U.S. v. McMahon

• Citation: 104 F.3d 638
• Decision Date: 15 January 1997
• Docket Number: No. 96-4370,96-4370
• Parties: 46 Fed. R. Evid. Serv. 381 UNITED STATES of America, Plaintiff-Appellee, v. Samuel H. McMAHON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 638

104 F.3d 638

46 Fed. R. Evid. Serv. 381

UNITED STATES of America, Plaintiff-Appellee, v. Samuel H. McMAHON, Jr., Defendant-Appellant.

No. 96-4370.

United States Court of Appeals Fourth Circuit.

Argued Sept. 27, 1996.

Decided Jan. 15, 1997.

ARGUED: David Carl Cordes, Bailey, Patterson, Caddell, Hart & Bailey, P.A., Charlotte, NC, for Appellant. David Alan Brown, Assistant United States Attorney, Charlotte, NC, for Appellee. ON BRIEF: Mark T. Calloway, United States Attorney, Kenneth M. Smith, Assistant United States Attorney, Charlotte, NC, for Appellee.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge MOTZ wrote the majority opinion, in which Judge NIEMEYER joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Samuel H. McMahon, Jr. appeals the district court's finding that he committed criminal contempt by willfully violating a sequestration order. We affirm.

I.

McMahon's contempt conviction arises out of his conduct during the criminal trial of his son, Samuel H. McMahon, III. This trial marked one chapter of years of litigation waged by McMahon and his son against those, including the federal government, charging them and entities controlled by them with fraudulent business activities. ¹

On February 1, 1996, in anticipation of McMahon III's criminal trial, defense counsel moved to sequester the government's witnesses "so that they cannot hear the testimony of other witnesses." The government responded to this motion on the same day, stating that it did not oppose the motion but requested the court to order "the exclusion of all witnesses [except certain government agents] including witnesses for the defendant."

On February 2, the court issued a written order, sequestering all witnesses, save some government agents. The written order provided, inter alia:

... the Government's motion to sequester the Defendant's witnesses will be granted, and the Defendant's witnesses will be excluded from the courtroom.

Defense counsel was provided a copy of the written order when he, McMahon, and McMahon III arrived for McMahon III's criminal trial on February 5.

Defense counsel did not inform McMahon of the sequestration order and so McMahon remained in the courtroom on February 5 during the voir dire of the jury. At this time, the court reporter offered daily trial transcripts to all interested persons. Although defense counsel did not order daily transcripts of the proceedings, McMahon ordered transcripts for himself.

Later on February 5, after voir dire was completed, but prior to opening statements, the prosecutor asked that McMahon be excluded from the courtroom pursuant to the sequestration order. Defense counsel requested in open court that the court exempt McMahon from the sequestration order because "he is the father of [McMahon III] and I would like for him to be present." The following colloquy then transpired:

The Court: Does the government object to that?

[Prosecutor]: We do, Your Honor, because Mr. McMahon's Jr.'s [sic] role in this case will become, I believe, somewhat critical. If [defense counsel] had made the same request with respect to the Defendant's wife, we wouldn't have an objection, but I believe Mr. McMahon Jr. should be excluded.

The Court: I have to go with the request unless there is a good reason for it, I will deny your motion for that. He will have to leave the courtroom.

According to McMahon, defense counsel then "very strongly" reiterated to McMahon that he would have to leave the courtroom, and McMahon left.

The trial proceeded--it consumed nine days in all. Eventually, government attorneys became aware of the activities of a woman sitting in the back of the courtroom. This woman would take extensive notes of the proceedings and periodically exit the courtroom to make phone calls. Upon learning that the woman in question was McMahon's secretary, Ms. Almond, the court permitted the prosecutor to examine her.

In response to the court's question as to why she was taking notes of the proceedings, Almond testified "Mr. McMahon, Jr. asked me if I would take notes." She produced nearly fifty pages of detailed notes, reflecting the testimony of government witnesses, documents entered into evidence by the government, and questions posed by the Assistant U.S. Attorney. (The district judge later remarked that Almond "took more notes than I did during the trial.") Almond also stated that she received the daily transcripts of the proceedings, brought the transcripts to McMahon's office at his request during the luncheon break, and then copied them for McMahon. Finally, Almond testified that she discussed the trial generally with McMahon in his office.

On the basis of this evidence, the district court initially ruled that McMahon would not be permitted to testify at McMahon III's criminal trial. Later the court concluded that McMahon III should not be deprived of presenting McMahon's testimony because there was insufficient evidence that McMahon III had directed or aided any violation of the sequestration order. For this reason, the court ultimately permitted McMahon to testify at McMahon III's trial; however, the court allowed the government to cross-examine McMahon as to his secretary's activities.

On February 22, 1996, subsequent to the termination of McMahon III's criminal trial, the government moved, pursuant to 18 U.S.C. § 401 ² and Fed.R.Crim.P. 42, for an order to show cause why McMahon should not be held in criminal contempt for willfully violating the sequestration order. The district court granted the motion and, on April 9, held a full evidentiary hearing on the matter.

At that hearing, the court received a number of exhibits and heard testimony from six defense witnesses, including McMahon, and one government witness. McMahon called Almond as his first defense witness. Although she initially attempted to distance herself from her earlier testimony, Almond ultimately acknowledged the truth of that testimony and supplied some additional evidence damaging to McMahon.

She testified that McMahon "requested" that she attend court proceedings. Moreover, she conceded that during the trial's luncheon recess she not only made copies of the daily trial transcripts at McMahon's request, but also left the copies at McMahon's office on her desk. When she returned to the office each day after the trial "sometimes" the trial transcript she had left at lunch would be on her desk and "sometimes it would not be." Moreover, although Almond swore that she never read the trial transcripts herself before the trial concluded, and had never seen McMahon read them, she acknowledged that several pages of the transcript were "dogeared," i.e., intentionally folded over to mark a place. She said that she had not folded the pages and agreed "that people were not in the habit of removing things that belonged to Mr. McMahon Jr. from [her] desk" in his office. Almond also admitted that in addition to generally discussing the trial with McMahon at his office, she telephoned him from the courthouse one or two times each day during the nine-day trial.

After Almond's testimony, McMahon offered several character witnesses and then testified at length on his own behalf. He began his testimony by claiming that one of the reasons he ordered daily trial transcripts was because his son's defense counsel told him that defense counsel would "need" the daily transcript. This testimony contradicted the affidavit McMahon offered from the defense counsel in which counsel swore that he did not want daily transcripts and so advised the court reporter, but that because McMahon himself wanted daily transcripts, counsel ordered them. McMahon admitted that defense counsel gave him pleadings from the proceedings against McMahon III, including the witness lists, and McMahon acknowledged that he knew he was listed as a prospective witness on both witness lists. McMahon asserted, however, that he had never seen the written sequestration order and never been told about it.

McMahon also claimed that he did not know about the oral sequestration order, and that he had been ordered out of the courtroom, not by the district court, but by McMahon III's defense counsel. McMahon had given a somewhat different account when he had testified at McMahon III's criminal trial. Then McMahon had conceded that he had been in the courtroom, had heard the prosecutor ask that he be excluded pursuant to the sequestration order, and had heard defense counsel argue that he be excepted from the sequestration order. McMahon admitted that, before he was excluded from the courtroom, he had known that the district court "had agreed [with the prosecutor] that I had to leave."

As for his secretary's activities, McMahon admitted asking her to pick up the daily transcripts but he said that this was only to have a record of the proceedings. He denied requesting that his secretary attend the trial and claimed that she repeatedly asked him if he would "allow her to come to the trial." He denied asking her to take notes at the trial. He denied reading the notes. Throughout the proceedings, he maintained that he read no more than the cover pages of the trial transcripts. Yet, he could not explain how his copies of the transcripts came to be "dogeared." Further, he did not "know" and was "not sure" how he learned of, and referred to, a government witness' trial testimony during his own trial testimony.

The government offered the testimony of one witness, Patty O'Brien. That witness corroborated the trial testimony of another witness, Renee Serwin, that McMahon had asked Serwin "to go to the bankruptcy court and lie about" McMahon III's request that they both create false documentation on certain business records.

At the conclusion of the hearing the district court found that the evidence demonstrated beyond a reasonable doubt that McMahon willfully violated the...