Monroe, In re, 76-1194

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation532 F.2d 424
Docket NumberNo. 76-1194,76-1194
PartiesIn re Keith MONROE. UNITED STATES of America, Plaintiff-Appellee, v. Adelle Raye WHITE and Jerald E. Evers, Defendants-Appellants. Summary Calendar. *
Decision Date27 May 1976

James D. Riddet, Roger S. Hanson, Santa Ana, Cal., for defendants-appellants.

John E. Clark, U. S. Atty., Le Roy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, DYER and CLARK, Circuit Judges.

PER CURIAM:

Monroe, an attorney licensed to practice in California, and retained to represent defendant White in a criminal case in the Western District of Texas, was found in contempt of court after he failed to appear for trial in El Paso, Texas, on December 8, 1975. He was unable to appear because on that date he was engaged in trial before a jury in California of a murder case which had commenced on August 18 and was not concluded until after December 8.

The actions, and inactions, of Monroe simply do not rise to the level of contempt. The District Judge recognized that it was physically impossible for Monroe to be in two trial courts at the same time. His conclusion that Monroe was guilty of contemptuous and contumacious conduct appears to be based on Monroe's failure to timely file a motion for continuance at least ten days before the trial date, as apparently required by local rules, coupled with delay in failing to secure local counsel.

Monroe mailed a motion for continuance to the District Court on Friday, November 28, 1975, with a copy to the United States Attorney in El Paso. It was received and filed by the court on Monday, December 1, 1975, a week before trial date. The motion was first called to the trial judge's attention on Thursday, December 4, or Friday, December 5, and was denied December 5. With respect to the untimeliness of this motion, the only delay which may properly be attributed to Monroe was from around November 24, when he was informed by local co-counsel that he, Monroe, should file a written motion presenting to the trial judge the matter of the conflicting trials, and November 28 when Monroe mailed the motion. It is not disputed that prior to November 24 the matter of Monroe's conflict in trial engagements was in the hands of local co-counsel who had advised Monroe that it would be presented at arraignment on November 21. At arraignment co-counsel made a judgment decision that the matter should not be presented. The arraigning judge was not the trial judge, and co-counsel's opinion was that the arraigning judge would not act on the matter but rather that, under the circumstances, it would have to be presented to the trial judge in the form of a written motion filed by Monroe himself. Presumably a motion prepared and mailed in California around November 24 or 25 would have reached the court at least ten days before December 8. The motion mailed November 28 did not. Accepting that Monroe should have acted more speedily, there was but a three or four-day delay one day of which was Thanksgiving Day, November 27 occurring while Monroe was engaged in the trial of a murder case that had been in progress for more than three months. The fact of his inaction does not alone contain the elements of intentional or willful action or flagrant disregard of the court's rules or orders necessary for contempt. At most it was negligence. Central to this point is the fact that during this delay period Monroe had local co-counsel who could, as far as was then known, represent White at trial commencing December 8 if a motion by Monroe for continuance should be denied. Also it was not established that Monroe had actual knowledge of the ten-day rule or that local counsel advised him of it.

With respect to the delay in securing local counsel, early in the proceedings Monroe retained as local co-counsel the attorney representing the co-defendant Evers. That attorney was with Monroe at an earlier trial setting in July, 1 and appeared alone at arraignment of both defendants on November 21, and advised Monroe how to handle the matter of the conflict in trial engagements. On or about December 2 or 3, after Monroe's motion for continuance had been filed and before it had been acted upon, Monroe was advised by telephone by the local counsel that he was filing a motion to withdraw from representation of White...

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8 cases
  • Lewis v. S. S. Baune
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 6, 1976
    ...reverse on that ground. No judgment of contempt that is unclear as to its civil or criminal nature will be allowed to stand, In re Monroe, 5 Cir. 1976, 532 F.2d 424; Skinner v. White, 5 Cir. 1974, 505 F.2d 685. Considering all the above factors, we have little doubt that though the Court im......
  • U.S. v. Onu, 83-2270
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 19, 1984
    ...Thyssen, Inc. v. S/S Chuen On, supra, n. 2, 693 F.2d 1171 (5th Cir.1982); In re Allis, supra n. 2, 531 F.2d at 1392.4 In re Monroe, 532 F.2d 424, 425 (5th Cir.1976); In re Marshall, 423 F.2d 1130 (5th Cir.1970); In re Adams, 505 F.2d 949 (5th Cir.1974).5 In Thyssen, supra, n. 2, we said:It ......
  • Stewart, In re
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • April 24, 1978
    ...A reviewing court's inability to determine whether a proceeding is civil or criminal is in itself a ground for reversal. In re Monroe, 532 F.2d 424, (5th Cir. 1976); Skinner v. White, 505 F.2d 685 (5th Cir. 1974).3 The probation had conditions attached, but this is another matter.4 Part of ......
  • Dinnan, In re
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 28, 1980
    ...Our cases suggest that when it is impossible to determine which type of contempt is involved, the judgment cannot stand. In re Monroe, 532 F.2d 424 (5th Cir. 1976); Skinner v. White, 505 F.2d 685 (5th Cir. 1974); Clark v. Boynton, 362 F.2d 992 (5th Cir. 1966). This case, however, does not c......
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