Contempt - Procedural Issues

Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts

Hicks v. Feiock, 108 S.Ct. 1423 (1988)

The Supreme Court set forth a number of rules governing contempt proceedings in the context of failure to comply with a court order. The Court concludes that the type of remedy or punishment imposed provides a strong indication whether the proceeding is criminal or civil, but that other considerations must also be evaluated. If the Court determines that a proceeding is criminal, the full panoply of constitutional protections must be afforded the accused: he must be provided with adequate notice and the State must prove beyond a reasonable doubt all the elements of the offense, including, in a contempt proceeding, the ability of the respondent to comply with the court order. In a civil case, on the other hand, it is permissible to require the respondent to demonstrate that he was incapable of complying with the court order, such as the payment of child support.

Young v. United States ex rel Vuitton Et Fils, 106 S.Ct. 3270 (1987)

The Supreme Court holds that it is permissible to have a private prosecutor in a contempt action, but it is improper to appoint a party that would be the beneficiary of the court order that supposedly had been violated. A private prosecutor should be as disinterested in the outcome of a criminal prosecution as a public prosecutor would be.

United States v. Agosto-Vega, 731 F.3d 62 (1st Cir. 2013)

Prior to the re-trial of the defendant, counsel filed numerous motions in limine. The trial court held the lawyer and the defendant in contempt and fined them $2,000 for the “abusive” late filing of the motions. There was nothing in the record, however, that limited the right to file motions in limine, or set forth a timetable for such motions. The trial court also failed to provide any notice to the lawyer or defendant about the proposed sanctions, and did not give them a right to be heard on this issue. The sanctions, therefore, could not be upheld.

United States v. Britton, 731 F.3d 745 (7th Cir. 2013)

Defense counsel failed to appear at a status conference and was held in contempt following a show cause hearing. The trial judge found that the attorney make false statements about his reason for not appearing both in writing and at the show cause hearing (i.e., he claimed to have a conflict in another court). The Seventh Circuit reversed, because the summary contempt procedures outlined in Rule 42(b) were not appropriate in this circumstance. The failure to appear in court is not conduct that occurs “in the presence of the court” so that conduct does not justify summary contempt proceedings and because the trial court relied on extrinsic evidence in making his findings about the lawyer’s statements at the show cause hearing, this cannot support summary contempt proceedings.

United States v. Peoples, 698 F.3d 185 (4th Cir. 2012)

The defendant was prosecuted for contempt of court. At his contempt trial, he appeared late (he had appeared late at previous proceedings, as well). The court held the defendant in contempt on the charged offense and then summarily held him in contempt a second time for being late to court for the contempt hearing. The Fourth Circuit held that a summary contemptproceeding was not appropriate for the charge that he was late to court. The court should have set this matter down for a hearing, provided time for the defendant to prepare and appointed a prosecutor.

Federal Trade Commission v. Trudeau, 606 F.3d 382 (7th Cir. 2010)

The defendant in this FTC action was not pleased with the course of the proceedings and on his radio program, he exhorted his audience to send emails to the district court judge on his behalf. The judge held the defendant in direct criminal contempt because of this “virtual” contact with the judge. The Seventh Circuit reversed. Because the judge had to engage in fact-finding (i.e., had to determine the genesis of the emails that were sent to him) and the defendant’s conduct did not occur in the immediate presence of the court this could not be characterized as direct criminal contempt that required immediate action without a hearing.

In re Gates, 600 F.3d 333 (4th Cir. 2010)

Counsel appeared in court fifteen minutes late for a change of plea hearing. This does not constitute an act committed “in the actual presence of the court” and is therefore not punishable summarily under Rule 42(b). See also United States v. Nunez, 801 F.2d 1260 (11th Cir. 1986) (same). The Fourth Circuit also concluded that the evidence was insufficient to find that the attorney was in willful contempt of court. The attorney explained that his assistant had received an ambiguous phone call from the prosecutor stating that the change of plea hearing might occur the next day (as opposed to the previously scheduled date). The trial court’s statement that the attorney should have followed up and clarified the matter was not a basis to hold the attorney in contempt.

United States v. Cohn, 586 F.3d 844 (11th Cir. 2009)

The Eleventh Circuit holds that a contempt “conviction” is not a felony under the sentencing statutes. In fact, it is neither a felony, nor a misdemeanor. Rather it is sui generis. No particular sentencing guideline applies.

United States v. Moncier, 571 F.3d 593 (6th Cir. 2009)

The attorney disobeyed a court order rather than appealing. This supported a contempt conviction. However, the case should have been tried before a judge other than the judge whose order was disobeyed. Rule 42(a)(3).

In re Troutt, 460 F.3d 887 (7th Cir. 2006)

The trial court erred in suspending the attorney from practicing in federal court as a sanction for his alleged criminal contempt. The only two penalties for criminal contempt are a fine, or imprisonment. If the judge wanted to impose some other form of punishment, he should have instituted disciplinary proceedings. In addition, the conduct in this case – writing vitriolic letters to the judge – was not direct contempt and should have been heard by a different judge after due process protections were afforded the attorney.

In re Contempt Order (Petersen), 441 F.3d 1266 (10th Cir. 2006)

A Magistrate held a prosecutor in summary contempt for being five minutes late to a hearing. This was improper. Being late to court is not conduct that occurs “in the presence of the court” and the attorney must be afforded the right to explain his tardiness.

United States v. Glass, 361 F.3d 580 (9th Cir. 2004)

The trial court held the defendant in summary contempt for making misrepresentations about her finances during an inquiry into her eligibility for appointed counsel. There was no need to conduct summary contempt proceedings, however, and the Ninth Circuit reversed. There was no need to dispel an immediate threat to the court; and the contemptuous conduct that was committed in the presence of the court could only be proved with facts that were extrinsic to the proceedings. See Pounders v. Watson, 521 U.S. 982 (1997) (Rule 42(b) summary contempt is appropriate only where all of the essential elements of the misconduct are under the eye of the court and are actually observed by the court).

United States v. Cooper, 353 F.3d 161 (2d Cir. 2003)

The attorney reported to the judge that his client was going to be hospitalized for a cancer operation. The District Court judge responded, “If you’re stating that somebody is sick, we have to have a doctor’s affidavit that says that.” Later, the attorney reported that the client was suffering from a heart condition. The judge, in a phone conference with the attorneys, again demanded a written doctor’s affidavit. The attorney produced a fax from the hospital documenting the client’s admission to the hospital’s coronary care unit. When the hearing was held, the client did not appear and the judge held the attorney in contempt for failing to produce an affidavit. The Second Circuit reversed: The attorney did nothing to disrupt the proceedings in such a manner that the summary contempt proceedings were necessary to restore order. The appellate court also questioned whether the failure to produce an affidavit in this situation could even have amounted to contemptuous conduct. The absence of any formal Order from the trial court (i.e., the trial judge relied on her telephone conversation to support the contempt citation) however, was fatal to the adjudication of contempt.

Doral Produce Corp. v. Paul Steinberg Associates, Inc., 347 F.3d 36 (2d Cir. 2003)

Even in summary contempt proceeding, the “defendant” must be afforded the right to make a statement before the court makes a finding of contempt. Only the need to take immediate action obviates this requirement. In this case, the defendant was a lawyer who pursued a line of questioning that had been previously ruled improper.

United States v. Pina, 844 F.2d 1 (1st Cir. 1988)

Three contempt hearings were held during the course of the trial that served as the stage for the contemnor’s misconduct. The contempt hearings were conducted without a jury. Each hearing involved numerous contempt charges, and the total possible sentence far exceeded six months for each hearing. The First Circuit holds that the contemnor had a right to trial by jury.

United States v. 20th Century Fox Film Corp., 882 F.2d 656 (2d Cir. 1989)

A corporation is entitled to a jury trial in a prosecution for criminal contempt under the Sixth Amendment if there is a possibility of the imposition of a substantial fine. The SecondCircuit holds that a fine in excess of $100,000 is automatically sufficient to trigger the right to a jury trial.

United States v. Ayer, 866 F.2d 571 (2d Cir. 1989)

A contempt order in this case required the defendant to serve 15 days of confinement. There was no method by which the defendant could purge the order of contempt. Therefore, this was a criminal contempt order and was invalid because of the failure to provide the procedural safeguards necessary for an adjudication of criminal contempt.

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888 (3rd Cir. 1992)

When contemptuous conduct occurs in proceedings before a Magistrate, the District Court must conduct a de novo hearing. The district judge may not rely on the record established in the Magistrate’s division. The Third Circuit also reviews the general rules governing criminal contempt proceedings. No prior civil contempt sanction must be attempted prior to resorting to criminal contempt and no “obstruction of justice” must occur as a prerequisite to criminal contempt proceedings, unless summary contempt proceedings are utilized.

United States v. Neal, 101 F.3d 993 (4th Cir. 1996)

A witness failed to appear after being subpoenaed. The district judge conducted a contempt proceeding and acted as the prosecutor, asking the witness questions, and then adjudicating the recalcitrant witness guilty. This was procedurally flawed. The district court should have appointed a prosecutor to handle the prosecutorial function of the case.

In re Johnson, 921 F.2d 585 (5th Cir. 1991)

An attorney was held in contempt and barred from practicing in the bankruptcy court because of an apparent misrepresentation she made to one judge about what another judge had said. The judge whose statement had been erroneously repeated by the attorney entered the contempt and disbarment order. The judge should have recused himself in light of his evident partiality.

S.E.C. v. Carter, 907 F.2d 484 (5th Cir. 1990)

The S.E.C. issued an injunction relating to certain activities of two corporations and an individual. The S.E.C. alleged that the defendants violated the injunction and sought to hold them in contempt. It was improper for the S.E.C. lawyers to handle the case on behalf of the government.

Griffith v. Oles, 895 F.2d 1503 (5th Cir. 1990)

Bankruptcy courts have no authority to hold a party in criminal contempt for willful disobedience of its orders. For a contempt charge governed by 18 U.S.C. §401(3), the party must be tried in District Court.

United States v. Bayshore Associates, Inc., 934 F.2d 1391 (6th Cir. 1991)

The court imposed a fine on the defendant corporation because of its failure to comply with injunctive orders issued by the court. These fines were not contingent on the defendant’s taking, or refraining from taking, any action and were not compensatory – the fines were paid to the court, not the government (plaintiff). The fines, therefore, were punitive and thus criminal in nature, not civil. As such, the fines were improper because the government was not required to prove that the defendant was in contempt beyond a reasonable doubt.

In re Chandler, 906 F.2d 248 (6th Cir. 1990)

The defendant’s tardiness upon appearing in court should not have been punished by contempt. He was late because of a conflict of which he was unaware until the day in question. The defendant lacked the requisite intent, and his contempt citation was vacated. The Sixth Circuit holds that, not only was the evidence insufficient, but the procedure followed by the District Court was inadequate. The trial court could not have known why the attorney was late, thus the contemptuous conduct did not occur in his presence. Summary disposition of the matter was therefore inappropriate.

In re Contempt of Greenberg, 849 F.2d 1251 (9th Cir. 1988)

A defense attorney was held in summary criminal contempt because of his action of slamming his book down on the table and demanding “at the top of his voice” a ruling on his objection. However, the trial judge, in his order of contempt, failed to comply with Rule 42(a) because he failed to certify that he “saw or heard” the contemptuous conduct. The transcript of the proceedings may not be used to fulfill the certification requirement.