United States v. Ortlieb

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 00-30895
__________________

UNITED STATES OF AMERICA,

Plaintiff

UNITED STATES DEPARTMENT OF JUSTICE,

Appellee

v.

RENE ORTLIEB, III,

Defendant

MICHAEL S. FAWER,

Appellant

Appeal from the United States District Court
for the Middle District of Louisiana

November 27, 2001

Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL,
District Judge.*

SCHELL, District Judge:

Appellant Michael S. Fawer appeals his conviction and

sentence after having been found guilty on each of three charges,

or specifications, of criminal contempt in violation of Title 18

*
District Judge of the Eastern District of Texas, sitting
by designation.
U.S.C. § 401(1). Fawer contends that the evidence was

insufficient to support each specification of contempt, that the

district judge erred in not recusing himself from hearing

Specification No. 5, and that the sentence he received,

consisting of both a fine and suspension from the practice of law

in the Middle District of Louisiana for one year, was not

authorized under the law. For the following reasons, we AFFIRM

in part and VACATE in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Michael S. Fawer was convicted on three

specifications of criminal contempt by the United States District

Court for the Middle District of Louisiana. Fawer was found in

contempt based upon his comments and conduct as defense counsel

in a criminal trial styled United States v. Rene Ortlieb, III and

John Schulze, No. 99-31-C-M3. During the six week trial, Fawer

repeatedly made vulgar and inappropriate comments to Assistant

United States Attorney Michael Reese Davis (Davis) and the court.

In total, Fawer was charged with five specifications of contempt.

On January 3, 2000, the district judge issued an “Order to

Michael S. Fawer, Esq. to Show Cause Why He Should Not Be Held in

Contempt of Court.” The order cited five specifications and

informed Fawer that the court was proceeding under Federal Rule

of Criminal Procedure 42(b). In response to the order, Fawer

2
filed several motions including a motion to recuse the district

judge from presiding over the contempt hearing. The district

judge granted in part Fawer’s motion and recused himself from

presiding over Specifications No. 2 and No. 4, but determined

that he should not recuse himself from hearing Specifications No.

1, No. 3, and No. 5. Thereafter, the court proceeded to a

hearing on those specifications. Fawer was found guilty on all

three specifications.

The court held a sentencing hearing on July 19, 2000. Prior

to imposing a sentence, the court entertained motions filed by

the parties. The court denied Fawer’s motion for new trial and

granted the government’s motion to strike the affidavits attached

to Fawer’s motion for new trial. The district court then

sentenced Fawer as follows:

Specification No. 1: $1,500 fine;
Specification No. 3: $500 fine;
Specification No. 5: $3,000 fine; and
suspension from the practice of law in the Middle District
of Louisiana for a period of one year.1

Immediately following the imposition of sentence, Fawer

filed a motion to stay the execution of sentence which was denied

by the district court. On July 24, 2000, Fawer filed a timely

notice of appeal to this court. The next day, Fawer moved this

1
From a reading of the sentencing hearing transcript, the
court appears to have ordered the suspension based on a totality
of Fawer’s conduct and not on any one specification.
Additionally, Fawer’s readmission to the Middle District of
Louisiana was contingent on his completion of three hours of
training in professionalism.

3
court for a stay of the execution of his sentence. On

July 28, 2000, a panel of this court granted Fawer’s motion for

stay, but only with regard to the suspension.

II. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTION

In reviewing the sufficiency of the evidence, the court

must consider the evidence in the light most favorable to the

government. See United States v. Time, 21 F.3d 635, 640 (5th

Cir. 1994).

Fawer was convicted under Title 18 U.S.C. § 401(1)2 on three

specifications of criminal contempt and asserts that his

convictions under all three specifications should be reversed

because insufficient evidence exists to support those

convictions. Criminal contempt under § 401(1) has four elements

that must be proven beyond a reasonable doubt: (1) misbehavior,

(2) in or near the presence of the court, (3) with criminal

intent, (4) that resulted in an obstruction of the administration

of justice.3 See American Airlines, Inc. v. Allied Pilots Ass’n,

2
18 U.S.C. § 401(1) provides:

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;
3
Fawer concedes in his brief that his conduct was
misbehavior and in the presence of the court.

4
968 F.2d 523, 531 (5th Cir. 1992). Fawer argues that the

government failed to prove that his comments were made with the

intent to obstruct justice, or that the evidence was not

sufficient to support such a finding. The government responds

that the evidence was sufficient and that the district court made

the appropriate finding on the issue of intent.4

The district judge found Fawer guilty of contempt on the

following three specifications:

Specification No. 1: The court found Fawer in criminal

contempt under this specification for telling opposing counsel

Davis to “Go kiss my ass. Okay?” Fawer made this statement after

Davis made the comment to Fawer “A littler louder. He is not

quite hearing you, Mike.”5 Davis made this comment sarcastically

referring to the high volume in which Fawer spoke. This

conversation occurred at a bench conference in front of the

4
The contempt at issue in this case could have been dealt
with summarily under Rule 42(a) which provides for summary
disposition of criminal contempt committed in the presence of the
judge. However, the district judge postponed disposition of the
contempt charges until the trial was complete and informed Fawer
in the show cause order that the court was proceeding under Rule
42(b). Since Fawer’s contumacious conduct was committed in open
court and on the record, any evidence supporting the conviction
should be present in the trial transcript. Additionally, the
district judge observed and discussed Fawer’s conduct with him at
the time that it occurred. Therefore, additional evidence was
not required at the show cause hearing. To resolve the
sufficiency of the evidence issue in this case, this court can
look to the trial transcript to determine if the evidence
supports the judge’s determination.
5
Apparently, Davis was referring to the witness overhearing
Fawer’s arguments at the bench.

5
judge. The judge requested that Fawer apologize to the court and

to Davis. Fawer did apologize to the court, but refused to

apologize to Davis even after the judge insisted that he do so.

Eventually, the judge had to retire the jury to address the

situation. After repeated attempts to get Fawer to apologize

outside the presence of the jury, the judge warned Fawer that he

would be held in contempt to which Fawer replied “That is fine”

and proceeded to defend his position that he would not apologize.

Specification No. 3: The conduct involved in this

specification also occurred at a bench conference. During a

discussion concerning an objection raised during Fawer’s cross-

examination of a witness, Fawer stated “Judge, I don’t want to

deal with this idiot,” in reference to Davis. The judge called

on Fawer to apologize for this comment to which Fawer responded

“No way.” During the discussion of this comment, Fawer stated “I

don’t care” in response to the judge’s saying to Fawer “You’ve

gone again.” No recess was taken, and the jury was not retired

due to this conduct.

Specification No. 5: As with the other two specifications,

this conduct also occurred at a bench conference. During Davis’s

final argument, Fawer raised an objection which the judge

determined should be resolved at the bench. At the bench

conference, the judge overruled Fawer’s objection to which Fawer

6
responded “Ah, shit.”6 A discussion followed in which Fawer said

when questioned about the comment, “I was angry at you because–.”

He followed this statement by saying that he was not directing

the “Ah, shit” comment to the judge, but that the ruling was

improper and that the judge knew it was improper. As with

Specification No. 3, there was no formal recess in the

proceedings, and the jury was not retired.

Fawer’s primary argument on appeal is that the evidence is

not sufficient to find that he had the requisite intent required

under § 401(1). Fawer argues that the district court was

required to find that he intended to obstruct justice by his

actions and that the evidence does not support such a finding.

The government responds that all that is required for intent

under § 401(1) is “a volitional act done by one who knows or

should reasonably be aware that his conduct is wrongful.” United

States v. Warlick, 742 F.2d 113, 117 (4th Cir. 1984) (quoting

United States v. Seale, 461 F.2d 345, 368-69 (7th Cir. 1972)).

The government’s position is that the intent element does not

require an intent to obstruct justice, but rather, only the

intent to engage in the conduct which resulted in the obstruction

of justice.

6
Fawer contends that this comment was said under his breath
and not intended to be heard by the court.

7
 Fawer finds support for his position in opinions from this

circuit and the Seventh Circuit. In American Airlines, Inc., 968

F.2d at 532, this court stated that the district court must

determine whether “the acts of the accused were done with the

intent to obstruct the administration of justice and in fact had

that effect.” However, the court addressed the obstruction issue

prior to the intent issue, and finding no obstruction, did not

reach the issue of intent. See id. at 532-33. In United States

v. Griffin, 84 F.3d 820 (7th Cir. 1996), the Seventh Circuit, in

interpreting its prior decision in Seale, stated in dicta that §

401(1) “requires specific intent to obstruct justice.” Id. at

832 n.9. The court went on to say that “[w]hether that vestige

of 1970s jurisprudence is sound awaits another case.” Id. In

making this statement, the Seventh Circuit appeared to question

the validity of its prior decision. Regardless, the Griffin

court determined, under the facts of the case before it, that

the district judge’s finding that the defendant intended to

prejudice a fair and impartial hearing was synonymous with a

finding that the defendant intended to obstruct the

administration of justice. Id.

The position espoused by the government finds support from

United States v. Warlick, 742 F.2d 113, 117 (4th Cir. 1984).

Ironically, the court in Warlick relied upon the same case as the

court in Griffin when stating its position on the intent element.

8
In both cases, the courts relied upon the definition of “intent”

in United States v. Seale, 461 F.2d 345 (7th Cir. 1972).

Quoting Seale, the Warlick court defined intent under § 401(1) as

a volitional act done by one who knows or
should reasonably be aware that his conduct is
wrongful . . . . Of course, an actual design
to subvert the administration of justice is a
more grievous and perhaps more culpable state of
mind, but proof of such an evil motive is unnecessary
to establish the required intent.

Warlick, 742 F.2d at 117. In Griffin, the Seventh Circuit

interpreted this quote from its earlier Seale case to require

specific intent to obstruct justice. However, the Fourth Circuit

in Warlick did not view the intent element or this quote from

Seale as requiring the actual intent to obstruct justice. Under

the standard outlined above, the Warlick court concluded that

ample evidence existed to find that the defendant (an attorney)

was aware that his conduct was wrongful. The Warlick court did

not look at the intent element as requiring proof of “intent to

obstruct,” but rather as only requiring some conduct that

defendant knew was wrongful.

The Seventh Circuit in a companion case to Seale applied

Seale in the context of attorney misconduct and stated that “an

attorney possesses the requisite intent only if he knows or

reasonably should be aware in view of all the circumstances,

especially the heat of controversy, that he is exceeding the

outermost limits of his proper role and hindering rather than

9
facilitating the search for the truth.” In Re Dellinger, 461

F.2d 389, 400 (7th Cir. 1972)(discussing Seale, 461 F.2d at 368-

69). Although there is no mention of “intent to obstruct” in

Dellinger, the quoted language does require proof that the

attorney knows or reasonably should be aware that he is hindering

the search for the truth and thereby obstructing the

administration of justice.

After examining the cases cited above, and consistent with

this court’s opinion in the American Airlines case, we conclude

that the element of intent under 18 U.S.C. § 401(1) requires

proof beyond a reasonable doubt that the accused attorney engaged

in conduct that he knew would interrupt or obstruct the orderly

process of the administration of justice.

The most obvious source from which intent can be ascertained

is the trial transcript. See Seale, 461 F.2d at 369. In

reviewing the trial transcript, the court finds that sufficient

evidence is present in the record to support the district court’s

finding on intent under the standard outlined above.

Of course, even if Fawer had the intent required under §

401(1), the contumacious conduct must also actually obstruct the

administration of justice. In making this determination, the

court is again guided by its decision in American Airlines.

There, this court determined that “[o]bstruction requires an ‘act

that will interrupt the orderly process of the administration of

10
justice, or thwart the judicial process.’” 968 F.2d at 532

(quoting Warlick, 742 F.2d at 115). “[O]bstruction can be shown

by establishing that the defendant’s acts delayed the

proceedings, made more work for the judge, induced error or

imposed unnecessary costs on the other parties.” Id. (citing

United States v. Oberhellmann, 946 F.2d 50, 52 (7th Cir. 1991)).

“Actual obstruction of the administration of justice requires at

a minimum that the defendant’s conduct had an effect on the

proceedings, which presupposes a cause triggered by the

attorney’s acts.” Id. However, the time consumed by the

contempt investigation itself is not considered in this analysis.

As outlined above, in Specification No. 1, the judge had to

retire the jury to address Fawer’s conduct. In Specification No.

3, although retiring the jury was not necessary, Fawer’s actions

caused the judge to take more time at the bench conference to

address Fawer’s comments and try to convince him to apologize.

In Specification No. 5, the judge did not retire the jury, but

dealt with Fawer as he did in Specification No. 3.

It is clear that the conduct in Specification No. 1 had an

effect on the proceedings and did in fact delay the proceedings.

Because of Fawer’s use of profanity during the bench conference,

the judge was forced to retire the jury to admonish Fawer and

instruct him to apologize to opposing counsel. This action by

the district judge certainly rises to the level of interrupting

11
the orderly process of the administration of justice, delaying

the proceedings, and making more work for the judge. See

Griffin, 84 F.3d at 833 (holding that a delay caused by the trial

judge having to retire the jury to admonish the defendant was

actual obstruction). Accordingly, the district court did not err

in finding Fawer guilty on Specification No. 1.

Fawer’s conduct outlined in Specifications No. 3 and No. 5

caused similar action by the judge. In both instances, the court

had to take additional time to deal with Fawer’s rude and vulgar

comments. Although the district judge did not retire the jury,

Fawer’s unruly conduct disrupted the trial and required the judge

to divert his attention from the trial and focus on Fawer’s

improper behavior. Additionally, “if an entirely unnecessary and

not insignificant delay is occasioned by insulting remarks which

serve, for instance, only to vent the speaker's spleen, a

material obstruction would exist.” Dellinger, 461 F.2d at 400.

Clearly, Fawer’s remarks served only to vent his frustrations and

were not designed to further his client’s interests. Fawer’s

misbehavior caused delay in the proceedings, made more

unnecessary work for the judge, and served no purpose in

defending his client. Accordingly, this court is of the opinion

that the conduct in Specifications No. 3 and No. 5 also rises to

the level required for the district court to have determined that

Fawer’s conduct resulted in the actual obstruction of the

12
administration of justice. Therefore, the district court did not

err in so finding.

III. DISQUALIFICATION UNDER FEDERAL RULE OF
CRIMINAL PROCEDURE 42(b)

Fawer contends that the district judge should have recused

himself under Federal Rule of Criminal Procedure 42(b) from

hearing Specification No. 5. Under Rule 42(b), “[i]f the

contempt charged involves disrespect to or criticism of a judge,

that judge is disqualified from presiding at the trial or hearing

except with the defendant’s consent.” Obviously, Fawer did not

consent as evidenced by his motion to recuse. This court reviews

a district judge’s decision not to disqualify himself from

presiding at a Rule 42(b) proceeding for an abuse of discretion.

United States v. Griffin, 84 F.3d 820, 830 (7th Cir. 1996).

Fawer argues on appeal that the district judge should have

recused himself from hearing Specification No. 5, but not

Specifications No. 1 and No. 3. As discussed previously,

Specification No. 5 involved Fawer’s reaction to a ruling by the

district judge. Reviewing the record concerning Specification

No. 5, it is clear that Fawer was upset about the judge’s ruling

and vented his frustrations with his inappropriate comment.7

7
The following exchange gave rise to Specification No. 5:

THE COURT: I’m overruling your objection.
MR. FAWER: You’re going to let him testify?
THE COURT: Overruled.
MR. FAWER: Ah, shit.

13
 The arguments on this issue focus on whether Fawer’s comment

was a criticism of the court’s ruling or a criticism of the

judge. Fawer contends that his comment was a “vulgar, profane

remark expressing Fawer’s belief, and frustration, that the

district judge was so biased in favor of the government that he

would not rule in his client’s favor even when it was

unquestionably appropriate to do so.”8 The government’s position

is that the district judge did not view the comment as

“disrespectful or critical of the court,” but as critical of the

court’s ruling.

The parties refer to language from Ungar v. Sarafite, 376

U.S. 575 (1964). The Ungar Court was presented with an argument

THE COURT: Excuse me?
REPORTER’S NOTE: (Attorney leaves the bench)
THE COURT: Come back, Mr. Fawer.
MR. FAWER: How can you let somebody testify - -
THE COURT: What was the rest of that?
MR. FAWER: I was angry at you because - -
THE COURT: What did you say?
MR. FAWER: I said, ah, shit. That’s what I said, not to
you. So you understand, Judge - -
THE COURT: I heard it, Mr. Fawer. We’ll talk about that
later.
MR. FAWER: You know and I know that that’s an improper
ruling.
8
Although Fawer now argues that he directed his comments at
the judge personally, his original briefing on this issue does
not reflect such a position. In his brief, he quotes from an
affidavit (which had been stricken by the judge) that was
attached to his motion for new trial. The affidavit was that of
Hugh Chester Boyd (co-counsel for the defendant in the underlying
criminal trial), who stated in reference to the “Ah. Shit”
comment, “I do not believe that was directed at or towards the
court.” [Appellant’s brief at 17]

14
that a witness’s constitutional right to a fair hearing was

violated because his contemptuous remarks were a personal attack

on the judge which necessarily biased the judge. Id. at 583.

The Court determined that the witness was attacking the judge’s

ruling, and the court was “unwilling to bottom a constitutional

rule of disqualification solely upon such disobedience to court

orders and criticism of its rulings during the course of a

trial.” Id. at 584. The Court determined that although the

defendant’s conduct was a “disruptive, recalcitrant and

disagreeable commentary” it was “hardly an insulting attack upon

the integrity of the judge carrying such potential for bias as to

require disqualification.” Id. In view of the record, it is

clear that Fawer was frustrated by the district court’s ruling on

his objection and vented those frustrations through the use of

profanity.

In addition to looking at the trial transcript, the show

cause order is also helpful in demonstrating how the judge viewed

Fawer’s comments in Specification No. 5. The show cause order

outlines the contempt specifications and states whether the court

believed the statements were disrespectful to the court, opposing

counsel, or the court’s rulings. The order with respect to

Specifications No. 1 and No. 3, states that the comments were

directed to opposing counsel. The order with respect to

Specifications No. 2 and No. 4 states that Fawer was

15
disrespectful to the court. As the judge clearly believed that

Fawer’s conduct in Specifications No. 2 and No. 4 was

disrespectful or critical of him, he recused himself on those two

specifications. With regard to Specification No. 5, the show

cause order shows that the judge felt that Fawer’s comment was

directed to “the Court’s ruling” and not to the judge. Unlike

Specifications No. 2 and No. 4, the judge clearly felt as though

the comment in Specification No. 5 was directed at his ruling and

not at him personally. This distinction is particularly clear in

this case since the judge found that two of the other

specifications involved disrespect to him, but he did not view

Specification No. 5 similarly.

Although Fawer now argues that he was disrespectful to or

critical of the judge, the transcript and the show cause order

indicate that his comment was a response to the court’s ruling

and that the judge did not receive his comment as a personal

attack. Accordingly, in view of the record concerning

Specification No. 5 and the district judge’s perception of the

conduct therein, this court finds that the district judge did not

err in not recusing himself from hearing Specification No. 5.

IV. THE LEGALITY OF THE SENTENCE

The legality of a criminal sentence is reviewed de novo.

See United States v. Byrd, 116 F.3d 770, 773 (5th Cir. 1997).

16
 Fawer argues that it was error for the district court in

sentencing him to both impose a fine and suspend him from the

practice of law in the Middle District of Louisiana for one year.

Fawer makes the following arguments: (1) that neither

Federal Rule of Criminal Procedure 42(b), nor 18 U.S.C. § 401

provides for a punishment of suspension from the practice of law;

(2) that § 401 allows for either a fine or imprisonment, but not

both; and (3) that he was not given notice that he was being

charged with ethical violations that could result in his

suspension from the practice of law. The government responds

that the district court had the power to sentence Fawer to a term

of probation and a fine pursuant to 18 U.S.C. § 3551 of the

Sentencing Reform Act of 1984. The government’s contention is

that under § 3551 a fine may be imposed in addition to any other

sentence, and that as a term of probation the court could impose

occupational restrictions on Fawer. Additionally, the government

makes an argument that the suspension should be upheld under the

court’s inherent power.

The problem with the government’s argument on this issue is

that Fawer was not placed on probation. He was simply suspended

from practicing law in the Middle District of Louisiana. As

such, the government’s lengthy argument concerning the Sentencing

17
Reform Act and occupational restrictions imposed as a condition

of probation is misplaced.9

The Fifth Circuit has not specifically addressed the issue

of occupational sanctions under § 401. However, a reading of the

cases that have addressed this or a similar issue lead to the

conclusion that § 401 does not provide for such a sanction. In

United States v. Stoneberger, 805 F.2d 1391, 1394 (9th Cir.

1986), the Ninth Circuit determined that under the express

language of § 401 a court could impose a fine or imprisonment but

not a suspension since suspension was not mentioned in the

statute. The Ninth Circuit stated that “the suspension cannot be

supported by reference to section 401.” Id. at 1394; see also Ex

Parte Robinson, 86 U.S. 505, 512 (1873) (holding that a

disbarment was not allowed under the contempt statute because it

only provided for a fine or imprisonment).10

9
The district court’s judgment states “IT IS FURTHER ORDERED
ADJUDGED AND DECREED that the respondent’s admission to practice
in the United States District Court for the Middle District of
Louisiana is SUSPENDED for a period of one (1) year from this
date.” The court makes no mention of probation and does not
impose any other condition of supervision upon Fawer or direct
him to report to a probation officer.
10
But see United States v. Lespier, 558 F.2d 624, 628 (1st
Cir. 1977) (stating that “[s]anctions available to the court
include the imposition of a fine and suspension from practice
before the court.”) The First Circuit makes this statement
following a statement that the defendant’s “conduct would have
been punishable as criminal contempt under 18 U.S.C. § 401(3).”
Lespier, 558 F.2d at 628. The government relies on Lespier as
authority for a suspension sanction under § 401. However, this
court is of the opinion that the statement in Lespier is dicta

18
 One additional case relied upon by the government needs

mention. In United States v. Cutler, 58 F.3d 825, 839 (2d Cir.

1995), the Second Circuit allowed a suspension to stand pursuant

to the authority of the court to impose occupational sanctions

when a defendant is actually placed on probation. However, the

instant case is clearly distinguishable from Cutler. As noted

previously, Fawer was not actually sentenced to a term of

probation as was the defendant in Cutler, but rather, he was

simply suspended from practicing in the Middle District of

Louisiana. Accordingly, Cutler has no bearing on the issue in

this case.

There is no precedent from any circuit that upholds a

suspension under § 401 absent a sentence that includes a term of

probation. Moreover, the language of § 401 provides for a

sentence of a fine or imprisonment, with no mention of the

possibility of a suspension from the practice of law. The court

and the bar do have the power under other legal authority to

suspend a lawyer from practice.

The government asks this court to look to the inherent power

of the district court to suspend or disbar an attorney upon a

finding of “bad faith” on the part of that attorney. See Roadway

Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). Generally, the

and is contrary to the weight of authority going back as far as
Ex Parte Robinson.

19
court must make a specific finding that the attorney’s “conduct

constituted or was tantamount to bad faith.” In re Sealed

Appellant, 194 F.3d 666, 671 (5th Cir. 1999) (quoting Roadway,

447 U.S. at 752). However, “when bad faith is patent from the

record and specific findings are unnecessary to understand the

misconduct giving rise to the sanction, the necessary finding of

‘bad faith’ may be inferred.” Id. As conceded by the

government, the court did not specifically invoke its inherent

power to sanction Fawer. Since the district court did not invoke

its inherent power or give Fawer notice that it was proceeding

under such power, the court will not uphold the suspension under

the court’s inherent power.

Finally, on the issue of notice, defendant argues that he

was not given notice that he could be suspended from the practice

of law. Because the court finds it necessary to vacate that

portion of the sentence with regard to the suspension, Fawer’s

argument concerning adequate notice is moot.

V. CONCLUSION

For the foregoing reasons, this court concludes that the

district court did not err in finding Fawer guilty of criminal

contempt or in refusing to recuse on Specification No. 5.

Accordingly, the judgment of the district court on those issues

including the fines assessed against Fawer is AFFIRMED. However,

that portion of the district court’s sentence suspending Fawer’s

20
admission to practice for a period of one year is VACATED. Of

course, the district court is free to proceed under its inherent

power upon proper notice.

AFFIRMED in part and VACATED in part.

21