REINHARDT, Circuit Judge.

Appellant Larry Flynt appeals from five judgments of criminal contempt entered by United States District Judge Manuel Real. Because we conclude that the denial of appellant's motion for a continuance and the resort to summary contempt proceedings constituted abuses of the trial court's discretion, we reverse appellant's convictions and vacate his sentences.

I. BACKGROUND [3] A. Events Prior to the Hearing

On December 12, 1983, Flynt appeared before United States Magistrate James W. McMahon for arraignment on an indictment charging him with flag desecration and unlawful wearing of a Purple Heart. Flynt, who is paralyzed and confined to a wheelchair, had worn an American flag as a diaper and pinned the Purple Heart to his shirt when he appeared at the courthouse in connection with an earlier unrelated contempt proceeding. During his arraignment on those charges, Flynt made a series of insulting, abusive, and obscene remarks to Magistrate McMahon. At the close of the arraignment, the Magistrate randomly assigned the trial on the issues raised in the indictment to United States District Judge Consuelo B. Marshall. On December 15, 1983, Judge Marshall ordered Flynt to undergo psychiatric evaluation at the Medical Center for Federal Prisoners in Springfield, Missouri, in order to determine his competence to stand trial.

On December 20, 1983, Magistrate McMahon issued an Order to Show Cause why Flynt should not be held in criminal contempt for his conduct during the post-indictment arraignment. The Magistrate ordered Flynt to appear before Chief Judge Manuel Real on January 16, 1984. Because Flynt was in the custody of the Medical Center for Federal Prisoners on that date, Judge Real continued the hearing to January 30, 1984.

The psychiatric evaluations of Flynt were completed on January 16, 1984. However, he remained in the custody of the Medical Center for Federal Prisoners until January 27, 1984. While still in Springfield, he filed an ex parte application to modify Judge Marshall's commitment order to permit his transfer back to California so that he might gain access to his own psychiatrists and confer with his counsel in preparation for his defense to the Order to Show Cause Re Contempt. In his application Flynt also sought additional medical treatment. The application was denied. During this period Flynt also filed two habeas corpus petitions. In those petitions he sought improved medical treatment, access to the Medical Center library and opportunities to consult with potential witnesses in preparation for his defense in "pending litigation." It appears from the record that no action was taken on the habeas petitions prior to Flynt's return to California.

On January 30, 1984, Flynt appeared before Judge Real. Flynt's counsel informed the court that Flynt's defense would consist of a showing that he lacked the requisite mental capacity to commit contempt. He argued that Flynt's incarceration in the Medical Center for Federal Prisoners had prevented him from submitting to psychiatric examinations by psychiatrists of his own choosing. He then requested a thirty-day continuance in order to allow Flynt to obtain expert witnesses and to secure substitute counsel.

Judge Real denied the motion for a continuance, concluding that there was no basis for the request. However, he granted a one-day continuance to allow Flynt to obtain his desired counsel.

The next day Flynt again appeared before Judge Real and, through his attorney, renewed his motion for a thirty-day continuance. Flynt's counsel reiterated Flynt's need to obtain psychiatric evaluations relevant to his defense. In support of the motion, he informed Judge Real that he had contacted a psychiatrist, a psychologist and a psychopharmacologist, all of whom had agreed to evaluate Flynt. However, he stated that none of the three prospective witnesses could perform a sufficient examination within the one-day limit imposed by Judge Real. Judge Real again denied the motion for a continuance and began the hearing immediately.

B. The Hearing

Flynt's defense consisted of testimony from seven non-expert witnesses, including himself and his bodyguard, concerning his mental and emotional conditions on the date of the alleged offense. In the course of Flynt's direct examination, he was asked to state reasons for his outbursts before the Magistrate. He responded with a series of epithets directed toward the judiciary in general. Judge Real called a recess and ordered Flynt gagged. When the hearing resumed, Judge Real admonished Flynt that any further outbursts would result in summary contempt citations. He then ordered removal of the gag and Flynt resumed his testimony.

At the close of Flynt's testimony, his counsel asked him whether he had any further statements to make on his own behalf. Once again, Flynt responded with epithets. Judge Real summarily imposed a thirty-day contempt sentence. Flynt responded with more epithets, which were met by Judge Real with a second summary contempt sentence of thirty days. Flynt again responded with a round of epithets and Judge Real summarily imposed a third thirty-day contempt sentence, at which point Flynt was removed from the courtroom.

Flynt was subsequently returned to the courtroom where he completed his testimony without any further outbursts. At the close of the hearing, Judge Real found Flynt guilty of contempt in Magistrate McMahon's courtroom and sentenced him to six months. In addition, Judge Real reiterated the three thirty-day sentences ordered pursuant to the summary contempt proceedings. Flynt responded to the sentencing with a final string of obscenities, for which Judge Real summarily sentenced him to an additional six months.

Flynt's sentences totalled fifteen months. After appellant had begun serving his sentences, he petitioned Judge Real for an order releasing him on bond pending appeal. In his petition, Flynt indicated an intention to challenge, inter alia, the trial court's denial of a continuance and its use of summary contempt proceedings. Judge Real denied the petition, concluding that release on bail would present a risk of flight and that the issues Flynt proposed to raise in his appeal were "frivolous." Because, for reasons we need not detail here, it was perfectly clear that appellant's release would not present an unreasonable risk of flight, and because even a cursory review of the law relating to the proper use of summary contempt proceedings showed that Flynt had raised substantial questions concerning Judge Real's exercise of the summary contempt power, another panel of this court ordered appellant released on bond pending this appeal. At the time he was released, Flynt had already served five months and five days of his sentence.

C. Issues on Appeal

In this appeal Flynt challenges the district court's denial of his request for a continuance and its subsequent invocation of its summary contempt power. In addition, Flynt contends that he was denied his Sixth Amendment right to a jury trial, that he was entitled to a hearing on his mental competence to stand trial, and that his fifteen-month sentence is excessive.

There can be no question that the type of conduct in which Flynt engaged cannot be tolerated in a courtroom. There are a number of measures that may be taken to bring such conduct to an immediate end. Punishment, including a term of incarceration, may be imposed, if appropriate procedures are followed. However, the issue before us is not whether Flynt engaged in the conduct with which he is charged. The issue is not even whether Flynt actually had the mental capacity to commit the offense of contempt. Rather the issues presented here are procedural ones that raise questions of essential fairness. No matter how opprobrious the offense, every person is entitled to have his guilt or innocence determined in a manner that complies with our rules, laws and Constitution.

We conclude that in two essential respects Flynt's convictions were obtained without affording him important procedural rights. Both involve the district court's failure to allow Flynt to prove that he did not have the mental capacity to commit contempt. First, Flynt's only defense to the charge of contempt that arose out of the magistrate's proceeding was that he lacked the requisite mental capacity. The district court's denial of a continuance of its hearing effectively foreclosed Flynt from presenting that defense. We must therefore reverse the conviction that was based upon Flynt's conduct before the magistrate. Second, the evidence raised a substantial question as to Flynt's mental capacity to commit the contempts that were based on his conduct before the district court. Accordingly, the district judge erred in punishing Flynt for that conduct without affording him a hearing at which he could present evidence on the issue of his mental capacity. For that reason, we must reverse Flynt's four summary convictions for the conduct that occurred before the district judge. Because we reverse appellant's convictions on these two grounds, we do not address his additional arguments.

II. THE DISTRICT COURT'S DENIAL OF APPELLANT'S MOTION FOR A CONTINUANCE [20] A. Standard of Review

The decision to grant or deny a requested continuance lies within the broad discretion of the district court, and will not be disturbed on appeal absent clear abuse of that discretion. United States v. Daly, 716 F.2d 1499, 1511 (9th Cir. 1983), cert. dismissed, ___ U.S. ___, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984); United States v. Hernandez, 608 F.2d 741, 746 (9th Cir. 1979); United States v. Harris, 501 F.2d 1, 4-5 (9th Cir. 1974). We do not find a clear abuse of discretion unless, after carefully evaluating all the relevant factors, we conclude that the denial was arbitrary or unreasonable.

B. Considerations Relevant to Our Review

We structure our review in accordance with four salient factors that appellate courts have considered when reviewing denials of requests for continuances. First, we consider the extent of appellant's diligence in his efforts to ready his defense prior to the date set for hearing. See, e.g., United States v. Lustig, 555 F.2d 737, 744 (9th Cir.), cert. denied, 434 U.S. 926, 98 S.Ct. 408, 54 L.Ed.2d 285 (1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978); United States v. Brandenfels, 522 F.2d 1259, 1263 (9th Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 564, 46 L.Ed.2d 406 (1975). Second, we consider how likely it is that the need for a continuance could have been met if the continuance had been granted. See, e.g., United States v. Hernandez, 608 F.2d at 746 (9th Cir. 1979). Third, we consider the extent to which granting the continuance would have inconvenienced the court and the opposing party, including its witnesses. See, e.g., United States v. Shuey, 541 F.2d 845, 847 (9th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1103, 51 L.Ed.2d 537 (1977); United States v. Charnay, 577 F.2d 81, 84 (9th Cir. 1978); United States v. Cueto, 611 F.2d 1056, 1060 (5th Cir. 1980). Finally, we consider the extent to which the appellant might have suffered harm as a result of the district court's denial. See, e.g., United States v. Long, 706 F.2d 1044, 1053 (9th Cir. 1983); United States v. Barrett, 703 F.2d 1076, 1081 (9th Cir. 1983); Powell v. United States, 420 F.2d 799, 801 (9th Cir. 1969); Lustig, 555 F.2d at 745, n. 7.

We acknowledge that the determination of whether a denial of a continuance constitutes an abuse of discretion turns largely upon the circumstances of the individual case. See Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). In determining whether the district court has acted in an arbitrary or unreasonable manner, we consider the relevant factors together, evaluating the extent of the appellant's showing on each one. The weight which we attribute to any single factor may vary with the extent of the showings on the other factors. However, in order to obtain a reversal, appellant must show at a minimum that he has suffered prejudice as a result of the denial of his request. United States v. Maybusher, 735 F.2d 366, 369 (9th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985); United States v. Lustig, 555 F.2d at 744.

1. Diligence

In defense to the charge of contempt before the magistrate, appellant proposed to offer evidence that he lacked the requisite capacity to commit contempt. To this end, appellant was entitled to call psychiatric witnesses of his own choosing who, after examining appellant, could testify as to his mental state. However, appellant remained incarcerated in the Medical Center in Springfield, Missouri until three days prior to the hearing and was not examined by any such prospective witnesses. While at the Medical Center, appellant filed an ex parte application for transfer back to California in which he specifically stated his need to return so that he might gain access to his own psychiatrists in preparation for his defense to the contempt charge. In addition, one of the two habeas petitions filed by appellant while at the Medical Center referred to his need to consult with potential witnesses in preparation for his defense in "pending litigation." None of his requests was granted. Subsequently, upon the district court's grant of a one-day continuance rather than the thirty-day continuance requested by appellant, appellant's counsel advised the court that he had obtained three expert witnesses but that while all three had agreed to examine appellant and testify to their conclusions, they were unable to perform adequate evaluations within the time constraints imposed by the district court. Compare United States v. Barrett, 703 F.2d 1076, 1080 (9th Cir. 1983) (defendant was first notified of government's intention to present expert witness eight days before trial and made "diligent effort" to secure rebuttal expert; continuance should have been granted), with Lustig, 555 F.2d at 744 (request for continuance in order to obtain alternative counsel was properly denied because defendant had ample time and resources to obtain desired counsel prior to trial).

We recognize that appellant might have exercised greater diligence than he did. We do not intend to suggest that the degree of diligence demonstrated by appellant would necessarily be adequate under other circumstances. However, where, as we later conclude to be the case here, the continuance would have served a useful purpose, granting the request would not have inconvenienced the court, the other party or any witnesses, and appellant has suffered severe prejudice as a result of the denial of his motion, we find the degree of diligence to have been sufficient.

2. Usefulness of the Continuance

At the time appellant renewed his continuance motion, the prospective witnesses had been identified and their availability for a later hearing had been ensured. Since the court had not allowed adequate time for these persons to perform examinations, however, Flynt obviously could not present to the court the substance of their testimony. Nevertheless, it should have been apparent from the nature of Flynt's defense, from his erratic behavior, and from the other evidence before the district court that the testimony would be relevant. To require any greater specificity under these circumstances would not have been reasonable. In our view, the continuance, if granted, clearly would have served a useful purpose. See United States v. Barrett, 703 F.2d 1076, 1081 (9th Cir. 1983) (defendant "probably could have obtained an expert to assist him if he had been given more time. . . In failing to grant the requested continuance . . . the trial court clearly abused its discretion." (citation omitted)); cf. United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978) (denial of continuance proper where, inter alia, moving party could not demonstrate that he could produce prospective witness even if continuance was granted); Powell v. United States, 420 F.2d at 801 (denial of continuance proper when, inter alia, moving party could not show that prospective witnesses could be located within a reasonable time); United States v. Hernandez, 608 F.2d at 746 (denial of continuance proper when moving party could not demonstrate that desired testimony could be obtained even if continuance was granted).

3. Inconvenience

The record demonstrates that granting appellant's request would not have resulted in any cognizable inconvenience to the court or the government. The hearing began at 1:30 p.m. and ended later that same day; recalendaring the proceedings would not have created any scheduling difficulties for the court. The government had no witnesses to call. It relied exclusively on the transcript of the proceeding before the magistrate. See United States v. Shuey, 541 F.2d 845, 847 (9th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S.Ct. 1103, 51 L.Ed.2d 537 (1977) (government had spent substantial time and money interviewing witnesses and reviewing exhibits and had subpoenaed witnesses from Texas to Hawaii; motion for continuance made on eve of trial properly denied); cf. United States v. Brandenfels, 522 F.2d at 1263 (motion for continuance made late in the proceedings; denial of continuance proper in view of excessive trial preparation required of the government and the number of witnesses expected to be called). Thus, the third factor militates strongly in appellant's favor.

4. Prejudice

It is clear that appellant's sole defense to the contempt charge was that he lacked the requisite mental capacity to commit the offense. It is equally clear that he could not establish this defense without the testimony of expert witnesses. Although he had identified his expert witnesses, they had not had an opportunity to examine him and, therefore, were not in a position to testify. Thus, the result of the court's refusal to grant a continuance "was to deprive the accused of the only testimony potentially effective to his defense." United States v. Fessel, 531 F.2d 1275, 1280 (5th Cir. 1976).

The compelling importance of psychiatric evidence in criminal proceedings is well recognized. Recently, the Supreme Court acknowledged the "pivotal role" of Psychiatry in criminal proceedings, when it held that the constitution requires states to provide indigent defendants with access to competent psychiatric assistance to aid in defense preparation. Ake v. Oklahoma, ___ U.S. ___, ___-___, 105 S.Ct. 1087, 1094-1097, 84 L.Ed.2d 53 (1985). There, the Court stated, "[W]hen the State has made the defendant's mental condition relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant's ability to marshall his defense." ___ U.S. at ___, 105 S.Ct. at 1095.

This same recognition surfaces in several reported cases involving continuances requested to obtain psychiatric evaluation or testimony. In United States v. Fessel, for instance, the Fifth Circuit held that the district court abused its discretion by refusing to grant a continuance sought to secure the defendant's psychiatric records and to subpoena psychiatrists who had examined him. 531 F.2d at 1280-81. The court noted the "critical significance" of the evidence to the defendant's insanity defense, and concluded that the defendant had been denied a fair trial. Id. at 1281.

The Fourth Circuit reached a similar conclusion in United States v. Walker, 537 F.2d 1192 (4th Cir. 1976). There, defendant's counsel moved prior to trial for the appointment of a psychiatrist to determine the defendant's competency to stand trial and his mental capacity to commit the offense charged. The court granted the motion, and a psychiatrist concluded, after a thirty-minute interview, that the defendant was competent to stand trial. Defense counsel reviewed the report shortly before trial and around the same time also learned of the defendant's extensive history of psychiatric treatment. On the morning of trial, defense counsel moved for a two-week continuance to investigate the defendant's mental capacity further. The trial court denied the motion and began the trial immediately. The court of appeals reversed and concluded that "Walker's right to a fair trial was violated because his counsel was deprived of an adequate opportunity to determine the existence of a substantial insanity defense." Id. at 1194; see also Hicks v. Wainwright, 633 F.2d 1146, 1150 (5th Cir. 1981) (denial of fair trial to refuse requested six-hour continuance to enable defense psychiatric expert to appear and testify). But see Hutchins v. Garrison, 724 F.2d 1425, 1434-35 (4th Cir. 1983) (not an abuse of discretion to deny continuance to prepare insanity defense because counsel was appointed three months before trial and defendant failed to show even "the mere possibility of prejudice"), cert. denied, ___ U.S. ___, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984).

We find these cases persuasive. The importance of expert witnesses to Flynt's defense is obvious. It is underscored by the district court's treatment of the nonexpert witnesses Flynt called. The district court repeatedly thwarted defense counsel's efforts to elicit testimony concerning Flynt's mental capacity from those witnesses, ruling that they were not qualified to testify on that subject. In short, Flynt was not allowed to put forward the only defense he had. We are convinced, therefore, that Flynt suffered severe prejudice as a result of the district court's refusal to grant a continuance.

C. Conclusion

There are no mechanical tests for deciding when a denial of a continuance warrants reversal. See Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849. However, the absence of a mechanical test does not insulate the district court from a searching review of decisions that have been committed to its discretion. Here, appellant has established that he suffered prejudice as a result of the district court's decision to deny the continuance. After considering that fact and evaluating the extent of the prejudice along with the strength of appellant's showings as to the other factors we have discussed, we have no alternative but to conclude that the denial of a continuance was arbitrary and unreasonable. Hence, we find that the district court abused its discretion in denying the continuance and we reverse the conviction that was based on appellant's conduct before Magistrate McMahon.

III. THE DISTRICT COURT'S USE OF SUMMARY CONTEMPT POWER

We now turn to the four summary contempt convictions that were based on appellant's conduct during the district court hearing. Our determination that the district court abused its discretion in denying appellant's request for a continuance does not, of course, absolve appellant of criminal responsibility for any unlawful conduct in which he engaged during that hearing. Although the hearing should not have taken place when it did, its participants were nevertheless required to conform their conduct to the law. Accordingly, our task now is to determine whether the district court appropriately exercised its summary contempt power in response to the conduct that occurred in its presence.

A. Standard of Review

We review the district court's exercise of its summary contempt power for abuse of discretion. See United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975); In re Gustafson, 650 F.2d 1017, 1022 (9th Cir. 1981) (en banc).

B. The Nature of Summary Contempt Power

The power to punish contumacious conduct through summary proceedings flows from Fed.R.Crim.P. 42(a), which provides as follows:

A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting 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 on record.

Summary proceedings constitute a narrow exception to the well-established rule set forth in Fed.R.Crim.P. 42(b). Under Rule 42(b), an alleged contemnor is entitled to notice of the charges and a reasonable opportunity to meet them. "Rule 42(b) prescribes the `procedural regularity' for all contempts in the federal regime, except those unusual situations envisioned by Rule 42(a) where instant action is necessary to protect the judicial institution itself." Harris v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965) (footnote omitted).

Summary contempt procedure represents a significant departure from the accepted standards of due process. See In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948) ("Except for a narrowly limited category of contempts, due process of law . . . requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf. . . ."). Moreover, in a summary contempt proceeding, the otherwise inconsistent functions of prosecutor, jury and judge are united in one individual. In re Gustafson, 650 F.2d at 1022. For these reasons, we view the use of summary contempt power as an extraordinary exercise to be undertaken only after careful consideration and with good reason. Id. Throughout our review, we remain mindful of the principle that "only `the least possible power adequate to the end proposed' should be used in contempt cases." Wilson, 421 U.S. at 319, 95 S.Ct. at 1808 (quoting Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231, 5 L.Ed. 242 (1821)).

Under Rule 42(a), the only absolute prerequisites to summary treatment of contempt are the requirements that the contumacious behavior be seen or heard by the judge and that it be committed in the actual presence of the court. Gustafson, 650 F.2d at 1021. When these requirements are satisfied, the trial court is empowered, in its discretion, to invoke summary procedures. Id. However, there are limits to the exercise of this discretionary power, and the satisfaction of these prerequisites does not permit the invocation of summary procedures in all cases. The district court's exercise of the summary contempt power must be consistent with the reasons and purposes underlying the existence of Rule 42(a).

The justification for Rule 42(a)'s existence is twofold. First, the need to overcome obstructions to ongoing proceedings warrants a procedure whereby a trial judge may, in a summary fashion, remedy a breakdown in the orderly operation of the judicial system. See United States v. Wilson, 421 U.S. at 316, 95 S.Ct. at 1806. Second, since the judge is personally aware of the allegedly contumacious conduct, the need for a hearing is eliminated. United States v. Marshall, 451 F.2d 372, 374, 377 (9th Cir. 1971) (per curiam). When trial courts have exercised the summary contempt power in a manner that is not consistent with both justifications underlying Rule 42(a), appellate courts have found abuses of discretion, even though the power was exercised in response to conduct heard or seen by the judge and committed in the actual presence of the court. See, e.g., Harris v. United States, 382 U.S. at 164, 86 S.Ct. at 354 (invocation of summary contempt power in response to grand juror's refusal to testify was error where refusal did not constitute such an open, serious threat to orderly procedure that instant and summary punishment was necessary and when delay necessary for a hearing would not imperil the proceedings); United States v. Abascal, 509 F.2d 752, 756 (9th Cir.) (imposing summary contempt for conduct that occurred after court had been recessed and while judge was leaving the bench was improper; Rule 42(b) procedure should have been followed), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); see also Panico v. United States, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963) (per curiam) (discussed infra, p. 1364); Rollerson v. United States, 343 F.2d 269 (D.C.Cir. 1964) (discussed infra p. 1364.

Here, it is clear from the record that the absolute prerequisites to the district court's exercise of the summary contempt power were satisfied; the district judge certified that he observed appellant's conduct and that it occurred in the actual presence of the court. The only question, therefore, is whether, under the circumstances of this case, the district court's imposition of summary punishment was consistent with both justifications underlying Rule 42(a).

C. The District Court's Invocation of Summary Contempt Proceedings

The district court exercised its summary contempt power on four occasions: in response to each of three successive outbursts by appellant in the course of his testimony and in response to a similar episode at the close of the hearing. Appellant contends that in view of the facts and circumstances that gave rise to his outbursts, there existed an issue as to his mental capacity to commit contempt. He argues that when such an issue exists, summary contempt proceedings are inherently inappropriate and an evidentiary hearing on the alleged contemnor's capacity to commit contempt is required pursuant to Rule 42(b). In light of the relevant case law and the rationale underlying Rule 42(a), we agree.

Appellant's contention gains initial support from two cases which address the same issue that appellant raises here. In Panico v. United States, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963) (per curiam), the Court vacated a summary contempt conviction that had been entered against Panico for his conduct during trial. Shortly after the contempt conviction, state-appointed psychiatrists found that Panico suffered from schizophrenia, and he was subsequently committed to a state mental hospital. On appeal, Panico argued that at the time of his allegedly contumacious conduct, he was suffering from a mental disorder that rendered him incapable of forming the requisite criminal intent. Although the trial judge had heard conflicting expert testimony on the issue of Panico's mental competency to stand trial, he had not conducted a separate hearing to resolve the issue of Panico's capacity to commit the offense. The Court held:

In light of these circumstances, we hold that the fair administration of federal criminal justice requires a plenary hearing under Rule 42(b) of the Federal Rules of Criminal Procedure to determine the question of the petitioner's criminal responsibility for his conduct.

Id. at 30, 84 S.Ct. at 20 (footnote omitted).

In a similar case, the District of Columbia Circuit also reversed a summary contempt conviction which had been entered despite the existence of a substantial question as to the existence of a substantial question as to the individual's mental capacity to commit contempt. In Rollerson v. United States, 343 F.2d 269 (D.C.Cir. 1964), a defendant who was being tried for robbery threw a water pitcher which struck the prosecutor. After the jury returned a guilty verdict, the trial judge entered a summary contempt conviction. In reversing the judgment, the court looked to the evidence that Rollerson had presented in support of his insanity defense to the underlying robbery charge. The court observed that Rollerson had adduced evidence involving incidents which occurred within two months of trial. The court noted further that one of Rollerson's experts had concluded that he was insane based upon a diagnosis which had taken place within four months of the contempt. The court therefore concluded that "there was a substantial issue of Rollerson's responsibility for his conduct at trial, and the contempt conviction must be reversed for new proceedings under Rule 42(b)." Id. at 277 (footnote omitted) (emphasis added).

The rationale underlying the summary contempt power compels us to adopt the substantial issue test articulated in Rollerson. As we have noted, one of the reasons for permitting the summary adjudication of contempt is that a judge who exercises the summary contempt power has full and immediate knowledge of the facts relevant to an adjudication for contempt. See Sacher v. United States, 343 U.S. 1, 9, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952) ("We think `summary' as used in [Rule 42(a)] refers to a procedure which dispenses with the formality, delay and digression that would result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. The purpose of that procedure is to inform the court of events not within its own knowledge. The Rule allows summary procedure only as to offenses within the knowledge of the judge because they occurred in his presence."). However, when, at the time of the allegedly contumacious conduct, the district court has before it information that raises a substantial issue as to the criminal responsibility of the alleged contemnor, and when facts necessary to a proper resolution of that issue are beyond the personal knowledge of the judge, then there is no basis for Rule 42(a) proceedings, and summary adjudication is inappropriate.

The record in this case reveals clearly that at the time of the hearing a substantial issue existed as to appellant's mental capacity to commit contempt. Of primary significance is the 32 page psychiatric evaluation of appellant prepared at the Medical Center for Federal Prisoners 16 days prior to the hearing. In this evaluation, the government psychiatrists expressed their opinion that appellant was competent to stand trial. They concluded, however, that he was suffering from a bipolar affective disorder, manic type, which gave rise to frenetic activity, restlessness, grandiosity, flight of ideas, instability and distractability. The psychiatrists observed that appellant had been suffering from a personality disorder of longstanding duration, characterized by narcissistic, histrionic and antisocial behavior. They concluded that as a result of appellant's personality disorder, he exhibits an intense need for control, an insatiable need for attention and engages in irrational angry outbursts. Consistent with this conclusion, the psychiatrists noted that appellant has frequently been abusive in court and generally showed contempt for judicial authority. They further observed that although appellant had not shown psychotic features, his grandiosity exceeded that normally seen in those with personality disorders and was indicative of more serious problems. Finally, in their report the psychiatrists noted that appellant's mental illness rendered his conduct highly volatile, admonishing that "[i]t might be wise to assess Mr. Flynt's performance during the course of any court proceeding. If his performance significantly deteriorates, a brief recess could be called to further evaluate the situation. Because of Mr. Flynt's mental illness, his performance at any given trial is subject to variability."

In addition to the psychiatric report, appellant's bizarre references to highly unlikely events, along with the extreme nature of his outbursts, raised substantial questions concerning the issue of criminal responsibility. We are well aware of the possibility that appellant's words and conduct might have been deliberately designed to provoke the district court. We are equally aware that appellant may well have been possessed of the requisite mental capacity to commit contempt. Nevertheless, the nature of his words and conduct would raise a substantial question as to mental capacity in the mind of any reasonable observer, a question that could be answered only on the basis of facts beyond the immediate knowledge of a district court.

Since a substantial question existed as to appellant's capacity to commit contempt, summary proceedings were inappropriate. Appellant was entitled to present his defense of lack of capacity and to offer evidence on that question. The procedures set forth in Rule 42(b) should have been followed. Accordingly, we reverse the four summary contempt convictions for conduct that occurred during the hearing before the district court.

IV. REMEDY

Having determined that reversal of all five of the contempt convictions is required, we would ordinarily remand the matter to the district court for further appropriate proceedings. See, e.g., Harris v. United States, 382 U.S. at 167, 86 S.Ct. at 355; Panico v. United States, 375 U.S. at 31, 84 S.Ct. at 20. Here, however, the facts and circumstances that gave rise to this appeal prompt us to follow an alternative procedure.

Since sentences for contempt authorized under 18 U.S.C. § 401 are not subject to a statutory upper limit, they are directly reviewable and may be revised by an appellate court. United States v. Miller, 588 F.2d 1256, 1265 (9th Cir.), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); see also Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958) ("The `discretion' to punish vested in the District Courts by § 401 is not an unbridled discretion. Appellate courts have here a special responsibility for determining that the power is not abused, to be exercised if necessary by revising themselves the sentences imposed."); United States v. Gracia, 755 F.2d 984, 988-991 (2nd Cir. 1985).

Upon determining that the objective which a district court seeks to achieve through punishment for contempt may be accomplished through less extreme measures, appellate courts are empowered to vacate that portion of the contemnor's sentence that exceeds "the least possible power adequate to the end proposed," Harris v. United States, 382 U.S. at 165, 86 S.Ct. at 354. See, e.g., United States v. Abascal, 509 F.2d 752, 757 (9th Cir.), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975) (contemnor's conduct in district court did not warrant exercise of summary contempt power and objective of summary punishment, to secure obeyance of court's order concerning courtroom demeanor, had been achieved by the two weeks of incarceration contemnor had already served; court remanded for vacation of remainder of ninety-day sentence); United States v. Camil, 497 F.2d 225, 229-230 (5th Cir. 1974) (where trial judge's failure to prepare certificate of contempt merited reversal of conviction, and where primary purpose of punishment in this case was to preserve order during trial, termination of trial rendered remand futile, and mere reversal was appropriate); United States v. Schrimsher, 493 F.2d 842, 845 (5th Cir. 1974) (where insufficient certificate of contempt merited reversal of contempt conviction, where purpose of punishment in this case was to preserve order in the courtroom during trial, and where trial had long since concluded, reversal of conviction and dismissal of proceedings against alleged contemnor was appropriate); United States ex rel. Robson v. Malone, 412 F.2d 848, 850-51 (7th Cir. 1969) (per curiam) (although appellants' failure to rise upon court's instruction was contemptuous, appellants' exclusion from the courtroom and retention in custody for several hours adequately served the purpose of the court's summary punishment and vacation of sentence was appropriate).

Here, we conclude that remanding the matter for further proceedings in the district court would be inappropriate. It is apparent that the fifteen-month punishment was intended to "vindicate the authority of the court." United States v. Powers, 629 F.2d 619, 627 (9th Cir. 1980). However, we are convinced that even if appellant's convictions had withstood the challenges he has raised on this appeal, no punishment in addition to the five months and five days of incarceration which he has already served would be warranted. To the extent that the authority of the district court can be vindicated by the imposition of punishment in this case, the punishment already inflicted exceeds that which would have resulted had the district court exercised "the least possible power adequate to the end proposed." Wilson, 421 U.S. at 319, 95 S.Ct. at 1808.

For the sake of completeness, we note that there is a serious question whether the punishment, as it was imposed in this case, actually served the district court's purpose. As portions of the colloquy between appellant and the district court strongly suggest, it is just as likely that it served appellant's purpose instead. In any event, it would not be in the best interests of the judicial system or the public to prolong this travesty any further. The time has come to draw the curtain on a seamy and tawdry episode. We do so now by vacating appellant's sentences.

REVERSED AND VACATED.

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