United States v. Britton
| Decision Date | 03 October 2013 |
| Docket Number | No. 12–3711.,12–3711. |
| Citation | 731 F.3d 745 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Juan BRITTON, Defendant. Appeal of Beau Brindley. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Scott A.C. Meisler, Attorney, Department of Justice, Washington, DC, for Plaintiff–Appellee.
Joshua J. Jones, Michael J. Thompson, Timothy Joseph Witczak, Attorneys, Law Offices of Beau B. Brindley, Chicago, IL, for Appellant.
Beau B. Brindley, Attorney, Law Offices of Beau B. Brindley, Chicago, IL, for Defendant.
Before WOOD, Chief Judge, and MANION and TINDER, Circuit Judges.
Beau Brindley represents defendant Juan Britton in this criminal case. The district court summarily held Brindley in contempt of court under Fed.R.Crim.P. 42(b). The court had set a status conference in the criminal case and ordered Brindley to appear in person. When Brindley failed to appear, the court issued an order to show cause why he should not be held in contempt. At the conclusion of the show cause hearing, the court found Brindley in contempt and remanded him to the custody of the United States Marshal for a period of two days. Brindley immediately appealed and filed an emergency motion for release from custody pending appeal, which this court granted. We vacate the district court's contempt finding and remand for further proceedings.
In July 2011, Juan Britton was charged with two cocaine conspiracy counts and related offenses. His codefendant Antonio J. Colon, was charged in one of the cocaine conspiracy counts. Later that month, Brindley and his associate, Michael Thompson, entered appearances as counsel for Britton. Months later, Britton and Colon were scheduled for a joint trial. Both defendants filed a motion to continue the trial date; the court set a hearing on their motions and ordered Brindley and Britton as well as Colon and his counsel to be present in court at the hearing. Britton appeared at the hearing with Thompson; Brindley did not appear. At a June 2012 status conference, the court scheduled a jury trial for February 2013 and set an October 31, 2012 deadline for pretrial motions. Colon filed a motion to suppress and other pretrial motions, but Britton did not file any pretrial motions.
On November 6, the court issued an order as to Britton, setting a status conferencefor November 26 “by personal appearance” to discuss pretrial motions and the jury trial, and ordered Brindley “to be present in person ... and not through other counsel.” Britton appeared, but Brindley did not and he made no attempt to contact the court. Thompson did not appear either. The court clerk tried to reach Brindley by telephoning his office, but no one answered. The court set a show cause hearing for November 30, 2012 at 1:00 p.m., and ordered Brindley to “appear and show cause why he should not be held in contempt of court for his failure to appear for the status conference set by personal appearance for November 26.”
On November 28, at 5:31 p.m., Brindley filed a response to the show cause order and moved to continue the show cause hearing. He stated that, prior to the November 26 status conference, he had not been expecting any order related to Britton, and was in the midst of another trial when the court issued its order setting the November 26 conference. He claimed he had not seen the court's order, and he apologized for his oversight. Brindley wrote that at the time of the November 26 conference, he was visiting a criminal defendant in jail, preparing him to testify at an evidentiary hearing.
In addition, Brindley requested a continuance of the show cause hearing, explaining that he was He also explained that due to other commitments, including a “massive trial” and hearings, he was requesting a continuance of the show cause hearing to December 28, 2012. As an alternative, he indicated that he could be available by telephone the afternoon of December 3.
On November 29, the district court denied the motion to continue and ordered Brindley to be present in court on November 30. Later on the 29th, the government filed a notice of information regarding the order to show cause. The government stated that a review of the docket in People v. Eatman reflected that Timothy Witczak who was with the Law Offices of Beau B. Brindley had entered his appearance in the case; that since August 2012, the case had been set for trial on December 10, 2012; that on November 28, Witczak filed a motion by telephone to continue the December trial date; and that a hearing on the motion to continue was then set for November 30 at 9:30 a.m. The government also indicated that the Assistant State's Attorney (ASA) assigned to the Eatman case informed the federal prosecutor in an email that the case was set for trial on December 10; that Witczak called the ASA on November 28 (the email indicated October, but a later communication established this was an error), stating that he would like to file a motion to continue; that the ASA advised Witczak that he would not object; that the case is set for a hearing on the recent continuance motion on November 30; and that Witczak was the only defense attorney of record at that time.
Shortly thereafter, Brindley filed a response to the government's notice of information in the Britton case, stating that Witczak was his associate and that as the attorney of record in Eatman, Witczak had handled preliminary matters in the case, but Brindley would be the trial attorney. Brindley offered this explanation:
Mr. Witczak asked the undersigned to appear with him for a hearing on November 30, 2012, which would determine if the trial in the Eatman case would be continued. When asked, the undersigned believed that the trial was actually scheduled for November 30, but was likely to be continued. Mr. Witczak was asking him to appear to insure that the continuance was granted. The undersigned believed that, in the event the continuance was not granted, they would proceed with the trial as scheduled on that day, which he believed he was required to be present for.
Brindley also asserted that late in the afternoon of November 29, Witczak corrected his erroneous belief that the Eatman trial was scheduled for November 30 and advised that only the motion to continue was scheduled for that date. Witczak's affidavit was attached to Brindley's response. Witczak attested that he was Witczak also stated that on the afternoon of November 29, Brindley told Witczak what he should do if the judge wanted to proceed with the trial the following day, and Witczak explained to Brindley that the trial was not set until December 10 and that he was seeking a continuance of the December trial date at the November 30 hearing in Will County.
The district court held the show cause hearing on November 30; Brindley appeared and was sworn. The court explained why it had scheduled the November 26 status conference and offered Brindley the opportunity to explain why he should not be held in contempt of court. Brindley first apologized for his failure to appear on the 26th and claimed that it was not a willful failure. He then offered an explanation for his failure to appear, which was consistent with his filings. As to his supposed unavailability for the show cause hearing, he added that when Witczak asked him to appear with him in Will County to obtain a continuance in the Eatman case, he thought the case was set for trial on the 30th. The district court questioned Brindley further, and Brindley denied knowingly making a false statement. The judge advised that he had contacted the chief judge in Will County to inquire about the Eatman case and expressed doubt over Brindley's proffered explanation. The prosecutor stated that the ASA in the Eatman case had advised her that the case had not been set for hearing on the 30th until the 28th, that Witczak had contacted the ASA on the 28th at about 2:30 or 3:00 p.m., stating that he would file a motion to continue, and that the ASA told Witczak he would not object.
The judge found it clear that Brindley “tr[ied] to create a November 28th lie” by having his associate create an excuse for him not to be at the show cause hearing. The judge found Brindley in contempt of court and remanded him to the custody of the U.S. Marshal for 48 hours. Brindley appealed and filed an emergency motion for release pending appeal, which this court granted.
A few days later, the district court issued its written opinion, finding that Brindley's motion to continue “contained demonstrably false statements” and that Brindley “made false statements to this court” on November 30. More specifically, it found that he was untruthful “about his failure to appear in person after being clearly and specifically ordered to do so by this court” and “about his unavailability on November 30.” The opinion cited both 18 U.S.C. § 401(1) and (3), and stated the elements of criminal contempt under § 401(3). The court concluded that “Brindley willfully violated a court order, willfully made false statements in his Motion to Continue, and willfully provided false testimony before this court,” and summarily held him in contempt of court under Fed.R.Crim.P. 42(b).
Brindley contends that the district court's contempt finding was erroneous because the court erred in using Fed.R.Crim.P. 42(b)'s summary contempt...
To continue reading
Request your trial
-
Trade Well Int'l v. United Cent. Bank
...nor asked the government to prosecute the contempt. See 18 U.S.C. § 401 ; Fed.R.Crim.P. 42(a) ; see also United States v. Britton, 731 F.3d 745, 749–50 (7th Cir.2013). The order is no better, understood as a civil contempt measure. Before holding a person in civil contempt, a district court......
-
Trade Well Int'l v. United Cent. Bank
...contempt, nor asked the government to prosecute the contempt. See 18 U.S.C. § 401; Fed.R.Crim.P. 42(a); see also United States v. Britton, 731 F.3d 745, 749–50 (7th Cir.2013). The order is no better, understood as a civil contempt measure. Before holding a person in civil contempt, a distri......
-
United States v. Cherry
...2013. See United States v. Britton, No. 10-CR-20090, 2012 WL 6047983, at *1 (C.D. Ill. Dec. 5, 2012), vacated and remanded, 731 F.3d 745 (7th Cir. 2013). To establish a violation of the Sixth Amendment right to conflict-free counsel, a defendant must demonstrate that an actual conflict of i......
-
United States v. Hofschulz
...opined that Brindley's decision to file a false certification was "a mighty strange decision." Id. at 232 (citing United States v. Britton, 731 F.3d 745 (7th Cir. 2013)17. The court fined Brindley $2,000, concluding thatBrindley may not have set out to develop a reputation as a lawyer whose......
-
Trials
...sanction inappropriate because defendant’s knowingly false testimony did not interfere with administration of justice); U.S. v. Britton, 731 F.3d 745, 749-50 (7th Cir. 2013) (summary criminal contempt sanction inappropriate because suspect’s tardiness and false statements did not occur in c......