U.S. v. Lumumba, 747

• Decision Date: 27 June 1986
• Docket Number: D,No. 747,747
• Citation: 794 F.2d 806
• Parties: 20 Fed. R. Evid. Serv. 1367 UNITED STATES of America, Appellee, v. Chokwe LUMUMBA, Appellant. ocket 85-1106.
• Court: U.S. Court of Appeals — Second Circuit

Page 806

794 F.2d 806

20 Fed. R. Evid. Serv. 1367

UNITED STATES of America, Appellee, v. Chokwe LUMUMBA, Appellant.

No. 747, Docket 85-1106.

United States Court of Appeals, Second Circuit.

Argued Jan. 27, 1986.

Decided June 27, 1986.

Harry A. Davis, Detroit, Mich., Robert Dawkins, arguing pro hac vice, for appellant.

Paul E. Summit, Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty., for S.D.N.Y., Stuart E. Abrams, Asst. U.S. Atty., of counsel), for appellee.

Before FRIENDLY, ^* OAKES, and WINTER, Circuit Judges.

OAKES, Circuit Judge:

Not long ago we held that:

To warrant a conviction in criminal contempt, the contemnor's conduct must constitute misbehavior which rises to the level of an obstruction of and an imminent threat to the administration of justice, and it must be accompanied by the intention on the part of the contemnor to obstruct, disrupt or interfere with the administration of justice.

In re Williams, 509 F.2d 949, 960 (2d Cir.1975) (citing Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972)). Because we find that the appellant's conduct rose to this level of misbehavior, we affirm the judgment of the district court.

This appeal presents the question whether appellant, Chokwe Lumumba, Esq., was properly held in criminal contempt on two counts. The first contempt citation occurred during the jury voir dire of a lengthy criminal trial in which Lumumba represented one of the codefendants when Lumumba, in the presence of a venireman, declined to obey an order of the court to "be quiet and sit down." The second occurred during the course of the trial and was issued after a number of remarks that, to say the least, were disrespectful of the judge, if not downright insulting to him. With regard to each count, the trial judge, Kevin Thomas Duffy, cited Lumumba at the time the conduct occurred, but final adjudication and sentencing was deferred until after the trial's conclusion. At that time, pursuant to Fed.R.Crim.P. 42(a) and 18 U.S.C. Sec. 401 (1982), Judge Duffy summarily adjudicated Lumumba in criminal contempt and referred the matter to the Assignment Committee pursuant to Rule 18 of the Rules for the Division of Business Among Southern District Court Judges for transfer to another judge for sentencing. United States v. Shakur, 570 F.Supp. 336 (S.D.N.Y.1983).

After denying various motions brought by Lumumba, United States v. Lumumba, 578 F.Supp. 100 (S.D.N.Y.1983), Judge Robert W. Sweet sentenced Lumumba to three years' probation with the condition that he perform 350 hours of community service during the first fifteen months of the probationary term. On appeal, this court reversed and remanded. 741 F.2d 12 (2d Cir.1984). We held that where a lawyer is cited for criminal contempt during trial, but adjudication and punishment are deferred until after trial, he is entitled to notice and a hearing pursuant to Fed.R.Crim.P. 42(b), although not necessarily a "full-blown" trial, before a judge other than the trial judge. Id. at 17.

On remand, Judge Sweet held that formal notice of the charges was unnecessary since Lumumba had actual notice, that Lumumba was not entitled to a jury trial, and that Lumumba could address the appropriateness of his own conduct, but not the alleged bias of the presiding judge. 598 F.Supp. 209 (S.D.N.Y.1984). In accordance with the directions of this court, 741 F.2d at 17, Lumumba was given "a reasonable opportunity to defend or explain his actions or present arguments in mitigation" in a hearing before Judge Sweet. 603 F.Supp. 913, 914 (S.D.N.Y.1985). Lumumba was again convicted of criminal contempt on both counts and received the same sentence as before, except the community service is to be performed during the first eighteen months of the probationary term.

The criminal trial at which Lumumba made the comments that are at issue here concerned the so-called Brinks armored-car robbery at Nanuet, New York, and ran from April 4 to September 3, 1983. Lumumba's client, Bilal Sunni-Ali, was acquitted, although four of the five co-defendants with whom he was tried were convicted as accessories after the fact to armed robbery or of participation in a racketeering enterprise that involved a series of armored truck robberies, two murders, and the prison escape of Black Liberation Army leader Joanne Chesimard, see generally United States v. Ferguson, 758 F.2d 843 (2d Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 124, 88 L.Ed.2d 102 (1985). We agree with Judge Duffy that "Mr. Lumumba ... demonstrated from the start of the trial his conscious desire to obstruct and disrupt the orderly trial of the six defendants on trial.... not [as] part and parcel of a vigorous defense of his client but instead [intentionally] to cause significant disruption of the proceedings." Shakur, 570 F.Supp. at 337.

Preliminarily, we note that it is useful for analytical purposes to divide the forms of misconduct in the courtroom by attorneys that are punishable by contempt into three general categories--(1) refusal to obey a proper court order or proper court procedures; (2) disrespectful remarks to the court, opposing counsel, or other parties; and (3) excessive or repetitive argumentation or other willful delay of the proceedings. The first contempt charge here falls into the first category since it involves disregard of court orders and the second contempt charge falls into the second category because it concerns disrespectful remarks.

We have little difficulty with the first contempt citation. During the jury voir dire in the mid-morning of April 13, 1983, Lumumba first appeared as co-counsel, with Lynne F. Stewart, Esq., on behalf of defendant Sunni-Ali. Shortly thereafter he orally moved to strike the entire jury panel, a motion which had just been denied when made by another attorney. The motion was denied and the court advised Lumumba to put the motion in writing, a procedure to which the court had required all defense counsel to adhere, and stated that the written motion would be made a part of the record. Lumumba persisted in his attempt to make his motion orally, and when the judge attempted to move on to the peremptory challenges Lumumba first accused him of unwillingness to hear the defendant's contentions and then stated that "we think perhaps you will continue to taint, to pollute the jury." When the court excused a black prospective juror who stated that she could not decide the case fairly and impartially solely on the evidence given in court, Lumumba contended that the judge's action was precipitous and accused him of being inconsistent in his treatment of white and black veniremen. When the court noted that Lumumba had not been present for earlier voir dire and ordered him to "sit down," Lumumba refused, stating, "That's the way you give dogs and children instructions," and insisted he had other "appropriate" motions to make. Finally, later in the day, when, in accordance with the customary practice in the Southern District, the judge was questioning a prospective juror, Lumumba interrupted and attempted to continue to argue matters upon which the court had already ruled. After Lumumba again ignored several orders of the court to "be quiet and sit down," and repeated his charge that the court was unwilling to listen to the defendant's contentions, Judge Duffy excused the venireman from the courtroom and held Lumumba in criminal contempt. The exchange leading to the contempt citation is set out in the margin. ¹

While a lawyer has the right and duty to argue vigorously all points that he believes are properly advanced on behalf of his client, he must obey a direct order of the court, such as an order to cease argument, no matter how arbitrary he may believe it to be. Maness v. Meyers, 419 U.S. 449, 458-60, 95 S.Ct. 584, 590-92, 42 L.Ed.2d 574 (1975); In re Weiss, 703 F.2d 653, 660 (2d Cir.1983). Justice Jackson stated the law with his typical clarity and succinctness in Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952):

Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel's right to resist it or to insult the judge--his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.

Lumumba was not held in contempt for an "earnest request for voir dire," as he claims in his brief. Rather, he was held in contempt only after he had been repeatedly ordered to sit down and stop rearguing objections upon which the court had already ruled. His direct disobedience of a court order threatened to delay the proceedings, to interfere with jury selection, and, occurring as it did on the first day of his presence in the courtroom, to disrupt the orderly proceeding of the trial. As the Seventh Circuit explained in the "Chicago Seven" conspiracy case, "failure to heed the directive of the court to desist from arguing, to sit down, or to remain quiet may indeed constitute an actual material obstruction to the administration of justice." United States v. Seale, 461 F.2d 345, 371 (7th Cir.1972). Any other result would create chaos in the courtroom; while surely "[a] certain amount of leeway must be allowed," id., when the directive is clear and counsel understands it, he must obey even if he feels his obedience may risk prejudicing his client's substantive case. Perhaps Lumumba felt it important to establish his defiance of the...