United States Court of Appeals
For the First Circuit
No. 99-2207
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN SWEENEY, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Joseph Waldbaum on brief for appellant.
Donald K. Stern, United States Attorney, and Alex Whiting,
Assistant United States Attorney, on brief for appellee.
September 28, 2000
Per Curiam. Following a bench trial, the district
court found defendant-appellant John Sweeney, Jr., guilty on one
count of criminal contempt of a court order. See United States
v. Sweeney, 52 F. Supp. 2d 164 (D. Mass. 1999). Sweeney now
appeals, complaining that the government charged and tried him
pursuant to 18 U.S.C. § 401(3) rather than 18 U.S.C. § 402 in
order to deny him a trial by jury, 1 and that this charging
decision abridged his constitutional rights. See, e.g., United
States v. Pyle, 518 F. Supp. 139, 145-46 (E.D. Pa. 1981)
(holding that defendants who were charged under section 401, but
who could have been charged under section 402, were denied their
constitutional right to trial by jury), aff'd without opinion,
722 F.2d 736 (3d Cir. 1983). Since Sweeney did not raise this
claim squarely in the lower court, our review is limited to
plain error. See United States v. Slade, 980 F.2d 27, 30-31
(1st Cir. 1992) (holding that a single reference, without
elaboration, was insufficient to preserve a claim for appellate
review). We discern none. Consequently, we affirm the judgment
of conviction.
Sweeney's difficulties arose when the Resolution Trust
Corporation (RTC), as successor in interest to a failed state-
1
Both statutes provide for punishment for contempt of a
court order, but only section 402 provides for trial by jury.
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chartered bank, successfully prosecuted a foreclosure proceeding
involving Sweeney's properties. See Sweeney v. RTC, 16 F.3d 1,
3 (1st Cir. 1994). The RTC, succeeded in due course by the
Federal Deposit Insurance Corporation (FDIC), initiated an
action for possession, and the district court entered an
eviction order on May 29, 1997. Sweeney exhausted his appeals,
but refused to quit and vacate. The FDIC obtained another order
from the district court, dated February 19, 1998, commanding
Sweeney to leave immediately upon service. Sweeney paid no heed
and a squad of U.S. Marshals forcibly removed him from the
premises on February 28, 1998. On the same date, he was
arrested and charged with contempt. His trial and conviction
followed.
Against this backdrop, we turn to the instant appeal.
To show that the government prosecuted him under the wrong
statute, Sweeney must demonstrate that the FDIC's action against
him was not "brought or prosecuted in the name of, or on behalf
of, the United States." 18 U.S.C. § 402. Inasmuch as Congress
inserted a jury trial provision in section 402 in order to
prevent abuse by "private litigants" seeking to use the judicial
contempt power as an "instrument of private law enforcement,"
United States v. Wright, 516 F. Supp. 1113, 1116 (E.D. Pa. 1981)
(citations omitted), the FDIC may be said to be acting "in the
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name of, or on behalf of, the United States" for purposes of
section 402 only insofar as its actions serve public (as opposed
to private) ends. In any given case, the answer to this
conundrum hinges on the particular statute under which the
underlying actions were taken. See Auction Co. of Am. v. FDIC,
132 F.3d 746, 748 (D.C. Cir. 1997).
According to Sweeney, the FDIC was acting here not to
advance any public goal, but, rather, to protect the interests
of the depositors and creditors of the failed state-chartered
bank. The decision in FDIC v. Sumner Financial Corp., 602 F.2d
670 (5th Cir. 1979), lends credence to this position. There,
the Fifth Circuit distinguished between the FDIC's actions qua
receiver of insolvent banks, and its actions qua insurer of
state-chartered banks. See id. at 679. The court held that, in
its former capacity, the FDIC was "to be treated exactly as any
other receiver would be," and therefore was not acting as the
United States for purposes of federal jurisdiction under the
version of 12 U.S.C. § 1819 then in effect. Id.
The fly in the ointment, however, is that the decision
in Sumner preceded the enactment of the Financial Institutions
Reform, Recovery, and Enforcement Act of 1989, Pub. L. 101-73,
103 Stat. 183 (codified as amended in scattered sections of 12
U.S.C.) (FIRREA). Congress enacted FIRREA "to aid the FDIC in
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its immediate responsibilities of dealing with mounting bank
failures in this country." FDIC v. Longley I Realty Trust, 988
F.2d 270, 274 (1st Cir. 1993) (quoting FDIC v. Wright, 942 F.2d
1089, 1096 (7th Cir. 1991)). In so doing, Congress made
pellucid that, in acting as a receiver of failed banks, the FDIC
fosters important public policies relating to the avoidance of
a national banking crisis. See id. This assessment reflects
the gist of post-FIRREA authority. See, e.g., FDIC v. Wentz, 55
F.3d 905, 909 (3d Cir. 1995) (stating that there is "a
significant public interest in promptly resolving the affairs of
insolvent banks"); RTC v. Thornton, 41 F.3d 1539, 1542 (D.C.
Cir. 1994) (explaining that in resolving the affairs of failed
banks, the RTC and its successor, the FDIC, are required not
only to protect the assets of the failed institution for its
depositors and creditors but also to "make efficient use of
public funds") (citing 12 U.S.C. § 1441a(b)(3)(C)); Wright, 942
F.2d at 1096 (holding that an action involving the FDIC as
receiver is not "simply a private case between individuals [but
one that] involves a federal agency appointed as a receiver of
a failed bank in the midst of a national banking crisis"). We
agree with these courts. And insofar as the FDIC serves
important public purposes when it functions as a receiver, it
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may be said to be acting "in the name of, or on behalf of, the
United States" within the purview of section 402.
For present purposes, we need not answer definitively
the question of whether the FDIC, as a receiver of a failed
state-chartered bank, is acting "in the name of, or on behalf
of, the United States" within the purview of section 402. It
suffices that the question is, at the very least, an open one.
As such, Sweeney's professed entitlement to a jury trial is
freighted with uncertainty.
We need go no further. Since "plain error" must be
just that — clear-cut, patent, and obvious — no plain error
occurs when the state of the law is murky. Thus, Sweeney's
appeal fails.
Affirmed. See 1st Cir. Loc. R. 27(c).
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