Tauber v. Gordon

• Decision Date: 30 July 1965
• Docket Number: No. 14896.,14896.
• Citation: 350 F.2d 843
• Parties: In the Matter of Joseph N. TAUBER, Appellant, v. Honorable Walter A. GORDON.
• Court: U.S. Court of Appeals — Third Circuit

350 F.2d 843 (1965)

In the Matter of Joseph N. TAUBER, Appellant, v. Honorable Walter A. GORDON.

No. 14896.

United States Court of Appeals Third Circuit.

Reargued May 25, 1965.

Decided July 30, 1965.

Joseph L. Rauh, Jr., Washington, D. C., for appellant on rehearing.

Almeric L. Christian, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee on rehearing.

Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY, SMITH and FREEDMAN, Circuit Judges.

PER CURIAM:

During the course of the trial of a civil tax controversy in the District Court of the Virgin Islands, the court cited the appellant, an Assistant Attorney General who was trying the case for the Government of the Virgin Islands, for criminal contempt and summarily fined him $100. The entire procedure of citation and summary conviction appears in the verbatim transcript of the proceedings immediately before and immediately after the court reconvened following an off-the-record discussion in chambers:

"IN * * * CHAMBERS"

"Court: Let the record show that the Government wanted to call Mr. Charles Haim back on the stand as an adverse party and the Court refused on the grounds that he was on the witness stand for three and a half hours on cross-examination and he\'s a sick man — very elderly, and has had a stroke and had to go to the Doctor as reported to the Court, and I\'m not going to allow him to be called back to the stand.

"IN OPEN COURT"

"Mr. Tauber: I must make a request to the Court that in view of what happened in Chambers, I personally would like to request to seek the assistance of counsel for myself because of the contempt threat that was placed on my head in chambers and not in open court.

"Court: I\'m placing it right here in open court. If you keep on talking I\'ll fine you for contempt of court right now. In the first place, that was a private thing in there and it was perfectly friendly until you just kept talking and now you come out here —.

"Mr. Tauber: (Interposing) Something was put on the record, your Honor.

"Court: There was nothing put on the record.

"Mr. Tauber: About Mr. Haim not taking the stand.

"Court: Mr. Tauber, Counsel asked that we go into private chambers and discuss something and I told you when we left there that we could put on the record that Mr. Charles Haim was not going to be permitted to go on the stand.

"You have deliberately come out here and started another argument.

"I\'m going to fine you one hundred dollars ($100.00) for contempt of court. Let the record so show.

"Mr. Tauber. For the reason that I came out here and —.

"Court: I said one hundred dollars for contempt of court. It\'s through your conduct all the way through this trial. This is not the first. It just culminated in your deliberately coming out here after the meeting in chambers and starting to discuss something.

"Mr. Tauber: I requested only the assistance of counsel.

"Court: I know what you\'ve done and I\'m fining you one hundred dollars.

"Mr. Tauber: May I request your Honor to stay the fine for appeal?

"Court: No, I\'m not going to stay it. Go on with your case."

Subsequently the court made its disposition of the matter more formal in an order which recited that "throughout the trial of the case * * * Joseph N. Tauber continuously objected to and commented upon the rulings of the Court after said rulings had been made" and "had been constantly admonished by the Court that his action bordered on contempt". The order also referred to the episode of attempted disclosure of confidential matter, which we have set out above as it appears in the record, as the culmination of Tauber's improper course of conduct.

Tauber appealed from that order and a divided panel of this court affirmed the district court's action. Thereafter, we granted the present rehearing before the court en banc.

It will be observed that the district court has identified with particularity only one occasion upon which Tauber's conduct was deemed contemptuous. We have quoted in full the transcript of what occurred then. We are unable to read anything that Tauber said at that time as an attempt to disclose in open court any confidential matter that had been discussed in chambers. If the conviction depends upon contemptuous behavior on that occasion, the record does not support it.

On the other hand, the formal contempt order states as a further reason for holding Tauber in contempt the fact that "throughout the trial" he "continuously objected to and commented on the rulings of the court after said rulings had been made". But beyond this general assertion the court did not specify the items or occasions of misbehavior which it deemed serious enough, individually or cumulatively, to merit punishment as contempt. Such a general characterization of behavior over a seven day trial period is not specific enough to satisfy the requirement of Rule 42(a) of the Rules of Criminal Procedure that a summary "order of contempt shall recite the facts * * *." See Parmelee Transportation Co. v. Keeshin, 7th Cir. 1961, 294 F.2d 310, 314-315. This requirement is more than a formality. It is essential to disclosure of the basis of decision with sufficient particularity to permit informed appellate review.

In this case, the district attorney, who ably discharged his responsibility to support the contempt order on this appeal despite the fact that he did not participate in the proceedings in the district court, attempted to give specific meaning to the general language of the contempt order by culling from the record and presenting to this court all of the episodes of questionable conduct by Tauber and contention between court and counsel which the court may have had in mind. Certainly the episodes thus brought to our attention disclose peevish and unduly persistent disputation, as well as several acts, equivocal and difficult to characterize on the paper record, which as they occurred might have impressed the trial judge as deliberately disruptive of orderly trial.¹ But counsel's enumeration of occurrences which, in his view after the event, afforded a proper basis for a contempt order cannot be substituted for the required specification by the trial judge of the facts upon which he actually predicated his contempt order.

Though we have no doubt that the district court was subjected, as courts often are, to considerable vexation,² we conclude that appellant's conduct during the episode immediately after the conference in chambers was not contemptuous and that the court has not adequately specified any other acts of a contemptuous nature. For these reasons this summary conviction must be set aside.

It will be so ordered.

McLAUGHLIN, Circuit Judge (dissenting):

The record here clearly establishes that appellant, an attorney representing a party in the trial of a civil action, was guilty of a course of deliberate, contemptuous conduct to the trial judge which persisted throughout the seven day trial and which obstructed the administration of justice. The complete record further reveals that the court was most patient in dealing with the attorney. The latter constantly persisted in continuing to argue after the court had made its ruling. Appellant committed other patently contemptuous actions such as turning his back on the judge, throwing a book down and disobeying the direct...