U.S. v. Hilburn

• Decision Date: 15 September 1980
• Docket Number: No. 80-7064,80-7064
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger HILBURN, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1177

625 F.2d 1177

UNITED STATES of America, Plaintiff-Appellee, v. Roger HILBURN, Defendant-Appellant.

No. 80-7064

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 1980.

Ronald Windsor, Corinth, Miss., for defendant-appellant.

Janis M. Caplan, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before RONEY, KRAVITCH and TATE, Circuit Judges.

TATE, Circuit Judge:

The defendant Hilburn appeals his 18 U.S.C. § 401 criminal contempt conviction that arose from his failure to respond to five subpoenas requiring him to appear to testify before an Atlanta federal grand jury investigating a case in which he was believed to be a material witness. He argues errors as to conducting a criminal contempt hearing as opposed to a civil contempt one; as to the sufficiency of the evidence; and as to the satisfaction of the sentence imposed. After reviewing the trial transcript and the controlling jurisprudence, we find no merit in any of the assignments of error and consequently affirm.

Context Facts

In late 1978 and throughout 1979 a federal grand jury in the Northern District of Georgia was investigating a case in which defendant, a Carnes, Mississippi police officer, was believed to be a material witness. On five separate occasions the government served him with federal subpoenas. On each of these occasions for various reasons as outlined below, the defendant failed to comply with the subpoenas.

On December 16, 1978, the defendant was served with a federal subpoena ordering him to appear before the federal grand jury in Atlanta on January 9, 1979. On January 5, 1979, however, the defendant received a local subpoena requiring his attendance in Chancery Court in Mississippi on January 9, 1979. The defendant informed a special agent of the Federal Bureau of Investigation that he would not be able to attend the grand jury session in Atlanta, giving the special agent the impression that the local subpoena was received prior to the federal one. The defendant failed to appear in Atlanta on January 9, 1979.

On February 2, 1979, the defendant was served with a second federal subpoena, ordering him to appear before the Atlanta federal grand jury on February 13, 1979. On February 12, 1979, defendant checked himself into a hospital; consequently, he failed to appear in Atlanta as ordered on February 13, 1979.

The defendant was served with a third federal subpoena on March 31, 1979 that ordered him to appear before the Atlanta federal grand jury on May 8, 1979. The defendant worked on May 6, 7, 8, and 9, 1979 (as demonstrated by his relevant work records), but failed to appear in Atlanta on May 8, 1979.

On October 4, 1979, the defendant was served with a fourth federal subpoena, directing his appearance before the federal grand jury in Atlanta on October 9, 1979. On the date of service, however, the defendant once again checked himself into a hospital. Therefore, he did not appear in Atlanta on October 9, 1979.

In November 1979, the United States of America moved for a court order to compel the defendant to appear before the grand jury in Atlanta on December 18, 1979. In paragraph 7 of its affidavit, the government alleged that

Affiant believes that Mr. Hilburn will continue to ignore any forthcoming grand jury subpoenas unless he is ordered by the court to appear before the grand jury, and is subjected to this court's contempt power if he fails to appear.

Government Exhibit 6. On November 20, 1979, the United States District Court for the Northern District of Georgia issued an order directing the defendant to appear before the federal grand jury in Atlanta on December 18, 1979. Id.

On December 6, 1979, the defendant was served with a fifth federal subpoena, ordering him to appear before the grand jury in Atlanta on December 18, 1979. This fifth subpoena was accompanied by the district court's above described November 20, 1979 order and the government's affidavit in support of it, but the defendant again failed to appear as ordered. The defendant explained that he was home "in traction" at the time. However, he worked on December 17, and took "regular" days off on December 18 and 19. Additionally, he was seen dancing at the annual police Christmas party on the evening of December 19.

On December 26, 1979, upon application of the government pursuant to Federal Rule of Criminal Procedure 42(b), the district court scheduled a criminal contempt hearing. Following the hearing (or bench trial), the defendant was adjudged guilty of criminal contempt, and was orally sentenced to imprisonment for 180 days and a $2,000 fine. Two days later, however, on January 17, 1980, the district court modified its previous sentence and issued a judgment and commitment order sentencing the defendant exclusively to 180 days imprisonment without any fine. Record on Appeal, Volume I at 14.

On the next day, January 18, 1980, the defendant forwarded a cashier's check in the amount of $2,000 to the district court clerk. Defendant's Brief at 15. However, on January 21, 1980, the district court clerk returned the check to defendant's attorney with a letter explaining that the fine had been previously withdrawn by the court. Supplemental Record on Appeal at 1.

Criminal Contempt

The defendant first contends that the district court should have conducted a civil contempt hearing.

Assuming for present purposes that an appellate court can review the propriety of the initial choice of either civil or criminal contempt (as opposed to reviewing the sufficiency of the conviction once the choice has been made in the district court), we cannot conclude on these facts that the district court acted improperly by conducting a criminal contempt hearing designed to impose a punitive sentence. The defendant failed to appear five times in defiance of five grand jury subpoenas and a specially issued court order.

Since the purpose of this contempt proceeding was to vindicate the authority of the court by punishing the alleged wrongdoer, this proceeding is properly labelled as a criminal contempt proceeding. ¹ See Lewis v. S. S. Baune, 534 F.2d 1115, 1119 (5th Cir. 1976); 3 C. Wright, Federal Practice and Procedure § 704 (1979).

Of course, whether a proceeding is actually civil or criminal contempt has several important effects because that determination controls the type of notice required, the applicable standard of proof, and the relevance of intent. See Smith v. Sullivan, 611 F.2d 1050, 1052 (5th Cir. 1980); Fed.R.Crim.P. 42(b).

We first note that the requirements of Federal Rule of Criminal Procedure 42(b) were satisfied in this case. ² The other effects of this criminal contempt delineation (i. e., the applicable standard of proof and the requisite intent) are more properly discussed under the sufficiency of the evidence assignment of error.

Sufficiency of the Evidence

Hilburn next asserts that the evidence is insufficient to support the criminal contempt judgment rendered by the court.

Our inquiry on this issue is controlled by well-settled legal principles. In reviewing the sufficiency of the evidence, we consider the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Vomero, 567 F.2d 1315, 1316 (5th Cir. 1978). The standard for review of the sufficiency of the evidence to support the conviction is the same whether the evidence is direct or circumstantial. See Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Palacios, 556 F.2d 1359 (5th Cir. 1977); United States v. Warner, 441 F.2d 821 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).

The district court properly found, as supported by the evidence, that the defendant was properly served with a subpoena to appear before a federal grand jury in Atlanta on January 9, February 13, May 8, October 9 and December 18, 1979 and that the defendant failed to appear on any of those dates. The district court gave Hilburn the benefit of the doubt as to the two dates on which he was hospitalized (February 13 and October 9) ostensibly to receive treatment for recurrent back problems, but found him guilty beyond a reasonable doubt for his failure to appear without just or legal excuse on January 9, May 8, and December 18, 1979.

The general power of a federal court to punish for criminal contempt is codified in 18 U.S.C. § 401, which authorizes a fine or imprisonment, in the court's discretion, for "(d)isobedience or resistance to its lawful writ, process, order, rule, decree, or command." The jurisprudence has held that this statute requires both a contemptuous act and a willful, contumacious, or reckless state of mind. United States v. Lansky, 496 F.2d 1063 (5th Cir. 1974); In re Farquhar, 492 F.2d 561, 564 (D.C.Cir.1973); Sykes v. United States, 444 F.2d 928, 930 (D.C.Cir.1971).

In adjudging the defendant in criminal contempt, the district court in unequivocal terms found the requisite contumacious conduct. ³

Additionally, viewing the evidence in the light most favorable to the government, as we must, there was sufficient evidence for the district court to conclude beyond a reasonable doubt that the defendant's consistent failures to appear before the federal grand jury were willful. Accepting as the district court did that Hilburn's hospitalizations were legitimate, we nevertheless find that the defendant demonstrated no valid reasons for his failure to appear on the other occasions.

On December 16, 1978, the defendant was served with the first federal subpoena ordering him to appear in Atlanta on January 9, 1979. On January 5, 1979, the defendant received a local subpoena requiring his simultaneous presence in Mississippi Chancery Court on January 9, 1979. The defendant informed a special agent of the Federal Bureau of...