United States Court of Appeals
For the First Circuit
No. 01-1891
UNITED STATES OF AMERICA,
Appellee,
v.
DALE CHESTER BROWNE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Howard, Circuit Judge,
and Shadur,* Senior District Judge.
Raymond J. Rigat, by appointment of the court, and Gilbride &
Rigat on brief for appellant.
Rose A. Briceño, Department of Justice, Criminal Division,
Narcotic and Dangerous Drug Section, on brief for the United
States.
January 29, 2003
*
Of the Northern District of Illinois, sitting by designation.
BOUDIN, Chief Judge. Dale Chester Browne, a citizen of
St. Kitts, was indicted along with a number of other defendants in
federal district court in Puerto Rico. By a superseding indictment
filed on April 26, 2000, the grand jury charged Browne in five
counts with conspiracy to possess cocaine with intent to
distribute, bank fraud, two deliveries of a controlled substance,
and conspiracy to engage in money laundering. 21 U.S.C §§
841(a)(1), 846 (2000); 18 U.S.C. § 1344 (2000); 18 U.S.C. §
1956(a)(1)(B)(i)-(ii), (h) (2000). In substance, Browne was
charged with participating over an extended period in a large-scale
cocaine importation scheme and in the concealment of proceeds.
On November 20, 2000, Browne pled guilty to the two
conspiracy counts--the drug conspiracy and the money laundering
conspiracy--pursuant to a plea agreement. Under the agreement, the
remaining counts were dismissed and the parties stipulated to the
quantity of cocaine and laundered funds and to various upward and
downward adjustments. The guilty plea encompassed the usual
proceedings including Browne's agreement to facts establishing a
basis for the plea. See Fed. R. Crim. P. 11; United States v.
Lopez-Pineda, 55 F.3d 693, 695-96 (1st Cir.), cert. denied, 516
U.S. 980 (1995). Sentencing was set for May 18, 2001.
On March 23, 2001, four months after the guilty plea and
two months before sentencing, Browne's counsel filed a written
motion on his behalf to withdraw his guilty plea. The motion
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contained a melange of general claims unsupported by facts (e.g.,
defendant "was not afforded adequate opportunity to prepare for
trial, and/or was denied adequate opportunity to obtain necessary
information . . . "). Included among them, also without any
details, was the assertion that the government "discriminated
against [Browne] during negotiations for being black, and [a]
citizen of another country."
The government responded by denying "in the strongest
terms possible" that Browne's race or citizenship entered into its
plea negotiations but pointed out that the lack of detail in
Browne's motion made it impossible to offer a more detailed
response. The district court denied Browne's motion without
further proceedings. In its detailed opinion, the court noted
inter alia that Browne's motion offered nothing but "unsupported
allegations," that the plea transcript showed that his plea had
been fully discussed and was voluntary, and that the delay in
making the motion counted against it.
At the sentencing hearing on May 18, 2001, the district
court sentenced Browne to 22 years' imprisonment, consistent with
the agreed-to facts in the plea agreement. As the judge closed the
hearing, Browne stated to the judge: "You violate the rights. You
violate the rights here." The judge warned Browne that he might be
subjecting himself to contempt if he continued. Then, apparently
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as the marshal was leading Browne out of the courtroom, Browne
said: "Son of a bitch, damn it."
The judge then directed the marshal to bring Browne back
in court. Browne's counsel asked, "may we approach the bench?" In
response, the judge stated:
No sir, you may not approach the bench. Bring
the defendant back to court. Let the record
reflect that after we finished his sentence,
the defendant was handcuffed and as he was
being led out by the Marshals, he started
saying out loud to everybody in the courtroom,
that his rights were being violated. At that
time, the court did not take any action.
Nevertheless, when he was being led from the
door of this courtroom to the holding pens
which are across the hallway, he started
saying that I am a son of a bitch and I am not
going to stand for that from you or anybody
else. We are a country of law and order. You
have your rights. You can continue with the
appeal if you are not satisfied with the
sentence I imposed, but I am not going to
tolerate that. Having committed a crime in my
presence, a criminal contempt for having
called me a son of a bitch, you are hereby
ordered and you are hereby detained and you
are hereby sentenced to an additional six
months in jail consecutive to the two hundred
and sixty-four months that I just sentenced
you.
Browne has now appealed from the judgment of conviction
and sentence, urging that the district court erred in not affording
him an evidentiary hearing on his motion to withdraw his guilty
plea and that the contempt sentence should be vacated for two
reasons: that the district court erred in finding Browne in
contempt and that he was denied his alleged due process right to
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allocute in the contempt proceeding. We consider first the motion
to withdraw and then the contempt proceeding.
A guilty plea entered after a full Rule 11 colloquy
cannot be withdrawn at will but only with the district court's
permission upon the showing of a "fair and just reason" for
withdrawal. Fed. R. Crim. P. 32(e). The cases provide criteria to
be considered, e.g., United States v. Marrero-Rivera, 124 F.3d 342,
347 (1st Cir. 1997), but no discussion of them is required here
because Browne's appellate claim is narrowly focused: he claims
that the district court should have granted him an evidentiary
hearing on his claim of discrimination on the part of the
prosecutor.
We will assume arguendo, as we have in an earlier case,
that newly discovered racial discrimination by the prosecutor in
negotiating a guilty plea might well furnish a "fair and just
reason" for a defendant to withdraw his prior guilty plea before
sentencing. See United States v. Bernal-Rojas, 933 F.2d 97, 99
(1st Cir. 1991). And, although this is very doubtful, we will also
assume for argument's sake that Browne did in fact ask for an
evidentiary hearing on his discrimination charge.1 The latter
1
Browne's written motion asked, if the plea withdrawal were
not summarily granted, for a "hearing," which depending on context
might or might not alert the judge that Browne was asking for a
chance to present evidence. Here, because Browne said nothing
specific about testimony, documents or facts to be adduced, the
request could reasonably have been understood as requesting only
oral argument.
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assumption affects only the choice between plenary and plain error
review on appeal and, in this instance, there was no error under
any standard.
Ordinarily, the grant or denial of an evidentiary hearing
in a plea withdrawal proceeding is said to be confided to the
discretion of the trial judge and can be overturned only for
"abuse," United States v. Winston, 34 F.3d 574, 578 (7th Cir. 1994)
(or, if no request was made, only for "plain error," a yet more
demanding multi-part test, see United States v. Olano, 507 U.S.
725, 732 (1993)). In practice, one would expect the judge to take
evidence in some form--although not necessarily through a full-
blown hearing--if there were an adequate tender and if the facts to
be adduced were critical to the proper disposition of the motion.
In this case, the tender was not even arguably adequate to warrant
a hearing, let alone to make its denial an abuse of discretion or
plain error.
At best, Browne's motion hints that after his guilty plea
he may have learned that the government did not prosecute certain
persons mentioned as present during some transactions involved in
Browne's drug conspiracy. Nothing else of even a vaguely factual
character appears in his motion to explain the basis for his charge
of racial or nationality discrimination. Nothing whatsoever is
said as to what specifically Browne expected to prove at any
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evidentiary hearing, who would be called, what areas would be
covered, and why such a hearing might be expected to be productive.
This is so far from being an adequate basis for demanding
an evidentiary proceeding that no fine lines need be drawn. No
matter how serious the general charge, an evidentiary hearing is
warranted only if it has some prospect of being productive. United
States v. Isom, 85 F.3d 831, 838 (1st Cir. 1996). In this case,
proof that the government did not prosecute some individuals who
had been mentioned by one witness or other would prove nothing
whatsoever as to racial discrimination. Beyond that, Browne's
request was simply a fishing expedition.
This brings us to the contempt issues. By statute, a
federal court has authority to punish by fine or imprisonment
several broadly framed classes of conduct as contempt of court; one
of these embraces "[m]isbehavior of any person in its presence or
so near thereto as to obstruct the administration of justice." 18
U.S.C. § 401(1) (2000). A jury trial is required if the sentence
is for more than six months, see Codispoti v. Pennsylvania, 418
U.S. 506, 511-12 (1974), but that limitation does not control this
case. And contempt may be punished "summarily" where it occurs "in
the actual presence of the court." Fed. R. Crim. P. 42(a).
"Summarily," in this context, means without delaying to
provide for formal charges or a formal trial. Nevertheless, Rule
42(a) dictates certain procedures, in particular, a requirement for
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fact-findings by the judge, not necessarily to the exclusion of
other requirements not listed in the rule. Although appellate
review of summary contempt orders is sometimes described as for
"abuse of discretion," a more exact statement is that factual
findings are reviewable for clear error, pure questions of law de
novo, and mixed questions by a less certain standard. United
States v. Winter, 70 F.3d 655, 655, 659 (1st Cir. 1995), cert.
denied, 517 U.S. 1126 (1996).
In this case, Browne offers both substantive and
procedural objections to his conviction. Browne's main substantive
objection is that his conduct did not constitute an "obstruction of
justice" within the meaning of section 401(1) because there is no
showing or reasonable inference that judicial proceedings were
actually disrupted. Browne argues that he had already been
sentenced and was being led out of the courtroom when he uttered
his brief remark. He suggests that the judge, irritated by
counsel's efforts to renew the already-decided motion to withdraw
Browne's guilty plea, overreacted.
Section 401(1) does not say clearly that an obstruction
of justice is required. Read literally, the statute could be
understood to allow the court to punish as contempt "[m]isbehavior
in its presence" or--as a separate class of conduct--"misbehavior"
that is "so near" to the presence of the court "as to obstruct the
administration of justice." This would not be an irrational
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reading and cursing in court could pretty easily be described as
"misbehavior." No cases on this issue have been cited to us.
However, we will assume for present purposes (the
government does not argue otherwise) that an obstruction was
required but also that the remark was in "the presence of the
court" even if it occurred in the hallway between the court and
holding cell. "Presence" is not required by section 401(1), given
its "near to" alternative; but it is required for summary contempt
under Rule 42. The latter provision aims at cases where the judge
has witnessed the conduct himself and does not need independent
proof. Here, the judge's remarks confirm that he did hear, and
probably see, the event.
Is what happened an "obstruction of justice"? Certainly
this would be a dubious case for a criminal prosecution under the
federal obstruction of justice statute. That provision is commonly
understood to embody a specific intent requirement, United States
v. Thomas, 916 F.2d 647, 651, (11th Cir. 1990), and nothing in this
record suggests such an intent. Yet we think that a more prosaic
reading of section 401(1) is warranted by its narrow subject.
Directed as it is to conduct within the courthouse, we have no
trouble reading it to embrace any deliberate misconduct that may
foreseeably disrupt or interfere with court proceedings, whether or
not that was the subjective intent of the contemnor. See Cooke v.
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United States, 267 U.S. 517, 534 (1925) (giving maintenance of
order as the primary purpose of contempt statute).
One must appreciate that courtrooms, especially in
criminal cases, are theaters of extreme emotion--stoked by the
facts of the alleged crimes, the tensions of striving lawyers and
hostile cross examination, and the fearsome stakes. Every trial
judge knows how easy it is for matters to get out of hand. Indeed,
the black robe, the call "all rise," and the deference exacted by
judges have their main warrant in the need for order. By its
tendency to undermine order, a party's deliberate cursing of a
judge in open court can depending on the circumstances readily be
viewed as obstructive. Gordon v. United States, 592 F.2d. 1215,
1217 (1st Cir. 1979), cert. denied 441 U.S. 912 (1979).
Whether this label should be applied on particular facts
is what is commonly called a mixed question or, less colloquially,
a question of law application. On such questions, the judgment of
the district judge is often but not always accorded deference;
whether, and how much, depends in part on policy considerations
applicable to the class of cases. E.g., Ornelas v. United States,
517 U.S. 690, 697-99 (1996); In re Howard, 996 F.2d 1320, 1327-28
(1st Cir. 1993). In summary contempt, it is common to give
considerable (although not conclusive) deference to the judge's on-
the-scene assessment. United States v. Allen, 397 U.S. 337, 343
(1970). So measured, we think the district court's assessment is
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not unreasonable, given the district court's specific finding that
the curse was directed at the judge.
On this record, we could not ourselves say whether the
curse was directed at the judge, the prosecutor, defense counsel or
was directed instead at a hostile universe. The prosecutor
suggests that a subsequent remark by Browne after the contempt
finding--"You think you are God? God is in heaven"--shows that the
curse must also have been directed at the judge, but the logic of
this argument escapes us. Although the undirected character of the
words themselves and the fact that they were spoken on the way out
of the courtroom might perhaps suggest the absence of a personal
attack, the district judge was present when the curse was rendered
and was surely in the best position to assess its aim. His
assessment, assuming it was not impaired by procedural error, would
not be "clearly erroneous."
This brings us to Browne's two procedural arguments. One
is that he should have been given an opportunity to defend himself
before the contempt finding was rendered; the other, that he should
have had an opportunity personally to address the court before
punishment for the contempt was imposed. "Allocution" is the
technical term for the latter. The term is sometimes used more
loosely to cover any defense offered by the defendant himself. The
subject of procedural rights in summary contempt is both important
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and, because it does not lend itself to categorical rules,
difficult.
The reason for the difficulty--indeed, the usual reason
in law why rules are hard to devise--is the great range of conduct
and situations involved in the category of conduct. Misbehavior in
or near the courtroom can involve words, disruptive behavior or an
assault by a defendant, refusal of a witness to answer questions,
a lawyer's persistence in objections or arguments after warnings,
and demonstrations by spectators--among many other possibilities.
Sometimes the contempt is obvious, an emergency or both; in other
cases the violation may be debatable, depend upon unknown facts,
and present no need for urgent action. Yet in all these cases, the
conduct may arguably fall within section 401(1) and Rule 42.
Here, the statute and rule provide little in the way of
process; the case law precedents are inconclusive; and although
clear standards have been urged, notably in ABA Standards for
Criminal Justice 6-53 (2d ed. 1980)), they do not have the force of
law. Still, nothing prevents us from saying that a judge in a
summary contempt proceeding should afford such procedural
protection as is reasonable in the circumstances. This seems to us
a suitable gloss on the statute designed to provide fair
administration and ward off constitutional challenge.
A reasonableness standard depends on circumstance but
this does not prevent generalization. Obvious contempts surely
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need less opportunity for defense than debatable ones; severe
summary punishments (like six months in prison for an attempted
assault) call for more of a chance to allocute than token ones
(e.g., a $100 fine for a late appearance). A true emergency may
warrant a finding of contempt, and in some cases even punishment,
on the spot with no opportunity to argue. What is reasonable in
the way of process in a given case is itself a judgment call as to
which the trial judge is entitled to some deference; but the
deference is not unlimited.
In this instance, we think that the district judge should
have given the defendant's counsel an opportunity on the spot to
argue that the remark was not directed at the judge or, even if
this were conceded, an opportunity on the spot for the defendant to
express remorse or offer any other mitigating circumstance. In our
view, the target of Browne's remark is not so clearly obvious on
the record as to make the former a hopeless waste of time; and the
punishment--six months in jail for a single insult by a defendant
under severe tension--is sufficiently tough as to be susceptible to
reasoned allocution. As no trial was ongoing at the time, this
brief delay in assessing and punishing the conduct would not have
been costly.
The need for courtroom discipline is so substantial that
we intervene here only with hesitation. A contemnor who commits a
clear, easily assessed contempt and is given a routine sanction
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will likely get little help on appeal even if no process is
afforded--although a trial judge may often sensibly provide more
than an appellate court would require. It is only the unusual
circumstances of this case--the unclear record, the maximum
allowable punishment--that make us conclude that an opportunity for
the defendant to clarify the remark and ask for a lesser punishment
should have been provided.
Trial judges have as difficult a task as exists in the
world of law. In the heat of the moment, anyone on this panel
might have acted as did the able and respected trial judge in this
case. But one of the advantages of appeals is the chance for cool
reflection. It is within the district court's discretion whether
to pursue this matter on remand; if it is pursued, we have no doubt
that the district judge will weigh fairly whatever the defendant or
his counsel may have to say.
The denial of the motion to allow withdrawal of the
guilty plea is sustained and the judgment of conviction is
affirmed, together with the original sentence for the indicted
conduct. The judgment of contempt and the additional six-month
sentence is vacated and that matter is remanded for such
proceedings consistent with this opinion as the district court may
choose to direct.
It is so ordered.
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