United States v. Delahanty, 73-1515.

• Decision Date: 18 December 1973
• Docket Number: No. 73-1515.,73-1515.
• Citation: 488 F.2d 396
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DELAHANTY, Neville Tucker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

488 F.2d 396 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DELAHANTY, Neville Tucker, Defendants-Appellants.

No. 73-1515.

United States Court of Appeals, Sixth Circuit.

Argued October 1, 1973.

Decided December 18, 1973.

Thomas L. Hogan, Louisville, Ky., for defendants-appellants; John G. O'Mara, Louisville, Ky., on brief.

Eldon L. Webb, Asst. U. S. Atty., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.

Before WEICK, CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from an Order finding Appellants to be in contempt of Court. Appellants were co-counsel in a criminal case in the Eastern District of Kentucky. By an Order entered March 1, 1973, a pretrial conference was scheduled for 10:00 a. m., on March 15, 1973, to hear all pending motions. Appellant Delahanty arrived approximately ten minutes late for this conference. Appellant Tucker had not intended to appear because of other matters in Louisville and he had so informed co-counsel Delahanty who was to represent both of them at the hearing. As neither attorney was present at the designated time, the Court rescheduled the hearing for 1:00 p. m. that afternoon. The Court held both attorneys in contempt for their failure to appear at the scheduled time and assessed each a fine of one hundred dollars. After an Order of Finding of Contempt had been entered, the Court scheduled a hearing the same afternoon, each attorney was given an opportunity to explain his failure to appear at the 10:00 a. m. hearing. Appellant Delahanty explained that his unfamiliarity with the city and difficulty in finding a parking space were the reasons for his tardiness of ten minutes and Appellant Tucker stated that he had not intended to appear since he had arranged for cocounsel to handle the matter.

Appellants first contend that the Court should not have summarily disposed of the contempt charges under Rule 42(a) of the Federal Rules of Criminal Procedure. Rule 42(a) provides:

(a) Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

It is Appellants' contention that the conduct complained of — their absence from the courtroom — did not occur within the actual presence of the Court and did not, therefore, come within Rule 42(a). We find this contention to be correct and agree with the holding of In re Lamson, 468 F.2d 551 (1st Cir. 1972). In Lamson, the Court said:

we must remand for a hearing under Rule 42(b). We think not of this case, but of one where an attorney appears twelve minutes late, not because he ventured to use a foreseeably delinquent elevator, but because he became involved in an incident with a building security officer, or in an attempt to quell a demonstration, or in an effort to resuscitate a heart attack victim, or, even in a struggle to open an obstinate bathroom door. Rule 42(a), which permits summary proceedings only for conduct "committed in the actual presence of the court", enunciates a principle of law which must be applicable to the diverse factual settings we have stated, as well as to the instant case. The failure to be present in court at the appointed time is obvious to the court. Yet, while the absence, if it can be called "conduct", is in the presence of the court in a semantic sense, the presence of the offender is in the court\'s absence. As to the reasons for the presence elsewhere, they may be good ones, depending on witnesses — the security officer, some of the demonstrators or bystanders, the heart attack victim, or building maintenance personnel — or on other information which the tardy attorney could produce.

These are the kinds of events which impress upon us that a failure to appear on time may often be explained by witneses who may not be immediately available or by more than three hours preparation by the offender. An opportunity to summon the witnesses or obtain material necessary to the defense seems only fair. 468 F.2d at 552.

The same result was reached in United States v. Willett, 432 F.2d 202 (4th Cir. 1970). In re Niblack, 155 U.S.App.D.C. 174, 476 F.2d 930 (1973), held that under certain circumstances the absences of an attorney from court could be cause for a summary finding of contempt. In Niblack, however, the attorney had arrived two hours late for a motion hearing and had been repeatedly warned about arriving late. See also In re Gates, 156 U.S.App.D.C. 88, 478 F.2d 998 (1973).

We find that this matter should not have been dealt with summarily. While the absence of Appellants was obvious to the Court, the reasons for their absence were not. The Court did provide an opportunity for an explanation of their absence, but only after the Court had found Appellants to be in contempt. As the Supreme Court has stated, summary disposition of contempt under Rule 42(a) is "`for exceptional circumstances' . . . such as acts threatening the judge or disrupting a hearing or obstructing court proceedings." Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965). We find no exceptional circumstances in this case justifying summary disposition.

Appellants' second contention is that their conduct was not contemptuous. This claim is based on the assertion that there was no intent to commit a contemptuous act. This contention was discussed in Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928 (1971), which involved an attorney who had forgotten that he was scheduled to appear in Court on a particular date. The Court stated:

On the second issue relating to the sufficiency of the evidence, we are constrained to disagree with the District of Columbia Court of Appeals and the trial judge. We of course appreciate the administrative problems confronting the judge. We also agree that a lawyer must be held to a high standard of accountability and that he may not deliberately or recklessly flout the authority and dignity of the court; if he does so he should be subject to disciplinary action. Nevertheless, the offense of which the appellant was convicted was a criminal contempt. An essential element of that offense is an intent, either specific or general, to commit it. citations omitted

By definition, contempt is a "wilful disregard or disobedience of a

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