U.S. v. Ross

• Decision Date: 11 May 1976
• Docket Number: No. 75-1615,75-1615
• Citation: 535 F.2d 346
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph W. ROSS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 346

535 F.2d 346

UNITED STATES of America, Plaintiff-Appellee, v. Ralph W. ROSS, Defendant-Appellant.

No. 75-1615.

United States Court of Appeals Sixth Circuit.

Argued Feb. 13, 1976.

Decided May 11, 1976.

Jerry P. Hontas, Canton, Ohio, for defendant-appellant.

Fredrick M. Coleman, U. S. Atty., David Felman, U. S. Dept. of Justice, Cleveland, Ohio, Michael W. Farrell, c/o T. George Gilinsky, Washington, D. C., for plaintiff-appellee.

Before WEICK, CELEBREZZE and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This appeal requires us to determine whether a district court may require an attorney who fails to appear at a scheduled trial date to pay, pursuant to 28 U.S.C. § 1927, ¹ the costs of summoning a jury venire of 42 persons. The statute permits a district court to require an attorney to personally satisfy costs when he "so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously." We determine (1) that the attorney's conduct did not "unreasonably and vexatiously" increase costs, and (2) that the expense of the jury is not a "cost" within the meaning of the statute. Accordingly, we reverse the district court's judgment.

On November 16, 1973, appellant Ross, a lawyer who resided in Canton, Ohio, entered his appearance for defendant Florea in a federal criminal case docketed in the Northern District of Ohio charging George M. Florea and Raymond Vara with gambling in violation of 18 U.S.C. §§ 371 and 1084. Two weeks later, Attorney Robert J. Rotatori of Cleveland, Ohio, entered his appearance as co-counsel for defendant Florea in the same case. On June 25, 1974, the district court notified both defendants and their attorneys that trial was scheduled to begin Monday, July 15, 1974. On the morning of Friday, July 12, 1974, Mr. Rotatori informed the district judge before whom the case was to be tried that both defendants in the case were considering guilty pleas. Later that afternoon he returned to the district judge to advise the court that Florea had discharged him as counsel. In response to a specific inquiry from the district judge, Mr. Rotatori told the judge that appellant Ross would conduct Florea's defense at trial on Monday.

At 9:15 a. m. on Monday, July 15, when the case was called for trial, all parties were present except Florea's attorney, Ross. The district court learned from Florea that Mr. Ross was defending another client in a murder trial in the Stark County Common Pleas (state) Court. Thereupon the district court dismissed the panel of 42 persons which had been summoned as prospective jurors specifically for this case, and adjourned the proceedings until Wednesday, July 17, 1974, at 9:15 a. m.

On July 17, Mr. Ross was present, and the district judge asked him to explain his absence on Monday. Ross apologized to the court for the inconvenience he had caused and explained that on the previous Wednesday, July 10, he had accepted employment as defense counsel in a murder case in Stark County, Ohio. Ross said that he originally expected that the murder trial would be concluded by Friday, in time for him to be present for the Monday federal trial. He stated that on Friday morning, July 12, when it appeared that the trial would continue until Monday, he instructed his secretary to notify Mr. Rotatori that he could not be in federal court on Monday. Ross explained that his secretary informed him that she did, and that Rotatori told her: "He had talked to Mr. Florea today and there was going to be a plea because that (sic) things had been worked out." Some confusion was introduced when Ross related that he returned a telephone call to an assistant United States Attorney who had called him while he was at trial in Stark County. The government attorney informed Ross for the first time, at about 4:30 p. m. Friday afternoon, that Rotatori had been discharged by Florea. Nevertheless, Ross told the court that he assumed that Rotatori, whom he viewed as the principal attorney in their joint representation of Florea, was going to appear at federal court to act as counsel for Florea when he pled guilty.

The district judge made the following statement after Ross had explained his absence and failure to notify the court:

The Court well appreciates the fact that you commenced a murder trial a week ago today, and your involvement in that trial was, of course, a valid reason for your not your failure to appear here. And the Court, upon proper notification, would certainly have extended you the courtesy as well as the excuse for not appearing here on Monday.

Of course, the Court was not aware of any arrangements as between you and Mr. Rotatori outside of the fact that he was co-counsel of record. Mr. Rotatori did notify the Court that he had withdrawn or had been discharged, I should say, as counsel of record on Friday. And the information coming to the Court at that time was that the trial, however, would commence on Monday morning as scheduled.

With that in mind the Court proceeded as it had intended to proceed, and the parties appeared. And as a result of that appearance and the failure to proceed in this matter resulted in not only an inconvenience to the Government and its witnesses and your co-defendant and counsel, as well as the Court, it resulted in the accrual of certain expenses for which, under the circumstances, could have been avoided by perhaps a 30-cent phone call.

What do you propose we do as relates to the expenses involved in bringing in 43 jurors, and bringing in a number of witnesses from Las Vegas who have been just sitting here, Mr. Ross? What do you propose that we do as to those expenses?

After Ross again explained that he had been "deeply involved in a murder trial," and again apologized to the court, the district judge called the jury clerk to ascertain the total cost of summoning the jurors on Monday, July 15. The jury clerk reported that 42 persons had been summoned for jury service, solely for the case involving Vara and Florea. She stated that the cost of their attendance and mileage amounted to $1,027.80. In addition, it was shown that five FBI special agents and one civilian witness had been summoned to testify at the trial, and that they were required to wait until Wednesday because of Mr. Ross' absence on Monday.

The district judge then addressed the following remarks to Mr. Ross:

I believe your complete negligence in failing to take into consideration the proceedings scheduled before this Court to commence on July 15th constituted a violation of that section. (28 U.S.C. § 1927)

For that reason the Court is going to assess only the jury costs for 42 prospective jurors that were summoned for this particular case in the amount of $1,027.80. The Court is going to waive assessing the costs for the witnesses that the Government was required to maintain during the period of delay for the reason that it appeared to the Court that your actions were not wilful, although negligent, perhaps irresponsible. The Court will not consider contempt charges at this time.

On September 20, 1974, the district court issued a written order assessing appellant with the costs of summoning the jury. In the order, the district court made these findings of fact:

1. The failure of attorney Ross to appear on July 15, 1974, or to notify the Court of his inability to appear at the scheduled time was not purposeful or malicious;

2. The conduct of attorney Ross does not warrant the initiation of contempt proceedings;

3. The conduct of attorney Ross multiplied the proceedings so as to unreasonably increase the costs thereof in an amount of $1,027.80;

4. The taxpayers should not be required to bear the burden of counsel's inadvertent or negligent acts.

On appeal, appellant contends that because his conduct was not intentional and did not evidence a "serious and studied disregard for the orderly processes of justice," he should not be held for the costs of the aborted jury venire. We agree.

"VEXATIOUS" CONDUCT UNDER § 1927

The legislative history of the statute is sparse, and the cases interpreting it are not very helpful in divining the congressional purpose. Nevertheless, the precedents that we have found recognize that the Congress intended to impose a sanction on conduct more culpable than mere unintentional discourtesy to a court when it conjoined the word "vexatiously" with "unreasonably." Webster's Third New International Dictionary (1971) defines "vexatious" as "lacking justification and intended to harass." (Emphasis supplied.)

Since the statute employs the unusual approach of requiring an attorney personally to pay costs instead of the customary one of placing the responsibility for them upon a litigant, it seems appropriate not to impose this sanction for an unintended inconvenience to the court no matter how annoying it might be. Personal responsibility should, in this instance, flow only from an intentional departure from proper conduct, or, at a minimum, from a reckless disregard of the duty owed by counsel to the court.

This circuit spoke long ago on the subject in Toledo Metal Wheel Co. v. Foyer Bros. & Co., 223 F. 350 (6th Cir. 1915). In that case the district court invoked the predecessor statute ² to 28 U.S.C. § 1927 and imposed upon defendant's attorney the costs of taking a deposition because the attorney excessively cross-examined two witnesses and unwarrantably instructed another witness not to answer proper questions. We upheld the district court's finding that the attorney's conduct was "obnoxious to the orderly, reasonable, and proper conduct of an examination" and determined that this was sufficient for imposition of the costs.

A more recent case from the Seventh Circuit, Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 12 A.L.R.Fed. 895 (7th Cir. 1968), cert. denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221 (1969), held that the power to impose costs under 28 U.S.C. § 1927 should be exercised "only in instances of a serious...