U.S. v. Burstyn, Nos. 87-5311

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore VANCE and COX, Circuit Judges, and DYER; PER CURIAM
Citation878 F.2d 1322
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Samuel I. BURSTYN, Defendant-Appellant.
Docket NumberNos. 87-5311,88-5068
Decision Date31 July 1989

Page 1322

878 F.2d 1322
UNITED STATES of America, Plaintiff-Appellee,
v.
Samuel I. BURSTYN, Defendant-Appellant.
Nos. 87-5311, 88-5068.
United States Court of Appeals,
Eleventh Circuit.
July 31, 1989.

Page 1323

G. Richard Strafer, Jay Hogan, Miami, Fla., G. Richard Strafer, Quinon & Strafer, P.A., Coral Gables, Fla., for defendant-appellant.

Harriett Galvin, Thomas A. Blair, Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Atty., Miami, Fla., for U.S. in No. 87-5311.

Dexter W. Lehtinen, U.S. Atty., Lynne W. Lamprecht, Linda C. Hertz, Asst. U.S. Atty., Miami, Fla., for U.S. in No. 88-5068.

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

Before VANCE and COX, Circuit Judges, and DYER, Senior Circuit Judge.

PER CURIAM:

Samuel Burstyn, an attorney, appeals from an order finding him in criminal contempt for failing to appear in court on the first day of trial of his client, Fernando Miguel Nunez. We affirm.

I.

This is the second appeal from an order holding Burstyn in criminal contempt. The first appeal involved a challenge to a district court's order holding Burstyn in summary contempt pursuant to Fed.R.Crim.P. 42(a). This court vacated Burstyn's conviction on procedural grounds, concluding that the acts giving rise to the holding of contempt would not support a summary contempt conviction, and remanded the case for proceedings consistent with Fed.R.Crim.P. 42(b). 1 This court's decision, which contains a detailed description of the facts underlying the finding of contempt, is reported at 801 F.2d 1260. We need not recite those facts again, except as necessary to the disposition of the specific issues raised on this appeal.

Following Burstyn's initial appeal, the case was remanded for Rule 42(b) proceedings. The district court issued a show cause order, setting a time and place for hearing, requesting that the United States Attorney prosecute the proceeding, and setting forth a brief statement of the facts constituting criminal contempt and a statement concerning possible punishment. Prior to the hearing, Burstyn filed motions to disqualify the assigned prosecutor and the district judge, and a motion to dismiss the criminal contempt proceedings. All were denied. Following a hearing, the district court found Burstyn in criminal contempt and sentenced him to a fifteen day term of imprisonment. The court suspended his

Page 1324

sentence and placed him on probation for a period of two years, with a special condition that he complete one hundred twenty hours of community service during that period. Burstyn appeals his conviction.

II.

Burstyn raises one major issue on appeal: 2 He contends that there was insufficient evidence to support the district court's finding of contempt. In reviewing the sufficiency of the evidence in support of a conviction in a criminal case following a non-jury trial, we must determine whether the evidence, construed in the light most favorable to the government, would permit the trier of fact to find the defendant guilty beyond a reasonable doubt. United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987) (citing Gordon v. United States, 438 F.2d 858, 867 (5th Cir.1971)). The conviction will be sustained if there is substantial evidence to support it. Turner, 812 F.2d at 1563.

Section 401, 18 U.S.C. (1982), grants federal courts the discretionary power to punish, by fine or imprisonment, contempt of their authority. To support a conviction, the government must prove: (1) that the court entered a lawful order of reasonable specificity; (2) the order was violated; and, (3) the violation was willful. In re McDonald, 819 F.2d 1020, 1024 (11th Cir.1987) (citing Turner, 812 F.2d at 1563). Whether an order is reasonably specific is a question of fact to be resolved with reference to the context in which the order is entered and the audience to which it is addressed. Turner, 812 F.2d at 1565. Furthermore, "[i]n criminal contempt, willfulness 'means a deliberate or intended violation, as distinguished from an accidental, inadvertent, or negligent violation of an order.' " McDonald, 819 F.2d at 1024 (quoting United States v. Baldwin, 770 F.2d 1550, 1558 (11th Cir.1985)). Under this standard of intent, behavior amounting to a reckless disregard for the administration of justice is sufficient to support a conviction when violative of a reasonably specific court order. See DeVaughn v. District of Columbia, 628 F.2d 205, 207 (D.C.Cir.1980); see also Baldwin, 770 F.2d at 1557-58 (essential element of criminal contempt is an intent, either specific or general, to commit it) (citing Sykes v. United...

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31 practice notes
  • United States v. Blechman, No. 10-40095-01/02-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • June 22, 2011
    ...specific order, (2) violation of the order, and (3) the willful intent to violate the order." (citing United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989))); United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980) ("Criminal contempt is established when there is a clear and defin......
  • IN RE AIRCRAFT CRASH LIT. FREDERICK, MD., No. C-3-82-195.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 21, 1990
    ...if the Air Force knew of the defect independently of anything the Defendants did or did not do, this element is established. Harduvel, 878 F.2d at 1322. B. Affidavits of Colonel C. Russell From July, 1954, through July, 1959, Colonel C. Russell Webb was Development Command Chief of the Air ......
  • U.S. v. Voss, Nos. 94-1320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 1996
    ...specific order, (2) violation of the order, and (3) the willful intent to violate the order." (citing United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989))); United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980) ("Criminal contempt is established when there is a clear and defin......
  • U.S. v. Brown, No. 03-15413.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 8, 2005
    ...to the government, would permit the trier of fact to find the defendant guilty beyond a reasonable doubt." United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989) (per curiam). "It is not our function to make credibility choices or to pass upon the weight of the evidence." United Stat......
  • Request a trial to view additional results
31 cases
  • United States v. Blechman, No. 10-40095-01/02-SAC
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • June 22, 2011
    ...specific order, (2) violation of the order, and (3) the willful intent to violate the order." (citing United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989))); United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980) ("Criminal contempt is established when there is a clear and defin......
  • IN RE AIRCRAFT CRASH LIT. FREDERICK, MD., No. C-3-82-195.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 21, 1990
    ...if the Air Force knew of the defect independently of anything the Defendants did or did not do, this element is established. Harduvel, 878 F.2d at 1322. B. Affidavits of Colonel C. Russell From July, 1954, through July, 1959, Colonel C. Russell Webb was Development Command Chief of the Air ......
  • U.S. v. Voss, Nos. 94-1320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 2, 1996
    ...specific order, (2) violation of the order, and (3) the willful intent to violate the order." (citing United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989))); United States v. Powers, 629 F.2d 619, 627 (9th Cir.1980) ("Criminal contempt is established when there is a clear and defin......
  • U.S. v. Brown, No. 03-15413.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 8, 2005
    ...to the government, would permit the trier of fact to find the defendant guilty beyond a reasonable doubt." United States v. Burstyn, 878 F.2d 1322, 1324 (11th Cir.1989) (per curiam). "It is not our function to make credibility choices or to pass upon the weight of the evidence." United Stat......
  • Request a trial to view additional results

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