U.S. v. Eichhorst

• Citation: 544 F.2d 1383
• Decision Date: 12 November 1976
• Docket Number: No. 76-1513,76-1513
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dawn EICHHORST et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1383

544 F.2d 1383

UNITED STATES of America, Plaintiff-Appellee, v. Dawn EICHHORST et al., Defendants-Appellants.

No. 76-1513.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 1976.

Decided Nov. 12, 1976.

Stephen M. Glynn, Milwaukee, Wis., for defendants-appellants.

William J. Mulligan, U. S. Atty., Charles N. Clevert, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, PELL, Circuit Judge, and WOLLENBERG, Senior District Judge. ^*

PELL, Circuit Judge.

On March 21, 1975, the district court entered an injunctive order against Local 248, Meat Cutters & Allied Food Workers, its officers, representatives, agents, and all members and persons acting in concert with it, enjoining, inter alia, specified picket line misconduct. Squillacote v. Local 248, Meat & Allied Food Workers, 390 F.Supp. 1180 (E.D.Wis.1975). This court subsequently denied appellate relief. 534 F.2d 735 (7th Cir. 1976). In the instant proceeding, defendants-appellants were found, pursuant to the authority of 18 U.S.C. § 401(3), ¹ to have been in criminal contempt of that order by the conduct of appellant Eichhorst in scratching the automobile of a person doing business with the struck company on April 16, 1975, and the assault by all four appellants of an employee of the company on April 18, 1975. Appellants did not contest the charges; and the district court, on May 21, 1976, found each of them to be in contempt and imposed a sentence on each of one and one-half days in the custody of the Attorney General of the United States. Each appellant has since served his or her sentence.

This appeal is based on the district court's alleged error in denying appellants' February 16, 1976, motion to dismiss the proceedings. To understand the nature of appellants' arguments, it is necessary to review the procedural history of this contempt proceeding. On May 9, 1975, the Regional Director of the National Labor Relations Board filed a petition advising the district court of violations of the injunctive order and seeking findings of civil and criminal contempt against the striking union and its officers, agents, employees, and members. Union counsel requested that any criminal charges brought come from a grand jury, and the district court ultimately acceded to this request. Recognizing that such a procedure was not required by due process, the district court nonetheless reasoned that it was free to exceed the minimal due process requirements and that it would promote the ends of justice to do so in this case. ² In January 1976 the grand jury returned a two count indictment, and three days later the district court sent a copy thereof to each appellant, together with a notice ordering each of them to show cause why he or she should not be cited with and sanctioned for contempt of the March 21, 1975, order.

With the relatively rare exception, not germane here, of contempts committed in the presence of the court, Rule 42(b) of the Federal Rules of Criminal Procedure "prescribes the 'procedural regularity' for all (criminal) contempts in the federal regime." Harris v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965) (footnote omitted). In pertinent part, that rule provides:

A criminal contempt . . . shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest.

As is plain from its language, Rule 42(b) does not require, and makes no provision for, initiation of proceedings by a grand jury indictment. Appellants do not dispute that these proceedings could have been initiated pursuant to Rule 42(b), and that if such had been done, the tests governing the sufficiency of notice under that rule would apply. But they argue that because an indictment was used here, the standards governing indictment sufficiency must instead be applied, and that the indictments here, which charged that appellants "did knowingly and intentionally (do certain acts) contrary to the March 21, 1975 Injunctive Order," failed to allege with particularity the necessary element of knowledge of the district court's order and should have been dismissed.

We have no doubt, nor does the Government, that willfulness (and specifically knowledge of the order appellants are charged with disobeying or resisting) is a necessary element of a contempt punishable under 18 U.S.C. § 401(3). United States v. Greyhound Corporation, 508 F.2d 529, 531-32 (7th Cir. 1974); cf. Pettibone v. United States, 148 U.S. 197, 204-05, 13 S.Ct. 542, 37 L.Ed. 419 (1893). But to say that much serves only as a preliminary step in determining the appropriate standard by which to judge the charge made and whether that standard was met.

Appellants recognize that if the notice requirements of Rule 42(b) govern this case, then "the particularity required of an indictment is not necessary . . . and technical accuracy is not required." United States ex rel. Bowles v. Seidmon, 154 F.2d 228, 230 (7th Cir. 1946); accord, Bullock v. United States, 265 F.2d 683, 691-92 (6th Cir. 1959), cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260. Instead, all that is required is that appellants have been "fairly and completely apprised of the events and conduct constituting the contempt charged." United States v. United Mine Workers of America, 330 U.S. 258, 297, 67 S.Ct. 677, 697, 91 L.Ed. 884 (1947); United States v. Robinson, 449 F.2d 925, 930 (9th Cir. 1971); Yates v. United States, 316 F.2d 718, 723 (10th Cir. 1963); United States v. Lederer, 140 F.2d 136 (7th Cir. 1944), cert. denied, 322 U.S. 734, 64 S.Ct. 1047, 88 L.Ed. 1568. This is to be judged with reference to all of the court papers served on appellants in the light of what transpired in the court proceedings. United States v. Robinson, supra at 930. The actual notice to appellants would be highly relevant in such a determination. United States v. Partin, 524 F.2d 992, 999 (5th Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1493, 47 L.Ed.2d 753 (1976); Yates v. United States, supra at 724; see also Bullock v. United States, supra at 692. Illustrative is a line of cases holding that, despite the language of Rule 42(b) requiring the prescribed notice to designate the contempt charged as criminal, the failure so to do does not vitiate contempt findings where the defendants in fact know the criminal nature of the charge and are accorded the appropriate procedural safeguards. United States v. United Mine Workers of America, supra; United States v. Joyce, 498 F.2d 592, 595 (7th Cir. 1974); Federal Trade Commission v. Gladstone, 450 F.2d 913, 916 (5th Cir. 1971); Backo v. Local 281, United Bro. of Carpenters & Joiners, 438 F.2d 176, 181 (2d Cir. 1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971). Because appellants with commendable candor concede the Government's good faith here and that they had actual notice that knowledge of the March 21 order was part of the contempt charged, their argument for reversal depends crucially on their assertion that the standards pertinent to Rule 42(b) do not apply in the present case.

The language of Rule 42(b) strongly suggests that it provides the governing notice standards for all criminal contempts committed outside the presence of the court, and we would be hesitant to decide otherwise absent a persuasive reason for doing so. In attempting to provide us with such a reason, appellants properly do not argue that a grand jury indictment must be returned to initiate criminal contempt proceedings. There is no such requirement, as it is well established that criminal contempts are not "infamous crimes" within the meaning of the Fifth Amendment right to grand jury indictment. Green v. United States, 356 U.S. 165, 184-85, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); United States v. Bukowski, 435 F.2d 1094, 1099-1102 (7th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Instead, appellants base their argument on notions of fairness and due process and insist that because the district court chose to proceed by indictment, the resulting indictment should be assessed accordingly. In essence, appellants take the position that "an indictment is an indictment is an indictment," and they accuse the Government and the district court of reliance on the questionable semantics implicit in the argument (attributed to them) that "indictment" can be defined and redefined at the whim of the prosecution to the prejudice of these appellants. We do not perceive the arguments of the Government or the opinion of the district court to be so limited, and we believe appellants' theory to be founded on an incorrect analysis of the role of criminal contempts in the federal system.

As we have noted, appellants do not question the authority establishing that there is no right to grand jury indictment in criminal contempt cases. Green v. United States, supra; United States v. Bukowski, supra. They would, however, have us confine that proposition to its terms, without regard to the logic and analysis which underlie it. We decline that invitation. Even a superficial analysis of the statute involved here, 18 U.S.C. § 401(3), indicates facial differences between the "crime" of contempt and ordinary criminal offenses. The latter type of offense is typically described in criminal statutes by stating that "whoever" or "any person who" does certain conduct shall be punished. In contrast, § 401(3) provides that a "court of the United States shall have power to punish" certain types of conduct. In Green, the Supreme Court...