U.S. v. Baldwin, 84-5296

• Citation: 770 F.2d 1550
• Decision Date: 17 September 1985
• Docket Number: No. 84-5296,84-5296
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Scott BALDWIN, et al., Defendants. In re Steven JACKSON, Esquire, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1550

770 F.2d 1550

UNITED STATES of America, Plaintiff-Appellee, v. Jonathan Scott BALDWIN, et al., Defendants.

In re Steven JACKSON, Esquire, Appellant.

No. 84-5296.

United States Court of Appeals, Eleventh Circuit.

Sept. 17, 1985.

Bruce Rogow, Ft. Lauderdale, Fla., for appellant.

Jon May, Sonia Escobio O'Donnell, Linda Collins-Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY and KRAVITCH, Circuit Judges, and THOMAS ^*, District Judge.

KRAVITCH, Circuit Judge:

Appellant, Steven F. Jackson, an attorney, appeals a judgment of criminal contempt, 18 U.S.C. Sec. 401(3), ¹ imposed upon him pursuant to Federal Rule of Criminal Procedure 42(a), for stating that he would not follow a court order, and then failing to appear to represent his client as ordered by the court. 592 F.Supp. 149 (S.D.Fla.1984). Finding that the court below properly found appellant in criminal contempt, we affirm.

I. BACKGROUND

Appellant was the lawyer for Howard Jones, one of nine codefendants in a federal criminal case. On February 27, 1984, the district court held a calendar call in order to set the trial date. The parties estimated that the trial would last three to four weeks. At that time, the court inquired as to the dates in April or May when the lawyers for the various defendants would be unavailable. Jackson responded: "I don't have any vacation planned, but I do have a trial in New York, first week of April. After that, I have no objections to any of the time in those two months." The judge set the trial to begin on Monday, April 16, 1984.

On April 12, 1984, the Thursday preceding the Monday on which the trial was to begin, Jackson's brother, Jeffrey Jackson, attended a pretrial hearing in his brother's place. Jeffrey Jackson orally advised the district court that Steven Jackson was ready for trial, but that he would not be available for trial Tuesday and Wednesday of the next week and Monday and Tuesday of the following week because he would be observing Passover, a Jewish holiday. The judge responded that he had never before received such a request, but that he always recessed court by sundown so that everyone could be home in time for Passover. Jeffrey Jackson said that he would so advise his brother.

On the following Monday, the day the trial was scheduled to begin, Jackson filed a written motion to stay all proceedings on that Tuesday and Wednesday and the following Monday and Tuesday. This motion was based on the free exercise clause of the first amendment. Jackson told the court that he was an observant Jew, that these days were the first and last two days of Passover which were equal in station to the highest of the Jewish holy days, and that it had been his practice since childhood to follow Jewish law that no work be done on those days. Jackson further stated that if the trial proceeded in his absence his client would be unduly prejudiced. The court denied Jackson's motion, but stated that the court would adjourn early for Passover. The court explained that with a nine-defendant, three to four week trial, the case could not be rescheduled at that point in time. ² In response Jackson stated: "I just want to inform the court that with due deference to your ruling, I will not be here tomorrow and Wednesday or Monday and Tuesday of next week." The court warned Jackson that it would consider whether to send a marshal to bring him.

Following the lunch recess that day, the court asked Jackson's client, Jones, whether he would object to one of the other lawyers filling in on the days that Jackson was absent. Jones stated that he had no objection. However, after Jones conferred with Jackson, Jackson informed the court that he could not adequately represent Jones unless he was present throughout the proceedings, and that Jones would object to another lawyer filling in. The court then suggested that Jackson could get a transcript of the missed testimony. Jackson declined this offer. The other defendants' lawyers explored the possibility of one of them representing Jones. Again, Jackson found this alternative unacceptable. The court also offered to recess at four p.m. or anytime during the day that Jackson had to attend religious services. Jackson maintained that he could not work at all during these days. ³ The court specifically ordered Jackson to be at court the following day or he would be subject to contempt and criminal sanctions.

At around four o'clock that afternoon, after the jury had been partially selected, the court recessed so that any lawyers or jurors who wished to do so could return home for Passover. The court again told Jackson that it would not grant a stay given the size and expense of the trial. The court urged Jackson to appear and stated that it would consider a failure to attend in direct defiance of a court order. Jackson again advised the court that he would not attend the trial the next day:

JACKSON: With all due respect, Your Honor, I answer to a higher authority than this court in this matter and I will not be here tomorrow.

JUDGE: Well, act at your peril.

The next morning, the trial resumed and the jury selection continued. Jackson did not appear. The court found that Jackson had committed contempt twice on April 16 when he stated on two occasions that he would not obey the court's order to appear; the court also found that the contempt had been ratified that morning when Jackson failed to appear. The court stated that it would issue a certificate of contempt as soon as it was typed and would then give Jackson an opportunity to be heard. Next, the court addressed the problem of Jones' representation. After some delay, the court was able to find a lawyer who would agree to represent Jones at that late date. That evening, the court issued a certificate of contempt finding that Jackson had committed contempt twice on April 16 and that this contempt had continued on April 17. The certificate stated that the court did not doubt Jackson's representation of his religious practices and concluded:

Despite what attorney Jackson thinks about this matter, it is not a case involving Mr. Jackson's exercising of his religious practices. It is a case of an officer of the court who failed to advise the court in ample time of his scheduled conflicts, especially after having assured the court when the trial date was selected that he had none in April or May. His defiance of the court's order denying his motion for stay constitutes contempt.

The order also set a hearing on the matter for April 19.

Jackson appeared on April 19, represented by counsel. The judge stated that he had filed the certificate of contempt, but would afford Jackson the opportunity to explain his conduct at that time. Jackson's counsel argued that the court should vacate its certificate of contempt because the court had not afforded Jackson an opportunity to be heard prior to finding him in contempt as required by Federal Rule of Criminal Procedure 42(b), and because Jackson lacked the requisite criminal intent. In addition, Jackson's lawyer proffered evidence on the importance of the first and last two days of Passover, but was not permitted to introduce the testimony of two rabbis on this issue. The court found that such evidence was not relevant, as the court did not question Jackson's religious practice or his devotion to his religion.

Jackson testified next. He admitted that Passover occurred in March or April of each year. He further admitted that "perhaps" he had been "tarry in informing the court" that he could not be present during Passover, but stated that he had never before had a request for a continuance due to a religious holiday denied. The court stated that had Jackson filed the motion when he should have, it would have been easy to rearrange the court's calendar, but that his failure to do so fell pitifully short of his responsibility as a lawyer. The court then fined Jackson $1,000.

II. SUMMARY CONTEMPT

The court chose to punish Jackson's actions summarily, pursuant to Federal Rule of Criminal Procedure 42(a) ⁴ rather than under Federal Rule of Criminal Procedure 42(b). ⁵ We recently described the difference between summary and nonsummary contempt in Matter of Heathcock, 696 F.2d 1362 (11th Cir.1983):

Historically, there are two types of criminal contempt: direct and indirect. Direct contempt is committed in the "actual presence of the court." See Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941); United States v. Marshall, 451 F.2d 372 (9th Cir.1971). "Indirect contempt is contumacious behavior occurring beyond the eye or hearing of the court and for knowledge of which the court must depend upon the testimony of third parties or the confession of the contemnor." United States v. Marshall, 451 F.2d at 373. Both contempt classifications under Fed.R.Crim.P. 42(a) and (b) require two separate procedures for trying and punishing contumacious behavior. Direct contempt provides for summary disposition; indirect contempt requires notice and hearing. United States v. Willett, 432 F.2d 202, 204 (4th Cir.1970); 8B Moore's Federal Practice p 42.04 (2d ed. 1981).

Id. at 1365 (footnote omitted). "The power to summarily hold an individual in direct criminal contempt operates to vindicate the authority of the court and stands as a bulwark against disorder and disruption in the courtroom." Sandstrom v. Butterworth, 738 F.2d 1200, 1208-09 (11th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 787, 83 L.Ed.2d 781 (1985) (footnote omitted). There are two justifications for summary contempt: "First, because in a direct contempt the judge has observed the contemptuous act, there is 'no need of evidence or assistance of counsel before punishment.' Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925). Second, the maintenance of courtroom decorum sometimes necessitates...