U.S. v. Koblitz, 85-3559

• Decision Date: 12 November 1986
• Docket Number: No. 85-3559,85-3559
• Citation: 803 F.2d 1523
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig KOBLITZ and Robert Scott Donley, Defendants, and Marcelino J. Huerta, III and Anthony F. Gonzalez, Contemnors-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1523

803 F.2d 1523

UNITED STATES of America, Plaintiff-Appellee, v. Craig KOBLITZ and Robert Scott Donley, Defendants and Marcelino J. Huerta, III and Anthony F. Gonzalez Contemnors-Appellants.

No. 85-3559.

United States Court of Appeals Eleventh Circuit.

Nov. 12, 1986.

James M. Russ, Orlando, Fla., Samuel R. Mandelbaum, Tampa, Fla., for contemnors-appellants.

John M. Fitzgibbons, Tampa, Fla., Kathleen A. Felton, U.S. Dept. of Justice, Criminal Div., Washington, D.C., for plaintiff-appellee.

National Association of Criminal Defense Attorneys, Peter Raben, Jeffrey S. Weiner, Weiner, Robbins, Tunkey & Ross, Miami, Fla., amicus curiae, for contemnors-appellants.

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

Before GODBOLD and TJOFLAT, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Appellants are two trial lawyers. The district court held them in civil contempt and fined them $2,500 because they violated an order directing them either to appear for the trial of their clients' criminal case or, in the event of appellants' unavailability, to obtain substitute counsel who would appear, prepared and ready for trial. Appellants challenge the validity of that order and ask us to set aside their contempt adjudications. We find the order invalid and reverse.

I.

On April 24, 1985, appellant Anthony F. Gonzalez filed a notice of appearance as defense counsel for defendant Ronald Scott Donley in United States v. Boomhower, No. 84-95-CR-T-15 (M.D.Fla.1984). Appellant Marcelino J. Huerta, III filed a notice of appearance for Craig Koblitz, another Boomhower defendant, on May 2, 1985. The trial of the Boomhower case, which had a total of six defendants, was scheduled to begin on May 28, 1985. ¹

At the time appellants filed their notices of appearance, they were engaged in the trial of a criminal case on the docket of another judge of the same district court. See United States v. Meros, 613 F.Supp. 18 (M.D.Fla.1984). The Meros trial had begun on March 25, 1985, and the prosecution had estimated that the trial would last about eight weeks.

A potential scheduling conflict became apparent when a status conference took place in Boomhower on May 10. Appellants informed the court that they were representing defendants in the Meros trial, which was then in its seventh week, and that the trial would probably continue for another five weeks. Recognizing the potential conflict in the trial schedules, the court observed, "It may be necessary [for appellants to] make such arrangements as need to be made for [their] client's representation...." ² Both appellants subsequently moved the court to sever their clients and to schedule their trial at a later date, after the Meros trial concluded. The court reserved judgment on their motions and set June 3 as the tentative trial date for all six defendants.

On May 13, the Government advised the judge presiding over the Meros trial, in response to an inquiry by appellant Gonzalez, that its case in chief would be completed in about three weeks. On May 17, the Boomhower court issued an order notifying all parties and their counsel that their trial would commence on June 17. In addition, the order provided as follows:

All attorneys involved are instructed to review their commitments and to schedule other commitments such as to not interfere with the certain commencement of this trial on June 17, 1985. If any attorney, for any reason, concludes that he will not be available for trial, he forthwith shall make arrangements such as are necessary for his client to secure other, available, representation.

Appellants received this order on May 20.

Three days later, the Government advised the court in Meros that it would complete its case in chief about two weeks after the witness then on the stand completed his testimony. That witness completed his testimony on May 30; thus, the government's case was expected to conclude by June 13.

On June 4, appellant Gonzalez, realizing that the Meros trial would not end by June 17 and, therefore, that he would not be available for the commencement of the Boomhower trial on that date, moved the Boomhower court to continue the trial or to grant his client a severance. ³ In his motion, Gonzalez estimated that the Meros trial would not conclude until late June or early July and requested a trial date beyond that period. In urging this postponement, Gonzalez represented that his client, Donley, refused to go to trial with any other attorney, claiming that he was entitled to counsel of his choice. Gonzalez also represented that because of the complexity of the case and the extensive preparation required for trial, which he had already completed, it would be logistically and financially prohibitive for his client to obtain substitute counsel who would be prepared for trial on June 17.

The district court denied Gonzalez' motion for a continuance or severance. In its June 7 order, the court observed that (1) Gonzalez should have known when he filed his appearance in the Boomhower case that, because of the probable duration of the Meros trial, he would not be available for the Boomhower trial which was then scheduled to begin on May 28; (2) the court's May 17 order setting the Boomhower trial for June 17 was unequivocal; and (3) Gonzalez' scheduling conflict was "of his own making and he has had ample time to protect his client's interests."

After they received the June 7 order, appellants Gonzalez and Huerta moved the Meros court to sever their clients from that case, ⁴ effectively granting them a mistrial. ⁵ The Meros court summarily denied their motions and informed appellants that they would proceed with the trial, giving their clients the representation the Constitution guaranteed them. Having been stymied by the Meros court, Gonzalez moved the Boomhower court to reconsider his motion for a continuance of the trial or a severance of his client. The court denied his motion on June 14.

When the Boomhower case was called for trial on the morning of June 17, Gonzalez and Huerta failed to appear. Their clients, Donley and Koblitz, appeared without counsel, and each stated that his attorney was involved in another trial. The clients insisted on being represented by their retained counsel and advised the court that they were unable to represent themselves. The court severed Donley and Koblitz from the remaining Boomhower defendants, and the trial commenced that morning as to the remaining defendants. At the same time, the court issued an order requiring appellants to appear during the noon recess.

Appellants Gonzalez and Huerta appeared before the court as ordered. The court asked appellants if they had made any effort to obtain substitute counsel for their clients. Both answered that they had made no such effort, although they had advised their clients of the scheduling conflict. Appellant Gonzalez stated, "up until 9:30 this morning I had all the expectations of being able to participate in this case on behalf of Mr. Donley." Appellant Huerta stated that he had discussed the problem with his client, who could not afford to retain another attorney and could not qualify for appointed counsel. Like Gonzalez, Huerta thought that the scheduling conflict would be resolved. Finally, both appellants admitted that they did nothing to advise the court that they would not be present for trial that morning. ⁶

On June 19, 1985, the district court ordered appellants to show cause why they should not be adjudged in criminal contempt, under 18 U.S.C. Sec. 401 (1982) and Fed.R.Crim.P. 42, or in civil contempt. The order suggested that the following conduct constituted criminal contempt: (1) appellants' failure to appear for trial on June 17, (2) their failure to give the court advance notice that they would not appear, and (3) their failure to obtain substitute counsel for their clients. The order suggested that the same conduct constituted civil contempt, in that it "necessitat[ed] the separate trial of defendants Donley and Koblitz in contravention of the judicial process and damag[ed] the United States in the amount of expense of such additional trial."

A contempt hearing was held on July 5, 1985, at which appellants were represented by counsel. After reviewing the evidence summarized above and hearing argument from counsel, the district court found appellants not guilty of criminal contempt. Nevertheless, because appellants, in violation of the court's May 17 order, failed to obtain substitute counsel when it became apparent to them that their involvement in the Meros trial precluded their participation in the Boomhower trial, the court adjudged them guilty of civil contempt. ⁷ Estimating the damages suffered by the Government at $5,000, ⁸ the court assessed half that amount against each appellant, plus interest, costs, and the attorneys' fees incurred by the Government. Gonzalez and Huerta appeal from the district court's judgment of civil contempt.

II.

A civil contempt order can only be upheld if it is supported by clear and convincing evidence that (1) the underlying order allegedly violated was valid and lawful, Smith v. Sullivan, 611 F.2d 1050, 1052-54 (5th Cir.1980); ITT Community Development Corp. v. Barton, 569 F.2d 1351, 1356 (5th Cir.1978); ⁹ (2) the underlying order was clear, definite, and unambiguous, see International Longshoremen's Association, Local 1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967); Baddock v. Villard (In re Baum), 606 F.2d 592, 593 (5th Cir.1979); and (3) the contemnor had the ability to comply with the underlying order, United States v. Wendy, 575 F.2d 1025, 1030-31 (2d Cir.1978).

Appellants challenge the validity of the district court's May 17 order, the violation of which resulted in their contempt adjudication. ¹⁰ As we have noted, the district court's June 19 show-cause order suggested that appellants...