U.S. v. Accetturo

• Decision Date: 21 March 1988
• Docket Number: Nos. 88-5155,88-5159 and 88-5160,s. 88-5155
• Citation: 842 F.2d 1408
• Parties: UNITED STATES of America v. Anthony ACCETTURO et al. Appeal of Matthew P. BOYLAN and Lowenstein, Sandler, Kohl, Fisher & Boylan. Douglas L. WILLIAMS, Esq., Petitioner, v. Hon. Harold D. ACKERMAN, United States District Judge In and For the District of New Jersey, Respondent. UNITED STATES of America v. Anthony ACCETTURO. Appeal of Douglas L. WILLIAMS.
• Court: U.S. Court of Appeals — Third Circuit

Page 1408

842 F.2d 1408

UNITED STATES of America v. Anthony ACCETTURO et al.

Appeal of Matthew P. BOYLAN and Lowenstein, Sandler, Kohl,

Fisher & Boylan.

Douglas L. WILLIAMS, Esq., Petitioner, v. Hon. Harold D. ACKERMAN, United States District Judge In and For the District of New Jersey, Respondent.

UNITED STATES of America v. Anthony ACCETTURO.

Appeal of Douglas L. WILLIAMS.

Nos. 88-5155, 88-5159 and 88-5160.

United States Court of Appeals Third Circuit.

Argued March 8, 1988.

Decided March 9, 1988.

Rehearing and Rehearing In Banc

Denied March 21, 1988.

Douglas L. Williams (argued), Miami, Fla., pro se.

James D. Crawford (argued), Philadelphia, Pa., for amicus, Anthony Accetturo.

Samuel A. Alito, Jr. (argued), U.S. Atty., Joseph G. Braunreuther, Asst. U.S. Atty., Barbara Miller, V. Grady O'Malley, Sp. Attys., U.S. Dept. of Justice, Newark, N.J., for appellee.

Theodore V. Wells, Jr. (argued), Robert L. Krakower, Lowenstein, Sandler, Kohl, Fisher & Boylan, Roseland, N.J., for appellants, Lowenstein, Sandler, Kohl, Fisher & Boylan, in No. 88-5155.

Alan L. Zegas, West Orange, N.J., for appellant, Matthew Boylan, in No. 88-5155.

Before SLOVITER, MANSMANN and SCIRICA, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In one of the two appeals before us, Matthew P. Boylan, a New Jersey attorney, and the law firm of Lowenstein, Sandler, Kohl, Fisher & Boylan (Lowenstein),

in which Boylan is a partner (hereafter jointly referred to as "Boylan"), ¹ appeal from the order of the United States District Court for the District of New Jersey, entered February 29, 1988, holding them in contempt for refusing to assume the representation of defendant Anthony Accetturo in an ongoing criminal trial and imposing civil sanctions upon them for refusing to do so. In the second appeal, Douglas L. Williams, a Florida attorney, appeals from a similar order as to him entered March 1, 1988, holding him in contempt and imposing similar sanctions. Williams also filed an "Alternative Emergency Petition(s) for Writ(s) of Prohibition, Mandamus and Commonlaw Certiorari" arising out of the same matter. We expedited the appeals and heard oral argument on the merits as soon as the government's response was received. ²

I. The Facts

Defendant Anthony Accetturo was indicted by a grand jury of the United States District Court for the District of New Jersey, along with twenty-five other co-defendants, in August 1985 for, among other things, conspiring to violate the Racketeer Influenced Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(d) (1982). On September 13, 1985, attorney Milton Ferrell, Jr. (Ferrell, Jr.) filed a notice of appearance for defendant Anthony Accetturo. On the same day, appellant Matthew Boylan also filed a notice of appearance which stated, "[y]ou are hereby notified that I appear as Local Counsel to Milton Ferrell, trial counsel, the defendant in the above-entitled matter." App. at 2. Simultaneously with his notice of appearance, Boylan sent a letter to Judge Harold A. Ackerman, to whom the case was assigned, which stated in part:

Please be advised that we have been retained by Anthony Accetturo to serve as local counsel in conjunction with Milton M. Ferrell, Jr., chief counsel and trial counsel for the defendant, Accetturo, in the above captioned matter. We intend to be available to coordinate all pending motions with other New Jersey counsel and to take the necessary steps to protect the interest of Mr. Accetturo up to the time when this matter goes to trial, at which point Mr. Ferrell will conduct the trial of this matter.

App. at 5.

During the fourteen months of pre-trial preparation, Ferrell, Jr. and/or Boylan made numerous motions on behalf of Accetturo related to procedural or substantive matters, including a motion to suppress. On November 16, 1986, the day the trial of Accetturo and more than twenty co-defendants commenced, Boylan moved for the admission pro hac vice of Milton Ferrell, Sr. (Ferrell, Sr.), the father of Ferrell, Jr., to serve as trial counsel for Accetturo. No other counsel appeared for Accetturo during the fifteen month period the proceeding has stretched on, which is still in the midst of the prosecution's presentation of its case.

On February 16, 1988, when the trial resumed following a four-day holiday weekend, Accetturo notified the court that Ferrell, Sr. had taken ill and was diagnosed as having advanced terminal cancer requiring his immediate hospitalization. Accetturo thereafter filed a severance motion which was argued by special counsel on February 24, 1988. Counsel explained that Accetturo's objection was not to either Ferrell, Jr. or Boylan as his counsel, and that Accetturo "will take any qualified counsel who has an adequate time, given the context of this case, to prepare a defense." App. at 36. It was, however, Accetturo's position that no counsel "could step into this case within a reasonable period of time and ... give the adequate assistance of Boylan filed an affidavit in which he averred that he spent 43.4 hours on Accetturo's case and that an associate of his spent 18.5 hours during the pretrial period; that he had no substantive involvement; that he provided research and advice on New Jersey law; that he met with Accetturo and Ferrell, Jr. before the arraignment; that he appeared at Accetturo's bail hearing and participated in his appeal to this court from the denial of bail; but that he "played no role whatsoever in the defense of the case," and that his participation had ceased with the commencement of the trial, except for his receipt of some papers served on him for the first month and a half of the trial. App. at 7-9. Boylan reiterated these facts before the court at the hearing on February 24, 1988. App. at 75-76.

                counsel that the constitution requires."    Id. at 37
                

On the following day, February 25, 1988, Douglas Williams appeared before the court, having flown in from Miami at the court's request. Williams stated that Ferrell, Jr. and Ferrell, Sr. had not practiced law together since 1982; that Ferrell, Jr. and Williams became partners in July 1987; that he had never seen Accetturo; that he had commitments in other criminal cases, some of which he specified, scheduled to begin in March or April; and that he has no "familiarity with any aspect of these proceedings whatsoever." App. at 114. Counsel for Williams argued that the district court had no power to require Williams to represent Accetturo under these circumstances.

The court denied Accetturo's motion for severance. The court concluded "that the day-to-day conduct of the defense during the 15 months of trial owed much to [Ferrell, Jr.'s] conduct of the defense during the 14 months of pretrial." App. at 155. Nonetheless, the court did not order Ferrell, Jr. to New Jersey at this time so that he could remain with his father, but ordered him to resume his representation of Accetturo "as soon as he is available." App. at 21, 155. The court ordered that Boylan, as "counsel of record for defendant Accetturo in this case," immediately assume the position of "lead" defense counsel for Accetturo and that Boylan's firm, Lowenstein, assist him in that defense. The court further ordered Williams to assist Boylan as counsel for Accetturo until relieved by written order of the court; that Williams "shall assume said responsibility immediately;" that Williams "shall be the liaison of Mr. Ferrell, Sr. and Mr. Ferrell, Jr. with the Court and with counsel for all other parties in the above-captioned case." App. at 20-21.

The court gave the attorneys twenty-four days to prepare to defend Accetturo and set March 21, 1988 as the date for the resumption of the trial. The court denied Boylan's motion for a stay so that he could appeal. The court ordered the government to cooperate fully with defense counsel.

On February 26, 1988, Boylan and a representative of the Lowenstein firm appeared before the court to notify it that neither would comply with the court's order to take up the representation of Accetturo and to request a reconsideration of the court's order. The motion for reconsideration was denied. The government then moved to have Boylan and the Lowenstein firm held in civil contempt. On February 29, 1988, the court ordered that both be held in contempt of the court's order and imposed fines of $2,500 per day on Mr. Boylan and $10,000 per day on the Lowenstein firm, both to commence immediately. Boylan appealed, and this court stayed that order on the same day.

On March 1, 1988, Williams appeared before the court and notified it that he also would not comply with the court's order to undertake the representation of Accetturo. The court then found Williams in contempt and imposed penalties of $2,500 a day, although the enforcement of the fine was stayed. Williams filed, inter alia, a petition for a writ of mandamus, and at his request this court granted a stay of the order of contempt on March 3, 1988. Williams thereafter filed a notice of appeal from the contempt order.

II.

It is first necessary for this court to set forth precisely what issues are properly before us.

An order holding a non-party in civil contempt is immediately appealable. See United States v. Rogers Transportation, Inc., 793 F.2d 557, 557 (3d Cir.1986); In re Grand Jury, 836 F.2d 150, 150 (3d Cir.1987). See generally 9 J. Moore & B. Ward, Moore's Federal Practice para. 110.13(4) (1987). The contempt orders here, intended to coerce the attorneys into compliance with the court's prior orders, are archetypically civil. See McDonald's Corp. v. Victory Investments, 727 F.2d 82, 86-87 (3d Cir.1984). Therefore, we have jurisdiction over the appeals of Boylan and Williams.

These appeals raise two questions: (1) whether the district court has the power to require an attorney to undertake representation of a criminal defendant in the middle of a criminal trial, see United States v. Koblitz, 803 F.2d 1523, 1527 (11th Cir.1986) (r...