U.S. v. Revie
| Decision Date | 21 December 1987 |
| Docket Number | No. 86-2968,86-2968 |
| Citation | 834 F.2d 1198,17 C.B.C.2d 1446 |
| Parties | 17 Collier Bankr.Cas.2d 1446, Bankr. L. Rep. P 72,152 UNITED STATES of America, Plaintiff-Appellee, v. Norman D. REVIE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michael Maness, Houston, Tex., for defendant-appellant.
John R. Braddock, James R. Gough, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, and GEE and RUBIN, Circuit Judges.
Norman Revie appeals a decision of the district court adjudicating him in criminal contempt for willfully disobeying a show cause order issued by the bankruptcy court. We conclude that the district court was not clearly erroneous in its determination of Revie's guilt and therefore affirm.
Revie's refusal to obey an order to show cause why he did not turn over to the trustee of Shearn Moody's bankrupt estate a valuable 1879 four dollar gold coin has given rise to this appeal. As administrative assistant to Shearn Moody, Jr., Revie occupied an office in a house in Galveston formerly owned by Moody's mother. An 1879 "coiled hair 10 struck gold stella" was kept in a storage room adjacent to Revie's office. Bankruptcy Judge Letitia Taitte Clark 1 conducted hearings and determined that Revie had possession of the valuable coin. On March 4, 1986, Judge Taitte ordered Revie to turn over personally the gold coin to the trustee of Moody's bankrupt On March 11, 1986, Revie noticed an appeal of the turnover order, but he sought no stay of further proceedings concerning the matter in the bankruptcy court. Later, Judge Taitte ordered Revie to show cause why he should not be held in civil contempt for his failure to turn over the coin. The order directed that Revie "shall appear" before the bankruptcy court on April 16, 1986 at 2:00 p.m. 2
estate by 5:00 p.m. on March 7, 1986. Revie did not comply with the order.
Although Revie contends that he did not receive written notice of the hearing until several months later, his attorney, Louis Dugas, received timely telephone notice of the hearing from the bankruptcy court's clerk. At the trial for criminal contempt, Dugas testified that he informed Revie of the hearing by phone. When he spoke with his client, Dugas neither knew where his client was nor advised Revie whether or not he should appear for the hearing. In fact, at the time of the conversation Revie was attending depositions of his former employer, Shearn Moody, Jr., in Washington, D.C. On April 14th, lawyers at the deposition hearing attempted to accommodate Revie's schedule, noting that the examination involving Revie could commence at a time that did not conflict with Revie's obligation to be in Houston on April 16 for the contempt hearing. 3
Revie did not attend the contempt hearing. In response to Judge Taitte's inquiry as to Revie's absence at the hearing, Dugas indicated that he did not know why Revie was absent. Judge Taitte issued a second Order to Show Cause commanding Revie's appearance on April 22, 1986. 4 Revie failed to appear for the second time, and Judge Taitte certified facts to the district court A United States Marshal in Washington, D.C. went to the hotel where Revie was reported to be having lunch between 1:00 and 2:00 p.m. on July 17, 1986. The Marshal approached the table where Revie was seated, made inquiries, and returned to the registration desk to check a room registration. Upon returning to the dining room, the Marshal noticed that the suspect had decamped. A chase ensued and Revie was apprehended. 5
supporting a finding of criminal contempt against Revie. The district court judge issued orders for Revie's appearance on May 15 and again June 11, 1986. Revie appeared for neither hearing, and an order for his arrest issued.
The district court adjudicated Revie guilty of criminal contempt for willfully disobeying the order to show cause and sentenced him to incarceration for a period of six months. Revie appeals this judgment of the district court.
Revie argues that the district court erred in its finding of guilt beyond a reasonable doubt. Appellant also maintains that Judge Taitte lacked jurisdiction to issue the show cause orders and thus that his criminal contempt conviction must be vacated.
1. Guilt.
In order to convict of criminal contempt for failure to appear at a show cause hearing, the government must prove beyond a reasonable doubt that the contemnor had notice of a specific order to appear and willfully disobeyed the order. United States v. Rylander, 714 F.2d 996 (9th Cir.1983); In re Rumaker, 646 F.2d 870, 872 (5th Cir.1980); In re Weeks, 570 F.2d 244, 245 n. 1 (8th Cir.1978). Appellant argues that because Judge Taitte's two orders did not direct him to appear "in person" the orders were not specific. This argument lacks merit.
Determining whether or not an order is specific requires a factual inquiry into the reasonableness of the order's specificity, given the context in which it was issued. United States v. Turner, 812 F.2d 1552, 1565 (11th Cir.1987). Judge Taitte had issued The district court determined that Revie had knowledge of both the first and second show cause orders and willfully disobeyed them. We must review the factual findings of the trial court under the clearly erroneous standard, considering the evidence in the light most favorable to the government. United States v. Baker, 641 F.2d 1311, 1317 (1981).
an initial show cause order setting a hearing for April 16, 1986, that appellant disobeyed. To give appellant a final opportunity to attend the show cause hearing, Judge Taitte set another for April 22. It is clear that her concern for the seriousness of the sanction that Revie could face for disobeying the initial order led her to schedule the second hearing. This concern of the bankruptcy judge was not only communicated orally by Judge Taitte to Mr. Dugas at the hearing on April 16 but was also put in writing in the second Order to Show Cause. Revie's counsel contended at oral argument that Revie should not be expected to divine the conversation between Judge Taitte and Dugas in which Judge Taitte made clear her desire that Revie personally attend the second hearing, maintaining that because Judge Taitte's comments were not contained in the second order Revie had no notice that he was required to appear personally. The second order did contain Judge Taitte's command that Revie appear in person when it stated "the court set an additional hearing to provide Norman D. Revie one more chance to appear to show cause why he should not be held in contempt." 6 Any possible confusion regarding whether or not Revie had to appear "in person" was clarified by Judge Taitte's statement in her second order that Revie's absence would be tolerated only once, and thus that "appearance" by counsel--which had already occurred--did not suffice
At each of the show cause hearings, Revie's counsel indicated that he did not know why his client had failed to appear. 7 When asked at trial why Revie did not appear at the April 22 hearing, Revie's counsel responded, "This may be just memory, but I got the impression that he was afraid he would be thrown in the jail." On Monday, April 14, two days before the first show cause hearing, Revie stated to lawyers in Washington that Judge Taitte lacked jurisdiction to issue the show cause order. This statement indicates, as the trial judge concluded, that Revie had made an independent decision that Judge Taitte lacked authority to issue the show cause order.
Any confusion regarding whether Revie had to appear in person at the April 16 hearing was clarified in the second order. Revie's counsel urged us at oral argument to review only two statements at trial that purportedly indicate clearly Revie's lack of knowledge regarding his obligation to appear personally before Judge Taitte's court: (1) Dugas stated that he did not recall whether he had advised Revie that he was required to appear on April 22; (2) after Revie told Dugas he would not attend, Dugas told Revie that he would appear on his behalf in accordance with 28 The second part of the record highlighted by Revie's counsel at oral argument does not demonstrate that Revie did not have knowledge of Judge Taitte's order. It simply indicates that Revie made a decision to not attend the hearing and to send his counsel to appear at the hearing to argue on his behalf. Two inferences can be drawn from the statement: (1) Revie simply misunderstood that he had an obligation to appear in person; (2) Revie decided he was going to disobey the order, and his counsel made assurances that, at the least, he was entitled to argue on behalf of Revie's interests at the hearing, which counsel did. The trial judge would not be clearly erroneous in attaching the second significance to this testimony. Based upon the record evidence and inferences discussed above, we do not find that the district court was clearly erroneous in its determination that Revie had knowledge of the second show cause order.
U.S.C. Sec. 1654. Whether Dugas advised Revie that he had to obey a clear court order is not determinative of whether Revie had knowledge of the order. In order to conclude, as Revie's counsel urges us to do, that Revie could not be found to have had knowledge of the order "beyond a reasonable doubt" we would be required to deny the use of circumstantial evidence to find guilt in criminal contempt cases. Under such a prescription, unless a witness could testify to having overheard the conversation between attorney and...
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