United States v. Marshall, 26889.

Citation451 F.2d 372
Decision Date18 November 1971
Docket NumberNo. 26889.,26889.
PartiesUNITED STATES of America, Appellee, v. Charles Clark MARSHALL, III, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Michael E. Tigar (argued), San Francisco, Cal., Dennis J. Roberts, of Kennedy & Rhine, San Francisco, Cal., Carl Maxey, Spokane, Wash., Jeffrey Steinborn, Lee A. Holley, Seattle, Wash., for appellants.

Charles W. Billinghurst, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Michael P. Lerner, Seattle, Wash., for appellee.

Before MURRAH,* KOELSCH and BROWNING, Circuit Judges.

PER CURIAM:

The defendants were indicted under 18 U.S.C. §§ 2101, 1361 and 371, for alleged depredation of federal property in Seattle, Washington. Their trial commenced in the Western District of Washington on November 23, 1970, and continued until December 10, 1970, when the court declared a mistrial and summarily cited six of the seven defendants for criminal contempt.

The trial judge issued the first certificate of contempt in open court on December 14, 1970. During that session disruptions occurred which gave rise to the issuance of a second contempt certificate.1 Each of the certificates imposed a six-month sentence on the cited defendants.2

Defendants appeal asserting (1) that their conduct was not contumacious within the meaning of 18 U.S.C. § 401(1),3 and (2) that the summary procedure was inappropriate. We reverse and remand for further proceedings consistent with this opinion.

We start with the proposition recently stated by Mr. Justice Black in Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), that "it is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country." To that end, the courts from the very beginning have been empowered to punish for contempts of their authority to conduct an orderly public trial. Judiciary Act of 1789 (1 Stat. 73, 83). See also 4 Blackstone's Commentaries 286.

The substantive offense as carried forward in the statutes from the Judiciary Act of 1789 has historically consisted of two classes: (1) direct and (2) indirect. Direct contempt is misbehavior having the effect of interfering with the orderly conduct of a trial occurring "under the court's own eye and within its hearing." Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888). Indirect contempt is contumacious behavior occurring beyond the eye or hearing of the court and for knowledge of which the court must depend upon the testimony of third parties or the confession of the contemnor.

Agreeably to these classifications, Rule 42 Fed.R.Crim.P., provides two separate procedures for trying and punishing contemptuous behavior.4 Even a cursory reading of the rule, "substantially a restatement of existing law, Ex parte Terry, 128 U.S. 289 95 S.Ct. 77, 32 L.Ed. 405; Cooke v. United States, 267 U.S. 517, 534 45 S.Ct. 390, 69 L.Ed. 767," Offutt v. United States, 348 U.S. 11, 13-14, 75 S.Ct. 11, 99 L.Ed. 11 (1954), reveals that the two procedures are essentially different, and defendants vigorously assert that the trial court improperly invoked direct contempt powers under subsection (a) rather than indirect contempt powers under subsection (b).

The phrase "in the actual presence of the court" delimits the class of contempts cognizable under subsection (a) and reflects the case law requirement that summary procedure may be employed only for the trial and punishment of direct contempts, i. e. those which occur "under the eye and within the hearing" of the court. Ex parte Terry, supra. See also Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). It means no less than that the use of summary power is proper only if the trial judge actually witnesses the misbehavior deemed contumacious. Cooke v. United States, supra. In Rule 42(a) cases, the judge is his own best witness of what occurred. If he must depend upon the testimony of other witnesses or the confession of the contemnor for his knowledge of the offense, Rule 42(a) does not apply.

The ever present danger that these summary powers may be abused has brought us to view their exercise with caution and circumspection. Anderson v. Dunn, 19 U.S. 204, 6 Wheat. 204, 5 L.Ed.2d 242 (1821); Nye v. United States, supra; Pietsch v. President of United States, 434 F.2d 861 (2d Cir.).5

This means, among other things, "that the procedural safeguards that the Rule provides must be strictly adhered to lest the drastic power authorized escape the permissible limits of reason and fairness." Pietsch v. President of United States, 434 F.2d 861, 864 (2d Cir. 1970) (Justice Clark).

One of the procedural safeguards provided by Rule 42(a) is that the order entered by the judge "shall recite the facts""the facts," in this context, being "the conduct constituting the contempt," which the judge must certify he "saw or heard" "committed in the actual presence of the court."

This recitation of the facts in the certificate is of critical importance. "A criminal contempt order like any other conviction of crime must stand or fall on the sufficiency of the specifications of wrongdoing upon which it is based." Tauber v. Gordon, 350 F.2d 843, 845 n. 1 (3d Cir. 1965). As this court said in Hallinan v. United States, 182 F.2d 880, 882 (9th Cir. 1950), "if the judgment is to be sustained the conduct complained of in the certificate must in itself constitute contempt." See also Parmelee Transp. Co. v. Keeshin, 294 F.2d 310, 316 (7th Cir. 1961), rev'd on other grounds sub nom. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962).

The reason for this requirement is obvious. Because the defendant has been convicted without notice or hearing, there is no record of the conviction upon which appellate review may be based. The factual recitation in the certificate supplies this deficiency. Accordingly, "this requirement is more than a formality. It is essential to disclosure of the basis of decision with sufficient particularity to permit informed appellate review." Tauber v. Gordon, supra, 350 F.2d at 845. See also Parmelee Transp. Co. v. Keeshin, supra, 294 F.2d at 315-16; cf. Great Lakes Screw Corp. v. N.L.R.B., 409 F.2d 375, 379-80 (7th Cir. 1969).

"Informed appellate review" is possible only if the facts are stated in sufficient detail for the appellate court to determine whether the conduct upon which the conviction rests was contemptuous, factually and legally; whether it was of such character, and occurred in such circumstances, as to permit summary conviction under Rule 42(a)6, and because Rule 42 sentences are subject to appellate review and revision,7 whether the conduct relied upon justified the sentence imposed.

This means that the judge must recite the specific facts upon which the contempt conviction rests. Conclusory language and general citations to the record are insufficient.8 Here neither certificate meets this standard.

The first certificate appears to base the contempt convictions upon both the specific misconduct of December 10 and the totality of misconduct during the prior ten days of trial. The judge states that the summary contempt is based upon "misconduct," which he describes as "actions, language, and other unjustified trial disruptions and inexcusable delays in trial proceedings." He then certifies that he personally saw this "misconduct" "during eleven trial days" (App. I at i). He concludes "that the totality of defendants' long continued and repeated misconduct hereinabove specified in obvious defiance of admonitions and warnings by the Judge concerning defendants' misconduct in the courtroom, occurring frequently and in the presence of the jury, and the final culmination of such course of repeated misconduct that occurred on Thursday morning December 10, 1970, all of which misconduct, including the final episode, occurred in the actual presence of the Judge and was personally seen and heard by the Judge, constituted a contempt" (App. I at vi).

Assuming that the specific incidents of December 10 relied upon in the first certificate9 are sufficiently identified, the contumacious conduct at other times during the trial clearly is not. The judge's description of this latter conduct is set out in the margin.10 Such conclusory statements, unsupported by specific references to the record, are insufficient. See note 8, supra.

The second certificate also reveals that the judge relied upon all the misconduct described in that certificate and found that it constituted a single contempt by each defendant charged. The final paragraph states "that all of the above described misconduct occurred in the actual presence of and was personally seen and heard by the Judge, and that such misconduct constituted a contempt" (App. II at ix-x) (emphasis added).

The misconduct is described in the second certificate as follows:

"Stern\'s defiance of the directions, orders and warnings by the court in continuing her remarks precipitated loud, boisterous and violent actions and language in which the Judge saw and heard defendant Stern and each defendant other than Lerner personally participate. Riotous conduct and an incipient riot occurred in the courtroom. After the Judge left the courtroom * * * at least for a half hour or more scuffling and loud and boisterous language in the courtroom could be heard in the Judge\'s office. * * * During the misconduct above specified, proceedings in court were at a standstill and could not be resumed for more than an hour" (App. II at ix).

The misconduct relied upon, then, began when Stern refused to stop speaking and ended about a half hour after the judge had left the courtroom. Thus the convictions described in the second certificate rested in part upon conduct that occurred outside the judge's presence, not punishable summarily under Rule 42(a).

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