U.S. v. KS & W Offshore Engineering, Inc.
Decision Date | 06 June 1991 |
Docket Number | No. 90-3836,90-3836 |
Citation | 932 F.2d 906 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. KS & W OFFSHORE ENGINEERING, INC., Defendant, Joel Kaplan, Appellant. Non-Argument Calendar. |
Court | U.S. Court of Appeals — Eleventh Circuit |
Joel Kaplan, pro se.
Robert P. Storch, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before COX and DUBINA, Circuit Judges, and RONEY, Senior Circuit Judge.
Appellant Joel Kaplan is an attorney contesting an order finding him in criminal contempt for failing to arrive on time for a scheduled hearing. 18 U.S.C. Sec. 401. 1 We reverse.
The district court scheduled a status conference for the case of United States v. KS & W Offshore Engineering, Inc., et al., Case No. 89-98(S2)-Cr-J-16, for 9:00 a.m. on August 24, 1990. Appellant represented one of the defendants, KS & W Inc., in this suit brought by the Government. Appellant had reservations on a commuter flight that was scheduled to leave Miami at approximately 7:00 a.m. and arrive in Jacksonville sometime before 8:00 a.m. The flight, however, was delayed by 45 minutes and the plane did not arrive in Jacksonville until 8:45 a.m. Upon arrival, appellant immediately called to have the court informed of his position and of the probability that he would be delayed.
When the court called the case at 9:00 a.m., the following discussion ensued:
The court recalled the case at 10:15 a.m. and questioned appellant about his tardiness.
Mr. Kaplan, before we start, it's time that I ask you why you were late this morning and why you shouldn't be held in contempt.
I apologize to the Court. I thought--I had not had any problems making flights or with flights being late coming between South Florida airports and Jacksonville previously, and I--that's about it, Judge.
THE COURT: Counsel, when I was a circuit judge in Fort Lauderdale,--and I had a lot of Miami lawyers before me in Fort Lauderdale--I would suspect that 95 percent of them had flat tires on I-95 and they were late getting to court. Since I have been a federal judge and I have Miami lawyers coming up here, every one of them tells me that the plane was late. And that's almost without exception. I assume they weren't flying yesterday because it was bad weather or the planes were all down or whatever. But in running this courtroom, I expect lawyers to be here, be professional, be here the night before, if necessary, and not wait until the last minute to catch a plane to get here and be here on time.
Now is there any reason why I shouldn't hold you in contempt for not being here at nine o'clock?
The court thereafter entered a written order of contempt and imposed a $200 fine to be paid by the end of the day. Although the judge did not indicate whether the charge was criminal or civil in nature, we have uniformly regarded the imposition of a penalty against attorneys for a punitive purpose as a criminal contempt sanction. United States v. Turner, 812 F.2d 1552, 1562-63 (11th Cir.1987); United States v. Nunez, 801 F.2d 1260, 1263 n. 2 (11th Cir.1986); Thyssen, Inc. v. S/S Chuen On, 693 F.2d 1171, 1173 (5th Cir.1982).
Appellant argues two points on appeal, both of which are correct. First, he maintains that the district court improperly employed the summary contempt procedures of Federal Rule of Criminal Procedure 42(a). Contempt sanctions for failure to appear or untimely appearance should be imposed under Rule 42(b), which deals with actions conducted outside the presence of the court. Second, appellant suggests that regardless of the procedure used, there was insufficient evidence to support a finding of criminal contempt.
Although the Government raises a superficial challenge on the first point, it is fairly well settled in this Circuit that absent extraordinary circumstances, district courts are to proceed under Rule 42(b) in situations such as this. Nunez, 801 F.2d at 1263-65 ( ); United States v. Baldwin, 770 F.2d 1550, 1555 (11th Cir.1985), cert. denied sub nom., Jackson v. United States, 475 U.S. 1120, 106 S.Ct. 1636, 90 L.Ed.2d 182 (1986); In re Stewart, 571 F.2d 958, 964-65 (5th Cir.1978). Rule 42(a) is designed to address contumacious conduct which is committed fully within the presence of the court. 2 Such summary powers are essential for the maintenance of control within the courtroom. When an attorney fails to appear or makes a delayed appearance, however, the conduct which is subject to sanction is not the absence itself but the failure to provide sufficient justification for...
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