U.S. v. Nunez

• Decision Date: 14 October 1986
• Docket Number: No. 85-5502,85-5502
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Fernando NUNEZ, et al., Defendants. In re Samuel I. BURSTYN, Esq., Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1260

801 F.2d 1260

UNITED STATES of America, Plaintiff-Appellee, v. Fernando NUNEZ, et al., Defendants.

In re Samuel I. BURSTYN, Esq., Appellant.

No. 85-5502.

United States Court of Appeals, Eleventh Circuit.

Oct. 14, 1986.

John F. Evans, Zuckerman, Spaeder, Taylor & Evans, G. Richard Strafer, Coral Gables, Fla., William P. Cagney, III, Miami, Fla., for appellant.

Benedict P. Kuehne, Neal R. Sonnett, Bierman, Sonnett, Shohat, & Sale, P.A., Miami, Fla., for amicus curiae NACDL.

Leon B. Kellner, U.S. Atty., Jon May, Thomas Blair, Linda Collins-Hertz, Sonia O'Donnell, Anne R. Schultz, Nancy L. Worthington, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before FAY, Circuit Judge, HENDERSON ^* and NICHOLS ^**, Senior Circuit Judges.

PER CURIAM:

Samuel I. Burstyn, an attorney, appeals from an order finding him in contempt for failure to appear in court on the first day of the trial of his client, Fernando Miguel Nunez.

I.

The appellant, together with co-counsel Michel Ociacovski, an associate of Mr. Burstyn's law firm, represented Fernando Miguel Nunez who, along with three other individuals, was indicted for various narcotics related offenses. The case was initially assigned to the Honorable Alcee L. Hastings in the United States District Court for the Southern District of Florida. Following lengthy pretrial proceedings and several continuances, the last two of which were requested by defendant Nunez, the case was reassigned to the Honorable G. Ernest Tidwell of the United States District Court for the Northern District of Georgia, who was sitting in the Southern District of Florida by designation during the weeks of June 10 and June 17, 1985.

Judge Tidwell scheduled a status conference for Tuesday, June 11. At the status conference, Judge Tidwell asked counsel if they could begin trial the next day because he wanted to be certain to finish the following week as he was scheduled to return to Georgia on Saturday, June 22. The prosecutor indicated that the government would prefer not to proceed until Monday, June 17 because he needed time to reassemble his witnesses and to resubpoena one witness. In addition, he stated that he would be out of town on Friday, June 14. Mr. Burstyn announced that he was ready for trial, but indicated that he would prefer to have a few days time to rest, having just completed another trial, and to work with Mr. Ociacovski in completing their preparation for what would be Mr. Ociacovski's "first federal criminal trial." Moreover, Mr. Burstyn also indicated that he would have to reassemble witnesses, and possibly revalidate subpoenas.

After some discussion, Judge Tidwell gave counsel the option of striking the jury on Thursday, June 13 and then recessing on Friday, or striking the jury on Monday, June 17 and continuing on through the week. Mr. Burstyn responded by requesting that the trial be scheduled for Monday, giving his "full assurance" that they would be ready to proceed at that time. The court agreed to this request, stating: "[s]o I would expect in this case that every defendant and every lawyer to [sic] be here ready to hit the ground running at 9:00 a.m., Monday morning."

On Monday, June 17, all counsel, except Mr. Burstyn, were present. Mr. Ociacovski appeared on behalf of defendant Nunez and announced that he was standing in for Mr. Burstyn who would return the next day. The court thereupon asked Mr. Ociacovski whether he was going to try the case. He responded: "That's a difficult question. I have never tried a jury case. I was going to try it with Mr. Burstyn. That was my client's understanding, however, he [Mr. Burstyn] won't be here until tomorrow morning." Although Mr. Burstyn couldn't be present, Mr. Ociacovski explained, they had not sought a continuance because prior continuances had been granted in the case. He further explained that this had been discussed with Nunez over the weekend, and that Nunez understood that Mr. Burstyn would be absent. Although Nunez "wasn't happy about it," he had agreed to have Mr. Ociacovski represent him on the first day of the proceedings.

The court, not satisfied with these responses, directed Mr. Ociacovski to confer with Nunez, stating: "I am particularly interested in whether or not he is willing to waive Mr. Burstyn's presence and is satisfied to go to trial in his absence today." After conferring with Nunez out of the court's presence, Mr. Ociacovski returned and informed the court that his client would "prefer" that Mr. Burstyn be present. The court concluded that under the circumstances, the trial could not go forward that day. Accordingly, the court sua sponte continued the trial until 9:00 a.m. the following day, and directed that On Tuesday, June 18, the trial was again delayed by Mr. Burstyn's failure to arrive until approximately 9:15 a.m. The court began the proceedings by asking Mr. Burstyn why he had been absent the previous day. Mr. Burstyn informed the court that he had had a long standing deposition scheduled in Chicago, and that he had specifically planned to have Mr. Ociacovski argue the pre-trial motions and select the jury. Mr. Burstyn also explained that he had discussed this matter with Nunez on at least two prior occasions, and that he "really thought that by having Michel [Ociacovski] present it wouldn't impede the progress of the matter at all." When asked why he had not notified the court during the status conference of his inability to appear, Mr. Burstyn stated that he had not remembered his commitment in Chicago until the following Wednesday or Thursday. He also admitted that, at the time, he did not think it necessary to contact the judge, the judge's staff, or the government, concerning this pre-existing commitment. Mr. Burstyn reiterated that he hadn't expected that his absence would impede the court, and indeed, that he "was really trying to accommodate the Court's tight schedule by not asking for a one day continuance."

Mr. Burstyn personally appear for trial at that time.

The court thereupon announced that it was holding Mr. Burstyn in contempt, stating:

Your conduct has made it impossible for me to try the case. I indicated I have to be back in Atlanta on Monday. It is clear--if it wasn't last week it is clear from the announcement yesterday, that either the case can't be or wouldn't be tried within a week. I have no alternative but to consider your conduct as flagrant and contemptuous and I find you in contempt and sentence you to 15 days incarceration in the custody of the Attorney General.

The court also stated that the situation was "even more aggravated" because the delay in the trial was, in part, at Mr. Burstyn's request, and made in an attempt to accommodate him. After denying requests for bond or for a stay of the court's order, Mr. Burstyn was incarcerated and the trial indefinitely continued.

Later that day, the court filed a written opinion and order outlining the events which led to the court's finding of contempt. The court summarized Mr. Burstyn's objectionable conduct as follows:

assuring the Court during the status conference on Tuesday, June 11, 1985, that he would be ready for trial on June 17, 1985, when in fact he was not; ... failing to appear for trial on Monday, June 17, 1985, as ordered in the above-styled matter and as scheduled by the Court; ... absenting himself from the Court on Monday, June 17, 1985, without in any way informing the Court prior thereto and obtaining the permission of the Court to absent himself.

This conduct, the court concluded, "obstructed and disrupted the orderly conduct of the Court's business [and] constituted an aggravated, willful, and intentional contempt of the Court." In response to the court's written order, Mr. Burstyn filed a notice of appeal.

At 4:00 p.m. that same day, a hearing was held before Judge Tidwell for the purpose of presenting mitigating evidence and to consider a stay of the court's order or, in the alternative, to set bond. During the hearing, however, it was pointed out that unless Mr. Burstyn withdrew his notice of appeal, the court was without jurisdiction to consider any evidence in mitigation. Accordingly, the court continued the matter to allow Mr. Burstyn an opportunity to consider withdrawing the notice of appeal. In the meantime, Mr. Burstyn was released from custody on $500 bond.

At a subsequent hearing held on Thursday, June 20, Mr. Burstyn, represented by counsel, announced that he would not withdraw his notice of appeal. In so doing, Mr. Burstyn indicated that the proceedings implicated a possible double jeopardy issue, and that withdrawal of the notice of appeal might result in the waiver of any double

                jeopardy rights which had attached.  In response, the government argued that by his election, Mr. Burstyn was waiving the right to any future evidentiary hearings. 1   In view of the fact that Mr. Burstyn refused to withdraw his notice of appeal, no argument in mitigation was heard as the district court was without jurisdiction to consider such evidence.  Bond was continued in the amount which had been set by the court on June 18
                

II.

A federal court has the power to vindicate its authority and safeguard its own processes by imposing criminal contempt sanctions. ² See 18 U.S.C. Sec. 401 (1982). The procedures a court must follow in utilizing its contempt powers are set forth in Fed.R.Crim.P. 42. ³ Rule 42 outlines the two alternative procedures to be used, depending on whether the contemptuous behavior occurred in the presence of the court, or not.

Rule 42(a) permits the use of summary procedures where the alleged misconduct is "committed in the actual presence of the court." Fed.R.Crim.P. 42(a). Subsection (a) therefore "fills 'the need for immediate penal vindication of the dignity of the court' and permits the court to act swiftly to stop conduct which amounts to intentional obstruction...