Matter of Jackson, 83-6046-Cr.

• Decision Date: 13 August 1984
• Docket Number: No. 83-6046-Cr.,83-6046-Cr.
• Parties: In re the Matter of Steven JACKSON, Esq. This contempt proceeding arose in the following case: United States of America v. Jonathan Scott Baldwin, et al.
• Court: U.S. District Court — Southern District of Florida

592 F. Supp. 149

In re the Matter of Steven JACKSON, Esq.

This contempt proceeding arose in the following case: United States of America

v.

Jonathan Scott Baldwin, et al.

No. 83-6046-Cr.

United States District Court, S.D. Florida, Fort Lauderdale Division.

April 17, 1984.

Supplemental Order August 13, 1984.

Stanley Marcus, U.S. Atty., Stephen LeClair, Asst. U.S. Atty., Miami, Fla., for plaintiff.

Bruce Rogow, Fort Lauderdale, Fla., for defendants.

CERTIFICATE OF CONTEMPT

ROETTGER, District Judge.

1. This case involves 9 defendants being tried on a 35-count indictment. The best estimate of trial time is at least three and probably four weeks. A jury panel of 55 jurors was assembled for jury selection inasmuch as the Court had given extra peremptory challenges to the defendants because of their number.

2. The case was set for trial after a calendar call with the lawyers present on Monday, February 27, 1984, seven full weeks prior to the commencement of the trial. At that calendar call on February 27th, the trial date selected was April 16th.

3. The significant portions of the reporter's notes at that calendar call which pertain to the scheduling of the trial in connection with the attendance of Steven Jackson, Esq., attorney for Howard Avery Jones, is set forth hereafter:

JUDGE: Anybody have any problem with trying the case in April or May? * *

Have you got any pre-planned or prepaid vacations? * * * *

If a lawyer does, you better speak now or you are going to have to explain it to your wife. If you have a pre-planned or pre-paid deposit or something, let me know because I don't want to interfere with your vacation. * * * *

JACKSON: I don't have any vacation planned, but I do have a trial in New York on the 1st week of April. After that, I have no objections to any of the time in those 2 months. * * * * JUDGE: 16th of April, we will begin this case at 9:30 on Monday.

4. No written motion for continuance, motion for stay, or suggestion of difficulty of Mr. Jackson with the Court's announced scheduling of this trial was presented to the Court until the morning of the trial on April 16th.

5. On the Thursday before the Monday trial date, April 12, 1984, Attorney Jackson's brother attended calendar call for him and orally advised the Court his brother was ready for trial but wanted four days off for Passover. The Court was startled and advised he'd never had such a request from a lawyer or juror, but always recessed early enough specifically to accommodate the ones celebrating Passover or Holy Days.

6. About 9:40 on Monday, April 16, 1984, the trial was called and all of defendants' counsel, including the local counsel for four out-of-state attorneys, were present as well as the Assistant U.S. Attorney and the government agent. The trial had to be started a few minutes late because the marshals had been transporting two defendants who were in custody.

7. Attorney Alvin Entin, co-counsel for defendant Baldwin, requested a recess at 4 o'clock so that he could get to a dinner and celebrate Passover with his family. The Court granted Mr. Entin's request with an observation that it was always the Court's practice to recess a little early so that jurors desiring to do so could attend the dinner and services in connection with Passover.

8. A flurry of last-minute motions were presented by various counsel.

9. When Mr. Jackson presented his motion, the Court was advised in writing and with specificity that Mr. Jackson was seeking a stay of proceedings, not simply to leave early to celebrate the beginning of Passover but was seeking a stay of this trial on Tuesday and Wednesday, April 17th and 18th, as well as Monday and Tuesday of the scheduled 2nd week of the trial, April 23rd and 24th, for the entire days.

10. Steven Jackson, Esq., described this as a practice he always faithfully observed and requested the stay on that basis. The Court does not doubt his representation, but is curious as to why he was unaware of the date of Passover until this late date.

11. At the close of considerable colloquy between Court and counsel about the matter, the Court, having noted the fact that a request for so much time off for Passover had never been presented to the Court during his nearly 12 years on the Bench, and that the Court does not close for any portion of Good Friday, either on the date set by the Eastern rites or the one observed by Roman Catholics and Protestants (in 1984, as apparently occurs every four years, the dates are the same). The Court also observed it does not close for Ramadan or any of the holy days of the Islam faith, but has always attempted to keep the calendar clear on Yom Kippur for attorneys or jurors who happen to be members of the Jewish faith.

12. The undersigned judge is a member of the Presbyterian Church and attends Good Friday service during his lunch hour.

13. The Court denied the motion for stay because of the late filing of the motion in a nine defendant, four-week trial, especially with this Court's and district's heavy trial calendar.

14. Attorney Jackson remained at the lectern and announced that: "I just want to inform the Court that, with due deference to your ruling, I'll not be here tomorrow and Wednesday, or Monday and Tuesday of next week. Thank you." The Court responded: "With due deference to you, sir, I will consider whether or not to send a marshal to bring you."

15. The Court pursued various attempts to provide an alternative for Attorney Jackson while achieving adequate representation of his client. After the lunch recess, when the matter was reconvened at 12:40, the Court inquired of defendant Jones if he would be willing to have another attorney represent his interest during the period that Mr. Jackson wished to be gone. He replied that he would but the Court urged him to discuss the matter with his lawyer. After Attorney Jackson conferred with defendant Jones, Attorney Jackson announced that it would not be satisfactory to have someone else cover for him to represent defendant Jones during this period.

16. Around 4 o'clock the Court recessed so that the lawyers or jurors who wished to do so could attend to the preparations for the beginning of Passover. At that time the Court inquired of Mr. Jones if he had been able to make any progress in this matter and he advised that he had not but that perhaps he could by morning. Attorney Jackson again advised the Court as follows:

JUDGE: I most assuredly will consider your action in direct defiance of a court order if you are not....

JACKSON: With all due respect, I answer to a higher authority than this Court in this matter and I will not be here tomorrow.

JUDGE: Well, you act at your peril.

The Court then recessed the trial for the day.

17. At 9:30 o'clock on the next day, Tuesday, April 17, trial was to resume with a continuation of the jury selection process but Attorney Steven Jackson was absent, in continuing defiance of the Court's order.

18. On Tuesday morning Mr. Jones wished to address the Court and appeared very wan and a bit frightened. He wanted to proceed with the trial and have a lawyer, and his exact statements were as follows: "Your Honor, I am embarrassed about what happened yesterday. My attorney, Mr. Jackson, did not confer with me on the motion he made about this holy day. I had no idea what he was doing. I am real anxious to get this over with and go on with my trial. I don't know too much about the law, but I realize my life is at stake and I am worried and I am scared.... I don't have any money and can't afford to get another one attorney and at this late hour most don't want to get involved. I need another attorney. I would like to get another attorney. I am willing to do whatever the Court suggests. I am in your hands, Your Honor."

19. The Court, with the invaluable help of U.S. Magistrate Kyle, obtained the services of a local lawyer, Jeffrey Miller, Esq., who agreed to step in and help out. The Court notes that all other counsel were extremely helpful in assisting the Court with the situation.

20. The Court further notes that the speaking tones employed by Mr. Jackson and the Court were conversational tones and voices were not raised throughout the various colloquies or rulings.

21. The Court further certifies that I saw or heard the conduct of Steven Jackson, Esq., constituting the contempt and that it was committed in the actual presence of the Court.

CONCLUSIONS OF LAW AND JUDGMENT OF CONTEMPT

1. Based on the foregoing facts, the Court concludes that the actions by Attorney Steven Jackson were disobedience by an attorney, an officer of the court, to the lawful orders of the Court commanding his presence to continue the jury selection on the morning of April 17th, and such actions constitute a violation of 18 U.S.C. § 401(3). The contempt was committed in the actual presence of the Court and requires summary disposition under Rule 42(a) of the Federal Rules of Criminal Procedure. The contempt occurred twice on the day of April 16th when Attorney Jackson announced in open court that he was not complying with the order of the Court and would not be present on the four days for which he had unsuccessfully sought a stay only a few minutes earlier. This contempt continued on the morning of April 17th when he failed to appear at the required time of 9:30 or at any time throughout the morning until the Court finally recessed at 1:05 p.m. after completing the jury selection process. To hold that the contempt of April 17th was not committed in the presence of the Court after the announced defiance on April 16th would simply be some form of judicial sophistry or shadow-boxing under these particular circumstances.

2. Even the failure of an immunized witness to testify is an intentional obstruction of court proceedings when the witness refuses to answer the questions put to the witness. United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 1805, 44 L.Ed.2d 186 et seq. (1975). The...