IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-20933
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL J. PETROSKI, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CR H 96-199)
_________________________________________________________________
November 19, 1997
Before JOLLY, SMITH, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Daniel Petroski, an attorney representing a plaintiff in a
civil trial in federal district court, was held in criminal
contempt of court because he was found to have wilfully violated an
in limine order of the court forbidding the introduction of certain
evidence. He spent one night in jail. He now appeals the contempt
order. Because we hold that the evidence fails to establish an
element of Petroski’s guilt of the offense beyond a reasonable
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
doubt, that is, that the in limine order was reasonably specific,
we reverse the judgment of criminal contempt.
I
Petroski represented Melva Campbell, the plaintiff in a Texas
wrongful death action. The district court bifurcated the trial
into a liability/compensatory damages phase and a punitive damages
phase. The court also granted the defendants’ motion in limine to
preclude the introduction of evidence relating to their “financial
status” during the liability phase of the trial. From the bench,
the court orally ruled “I don’t think we need to talk about the
financial status of the defendants [in the liability phase of the
trial]. That’s the whole point of bifurcation.” Two days later,
the court entered a written order that provided “Plaintiff is
ORDERED not to present any testimony or otherwise introduce any
evidence regarding the financial status of the defendant.”
A crucial issue in the trial was whether the deceased, Tom
Campbell, was an employee of the defendant Keystone Aerial Surveys
(“Keystone”) or an independent contractor at the time of his death.
If he were an employee of Keystone, the negligence action would be
barred by the workers compensation statute. In contrast, if he
2
were serving as an independent contractor, the wrongful death
action could provide a vehicle for recovery.
One of the arguments Petroski advanced in relation to this
contested matter was that Keystone, in its records, had treated
Campbell as an independent contractor. For example, Keystone did
not fill out any W-4 tax forms for Campbell and withheld no taxes
from Campbell’s paycheck as required by law for employees.
Keystone also did not require Campbell to fill out time sheets, a
practice it normally imposed upon its employees. To explain the
discrepancy in its record-keeping, Keystone attempted to portray
itself as a small operation, with informal record-keeping
procedures. Presumably, Keystone wanted the jury to conclude that
the incriminating discrepancies in its record-keeping were only the
result of oversight.
Petroski set out to rebut this suggestion and to demonstrate
that Keystone was not a small and unsophisticated business. He
called Mallinckrodt, Keystone’s president, to the stand as an
adverse witness, and the following exchange led to Petroski’s
contempt citation:
Petroski: You have heard [Keystone’s counsel] Mr. Rose
describe Keystone . . . as kind of a mom and pop shop, do
you recall Mr. Rose describing Keystone . . . like that?
Mallinckrodt: Yes.
Q: Do you agree with that description?
3
A: Yes, I sure do.
Q: Where Mary Potter [who kept Keystone’s
records] is kind of shuffling papers, she’s
got all these hats, these 20 hats to wear?
A: She wears a lot of hats, I give her a lot of credit.
Q: You have got, what, nine, ten aircraft?
A: Nine.
. . .
Q: Okay. You’ve got about 30 to 35 employees?
A: I think it’s probably closer to 30 now.
Things aren’t quite that good.
Q: You are the president of Keystone?
A: Yes.
. . .
Q: Well, then, sir, you ought to know that
between Keystone and Airmag, that they have an
annual payroll of over $1.5 million, did you
know that?
The district court upheld Keystone’s counsel’s objection and denied
Petroski’s two requests to approach the bench.
At the day’s conclusion, the court ordered Petroski to turn
all further questioning of Mallinckrodt over to his co-counsel.
The next morning, the judge issued the certificate of criminal
contempt for violation of its order that the plaintiff not
introduce evidence of the defendants’ “financial status.” After
the jury returned its verdict, the court ordered Petroski taken
4
into custody and he served the remainder of his twenty-four hour
sentence.1 He now appeals the contempt order.
II
A
The district court summarily punished Petroski for criminal
contempt pursuant to Rule 42(a) for “knowingly, willfully, and
contemptuously” violating a court order and sentenced him to
twenty-four hours in jail. Rule 42(a) provides that
A criminal contempt may be punished summarily if the
judge certifies that the judge 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.
Fed.R.Crim.P.42(a). The statutory authority under which the
district court proceeded when it convicted Petroski of criminal
contempt provides that
A court of the United States shall have power to punish
by fine or imprisonment, at its discretion, such contempt
of its authority, and none other, as --
(1) Misbehavior of any person in its presence
or so near thereto as to obstruct the
administration of justice;
(2) Misbehavior of any of its officers in
their official transactions;
(3) Disobedience or resistance to its lawful
writ, process, order, rule, decree, or
command.
1
Petroski served part of his sentence prior to the submission
of the civil case to the jury.
5
18 U.S.C. § 401. Specifically, the district court convicted
Petroski under subsection three--violation of a court order.
B
A conviction for criminal contempt under 18 U.S.C. § 401(3)
requires proof beyond a reasonable doubt of (1) a reasonably
specific order; (2) violation of the order; and (3) the willful
intent to violate the order. United States v. Landerman, 109 F.3d
1053, 1068 (5th Cir.), modified in part on other grounds, 116 F.3d
119 (5th Cir. 1997); United States v. West, 21 F.3d 607, 608 (5th
Cir. 1994); Matter of Hipp, Inc., 5 F.3d 109, 112 (5th Cir. 1993);
Cooper v. Texaco, Inc., 961 F.2d 71, 72 n.3 (5th Cir. 1992); United
States v. Columbia Broadcasting Sys., Inc., 497 F.2d 107, 109 (5th
Cir. 1974) (noting “although the court’s verbal orders in this
[criminal] contempt proceeding must meet the test of reasonable
certainty, . . . a trier of fact must find no reasonable doubt as
to their meeting that test.”). Such a conviction may not be upheld
unless the order is clear and unambiguous. Cooper, 961 F.2d at 72.
“Any ambiguity must be resolved in favor of the defendant.” Id.
Furthermore, a factual inquiry into the reasonableness of the
order’s specificity must be conducted within the context in which
the order was issued. Matter of Hipp, 5 F.3d at 112; United States
v. Revie, 834 F.2d 1198, 1201-02 (5th Cir. 1987), cert. denied, 487
U.S. 1205, 108 S.Ct. 2845 (1988); United States v. Turner, 812 F.2d
6
1552, 1565 (11th Cir. 1987) (noting clarity of order must be
evaluated under reasonableness standard considering not only
context in which order was entered but also audience to which it
was addressed); cf. United States v. Young, 107 F.3d 903, 907 (D.C.
Cir. 1997) (reviewing specificity of court order de novo under
sufficiency of the evidence rationale). Petroski contends that the
district court’s order excluding evidence regarding the defendants’
“financial status” was not reasonably specific. He further
contends that he did not violate the court’s order, and, should we
hold that he did violate the order, he argues that he did not do so
with willful intent. The government argues that the evidence
supports a finding that the court’s in limine order was reasonably
specific and that Petroski willfully violated it.
III
The question we must initially decide is whether the evidence
established the first element necessary for a conviction of
criminal contempt--that being a reasonably specific order. We
review deferentially the district court’s findings of facts.2
Nevertheless, our cases make absolutely clear that the ultimate
finding of criminal contempt is reviewed to determine whether--with
2
United States v. Revie, 834 F.2d 1198, 1202 (5th Cir. 1987).
7
respect to each element of the offense--guilt has been established
beyond a reasonable doubt. Matter of Hipp, Inc., 5 F.3d 109, 112
(5th Cir. 1993); see also United States v. Collazo, 117 F.3d 793,
795 (5th Cir. 1997) (noting criminal conviction in bench trial will
be affirmed “if there is any substantial evidence to support it and
if the evidence is sufficient to justify the trial judge, as the
trier of fact, in concluding beyond a reasonable doubt that the
defendant was guilty.”); United States v. Laughlin, 804 F.2d 1336,
1339 (5th Cir. 1986) (noting court reviewing sufficiency of the
evidence in a criminal bench trial must ascertain “whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”).
In its written decree, the district court ordered the
plaintiff “not to present any testimony or otherwise introduce any
evidence regarding the financial status of the Defendant.”
Petroski maintains that the term “financial status” is ambiguous
and, therefore, the order did not unambiguously prohibit the
introduction of payroll information. We turn to examine this
contention.
Courts have historically used the term “financial status”
loosely, sometimes equating it with “net worth” and other times
lending it a broader definition. E.g., compare United States v.
8
Deutsch, 599 F.2d 46, 48 (5th Cir. 1979)(using “financial status”
to mean net worth); United States v. Helton, 975 F.2d 430, 432 (7th
Cir. 1992) (same); Arceneaux v. Merrill Lynch, 767 F.2d 1498, 1502
(11th Cir. 1985) (same) with Ross v. Black & Decker, Inc., 977 F.2d
1178, 1189 (7th Cir. 1992) (treating “financial status” as
including both net worth and sales profits); United States v.
Fukushima, 933 F.2d 1016 (9th Cir. May 16, 1991) (unpublished)
(treating “financial status” as including both net worth and cash
flow). The failure of the courts to agree on a precise definition
of a term may be treated as significant evidence that generally the
term is ambiguous.
This reasoning is especially apt, as here, opposing sides to
a suit appear to share the same misinterpretation of the term.
Keystone apparently also misunderstood “financial status” not to
include payroll information. Before the evidence was introduced by
Petroski, Keystone had already introduced two exhibits that
revealed such information: Exhibit 42 shows that Keystone paid over
$1 million in wages, and exhibit 43 reveals that Air Mag, a
subsidiary of Keystone, paid over $500,000 in wages. Thus,
Keystone earlier had introduced evidence that “between Keystone and
Air Mag [there was] an annual payroll of over $1.5 million”--the
identical information that Petroski was held in contempt for
introducing. Although the district court’s order forbade only the
9
plaintiff from introducing evidence of the defendants’ financial
status, the order was issued at the urging of Keystone’s counsel.
It was surely implicit that Keystone would not be allowed to
introduce that which it sought to prevent the plaintiff from
introducing.
The specificity of the order must also be viewed in the
context within which it was issued. In its certificate of criminal
contempt, the district court related its actions preceding the
issuance of the order prohibiting the plaintiff from introducing
evidence of the defendants’ financial status. The court began by
noting that it had bifurcated the trial into liability and damages
phases, with introduction of evidence pertaining to punitive
damages to be limited to the second phase in accordance with
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994).
In stating its reasoning underlying bifurcation, the court quoted
Texas law, saying that “evidence of a defendant’s net worth, which
is generally relevant only to the amount of punitive damages, by
highlighting the relative wealth of a defendant, has a very real
potential for prejudicing the jury’s determination of other
disputed issues in a tort case.” (Emphasis added). The court then
noted that during trial it had ruled orally that the plaintiff was
not to present any evidence of the defendants’ financial status.
10
This ruling had been followed two days later with a written order
to the same effect.
The district court thus linked its order forbidding financial
status evidence with its order bifurcating the trial. As argued by
Petroski, and indeed as acknowledged by the district court in its
certificate of criminal contempt, the purpose of bifurcation is to
prevent the introduction of net worth of a company until the
plaintiff demonstrates the relevancy of such evidence by proving
the propriety of submitting the issue of punitive damages to the
jury. Moriel, 879 S.W.2d at 30. Additionally, the district court
responded to Petroski’s motion for reconsideration of the contempt
citation by stating that Petroski elicited payroll information “not
because he wanted to show the jury that it was not a Mom-and-Pop
operation . . . but because he was mad at me . . . [h]e saw this as
a great opportunity to just completely crack open the egg having to
do with net worth of the company.” (Emphasis added). In short, it
appears that even the district court associated the term “financial
status” interchangeably with the term “net worth.”
In sum, we are ineluctably led to the conclusion that the
evidence relating to the specificity of the order is insufficient
to permit a finding of criminal contempt beyond a reasonable
11
doubt.3 The term “financial status,” as employed in the district
3
The dissent argues that three instances in the record
demonstrate Petroski’s understanding that “financial status”
included payroll information. The dissent first quotes the
plaintiffs’ response to the defendants’ pretrial motion in limine
to exclude evidence of their financial status. The defendants’
motion was framed within the context of the trial bifurcation. In
a written response, the plaintiffs said:
If, on the other hand, Defendants are continuing to
contest liability, then Plaintiffs will not introduce
evidence concerning Defendants’ financial status until
first presenting evidence of their gross negligence
subject to this exception: The salaries paid to the
officers of the various companies for the “work”
performed by these people are relevant to the issues in
this case. Such evidence will be presented to the jury
and should not be included in the scope of this request
by the Defendants.
The second instance occurred before trial in arguments
relating to the same motion in limine:
Petroski: Anyway the next one, Judge, has to do with the
financial status of the defendants. I mean, we are not
going to stand up here on direct and talk with the assets
of the company. We may talk about airplanes,
receivables, payroll, or something like that, but we are
not going to talk about assets. That’s not part of what
our case is about.
Mr. Rose: We filed a motion to bifurcate.
The Court: I think I granted that, didn’t I?
Petroski: Yes.
* * * *
The Court: Let’s talk about that later. I don’t think we
need to talk about the financial status of the
defendants. That’s the whole point of bifurcation.
The written response and these remarks, and the context within
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court’s order, was an ambiguous term--not a reasonably specific
term. We reach this conclusion because of the inherent ambiguity
in the term “financial status” as reflected in the cases, the
context within which the order was issued in relation to the
bifurcation order, the district court’s apparent use of the term
“financial status” interchangeably with the term “net worth,” and
the context in which the allegedly forbidden evidence was elicited
as we have detailed above. Petroski’s criminal contempt conviction
is therefore REVERSED.4
which they occurred, demonstrate Petroski’s understanding of
“financial status” as the term related to the bifurcation order.
In each instance, he pointed out his intention to introduce payroll
evidence as relevant to the liability issue--not as evidence of the
defendants’ financial status in the bifurcation context. The court
did not disabuse him of his understanding. Indeed, it is arguable
that the court’s reference to financial status and bifurcation
reinforced Petroski’s understanding that the court was speaking of
assets and net worth--subjects relevant to damages.
The third instance--Petroski’s agreement to white-out certain
financial information in documents he wished to admit as evidence--
similarly fails to withstand scrutiny as it occurred in the context
of an unrelated issue. The financial information was personal
payroll data of individuals employed by the defendants. Such
personal data was irrelevant to the issue of liability that
Petroski was attempting to prove with the documents at that time;
nor did the defense object to the financial information on the
basis that it violated the in limine order against the admission of
evidence of financial status.
4
The reversal of the criminal contempt conviction should not
be construed as condonation of Petroski’s behavior. The record
demonstrates that at another point in the trial Petroski repeatedly
ignored the trial court’s rulings excluding certain evidence and
persisted in the same line of questioning after being ordered by
the trial court to discontinue. Although the judge acted at all
times with proper judicial restraint, we can well understand why
13
The appellee’s motion to dismiss the appeal is DENIED. The
appellee’s alternative motion to supplement the record is GRANTED.
The appellee’s alternative motion to take judicial notice is
DENIED.
For the foregoing reasons, the judgment of the district court
is
R E V E R S E D.
JERRY E. SMITH, Circuit Judge, dissenting:
The majority seriously misapplies both our standard of review
and the evidence to which that standard is to be applied.
Accordingly, I respectfully dissent.
A.
The majority decides this case on the ground that the district
court's order was not reasonably specific beyond a reasonable
doubt. The majority gives lip service to our deferential standard
of review but does not apply it properly to the facts of this case.
Most circuits are quite generous in the deference given to the
fact finder in reviewing contempt orders for reasonable
Petroski’s conduct ultimately tested her patience. Petroski’s
actions may have fully justified a reprimand or perhaps civil
contempt on other grounds, but the evidence does not support the
judgment of conviction for criminal contempt for the reasons we
have noted.
14
specificity. The Eleventh Circuit, for example, requires only that
there be substantial evidence to support the district court's
finding of specificity. See United States v. Turner (In re Moore),
812 F.2d 1552, 1565 (11th Cir. 1987). The Second Circuit agrees
and “view[s] the evidence of the orders' specificity in a light
most favorable to the government.” United States v. Cutler,
58 F.3d 825, 835 (2d Cir. 1995). Accord United States v. NYNEX
Corp., 8 F.3d 52, 55 (D.C. Cir. 1993).
As the majority acknowledges, the law of this circuit is
reflected in United States v. Revie, 834 F.2d 1198 (5th Cir. 1987).
There, we cited Turner and applied a clear error standard to the
district court's finding of reasonable specificity. Id. at 1202.
Accord Wright v. Nichols, 80 F.3d 1248, 1250 (8th Cir. 1996).
B.
The majority correctly states that “the specificity of the
order must [] be viewed in the context within which it was issued.”
The record in this case plainly demonstrates that, prior to the
order's issuance, Petroski had indicated that he understood
“financial status” to include payroll data.
When the defendants first made their motion to exclude
evidence of their financial status, Petroski responded as follows:
15
. . . Plaintiffs will not introduce evidence
concerning Defendants' financial status until first
presenting evidence of their gross negligence subject to
this exception: The salaries paid to the officers of the
various companies for the “work” performed by these
people are relevant to the issues in this case. Such
evidence will be presented to the jury and should not be
included in the scope of this request by the Defendants.
Again, this pleading unequivocally shows that Petroski considered
payroll information to be a part of financial status and that he
therefore found it necessary to request a specific exception to the
order in limine.
On the eve of trial, the district court addressed this
dispute. Again, Petroski urged an exception to “financial status”
for “airplanes, receivables, payroll, or something like that.” The
court responded by granting the motion in limine and, later, issued
the subject written order directing the plaintiff “not to present
any testimony or otherwise introduce any evidence regarding the
financial status of the Defendant.”
This understanding of “financial status” as including payroll
information continued into the trial. In its opinion, the majority
grants the government's motion to supplement the appellate record.
One newly-added portion of the record shows that when Petroski
tried to introduce certain State of Pennsylvania tax records
containing payroll information, Defendants' counsel stated, on the
record, that “I already told him [Petroski] my only objection is
16
the financial information. I don't care about these lists. He's
got payroll information which I think is inappropriate. I asked
him simply to white it out.” Petroski then agreed to redact the
payroll data. This demonstrates that, at trial, Petroski
understood that “financial information” includes payroll
information.
The heart and essence of the instant appeal is the question
whether, to Petroski, the written order was reasonably specific.
The majority agrees that the order must be evaluated in light of
“the audience to which it was addressed.” In the context of the
civil lawsuit, that means whether, viewed reasonably from
Petroski's point of view, the order should be read as including
payroll statistics as part of the prohibited mention of “financial
status.” I do not understand how, in light of Petroski's above-
quoted statements, anyone could conclude that, at least as to him,
the order was not reasonably specific and perfectly understandable.
Nor can I agree with the majority's conclusion that an order
stating that “Plaintiff is ORDERED not to present” certain matters
implies, as the majority reasons, “that Keystone [the defendant]
would not be allowed to introduce” it. The order says what it
says. If Petroski felt that the order was one-sided, his remedy
was to ask for reconsideration or to appeal the ruling, not boldly
to violate that reasonably specific order.
17
In summary, this is a case in which the attorney repeatedly
tested the admirable patience of the district court by introducing
evidence, before the jury, that he had been warned not to
introduce. Finally, he violated the specific order at issue here,
and the court made good on its promise to hold him in contempt if
he insisted on misbehaving.
The court's action was justifiable and fair. The finding of
reasonable specificity was not clearly erroneous. The able
district judge, present throughout the proceedings, was in the best
position to evaluate whether the element of reasonable specificity
was established beyond a reasonable doubt. That standard is easily
met here. Accordingly, I respectfully dissent.
18