U.S. v. Thoreen, 80-3137
| Citation | 653 F.2d 1332 |
| Decision Date | 17 August 1981 |
| Docket Number | No. 80-3137,80-3137 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Harold A. THOREEN, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John J. Canary, Fredric Tausend, Seattle, Wash., for defendant-appellant.
Jose E. Gaitan, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT and NORRIS, Circuit Judges, and HATFIELD, District Judge. *
I. INTRODUCTION
The issue before us is whether an attorney may be found in criminal contempt for pursuing a course of aggressive advocacy while representing his client in a criminal proceeding such that, without the court's permission or knowledge, he substitutes someone for his client at counsel table with the intent to cause a misidentification, resulting in the misleading of the court, counsel, and witnesses; a delay while the government reopened its case to identify the defendant; and violation of a court order and custom.
We affirm the district court's finding of criminal contempt. The conclusion that this appeal was untimely is reversed.
II. FACTS
By February 1980, Thoreen, an attorney, had practiced law for almost five years. He was a member of the bars of the State of Washington and of the Western District of Washington. He had made numerous court appearances and participated in one trial and several pretrial appearances before Judge Jack E. Tanner of the Western District of Washington.
In February 1980, he represented Sibbett, a commercial fisher, during Sibbett's non-jury trial before Judge Tanner for criminal contempt for three violations of a preliminary injunction against salmon fishing. 1 In preparing for trial, Thoreen hoped that the government agent who had cited Sibbett could not identify him. He decided to test the witness's identification.
He placed next to him at counsel table Clark Mason, who resembled Sibbett and had Mason dressed in outdoor clothing denims, heavy shoes, a plaid shirt, and a jacket-vest.
Sibbett wore a business suit, large round glasses, and sat behind the rail in a row normally reserved for the press.
Thoreen neither asked the court's permission for, nor notified it or government counsel of, the substitution.
On Thoreen's motion at the start of the trial, the court ordered all witnesses excluded from the courtroom. Mason remained at counsel table.
Throughout the trial, Thoreen made and allowed to go uncorrected numerous misrepresentations. He gestured to Mason as though he was his client and gave Mason a yellow legal pad on which to take notes. The two conferred. Thoreen did not correct the court when it expressly referred to Mason as the defendant and caused the record to show identification of Mason as Sibbett.
Because of the conduct, two government witnesses misidentified Mason as Sibbett. Following the government's case, Thoreen called Mason as a witness and disclosed the When the trial resumed, the government reopened and recalled the government agent who had cited Sibbett for two of the violations. He identified Sibbett, who was convicted of all three violations.
substitution. The court then called a recess.
On February 20, 1980, Thoreen was ordered to appear on February 27 and show cause why he should not be held in criminal contempt. At the hearing, Judge Tanner found him in criminal contempt.
The order was lodged with the court on March 28. The signed order was filed and entered on the civil docket on March 31. In a letter of April 2, the court clerk said he mailed a copy to Thoreen and to his attorney. Thoreen's copy went to an incorrect address. The order of August 12, however, finds that the clerk did not send a copy to Thoreen's attorney until April 7.
Eleven days later, on April 11, Thoreen filed a notice of appeal.
On July 9, this court entered an order remanding to the district court to rule whether that court's order was entered properly and, if not, whether Thoreen's delay in filing was due to excusable neglect. The district court found (1) the order was entered properly, (2) the clerk mailed a copy to Thoreen's attorney on April 7, (3) Thoreen filed his notice of appeal one day after the ten-day limit for filing criminal appeals expired, and (4) his delay was not due to excusable neglect because he had notice of the court's ruling from the show cause hearing on February 27.
The action has been docketed consistently as a civil matter as was the underlying contempt action against Sibbett.
III. DISCUSSION
Federal Rule of Appellate Procedure 4(a) provides that appeals as of right from civil cases shall be filed within 30 days from entry of judgment. Federal Rules of Appellate Procedure 4(b) says that a criminal appeal must be filed within ten days after entry. 2 A judgment "is entered within the meaning of (4(b)) when it is entered in the criminal docket." Id.
Thoreen argues that he filed timely because the case was docketed consistently as We agree with the government that the contempt proceeding was criminal, but hold that Thoreen's appeal was timely because the clerk did not enter the judgment on the criminal docket. The ten-day period had not begun to run. See United States v. Ronne, 414 F.2d 1340, 1342 n.1 (9th Cir.1969). A notice of appeal filed after the court's announcement of its order, but before its entry is timely because it is "treated as filed after such entry and on the day thereof." 9 Wright's Federal Practice, P 204.20 at 4-133 (1980).
a civil matter and the order has never been entered on a criminal docket. The government argues the court lacks jurisdiction because the contempt proceeding was criminal and Thoreen failed to file within the ten-day period.
Alternatively, the appeal is timely under Rule 4(a) because it was filed within 30 days of the entry of the judgment on the civil docket. 3
Judge Tanner found Thoreen in criminal contempt for the substitution because it was imposed on the court and counsel without permission or prior knowledge; the claimed identification issue did not exist; it disrupted the trial; it deceived the court and frustrated its responsibility to administer justice; and it violated a court custom. He found Mason's presence in the courtroom after giving the order excluding witnesses another ground for contempt because Thoreen planned that Mason would testify when the misidentification occurred. Judge Tanner held also that Thoreen's conduct conflicted with DR 1-102(A)(4) 4, DR 7-102(A)(6) 5, and DR 7-106(C)(5) 6 of the Washington Code of Professional Responsibility.
Thoreen's principal defense is that his conduct was a good faith tactic in aid of cross-examination and falls within the protected realm of zealous advocacy. He argues that as defense counsel he has no obligation to ascertain or present the truth and may seek to confuse witnesses with misleading questions, gestures, or appearances. See United States v. Wade, 388 U.S. 218, 257-58, 87 S.Ct. 1926, 1947-48, 18 L.Ed.2d 1149 (1967) (Justice White, dissenting and concurring in part).
He argues also that (1) in the absence of a court rule controlling who may sit at counsel table, his failure to give notice of the substitution is not misbehavior within 18 U.S.C. § 401(1) (1976); (2) he did not intend to deceive; and (3) the exclusion order was not directed at Mason.
While we agree that defense counsel should represent his client vigorously, regardless of counsel's view of guilt or innocence, Wade, supra; Washington Code of Professional Responsibility (CPR), Canon 7, we conclude that Thoreen's conduct falls outside this protected behavior.
Vigorous advocacy by defense counsel may properly entail impeaching or The latitude allowed an attorney is not unlimited. He must represent his client within the bounds of the law. Wade, supra; CPR Canon 7. As an officer of the court, he must "preserve and promote the efficient operation of our system of justice." Chapman v. Pacific Tel. & Tel., 613 F.2d 193, 197 (9th Cir.1979).
confusing a witness, even if counsel thinks the witness is truthful, and refraining from presenting evidence even if he knows the truth. Wade, supra. When we review this conduct and find that the line between vigorous advocacy and actual obstruction is close, our doubts should be resolved in favor of the former. Commonwealth of Pennsylvania v. Local 542 International Union of Operating Engineers, 552 F.2d 498, 509 (3rd Cir.), cert. denied sub nom., Freedman v. Higginbotham, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977).
Thoreen's view of appropriate cross-examination, which encompasses his substitution, crossed over the line from zealous advocacy to actual obstruction because, as we discuss later, it impeded the court's search for truth, resulted in delays, and violated a court custom and rule. Moreover, this conduct harms rather than enhances an attorney's effectiveness as an advocate.
It is fundamental that in relations with the court, defense counsel must be scrupulously candid and truthful in representations of any matter before the court. This is not only a basic ethical requirement, but it is essential if the lawyer is to be effective in the role of advocate, for if the lawyer's reputation for veracity is suspect, he or she will lack the confidence of the court when it is needed most to serve the client.
American Bar Association Standards for Criminal Justice, The Defense Function 4.9 (1980) (footnote omitted) (herein The Defense Function).
18 U.S.C. § 401 (1976) provides
A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(3) Disobedience or resistance to its...
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