U.S.A. v. Dowell
| Citation | 257 F.3d 694 |
| Decision Date | 17 July 2001 |
| Docket Number | No. 01-1298,01-1298 |
| Parties | (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Milton M. Dowell, Defendant. Appeal Of: Donald V. Morano |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Appeal from the United States District Court for the Southern District of Illinois. No. 00-cr-30093-MJR--Michael J. Reagan, Judge. [Copyrighted Material Omitted] Before Fairchild, Bauer, and Posner, Circuit Judges.
One week after the district court denied attorney Donald V. Morano's motion to withdraw from his continuing representation of his client, Morano did not appear in court for his client's criminal trial. As a result of his absence, the district court found Morano in civil contempt and ordered him to reimburse the court for costs incurred from his failure to appear. Morano appeals and we affirm.
On May 17, 2000, a federal grand jury returned an indictment charging Milton M. Dowell with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1). Six days later, William L. Gavras entered his appearance as counsel for Dowell. On July 24, 2000, Morano entered his appearance as co-counsel. As the case progressed, Morano filed motions on Dowell's behalf, participated in discovery, and attended the pretrial conference.
On December 5, 2000, one week before trial, Morano moved to withdraw because Dowell could not afford to pay for an expert witness whom Morano deemed crucial to his defense. On December 11, 2000, the district court denied the motion. That same day, Judge Murphy pushed the trial back one week until December 19, 2000. Because the new trial date conflicted with his schedule, Judge Murphy reassigned the case to Judge Reagan. The next day, the district court issued a "Notice of Hearing" indicating the trial date and containing "NOTE: [A]ttorneys Gavras, Morano, and [Assistant United States Attorney] Daly are to appear at 8:00 AM on 12/19/00." (App. at Z-3.) On December 18, 2000, Judge Reagan conducted a telephone conference call with Gavras and Daly but not Morano. After the conference, Gavras informed Morano that the court would hold Morano in civil contempt of court should he fail to appear at trial the next morning.
On the morning of the 19th, Gavras and Daly appeared in court, but Morano did not. The district court asked Dowell whether he wished to proceed without Morano. Dowell responded that he wanted Morano to be present. The district court consequently dismissed the venire and continued the trial until January 9, 2001.
The next day the district court issued an "Order to Show Cause Why Donald V. Morano Should Not be Held in Civil Contempt of Court" and scheduled a hearing for January 3, 2001. In the order, the court noted that despite harsh weather conditions, 36 prospective jurors had appeared in court at an average cost of $69 per person, or $2,484 total. The district court compelled Morano
to show cause why he ought not be held in contempt of this Court for failure to abide by the Court's lawful writ, process, order, rule, decree, or command; and (a) fined to reimburse the United States Government for the cost of the jurors' service and mileage; (b) imprisoned and fined until he complies with the Court's lawful writ, process, order, rule, decree, or command (i.e., to appear and defend his client, Milton M. Dowell, at trial); and (c) fined to reimburse the United States Government for the salaries, costs, and expenses of the United States Attorney's office for preparing for the cancelled trial of December 19, 2000.
(Id. at Z-7.) Pursuant to the district court's request, the U.S. Attorney's office submitted costs totaling $79.86.
At the show-cause hearing, Morano argued that the district court's Notice of Hearing was not an "order" requiring him to appear at trial. Morano further argued that he and Gavras had agreed that only Gavras would appear, and that the district court lacked authority to order his appearance because he was merely Dowell's secondary counsel. Finally, Morano contended that the district court's proposed sanction could be imposed only pursuant to the court's criminal contempt power, which would require a separate prosecution. The district court rejected these arguments and held Morano in civil contempt under 18 U.S.C. sec. 401(3). See United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d 998, 1000 (8th Cir. 1970) (). On January 5, 2001, the district court ordered Morano to pay $2,563.86 to the clerk of the court within 21 days "to reimburse the United States Government" for its costs. (App. at Z-15.) This total included $2,484 for the jurors' service and mileage, $15.36 for the government's transportation, $5 for Dowell's lunch, and $59.50 for serving the show cause order. The court also ordered Morano to represent Dowell at trial and imposed a prospective, conditional fine of $5,000 for every day that he failed to appear.
Dowell's trial commenced as scheduled on January 9, 2001, with Morano in attendance as co-counsel. After a three- day trial, the jury returned a verdict of not guilty on both counts. Because Morano had carried out the court's directive by representing Dowell at trial, the court on January 11 issued an order noting that Morano had purged himself of contempt because he appeared at trial. Nevertheless, the district court iterated that the original fine still had to be paid by January 24, 2001. On January 19, Morano moved to reconsider. The district court denied the motion on January 25, but issued an order extending the time for Morano to pay the fine until January 23, 2002. Morano filed a notice of appeal on February 5, 2001.
Before addressing the merits of Morano's appeal, we must determine whether we may properly exercise jurisdiction over this case. The government says "no" because Morano's notice of appeal states that he is appealing the district court's January 5 contempt order, which was later modified twice by the district court. The government argues that we lack jurisdiction because the January 5 order was not final and thus not appealable under 28 U.S.C. sec. 1291. Because nonfinal decisions become appealable after a final decision in a case has been entered, Head v. Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 800 (7th Cir. 2000), what the government apparently contests is the validity of Morano's notice of appeal, which designates the January 5 contempt order rather than the revised January 25 order as the order being appealed.
The government's argument is misguided. First, the district court's January 5 contempt order was immediately appealable because nonparties to litigation such as Morano need not wait for final judgment in the underlying case before appealing a civil contempt finding. See In re Woosley, 855 F.2d 687, 688 (10th Cir. 1988); see also United States v. Accetturo, 842 F.2d 1408, 1412 (3d Cir. 1988) (); In re Fish & Neave, 519 F.2d 116 (8th Cir. 1975) ().
Moreover, even if the January 5 order was modified before it became final and appealable, it must have been clear to everyone that it contains the findings and conclusions which Morano would challenge on appeal. He had no reason to appeal the later orders of January 11 and 25 because they were favorable to him, save the denial of his request for reconsideration. To be safe, perhaps his notice of appeal should have referred to all three orders, but nevertheless we conclude that Morano met the requirements of Rule 3 of the Federal Rules of Appellate Procedure. "Compliance with the notice of appeal requirement of Rule 3 . . . is a prerequisite to appellate review." Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 994 (7th Cir. 2000). Rule 3 requires a party to (1) specify the party taking the appeal, (2) designate the order appealed from, and (3) name the court to which the appeal is taken. Id. Rule 3's requirements are to be construed liberally. Smith v. Barry, 502 U.S. 244, 248 (1992). Mere technicalities should not stand in the way of our consideration of the merits, and we will find a notice of appeal sufficient if it is the functional equivalent of what Rule 3 requires. Ortiz v. John O. Butler Co., 94 F.3d 1121, 1125 (7th Cir. 1996) (quotations and citations omitted). Contrary to the government's argument, we have repeatedly held that an error in designating the judgment will not result in a loss of appeal if the intent to appeal from the contested judgment may be inferred from the notice and if the appellee has not been misled by the defect. Id.; Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 625 (7th Cir. 1993); Cardoza v. Commodity Futures Trading Comm'n, 768 F.2d 1542, 1546 (7th Cir. 1985). Here, there is no ambiguity regarding the nature of Morano's appeal; he is clearly attacking the January 5 finding of civil contempt and the fine imposed. Moreover, the government does not argue that it was misled by the defect--indeed, it devotes 10 pages of its brief to defending the propriety of the sanction. We conclude that Morano has satisfied Rule 3's requirements, and we have subject matter jurisdiction over his appeal.
On appeal Morano challenges the civil contempt fine imposed by the district court. We will not reverse a district court's civil contempt ruling unless it is an abuse of discretion. United States v. Hoover, 175 F.3d 564, 570 (7th Cir. 1999). "A court's civil contempt power rests in its inherent limited authority to enforce compliance with court orders and ensure judicial proceedings are conducted in an orderly...
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