United States v. Meyer, 24058.

Decision Date20 January 1972
Docket NumberNo. 24058.,24058.
Citation462 F.2d 827
PartiesUNITED STATES of America v. Bernard E. MEYER et al., and Philip J. Hirschkop, Appellants.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. David Rein, Washington, D. C., for appellants.

Messrs. Roger M. Adelman and Gregory C. Brady, Asst. U. S. Attys., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and Thomas C. Green, Asst. U. S. Attys., were on the brief, for appellee. Messrs. John F. Evans and Stephen M. Schuster, Jr., Asst. U. S. Attys., also entered appearances for appellee.

Messrs. Addison M. Bowman and Alan W. Scheflin, Washington, D. C., filed a brief on behalf of Georgetown University Law Center Faculty, et al., as amici curiae.

Messrs. Robert H. Turtle, Ralph J. Temple, Washington, D. C., and Melvin L. Wulf, New York City, filed a brief on behalf of American Civil Liberties Union and American Civil Liberties Union Fund of the National Capital Area, as amici curiae.

Messrs. Albert E. Arent, John Bodner, Jr., Ramsey Clark, John W. Douglas, John H. Pickering, Harry M. Plotkin, Paul A. Porter, Daniel A. Rezneck, Sidney S. Sachs and Robert L. Wald, Washington, D. C., filed a brief as amici curiae.

Before WILBUR K. MILLER, Senior Circuit Judge, and McGOWAN and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

Appellant, a member of the District of Columbia bar, was summarily convicted of criminal contempt1 by a District Court judge acting under Rule 42(a), Fed.R.Crim.P.2 The contempt conviction resulted from a criminal trial in which appellant, as one of a number of counsel appointed by the court, represented defendants charged with burglary in the second degree and destruction of property. On this appeal, he asserts error in a number of respects, only one of which we find it necessary to resolve, namely, that he was entitled to have the contempt charge adjudicated at a full hearing before a judge other than the one who cited him. We hold that, in the circumstances revealed by this record, due process of law requires such a mode of proceeding.

I
1. The Trial Proceedings

Because of the disposition we make of this case, we need not recount in detail the events which took place during the criminal trial. The defendants were active in the peace movement; and the charges against them concerned a ransacking of the Washington offices of the Dow Chemical Company. Against the advice of their counsel, the defendants attempted to dismiss their appointed lawyers and to proceed pro se, intending to admit the acts charged and to appeal to the conscience of the jury by asserting what they considered to be the morality, as distinct from the legality, of their deeds. The chief impediment to this strategy—and the eventual source of friction between the defendants and appellant, on the one hand, and the trial judge, on the other—was the trial judge's denial of the motion to proceed pro se, and his insistence that counsel be responsible for the conduct of the trial.3

The trial was marked by angry interruptions by the defendants, heated arguments by counsel, an apparent lack of cooperation between the defendants and their counsel, a melee in the courtroom on the fifth day of the trial, the ejection of several spectators, and the removal of the jury from the courtroom on several occasions. By the trial's close, two of the defendants had pleaded nolo contendere to the destruction of property charge, and two others had been cited for contempt for their involvement in the melee.

After the jury found the seven defendants who had not pled nolo contendere guilty of destruction of property, as well as of the lesser included offense of unlawful entry, the trial judge called appellant to the bench, cited him for contempt, and asked him to appear the following afternoon so that a contempt certificate could be read in his presence. On the following day, appellant appeared before the trial judge with counsel, who stated that he had not been able to examine the trial transcript and requested that (1) the matter be referred to another judge for adjudication, and (2) appellant be given the benefit of the procedural guarantees contained in Rule 42(b).4 Both requests were denied, and the trial judge read the following certificate:

. . . pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C., I hereby certify that I saw and heard the contempts of court hereinafter described and that they were committed by Philip J. Hirschkop in the actual presence of the court during the trial of a criminal proceeding before me entitled United States v. Meyer et al., Criminal No. 872-69.

I find that the said Philip J. Hirschkop was guilty of the following offensive, contumacious and unethical . . . contempt of court:

1. In addressing the court concerning motions of defendants to represent themselves and for the court to recuse itself, he used insulting, derogatory and disrespectful language. Tr. at 26, 28, 83-87.
2. On numerous occasions he conducted himself in a disrespectful manner and, on some of these occasions, refused to obey the court\'s directions to resume his seat after the court had ruled. Tr. at 5, 8-9, 224, 397, 398, 416, 443, 456-457.
3. He addressed the court at the bench in a derogatory and disrespectful manner concerning the seating in the court room and concerning his participation at bench conferences. Tr. at 95-97, 283-285.
4. He engaged in disrespectful and discourteous conduct which offended the dignity and decorum of this proceeding and which was degrading to this tribunal, in violation of the standards imposed by the American Bar Association Code of Professional Responsibility and the Canons of Professional Ethics. ABA Code of Professional Responsibility, Canon 7, EC-7-36, DR 7-106(C) (6) (1969); ABA Canons of Professional Ethics, Canon 1 (1967). Further, in the context of a difficult trial of nine defendants he failed to fulfill his obligation as an officer of this court. See appropriate portions of the trial transcript.
Wherefore, it is this 11th day of February, 1970, ordered pursuant to 18 U.S.C. § 401, that Philip J. Hirschkop be and he hereby is sentenced to serve a term of 30 days.

On the next day, the trial judge filed a complaint against appellant with the Committee on Admissions and Grievances of the District Court, and subsequently appeared as the sole complaining witness in hearings before that body.5

2. The Issue on Appeal

In addition to the procedural issue of whether appellant is entitled to an adjudication of the contempt charges by a different judge, numerous claims have been raised on this appeal. These include an attack on the constitutionality of the federal contempt statute; a contention that that statute, properly construed, is not applicable to appellant's conduct at trial; and an assertion that the sentence imposed on appellant is disproportionate to the offense. We have examined the procedural issue first, since, if appellant is to prevail on it, he will receive a hearing at which his substantive claims can be explored.

Appellant concedes that the conduct alleged to be contemptuous occurred in the presence of the trial judge. There is no question, therefore, as to the apparent applicability of Rule 42(a). The issue presented, rather, is whether the summary procedures authorized by Rule 42(a) are, despite the literal terms of the rule, to be deemed unavailable in the circumstances of this case by reason of overriding constitutional considerations. To resolve that issue, it is necessary to survey Supreme Court decisions variously approving and disapproving summary disposition, with a view to the extraction of reconciling principles.

II
1. Effectuating the Policies Behind Rule 42(a): From Cooke to Sacher

Two decades prior to the adoption of the Federal Rules of Criminal Procedure, the Supreme Court in Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), indicated that in some circumstances summary contempt proceedings before the trial judge are inappropriate, and that a hearing before a different judge is required. Cooke, an attorney representing a defendant in a series of bankruptcy suits in a federal court, wrote a letter to the trial judge following a verdict against his client in the initial suit. He requested that the judge recuse himself in the cases to follow on the grounds that his client had been slandered by his enemies before the judge, thereby making it impossible for the judge to approach the impending suits in an objective manner. Cooke further wrote that he was aware of this problem prior to the initial trial, but had not mentioned it because he had thought that the judge would be "big enough and broad enough" to withdraw from the cases of his own accord. The judge cited Cooke for contempt, and, after a heated exchange, summarily convicted and sentenced him.

Chief Justice Taft, writing for a unanimous court, found that the letter was indeed contemptuous on its face. He held, however, that summary disposition by the trial judge had been inappropriate, since the policies favoring summary proceedings were inapplicable. He articulated those policies as follows:

To preserve order in the courtroom for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court, when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court\'s dignity and authority is necessary. It has always been so in the courts of the common law, and the punishment imposed is due process of law. Such a case had great consideration in the decision of this court in Ex parte Terry, 128 U.S. 289 , 9 S.Ct. 77, 32 L.Ed. 405. It was there held that a court of the United States, upon the commission of a contempt in open court, might
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