U.S. v. Mars
| Decision Date | 11 April 1977 |
| Docket Number | No. 76-1876,76-1876 |
| Citation | 551 F.2d 711 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Herbert MARS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Thomas E. Jackson, John W. Tapp, F. Randall Karfonta, William L. Woodard, Detroit, Mich., for defendant-appellant.
Philip Van Dam, U. S. Atty., J. Brian McCormick, Frederick S. Van Tiem, Detroit, Mich., for plaintiff-appellee.
Before PHILLIPS, Chief Judge, and WEICK and McCREE, Circuit Judges.
Joseph Herbert Mars appeals from his conviction for criminal contempt pursuant to Fed.R.Crim.P. 42(a) and from his conviction for bank robbery in violation of 18 U.S.C. § 2113(a). He was sentenced to ten years imprisonment for bank robbery and to an additional six months for contempt, manifested by his refusal to obey the order of the District Judge to provide handwriting exemplars.
We find no reversible error in the bank robbery trial, and accordingly affirm that conviction.
We vacate the order of criminal contempt and remand the case for the limited purpose of affording the District Court an opportunity to supply the certificate which we find to be required by Fed.R.Crim.P. 42(a).
The most serious question presented on this appeal involves the summary conviction and sentence for criminal contempt imposed pursuant to Rule 42(a). 1
The bank robber in this case passed a handwritten demand note to a teller. Prior to trial, Mars produced samples of his handwriting for comparison with the demand note passed to the teller by the robber. At trial the District Court signed an order requiring Mars to supply additional handwriting exemplars. Mars refused to obey this order, against the advice of his attorney, despite repeated opportunities to comply, and after being informed fully by the court of the consequences of his refusal.
We have not been asked to determine whether the District Court, after trial had begun, could repeatedly order appellant to provide additional handwriting exemplars without there appearing an explanation why those he had previously provided were inadequate.
The District Judge found Mars to be in contempt, pursuant to Rule 42(a). In sentencing for contempt, however, he failed to make the certification required by Rule 42(a):
The principal question on this appeal thus becomes: Does the absence of the required certification require this court to reverse the contempt citation outright, or is it sufficient under the facts of this case to remand to give the District Court an opportunity to provide the missing certificate? We hold that in the present case remand is the appropriate procedure.
The record discloses the following proceedings in the District Court on September 18, 1975:
MR. McCORMICK: Yes, Your Honor.
Your Honor, the Defendant has asked the Court to have this particular hearing. It comes in the nature of a Show Cause Hearing.
Your Honor, as the Court is aware, you signed an Order ordering Mr. Mars to provide certain handwriting exemplars. Between 12:30 and a quarter to one this afternoon, Special Agent Phelps, pursuant to the Order, went to the Marshal's office, and in Mr. Jackson's presence, contrary to Mr. Jackson's advice, Mr. Mars refused to furnish the examples. I have the Special Agent here.
THE COURT: I don't think it's necessary to have any testimony as to that.
Mr. Jackson?
MR. McCORMICK: Your Honor, I would amend what I said to what Mr. Jackson stated.
THE COURT: Mr. Mars, will you stand, please.
You heard the statement that has been made by Mr. Jackson. Is it your position that you refuse to give the exemplars that the Court ordered you to give?
On September 22, 1975, the following proceedings occurred:
THE COURT: Let me address myself to the matter of the refusal to obey an Order of the Court first.
I believe that under Rule 42(a), the Rules of Criminal Procedure, a criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the Court.
I believe that Mr. Mars' refusal to obey the Order of the Court does fall within Rule 42(a), does it not?
MR. McCORMICK: Yes, Your Honor.
THE COURT: Mr. Mars, will you stand.
Since Rule 42(a) of the Rules of Criminal Procedure provide that a criminal contempt may be punished summarily if the judge certifies that he heard the contempt and it was committed in his presence in Court and I ask you again, do you continue to refuse to obey the Order of the Court?
After the jury had returned a verdict of guilty, the District Judge fixed a ten year sentence for bank robbery, to run concurrently with a sentence imposed by a Michigan State court, and imposed the following sentence for contempt:
Now, with regard to the matter of the contempt action, I did find you in contempt of this Court for your refusal to abide an order of this Court. And it is the judgment and sentence of this Court that for that offense you be confined to the custody of the Attorney General of the United States for a period of six months consecutive to the sentence that I have just now imposed on you in connection with the bank robbery.
It is well established that summary punishment for contempt under Rule 42(a) is for "exceptional circumstances." Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965); United States v Delahanty, 488 F.2d 396, 398 (6th Cir. 1973). We hold that the deliberate failure of Mars to obey the order of the District Court in the present case constitutes an "exceptional circumstance" justifying a conviction for contempt. See Gilbert v. California, 388 U.S. 263, 265-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Woods, 544 F.2d 242, 263 (6th Cir. 1976); United States v. Franks, 511 F.2d 25, 32 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975).
However, we cannot let the conviction for contempt stand, in view of the failure of the District Court to make the certification required by Rule 42(a).
In United States v. Schrimsher, 493 F.2d 842, 844-45 (5th Cir. 1974), the Fifth Circuit explained the purpose of the rule in the following language:
Appellate courts have often acknowledged the danger of abuse inherent in a proceeding which does not provide all of the safeguards which normally surround criminal prosecutions. Because of this danger, the procedural requirements of Rule 42(a) must be strictly observed. Pietsch v. President of United States, 2 Cir. 1970, 434 F.2d 861, 864 (Justice Clark); Widger v. United States, 5 Cir. 1957, 244 F.2d 103, 107. One of these requirements is that the order entered by the judge "shall recite the facts."
The recitation of the facts in the certificate serves an important...
To continue reading
Request your trial
-
Gustafson, In re
...F.2d 736, 738 (4th Cir. 1979) (witness refusal to testify creates compelling reason justifying summary contempt); United States v. Mars, 551 F.2d 711, 715 (6th Cir. 1977) (refusal to provide handwriting exemplar is an "exceptional circumstance" justifying summary contempt, but Rule 42(a) re......
-
Gustafson, In re
...U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965). See, e. g., In re Weeks, 570 F.2d 244, 246 (8th Cir. 1978); United States v. Mars, 551 F.2d 711, 714 (6th Cir. 1977); In re Allis, 531 F.2d 1391, 1392 (9th Cir.), cert. denied, 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976); United......
-
Thomas v. State
...it failed to recite facts); Matter of Contempt of Greenberg, 849 F.2d 1251, 1254 (9th Cir.1988) (no certification); United States v. Mars, 551 F.2d 711, 715 (6th Cir.1977) (no certification); In re Williams, 509 F.2d 949, 959 (2d Cir.1975) (no certification or factual findings); United Stat......
-
U.S. v. Cohen
...to the district court to allow it to file the requisite fifteen contempt orders. See Marshall, 451 F.2d at 378; United States v. Mars, 551 F.2d 711, 715 (6th Cir.1977); United States v. Vano, 496 F.2d 1195, 1196 (5th Cir.1974). On remand, the district court may reinstate the contempt convic......