U.S. v. Oberhellmann

• Decision Date: 18 October 1991
• Docket Number: No. 90-3864,90-3864
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmer C. OBERHELLMANN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

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946 F.2d 50

UNITED STATES of America, Plaintiff-Appellee, v. Elmer C. OBERHELLMANN, Defendant-Appellant.

No. 90-3864.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 6, 1991.

Decided Oct. 18, 1991.

Rodger A. Heaton (argued), Patrick Kelley, Asst. U.S. Attys., Office of the U.S. Atty., Springfield, Ill., for plaintiff-appellee.

John M. Bray, Charles B. Wayne (argued), Schwalb, Donnenfeld, Bray & Silbert, Washington, D.C., for defendant-appellant.

Before BAUER and MORAN ^*, Chief Judges, and POSNER, Circuit Judge.

POSNER, Circuit Judge.

Judge Mills found Mr. Oberhellmann, a member of the Missouri bar, guilty of criminal contempt and sentenced him to two months in jail. A plaintiffs' tort lawyer, Oberhellmann had in 1987 hired a young lawyer named Howard Becker to assist him in his practice; the terms of their relationship were never formalized. Shortly after Becker came on board, Oberhellmann was retained by Douglas Payton to sue the City of Mattoon, Illinois, for an accident that had rendered Payton a quadriplegic. Oberhellmann assigned the matter to Becker, who filed suit in Judge Mills' court. Only Becker entered an appearance for Payton, and the court was unaware of any interest in the case that Oberhellmann might have had. Indeed, throughout a lengthy pretrial period that included extensive discovery, a number of motions, and periodic court appearances, Becker remained the only counsel of record for Payton.

On April 10, 1990, Oberhellmann fired Becker. Shortly afterward, Oberhellmann discovered that the Payton file was missing. Becker claims to have told Oberhellmann's secretary that he (Becker) had the file because it was his case. Oberhellmann insists that Becker denied he had the file but that he, Oberhellmann, suspected that Becker had taken the file and would attempt to settle the case in order to get some ready cash. Becker did settle the case, and notified Judge Mills, who on April 27 signed an order dismissing the case with prejudice pursuant to Fed.R.Civ.P. 41(a)(2). On that very day, fearing though not knowing the worst, Oberhellmann had prepared a notice of withdrawal of appearance which states that Howard Becker "hereby withdraws as counsel for Plaintiff" and that "Elmer C. Oberhellmann, Inc. will remain as counsel for Plaintiff." Oberhellmann forged Becker's signature on this document, then mailed the notice to the clerk of Judge Mills' court and a copy of the notice to the lawyer for the City of Mattoon. The date of these mailings is unknown but the clerk received the notice on May 9 and docketed it the next day; we shall see that the city's lawyer must have received his copy no later than the clerk. With the copy for the city's lawyer went a cover letter in which Oberhellmann stated that Becker had left his office and that Payton was a client of Oberhellmann's professional corporation.

Early in May, Oberhellmann discovered that Becker had indeed settled the Payton suit. On May 10 he called the city's lawyer and told him that Becker had in settling the case acted without authority. Oberhellmann followed up this call with two telegrams. Also on May 10, Judge Mills received a letter from Becker, mailed the previous day. Apparently, the city's lawyer had, upon receiving Oberhellmann's letter enclosing the notice of withdrawal of appearance, immediately called Becker, who promptly fired off the letter to Judge Mills. The letter stated that Becker's name on the notice of withdrawal had been forged and that Oberhellmann had no interest in the case.

On May 29, the city's lawyer, joined by Becker, moved Judge Mills to enforce the settlement agreement. The judge denied the motion on the ground that his order of April 27 had ended the case and that the subsequent brouhaha between Becker and Oberhellmann had no effect on the settlement's validity. Payton had not complained. He had agreed to the settlement negotiated by his counsel of record and that, Judge Mills said, was the end of it. The city was not satisfied, and filed in Judge Mill's court an interpleader suit to obtain a judicial determination of the respective rights of itself, Payton, Becker, and Oberhellmann. That suit was settled in December 1990 with an order confirming the tort settlement that Becker had negotiated with the city on Payton's behalf (a "structured," i.e., installment, settlement with a present value of $500,000) and awarding Oberhellmann $121,000 in fees and expenses and Becker $21,000.

In the middle of all this, on May 14, Judge Mills had on his own initiative sent a notice of criminal contempt charges to Oberhellmann. The notice laid the charges under 18 U.S.C. § 401(2), which was wrong. That section punishes misbehavior by court officers, which for purposes of the section the litigants' attorneys are not. Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956). One of the questions raised by this appeal that we need not decide is whether the naming of the wrong statute was a mere typographical error or something more harmful because it may have made the judge slide over a critical question under section 401(1) that is immaterial to 401(2)--whether there was an actual obstruction of justice as a consequence of Oberhellmann's misconduct.

The government having agreed not to seek a sanction that would trigger the defendant's right to a jury trial, the case was tried by Judge Mills on July 3, 1990, pursuant to the streamlined procedures of Fed.R.Crim.P. 42(b). After an 80-minute hearing in which Oberhellmann (who was not represented by counsel) admitted having knowingly acted without authority in signing Becker's signature to the notice of withdrawal of appearance, the judge found him guilty. 748 F.Supp. 1344 (C.D.Ill.1990).

A federal court is authorized to punish for criminal contempt "misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice." 18 U.S.C. § 401(1). As an original matter, having reference to the grammar as well as apparent purpose of this provision, we might have thought that the only significance of the reference to obstructing justice was the help it gave in determining whether misbehavior outside the presence of the court was sufficiently likely to interfere with the sound functioning of the court to be punishable, and that of course a judge could punish misbehavior--properly defined to exclude trivial breaches of etiquette or decorum--that occurred in his presence whether or not it actually obstructed the administration of justice. United States v. Lowery, 733 F.2d 441, 444-45 (7th Cir.1984); Farese v. United States, 209 F.2d 312, 316 (1st Cir.1954); cf. Ex parte Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150 (1889); In re Brown, 454 F.2d 999, 1013-14 (D.C.Cir.1971) (dissenting opinion). The original statute (Act of March 2, 1831, ch. 99, 4 Stat. 487) fairly dictated this interpretation because it had a comma after "presence," and the subsequent disappearance of the comma in the course of a revision of the criminal code was an accident. United States v. Lowery, 733 F.2d at 445. But, bowing to a long line of cases, the government concedes that, wherever the misbehavior occurs, the government must prove (of course beyond a reasonable doubt) that the misbehavior actually obstructed the administration of justice--by delaying proceedings, making more work for the judge, inducing error, imposing costs on parties, or whatever. In re McConnell, 370 U.S. 230, 234, 82 S.Ct. 1288, 1291, 8 L.Ed.2d 434 (1962); United States v. Seale, 461 F.2d 345, 367 (7th...