McDonald, In re

• Decision Date: 19 June 1987
• Docket Number: No. 86-8342,86-8342
• Citation: 819 F.2d 1020
• Parties: In re Douglas W. McDONALD
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1020

819 F.2d 1020

In re Douglas W. McDONALD

No. 86-8342.

United States Court of Appeals Eleventh Circuit.

June 19, 1987.

P. Gerald Cody, Jr., Cornelia, Ga., Victoria D. Little, Decatur, Ga., for appellant.

Mary Jane Stewart, U.S. Attys. Office, Julie E. Carnes, Atlanta, Ga., for appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

Douglas W. McDonald, an attorney, appeals from a judgment of criminal contempt imposed upon him in a summary proceeding pursuant to 18 U.S.C. Sec. 401 (1982), Fed.R.Crim.P. 42(a). The conduct that was determined to be contemptuous occurred during McDonald's cross-examination of a witness at trial. The district court entered a written order of public reprimand and directed that a copy of the contempt citation be filed with the clerk's office and furnished to the State Bar of Georgia. Finding that the district court properly held McDonald in criminal contempt, we affirm.

I. BACKGROUND

McDonald was the lawyer for Martha Wehunt, one of two co-defendants in a federal criminal case. Martha Wehunt was named in only one count of a three count indictment. The indictment charged: (1) Max Wehunt, Martha Wehunt's husband, and Freddie Gaddis with conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Sec. 846; (2) Max Wehunt with forcible assault of an officer of the Drug Enforcement Administration using a deadly and dangerous weapon in violation of 18 U.S.C. Secs. 111 and 1114, and (3) Martha Wehunt with forcible assault of an officer of the Drug Enforcement Administration using a deadly and dangerous weapon in violation of 18 U.S.C. Secs. 111 and 1114. A jury trial commenced on April 15, 1986, in the United States District Court for the Northern District of Georgia.

Gerald Minor, the Government's first witness, testified only about the facts relating to the drug conspiracy charge in count one. During his testimony he made no mention of Martha Wehunt. After the Government completed its direct examination Robert Thompson, the attorney for Max Wehunt, cross-examined Minor extensively. Thompson's cross-examination of Minor covered his role as a drug dealer on the street, his use of drugs, his income from drugs, his jewelry business, his agreement to cooperate with the authorities, pending State court charges, and the set up for the arrest of Max Wehunt.

After Thompson concluded the cross-examination of Minor, the court asked if there was any further cross-examination. McDonald, even though he represented Martha Wehunt who was not implicated in the drug charge, expressed his desire to cross examine Minor. This colloquy followed:

THE COURT: In what respect? I don't believe he has testified one iota as to the third count of the indictment.

MR. MCDONALD: If Your Honor please, Mrs. Wehunt has asked that I ask him some questions since she's in a joint trial with her husband about his credibility. ¹

THE COURT: Go ahead, but don't repeat a thing that has gone on. If you ask anything--he has not testified about the third count, but I will permit you to ask questions. If you want to prove and establish that he hasn't, you may ask those questions, but if you are just going to reiterate what Mr. Thompson has said, then I am going to sustain objections to it.

The court made it clear that McDonald was not to reiterate any questions that Thompson had asked Minor.

The third question McDonald posed on cross-examination of Minor concerned facts underlying the drug charge. McDonald asked whether Martha Wehunt was personally involved in "anything you had to do with Freddie Gaddis?" ² The court sustained the Government's objection. McDonald's next question repeated basically the question the court just disallowed. The Government objected and the court again sustained the objection.

McDonald requested permission to proffer the list of questions he wanted to ask the witness, Minor. The court granted permission and sent the jury to the jury room. McDonald made his proffer which included questions relating to the drug count. The court didn't rule on each specific question proffered. Rather, it told McDonald that some questions were proper and some were not and that rulings would be made as the trial went along. ³ The court reiterated that McDonald could ask questions to elicit whether Minor had knowledge of events underlying count three, but admonished McDonald not to get into questions relating to the drug offense. The court stated that, "about half or three-quarters of what you indicated are rehashing things he [Thompson] went over or are dealing with narcotics. She is not charged with drugs, and I don't intend to allow you to go into the drug business."

Thereafter, McDonald resumed his cross-examination of Minor. Within the first few questions McDonald ventured into an area previously probed by Thompson and was again directed by the court that the matter was not to be delved into twice. The court reminded McDonald that it was "being very lenient in allowing [him] to examine [Minor] when he didn't testify against [his] client." McDonald once again, however, began questioning Minor on matters relating to the drug transaction. The court sustained the Government's objection again reminding McDonald that he was not to try the drug case. The court stated, "Mr. McDonald, you are dealing with Mr. Thompson's case now ... Let's restrict yourself to defending your client." McDonald asked one question relating to his client's charges only to return, on the very next question, to matters relating to the drug transaction involving the other defendant. The Government objected and this colloquy followed:

THE COURT: You just insist upon trying the drug case. Unless you represent to me that the two of you are jointly representing the two defendants, I sustain the objection.

MR. MCDONALD: No, sir. I represent Mrs. Wehunt.

THE COURT: If you represent her, I sustain the objection.

MR. MCDONALD: Mr. Minor, on October 8th, 1985, approximately how much money did you allegedly owe for drugs you had purchased or say you purchased from Freddie Gaddis or Max Wehunt?

MS. STEWART: Objection, Your Honor.

THE COURT: I sustain the objection. Ladies and Gentlemen, retire to the jury room.

(Thereupon the Jury retired from the courtroom)

THE COURT: Your conduct is contemptuous and in violation of the directions of this court. Do you wish to respond to that?

MR. MCDONALD: If I can have time to do so, Your Honor, if it please the court.

THE COURT: And it is not the first time in this trial or in any trial you have ever been in, Mr. McDonald. You are defiant to this court's orders and the ruling of this court, and I have made it clear to you that that was improper, and I consider it contemptuous and unethical. I will deal with it at the conclusion of the case.

The court gave McDonald an opportunity to respond to the charge outside the presence of the jury. McDonald attempted to justify his persistent questioning on what he considered to be an improper ruling on the scope of cross-examination. The court promptly reminded McDonald that if the court had ruled improperly McDonald could have appealed the alleged erroneous ruling rather than defiantly continuing to ask questions relating to the drug charge in the presence of the jury. ⁴ McDonald pleaded with the court not to find him in contempt. The court responded, "we will do that later" and stated that it would tolerate no more defiance. McDonald did not question the witness further.

After the jury returned its verdict, ⁵ and before the court adjourned, the District Judge publicly reprimanded McDonald pointing out the conduct throughout trial that led to the court's action. The court explained to the jury that it was "[a] question of conduct before the court, and when the court consistently rules a particular way and a lawyer consistently pursues a subject matter the court has ruled out, it must be dealt with." The court ordered that the citation of contempt be filed with the clerk's office and furnished to the State Bar of Georgia. This appeal followed.

II. DISCUSSION

The role of criminal contempt is to protect the institutions of our government and enforce their mandates. Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968). A federal court may impose criminal sanctions pursuant to 18 U.S.C. Sec. 401 (1982), ⁶ to vindicate its authority and safeguard it own processes. United States v. Wilson, 421 U.S. 309, 316, 95 S.Ct. 1802, 1806, 44 L.Ed.2d 186 (1975); Bloom, 391 U.S. at 204, 88 S.Ct. at 1483; United States v. Turner, 812 F.2d 1552, 1562 (11th Cir.1987); United States v. Nunez, 801 F.2d 1260, 1263 (11th Cir.1986); Sandstrom v. Butterworth, 738 F.2d 1200, 1208-09 (11th Cir.1984), cert. denied, 469 U.S. 1109, 105 S.Ct. 787, 83 L.Ed.2d 781 (1985); In re Heathcock, 696 F.2d 1362, 1365 (11th Cir.1983).

The court chose to punish McDonald's conduct summarily, pursuant to Federal Rule of Criminal Procedure 42(a). Rule 42(a) provides that "[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record." Rule 42(a) provides the court with the authority to immediately vindicate the dignity of the court and allows the court to act quickly to stop conduct which amounts to intentional obstruction of court proceedings. Bloom, 391 U.S. at 209-10, 88 S.Ct. at 1486; Nunez, 801 F.2d at 1263; United States v. Baldwin, 770 F.2d 1550, 1553 (11th Cir.1985), cert. denied, sub nom, --- U.S. ----, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986). Because summary contempt permits the court to impose punishment on the contemner without the benefit of procedural safeguards, it is only appropriate in...