U.S. v. Flynt
| Decision Date | 28 March 1985 |
| Docket Number | No. 84-5041,84-5041 |
| Citation | 756 F.2d 1352 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry FLYNT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William L. Webber, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Alan L. Isaacman, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendant-appellant.
Appeal from the United States District Court for the Central District of California.
Before ELY *, FLETCHER and REINHARDT, Circuit Judges.
Appellant Larry Flynt appeals from five judgments of criminal contempt entered by United States District Judge Manuel Real. Because we conclude that the denial of appellant's motion for a continuance and the resort to summary contempt proceedings constituted abuses of the trial court's discretion, we reverse appellant's convictions and vacate his sentences.
On December 12, 1983, Flynt appeared before United States Magistrate James W. McMahon for arraignment on an indictment charging him with flag desecration and unlawful wearing of a Purple Heart. Flynt, who is paralyzed and confined to a wheelchair, had worn an American flag as a diaper and pinned the Purple Heart to his shirt when he appeared at the courthouse in connection with an earlier unrelated contempt proceeding. During his arraignment on those charges, Flynt made a series of insulting, abusive, and obscene remarks to Magistrate McMahon. 1 At the close of the arraignment, the Magistrate randomly assigned the trial on the issues raised in the indictment to United States District Judge Consuelo B. Marshall. On December 15, 1983, Judge Marshall ordered Flynt to undergo psychiatric evaluation at the Medical Center for Federal Prisoners in Springfield, Missouri, in order to determine his competence to stand trial.
On December 20, 1983, Magistrate McMahon issued an Order to Show Cause why Flynt should not be held in criminal contempt for his conduct during the post-indictment arraignment. The Magistrate ordered Flynt to appear before Chief Judge Manuel Real on January 16, 1984. 2 Because Flynt was in the custody of the Medical Center for Federal Prisoners on that date, Judge Real continued the hearing to January 30, 1984.
The psychiatric evaluations of Flynt were completed on January 16, 1984. However, he remained in the custody of the Medical Center for Federal Prisoners until January 27, 1984. While still in Springfield, he filed an ex parte application to modify Judge Marshall's commitment order to permit his transfer back to California so that he might gain access to his own psychiatrists and confer with his counsel in preparation for his defense to the Order to Show Cause Re Contempt. 3 In his application Flynt also sought additional medical treatment. The application was denied. During this period Flynt also filed two habeas corpus petitions. In those petitions he sought improved medical treatment, access to the Medical Center library and opportunities to consult with potential witnesses in preparation for his defense in "pending litigation." It appears from the record that no action was taken on the habeas petitions prior to Flynt's return to California.
On January 30, 1984, Flynt appeared before Judge Real. Flynt's counsel informed the court that Flynt's defense would consist of a showing that he lacked the requisite mental capacity to commit contempt. He argued that Flynt's incarceration in the Medical Center for Federal Prisoners had prevented him from submitting to psychiatric examinations by psychiatrists of his own choosing. He then requested a thirty-day continuance in order to allow Flynt to obtain expert witnesses and to secure substitute counsel.
Judge Real denied the motion for a continuance, concluding that there was no basis for the request. However, he granted a one-day continuance to allow Flynt to obtain his desired counsel.
The next day Flynt again appeared before Judge Real and, through his attorney, renewed his motion for a thirty-day continuance. Flynt's counsel reiterated Flynt's need to obtain psychiatric evaluations relevant to his defense. In support of the motion, he informed Judge Real that he had contacted a psychiatrist, a psychologist and a psychopharmacologist, all of whom had agreed to evaluate Flynt. However, he stated that none of the three prospective witnesses could perform a sufficient examination within the one-day limit imposed by Judge Real. Judge Real again denied the motion for a continuance and began the hearing immediately.
Flynt's defense consisted of testimony from seven non-expert witnesses, including himself and his bodyguard, concerning his mental and emotional conditions on the date of the alleged offense. In the course of Flynt's direct examination, he was asked to state reasons for his outbursts before the Magistrate. He responded with a series of epithets directed toward the judiciary in general. 4 Judge Real called a recess and ordered Flynt gagged. When the hearing resumed, Judge Real admonished Flynt that any further outbursts would result in summary contempt citations. He then ordered removal of the gag and Flynt resumed his testimony.
At the close of Flynt's testimony, his counsel asked him whether he had any further statements to make on his own behalf. Once again, Flynt responded with epithets. Judge Real summarily imposed a thirty-day contempt sentence. Flynt responded with more epithets, which were met by Judge Real with a second summary contempt sentence of thirty days. Flynt again responded with a round of epithets and Judge Real summarily imposed a third thirty-day contempt sentence, at which point Flynt was removed from the courtroom. 5
Flynt was subsequently returned to the courtroom where he completed his testimony without any further outbursts. At the close of the hearing, Judge Real found Flynt guilty of contempt in Magistrate McMahon's courtroom and sentenced him to six months. In addition, Judge Real reiterated the three thirty-day sentences ordered pursuant to the summary contempt proceedings. Flynt responded to the sentencing with a final string of obscenities, for which Judge Real summarily sentenced him to an additional six months. 6
Flynt's sentences totalled fifteen months. After appellant had begun serving his sentences, he petitioned Judge Real for an order releasing him on bond pending appeal. In his petition, Flynt indicated an intention to challenge, inter alia, the trial court's denial of a continuance and its use of summary contempt proceedings. Judge Real denied the petition, concluding that release on bail would present a risk of flight and that the issues Flynt proposed to raise in his appeal were "frivolous." Because, for reasons we need not detail here, it was perfectly clear that appellant's release would not present an unreasonable risk of flight, and because even a cursory review of the law relating to the proper use of summary contempt proceedings showed that Flynt had raised substantial questions concerning Judge Real's exercise of the summary contempt power, another panel of this court ordered appellant released on bond pending this appeal. At the time he was released, Flynt had already served five months and five days of his sentence.
In this appeal Flynt challenges the district court's denial of his request for a continuance and its subsequent invocation of its summary contempt power. In addition, Flynt contends that he was denied his Sixth Amendment right to a jury trial, that he was entitled to a hearing on his mental competence to stand trial, and that his fifteen-month sentence is excessive.
There can be no question that the type of conduct in which Flynt engaged cannot be tolerated in a courtroom. There are a number of measures that may be taken to bring such conduct to an immediate end. Punishment, including a term of incarceration, may be imposed, if appropriate procedures are followed. However, the issue before us is not whether Flynt engaged in the conduct with which he is charged. The issue is not even whether Flynt actually had the mental capacity to commit the offense of contempt. Rather the issues presented here are procedural ones that raise questions of essential fairness. No matter how opprobrious the offense, every person is entitled to have his guilt or innocence determined in a manner that complies with our rules, laws and Constitution.
We conclude that in two essential respects Flynt's convictions were obtained without affording him important procedural rights. Both involve the district court's failure to allow Flynt to prove that he did not have the mental capacity to commit contempt. First, Flynt's only defense to the charge of contempt that arose out of the magistrate's proceeding was that he lacked the requisite mental capacity. The district court's denial of a continuance of its hearing effectively foreclosed Flynt from presenting that defense. We must therefore reverse the conviction that was based upon Flynt's conduct before the magistrate. Second, the evidence raised a substantial question as to Flynt's mental capacity to commit the contempts that were based on his conduct before the district court. Accordingly, the district judge erred in punishing Flynt for that conduct without affording him a hearing at which he could present evidence on the issue of his mental capacity. For that reason, we must reverse Flynt's four summary convictions for the conduct that occurred before the district judge. Because we reverse appellant's convictions on these two grounds, we do not address his additional arguments.
The decision to grant or deny a requested continuance lies within the broad discretion of the district court, and will not be disturbed on appeal absent clear...
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