to reimburse opposing counsel's hotel and attorneys fees, thereby assessing a compensatory fine totalling approximately $1800. We conclude that the District Court's action was an appropriate and moderate response to Jaques' provocative conduct. For the reasons stated below, we affirm.

I.

Leonard Jaques represented the plaintiff, Ali Ahmed, in an admiralty action before District Judge Aldrich in Cleveland, Ohio. As a courtesy to Jaques and his client, the District Court on August 1, 1983, scheduled a firm trial date of October 24, 1983. On October 19, Jacques called and requested that the trial date be moved back one day because he would be in Baltimore, Maryland, in a trial before Federal District Judge Howard. The District Court granted this request. However, on Monday, October 24, the District Court received a call from Judge Howard's office informing the court that the trial in Baltimore would not end until Tuesday, October 25, and so Judge Aldrich again rescheduled trial to begin on Wednesday morning, October 26. Her clerk called Judge Howard's office and left a message for Jaques to appear for trial in Cleveland on Wednesday morning.

As six o'clock on Tuesday evening, the evening before the trial was set to begin, Jaques' associate Gary Baun called the District Court and, according to Judge Aldrich, informed the court that Jaques could not be in Cleveland on Wednesday because he was required to be in Baltimore when jury instructions were delivered in Judge Howard's courtroom on that same day. In fact, Jaques had been excused on Tuesday afternoon by the court in Baltimore so that he could appear for trial in Cleveland on Wednesday morning. At Judge Aldrich's request, another associate of Jaques', Robert Swickle, appeared in his place on Wednesday.

Settlement negotiations were undertaken on Wednesday morning, but these became stalemated. Swickle explained that he had been "pressed in for this" and that no further progress could be made until Jaques spoke with Ahmed, since Ahmed was really Jaques' client and not Swickle's. However, when Judge Aldrich called Baltimore in an attempt to reach Jaques, Judge Howard told her that he had excused Jaques at four o'clock Tuesday afternoon so that Jaques could appear in her courtroom in Cleveland on Wednesday. Returning to the settlement negotiations, Judge Aldrich admonished Swickle for the wasted expense in calling in the venire panel and having opposing counsel appear, and for Jaques' apparent misrepresentation to two federal judges that he was in the other's courtroom when in fact he was in neither. She told Swickle that after the trial, she would expect Swickle, Baun and Jaques to explain this sequence of events or else face sanctions.

On November 2, 1983, the District Court ordered Baun, Swickle and Jaques to appear and show cause why they should not be found in contempt under 18 U.S.C. Sec. 401 for Jaques' failure to appear on October 26 and for misrepresenting Jaques' whereabouts. A hearing on the show cause order was held on December 22, 1983, at which Jaques represented himself and his associates. Throughout most of the hearing, Jaques refused to reply to the court's legitimate question as to the reason for his failure to appear, and instead challenged the authority of the court to conduct the proceeding and the specificity of the show cause order. When he finally did reply, Jaques' justification for his failure to appear was that he "had the screaming itches in the crotch ... I wasn't here because I would have been scratching my testicles constantly if I had been here."

In a lengthy memorandum opinion, the District Court found Jaques in contempt of court under 18 U.S.C. Sec. 401. ¹ The court found that Jaques' failure to appear, especially in light of the misrepresentations made regarding his whereabouts, was punishable as misbehavior so near the presence of the court "as to obstruct the administration of justice" under section 401(1). The court also found that Jaques' conduct was punishable under section 401(3) because he had failed to comply with the court's order compelling his appearance on October 26. With the express purpose of compensating the "victims of Jaques' prevarications," the court ordered Jaques to pay a "remedial" fine equal to the cost of compensating the twenty two member venire panel plus the opposing counsel's hotel and attorney's fees for October 26, an amount totalling $1804.87.

II.

A.

Jaques contends that the District Court's order imposing sanctions must be overturned because the show cause order and the court's opinion failed to state clearly whether the contempt proceedings were civil or criminal, and that these proceedings were in fact criminal and failed to afford him the procedural due process he was constitutionally entitled to as a criminal defendant.

Both civil and criminal contempt proceedings may be brought under 18 U.S.C. Sec. 401, United States ex rel. Shell Oil Co. v. Barco Co., 430 F.2d 998, 1000 (8th Cir.1970), and because of the frequency with which the two forms of contempt are confused, a lower court's characterization of its proceedings is but one factor to consider in determining their true nature. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980), citing Lewis v. S.S. Baune, 534 F.2d 1115, 1119 (5th Cir.1976). We must look instead to the "totality of the circumstances" to determine both the proper form of proceeding and that actually used. United States v. North, 621 F.2d 1255 (3rd Cir.) (en banc), cert. denied 449 U.S. 866, 101 S.Ct. 199, 66 L.Ed.2d 84 (1980).

The District Court imposed a fine which was explicitly fashioned merely to compensate the government and the opposing counsel for the harm caused by Jaques' failure to appear, and ordered the fine paid over to the victims of his misconduct. Generally, civil contempt may be either intended to coerce future compliance with a court's order, Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966), or to compensate for the injuries resulting from the noncompliance. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949); TWM Manufacturing Co. v. Dura, 722 F.2d 1261, 1273 (6th Cir.1983). Here, the District Court not only stated that the purpose of Jaques' fine was remedial and compensatory, but fashioned the fine so as to do no more than compensate the injured parties for their actual damages. These facts show that the contempt proceedings were plainly civil. McCrone v. United States, 307 U.S. 61, 64, 59 S.Ct. 685, 686, 83 L.Ed. 1108 (1939); Perfect Fit Industries v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir.), cert. denied 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982). Jaques was therefore not entitled to the procedural protections afforded criminal defendants.

Moreover, no prejudice to Jaques resulted from the District Court's failure to specify whether the proceedings were civil or criminal. The show cause order sent long in advance of the hearing clearly indicated the factual basis of the charge against Jaques. That order was sent on November 2, 1983, well before the December 22 hearing. At the hearing, Jaques had a full and fair opportunity to explain his failure to appear. Instead, he referred to the hearing itself as an "indignity to counsel." He then degraded his profession and insulted the court by stating that he was absent because "I would have been scratching (my) testicles constantly if I had been here." Jaques was afforded procedural safeguards well exceeding the minimum of notice and a reasonable time to prepare a defense held to apply in all contempt proceedings in United States v. Hawkins, 501 F.2d 1029, 1031 (9th Cir.), cert. denied 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974), and we find no merit in his claim that he was denied due process.

The actions taken by the District Court find additional and independent justification in 28 U.S.C. Sec. 1927 ², which authorizes the court to require an attorney personally to pay the "excess costs, expenses and attorneys' fees reasonably incurred" when the attorney "multiplies the proceedings ... unreasonably and vexatiously." The court did precisely what is authorized by this statute, and the fact that the statute was not explicitly relied upon does not rob the court's order of its validity. Indeed, the District Court was personally familiar with the circumstances surrounding Jaques' failure to appear, and expenses and fees could therefore have been assessed without holding a hearing, since the usual method of handling factual issues under section 1927 is by affidavit. North American Foreign Trading Corp. v. Zale Corp., 83 F.R.D. 293, 298 (S.D.N.Y.1979). We affirm the actions of the District Court under the authority of this statute.

B.

Jaques also contends that there is insufficient evidence supporting the District Court's findings that he violated an order to appear for trial and...