REVISED - June 28, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-11269
IN RE: DOUGLAS C. GREENE,
Appellant.
Appeal from the United States District Court
For the Northern District of Texas
May 26, 2000
Before REAVLEY, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:
Douglas Greene is an Assistant Federal Public Defender who
appeals from $300 in sanctions entered against him by Judge John
McBryde. Because the record does not support the sanctions order,
we vacate and render.
I.
This is a classic case of a judge making a mountain out of a
molehill. On the day in question, Judge McBryde began calling his
arraignment docket at 9:00 a.m. Greene represented a defendant
scheduled for arraignment before Judge McBryde that morning but his
secretary had mistakenly listed the arraignment on Magistrate Judge
Charles Bleil’s docket for 9:30 a.m. When Greene was informed that
the arraignment was before Judge McBryde, he rushed into Judge
McBryde’s courtroom, arriving at 9:10 or 9:12 a.m. Mr. Greene
apologized and explained his reason for being late. Judge McBryde
announced his intent to immediately try Greene for criminal
contempt. The judge denied Greene’s motion for continuance and
proceeded to hold Mr. Greene in contempt and fined him $150. After
taking a guilty plea, Judge McBryde then returned to Greene’s
contempt citation. Greene reiterated his request for a hearing and
for permission to call his secretary to corroborate that she had
erroneously recorded Mr. Greene’s court appearance before
Magistrate Judge Bleil at 9:30. Judge McBryde then permitted Mr.
Greene to call his secretary, Ms. Castro. Ms. Castro fully
corroborated Greene’s earlier statement that she had erroneously
placed the rearraignment on the calendar as being before Judge
Bleil rather than Judge McBryde. Greene and his secretary
explained that the calendar mistake was due in part to the fact
that Judge McBryde had only recently resumed handling criminal
cases following a one year suspension of his criminal docket as a
result of Circuit Judicial Council sanctions against Judge McBryde.
During the course of the hearing, which lasted approximately
an hour and a half, Judge McBryde became interested in whether a
letter from the Department of Justice advising of the date of the
rearraignment was the top item under the ACCO fastener in Mr.
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Greene’s file. Mr. Greene initially stated that the top item was
a copy of some sort of docket sheet. When Judge McBryde questioned
the accuracy of this statement, Mr. Greene stated “but I am not
trying to disagree with what the document was in the file. I don’t
know where it was. I don’t recollect it was on top. It could have
been. I don’t know. I am not trying to pull a fast one on Your
Honor. I was just pulling it out because you asked me to show it
to Ms. Castro and that’s what I was getting ready to do.” Judge
McBryde concluded that Mr. Greene had misrepresented to him the
location of the Department of Justice letter in his file. Judge
McBryde characterized this incident as follows:
That is dishonest conduct that should not be engaged in
by any attorney, whether from the United States
Attorney’s Office or in private practice or the Federal
Public Defender’s Office or anybody else’s office. It’s
deceptive conduct to mislead the Court and was done
directly in my view, as if you had such little respect
for the Court that I wouldn’t be able to see what was
going on from here to the counsel table.
Following the hearing, Judge McBryde dictated findings in the
record and adjudged Mr. Greene guilty of two counts of contempt:
one for being 12 minutes late for the hearing and the other for
misrepresenting the location of the Department of Justice letter in
his file. Four days later Judge McBryde issued a written order
withdrawing his earlier judgment of contempt and concluding that it
would be more appropriate to discipline Mr. Greene under Local
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Criminal Rule 57.8(b).1 As a result, Mr. Greene had no opportunity
to respond to the sanction issued under the court’s local rule.
II.
Mr. Greene raises a number of serious issues on appeal. He
argues that he received inadequate notice to adequately prepare a
defense to the contempt charge. He admittedly received no notice
of the judge’s intent to sanction him under the court’s local
rules. He also argues that Judge McBryde should have recused
himself in view of the judge’s biased attitude toward him in this
case and his conflict with the Federal Public Defender’s Office
arising out of lawyers in that office testifying in the Judicial
Council proceeding against Judge McBryde.
Too much time and effort has already been spent on this case
and we need not consider these arguments. We have carefully
reviewed the record in this case which demonstrates without
contradiction that Mr. Greene had a plausible reason for being 10-
12 minutes late for his hearing: his secretary erroneously recorded
on Mr. Greene’s calendar that the appearance was before a different
judge. This error was caused in part by the fact that Judge
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The Northern District of Texas Rule 57.8(b) provides: “A
presiding judge, after giving opportunity to show cause to the
contrary, may take any appropriate disciplinary action against a
member of the bar for: (l) conduct unbecoming a member of the bar;
(2) failure to comply with any rule or order of this court; (3)
unethical behavior; (4) inability to conduct litigation properly;
(5) conviction by any court of a felony or crime involving
dishonesty or false statement; or (6) having been publicly or
privately disciplined by any court, bar, court agency or
committee.”
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McBryde had only recently resumed handling a criminal docket. There
is no evidence that Mr. Greene had ever been late for a previous
court appearance. The record supports no finding that Greene was
in bad faith. See In re Royal D. Adams, 505 F.2d 949 (5th Cir.
1974); United States v. KS&W Offshore Engineering, Inc., 932 F.2d
906 (11th Cir. 1991); United States v. Maynard, 933 F.2d 918 (11th
Cir. 1991). At most, Mr. Greene deserved an admonition about
checking his calendar and being on time; but criminal contempt
should not have been on the judge’s radar screen for this minor
infraction. Rather, the record clearly demonstrates that he made
an innocent, completely understandable, mistake. As the Eleventh
Circuit stated in KS&W Engineering: “When an attorney fails to
appear or makes a delayed appearance, however, the conduct which is
subject to sanction is not the absence itself but the failure to
provide sufficient justification for the absence or delay.” 932
F.2d at 909 (citing United States v. Nunez, 801 F.2d 1260 (11th
Cir. 1986)).
With respect to Greene’s statement concerning the Justice
Department letter, the record reveals that Greene was uncertain
about its location in his file and justifiably bewildered about
Judge McBryde’s intense interest in such a peripheral point. The
record does not support a conviction for criminal contempt arising
out of this exchange between Greene and Judge McBryde.
As for the court’s post hoc substitution of a sanction under
the Court’s Local Rule instead of contempt, Mr. Greene never had
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notice or an opportunity to be heard and contest the disciplinary
action under the Local Rule. We conclude, however, that no remand
is necessary for a further hearing regarding such a trivial matter.
We are satisfied from the detailed record already made that the
facts of this case do not warrant imposition of sanctions.
For the reasons stated above, the sanctions award is vacated
and judgment is rendered in favor of appellant.
VACATED and RENDERED.
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