U.S. v. Abascal

• Citation: 509 F.2d 752
• Decision Date: 09 January 1975
• Docket Number: No. 74--2227,74--2227
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel Glenn ABASCAL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 752

509 F.2d 752

UNITED STATES of America, Plaintiff-Appellee, v. Manuel Glenn ABASCAL, Defendant-Appellant.

No. 74--2227.

United States Court of Appeals,

Ninth Circuit.

Jan. 9, 1975.

Howard Moore, Jr. (argued), Berkeley, Cal., for defendant-appellant.

John J. Robinson, Jr., Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Before KOELSCH and WALLACE, Circuit Judges and JAMESON, ^* District Judge.

OPINION

JAMESON, District Judge:

Manuel Glenn Abascal appeals from a conviction for criminal contempt in violation of 18 U.S.C. § 401. The district court, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, summarily found appellant guilty of contempt and imposed a ninety day sentence.

Background

The appellant was one of nine persons charged in a six count indictment with various offenses involving the illegal importation and possession of narcotics with the intent to distribute. At the time of the alleged contempt, appellant, who was free on bond, was attending a hearing before the district court on a motion made by one of his co-defendants. Appellant had come to the courthouse with his counsel to examine records in the clerk's office in connection with a separate motion on behalf of appellant. While his attorney was in the clerk's office, appellant entered the courtroom. Although he had apparently been asked to attend the hearing by counsel for the co-defendant, appellant was not directly involved in the proceedings nor was his presence in court required.

Court was recessed for fifteen minutes during the morning session. The clerk ordered those present to rise. Appellant remained slouched in his seat. When the court reconvened appellant was not present but subsequently returned. Noting appellant's conduct at the opening session, the judge had his secretary prepare a statement which he intended to read to appellant. ¹

At the noon recess, as the judge stood to leave the bench, the clerk ordered all to rise. At that moment counsel for appellant's co-defendant asked the judge a question which was quickly answered. The clerk again ordered 'All rise'. Everyone in the courtroom with the exception of the appellant rose. The following colloquy then occurred:

'The Court: Mr. Abascal, would you step forward, please?

'Defendant Abascal: (No response).

'The Court: Step forward, please.

'Defendant Abascal: Not without my counsel, sir.

'The Court: Mr. Cecil, he's in contempt of court. I've told him to step forward. He has refused to get out of his seat. Put him in jail.'

That afternoon appellant, with his counsel, appeared before the court. Reviewing the incident of the morning, the judge stated that he had asked the appellant to step forward for the purpose of reading him the statement he had prepared. Appellant's counsel was given an opportunity to comment. Following the remarks of his counsel, appellant stated:

'I'd like to address the Court and state that, as an institution, I meant no disrespect to the Court and that I required or requested for my fundamental legal right that my counsel be present before I be brought up in front of the Court'.

The court termed appellant's conduct 'insolent' and held that it 'interfered with the judicial process in that it was a direct affront to the dignity of this court'. Relying on Rule 42(a), the 90 day sentence was imposed. Following the hearing, the judge filed a formal Certificate of Contempt as required by Rule 42(a). In the Certificate he held that the appellant's failure 'to step forward and his willfully remaining slouched in his seat while being personally addressed' were contemptuous and that he had seen and heard this contemptuous behavior which took place in the actual presence of the court.

Contentions on Appeal

Appellant contends that (1) his refusal to step forward when requested by the court at the noon recess did not interfere with the administration of justice and therefore was not contemptuous; (2) the court should have warned him that his conduct could subject him to criminal penalties; (3) the summary contempt procedure of Rule 42(a) was inappropriate; and (4) there was a likelihood of prejudice on the part of the trial judge rendering him unable to fairly adjudicate the matter of appellant's contempt.

Contempt--18 U.S.C. § 401

18 U.S.C. § 401 empowers Federal courts

'. . . to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as--

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; . . .'

The allegedly contemptuous behavior consisted of appellant's 'twice refusing to step forward and his willfully remaining slouched in his seat while being personally addressed' by the court. Appellant contends that this behavior did not constitute an actual obstruction to justice and therefore was not contemptuous within the meaning of 18 U.S.C. § 401. Ex Parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656 (1919). We cannot agree.

It is true that the courts have questioned whether the trial court may require spectators 'to perform purely ceremonial or symbolic acts.' Where, however, 'such an act is accompanied by some disturbance, disorder or interruption, an obstruction may exist'. In re Dellinger, 461 F.2d 389, 401 (7 Cir. 1972). ² Here we are concerned with more than merely the observance of the formality of rising at the end of a court session. Appellant defied a clear order directed to him personally by the court. The ability of a trial judge to compel obedience to his orders is fundamental to the proper functioning of our system of justice. Whether a person be directly involved in a judicial proceeding or simply a mere spectator, he is subject to all reasonable orders of the court, even those given at the end of a court session. We conclude that appellant's refusal to step forward combined with his apparent disrespect for the court as manifested by his courtroom demeanor constituted an obstruction to the administration of justice punishable under 18 U.S.C. § 401.

Necessity of Warning

Appellant contends that the court committed reversible error in failing to warn appellant that he would be held in criminal contempt if he refused to step forward. We cannot agree. Under certain circumstances, this court and other courts have determined that a warning is necessary before a court may impose criminal penalties, Yates v. United States, 227 F.2d 848, 851 (9 Cir. 1955) and Daschbach v. United States, 254 F.2d 687, 692 (9 Cir. 1958), or deprive a person of his constitutional rights, Illinois v. Allen, 397 U.S. 337, 350, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). Those cases, however, are factually distinguishable. ³ We have not been cited nor have we found a case which, under circumstances like these, would require a court to give a warning before citing a person for criminal contempt. Although we consider that a warning would have been appropriate, ⁴ we cannot hold that the failure to warn constituted reversible error.

Applicability of Rule 42(a)

Rule 42 of the Federal Rules of Criminal Procedure prescribe the procedures to be followed in dealing with criminal contempt. Subdivision (a) provides for summary disposition ⁵ and subdivision (b) for disposition upon notice and hearing. ⁶ Here the district court summarily punished appellant pursuant to 42(a).

42(b) provides the 'normal procedure' for adjudicating contempt. Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). Because the Due Process requirements of notice and hearing need not be observed in punishing contempt under 42(a), its application is 'narrowly limited'. In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). ⁷ In Harris, supra, 382 U.S. at 164, 86 S.Ct. at 354, the Court stated:

'Rule 42(a) was reserved 'for exceptional circumstances,' Brown v. United States, 359 U.S. 41, 54, 79 S.Ct. 539, 548, (3 L.Ed.2d 609) (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of 'the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,' Ibid., and in light of the wording of the Rule. Summary contempt is for 'misbehavior' (Ex parte Terry, 128 U.S. 289, 314, 9 S.Ct. 77, 83, 32 L.Ed. 405) in the 'actual presence of the Court.' Then speedy punishment may be necessary in order to achieve 'summary vindication of the court's dignity and authority' Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767.'

The Court has consistently stressed that the 'need for immediate penal vindication of the dignity of the court' is the basis for Rule 42(a). Cooke, supra at 536, 45 S.Ct. at 395. ⁸ Even though the 'misconduct (occurs) in open court, in the presence of the judge, (and) disturbs the court's business' and 'all of the essential elements of the misconduct are under the eye of the court' and 'are actually observed by the court', it must appear also that 'immediate punishment is essential to prevent 'demoralization of the court's authority * * * before the public." In re Oliver, supra, 333 U.S. at 275, 68 S.Ct. at 509.

While the appellant's refusal to step forward when ordered by the judge may have been contemptuous, it does not appear that it was necessary for the court to order immediate incarceration. The Supreme Court has consistently held that 'the limits of the power to punish for contempt are '(t)he least possible power adequate to the end proposed." Harris, supra, 382 U.S. at 165, 86 S.Ct. at 354. Appellant's misbehavior occurred after court had been recessed and while the judge was leaving the bench. Less drastic alternatives were available. If the judge deemed punishment by imprisonment necessary, the procedure outlined in Rule 42(b) should have been followed. ⁹

Appellee contends that this case is controlled by Comstock v....