In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3711
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JUAN BRITTON,
Defendant.
APPEAL OF: BEAU BRINDLEY
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:10‐cr‐20090‐MPM‐DGB‐1 — Michael P. McCuskey, Judge.
ARGUED SEPTEMBER 12, 2013 — DECIDED OCTOBER 3, 2013
Before WOOD, Chief Judge, and MANION and TINDER, Circuit
Judges.
TINDER, Circuit Judge. Beau Brindley represents defendant
Juan Britton in this criminal case. The district court summarily
held Brindley in contempt of court under Fed. R. Crim. P.
2 No. 12‐3711
42(b). The court had set a status conference in the criminal case
and ordered Brindley to appear in person. When Brindley
failed to appear, the court issued an order to show cause why
he should not be held in contempt. At the conclusion of the
show cause hearing, the court found Brindley in contempt and
remanded him to the custody of the United States Marshal for
a period of two days. Brindley immediately appealed and filed
an emergency motion for release from custody pending appeal,
which this court granted. We vacate the district court’s
contempt finding and remand for further proceedings.
I. BACKGROUND
In July 2011, Juan Britton was charged with two cocaine
conspiracy counts and related offenses. His codefendant,
Antonio J. Colon, was charged in one of the cocaine conspiracy
counts. Later that month, Brindley and his associate, Michael
Thompson, entered appearances as counsel for Britton. Months
later, Britton and Colon were scheduled for a joint trial. Both
defendants filed a motion to continue the trial date; the court
set a hearing on their motions and ordered Brindley and
Britton as well as Colon and his counsel to be present in court
at the hearing. Britton appeared at the hearing with Thompson;
Brindley did not appear. At a June 2012 status conference, the
court scheduled a jury trial for February 2013 and set an
October 31, 2012 deadline for pretrial motions. Colon filed a
motion to suppress and other pretrial motions, but Britton did
not file any pretrial motions.
On November 6, the court issued an order as to Britton,
setting a status conference for November 26 “by personal
appearance” to discuss pretrial motions and the jury trial, and
No. 12‐3711 3
ordered Brindley “to be present in person … and not through
other counsel.” Britton appeared, but Brindley did not and he
made no attempt to contact the court. Thompson did not
appear either. The court clerk tried to reach Brindley by
telephoning his office, but no one answered. The court set a
show cause hearing for November 30, 2012 at 1:00 p.m., and
ordered Brindley to “appear and show cause why he should
not be held in contempt of court for his failure to appear for the
status conference set by personal appearance for November
26.”
On November 28, at 5:31 p.m., Brindley filed a response to
the show cause order and moved to continue the show cause
hearing. He stated that, prior to the November 26 status
conference, he had not been expecting any order related to
Britton, and was in the midst of another trial when the court
issued its order setting the November 26 conference. He
claimed he had not seen the court’s order, and he apologized
for his oversight. Brindley wrote that at the time of the Novem‐
ber 26 conference, he was visiting a criminal defendant in jail,
preparing him to testify at an evidentiary hearing.
In addition, Brindley requested a continuance of the show
cause hearing, explaining that he was “scheduled to be in Will
County for a short trial in People v. Eatman. There is apparently
some chance that the trial might not go forward as scheduled.
… [T]he necessary court appearance will make it essentially
impossible for the undersigned to personally appear in person
before this Court at 1:00 p.m.” He also explained that due to
other commitments, including a “massive trial” and hearings,
he was requesting a continuance of the show cause hearing to
4 No. 12‐3711
December 28, 2012. As an alternative, he indicated that he
could be available by telephone the afternoon of December 3.
On November 29, the district court denied the motion to
continue and ordered Brindley to be present in court on
November 30. Later on the 29th, the government filed a notice
of information regarding the order to show cause. The govern‐
ment stated that a review of the docket in People v. Eatman
reflected that Timothy Witczak who was with the Law Offices
of Beau B. Brindley had entered his appearance in the case; that
since August 2012, the case had been set for trial on December
10, 2012; that on November 28, Witczak filed a motion by
telephone to continue the December trial date; and that a
hearing on the motion to continue was then set for November
30 at 9:30 a.m. The government also indicated that the Assis‐
tant State’s Attorney (ASA) assigned to the Eatman case
informed the federal prosecutor in an email that the case was
set for trial on December 10; that Witczak called the ASA on
November 28 (the email indicated October, but a later commu‐
nication established this was an error), stating that he would
like to file a motion to continue; that the ASA advised Witczak
that he would not object; that the case is set for a hearing on the
recent continuance motion on November 30; and that Witczak
was the only defense attorney of record at that time.
Shortly thereafter, Brindley filed a response to the govern‐
ment’s notice of information in the Britton case, stating that
Witczak was his associate and that as the attorney of record in
Eatman, Witczak had handled preliminary matters in the case,
but Brindley would be the trial attorney. Brindley offered this
explanation:
No. 12‐3711 5
Mr. Witczak asked the undersigned to appear
with him for a hearing on November 30, 2012,
which would determine if the trial in the Eatman
case would be continued. When asked, the
undersigned believed that the trial was actually
scheduled for November 30, but was likely to be
continued. Mr. Witczak was asking him to
appear to insure that the continuance was
granted. The undersigned believed that, in the
event the continuance was not granted, they
would proceed with the trial as scheduled on
that day, which he believed he was required to
be present for.
Brindley also asserted that late in the afternoon of Novem‐
ber 29, Witczak corrected his erroneous belief that the Eatman
trial was scheduled for November 30 and advised that only the
motion to continue was scheduled for that date. Witczak’s
affidavit was attached to Brindley’s response. Witczak attested
that he was “required to appear on November 30, 2012, for a
motion to continue the trial date in the Eatman case. I expect
that motion to be granted, but I asked Attorney Brindley to
appear with me to make certain that the continuance is granted
as he is the attorney who will try the case.” Witczak also stated
that on the afternoon of November 29, Brindley told Witczak
what he should do if the judge wanted to proceed with the trial
the following day, and Witczak explained to Brindley that the
trial was not set until December 10 and that he was seeking a
continuance of the December trial date at the November 30
hearing in Will County.
6 No. 12‐3711
The district court held the show cause hearing on Novem‐
ber 30; Brindley appeared and was sworn. The court explained
why it had scheduled the November 26 status conference and
offered Brindley the opportunity to explain why he should not
be held in contempt of court. Brindley first apologized for his
failure to appear on the 26th and claimed that it was not a
willful failure. He then offered an explanation for his failure to
appear, which was consistent with his filings. As to his
supposed unavailability for the show cause hearing, he added
that when Witczak asked him to appear with him in Will
County to obtain a continuance in the Eatman case, he thought
the case was set for trial on the 30th. The district court ques‐
tioned Brindley further, and Brindley denied knowingly
making a false statement. The judge advised that he had
contacted the chief judge in Will County to inquire about the
Eatman case and expressed doubt over Brindley’s proffered
explanation. The prosecutor stated that the ASA in the Eatman
case had advised her that the case had not been set for hearing
on the 30th until the 28th, that Witczak had contacted the ASA
on the 28th at about 2:30 or 3:00 p.m., stating that he would file
a motion to continue, and that the ASA told Witczak he would
not object.
The judge found it clear that Brindley “tr[ied] to create a
November 28th lie” by having his associate create an excuse for
him not to be at the show cause hearing. The judge found
Brindley in contempt of court and remanded him to the
custody of the U.S. Marshal for 48 hours. Brindley appealed
and filed an emergency motion for release pending appeal,
which this court granted.
No. 12‐3711 7
A few days later, the district court issued its written
opinion, finding that Brindley’s motion to continue “contained
demonstrably false statements” and that Brindley “made false
statements to this court” on November 30. More specifically, it
found that he was untruthful “about his failure to appear in
person after being clearly and specifically ordered to do so by
this court” and “about his unavailability on November 30.”
The opinion cited both 18 U.S.C. § 401(1) and (3), and stated the
elements of criminal contempt under § 401(3). The court
concluded that “Brindley willfully violated a court order,
willfully made false statements in his Motion to Continue, and
willfully provided false testimony before this court,” and
summarily held him in contempt of court under Fed. R. Crim.
P. 42(b).
II. ANALYSIS
Brindley contends that the district court’s contempt finding
was erroneous because the court erred in using Fed. R. Crim.
P. 42(b)ʹs summary contempt procedures, and because the
evidence was insufficient as a matter of law to prove criminal
contempt. The government agrees that the court erred in using
the summary contempt procedures, but argues that the proper
remedy is a remand for further proceedings under Fed. R.
Crim. P. 42(a). We agree with the government.
A federal court has the authority to punish contempt by
imprisonment. 18 U.S.C. § 401. Contempt includes
“[m]isbehavior of any person in [the court’s] presence or so
near thereto as to obstruct the administration of justice,” id.
§ 401(1), and “[d]isobedience or resistance to [the court’s]
lawful … order … ,” id. § 401(3). (Subsection (1) requires proof
8 No. 12‐3711
of an actual obstruction of justice, whereas subsection (3) lacks
such a requirement. United States v. Griffin, 84 F.3d 820, 832 &
n.9 (7th Cir. 1996).) “’Section 401 recognizes two types of
contempt: direct and indirect.’” In re Troutt, 460 F.3d 887, 893
(7th Cir. 2006) (quoting In re Jaffree, 741 F.2d 133, 135 (7th Cir.
1984)). “’Direct contempt is contumacious conduct committed
in the actual presence of the court … and may be punished
summarily.’ All other contempt must be treated as indirect
contempt.” Id. (quoting Jaffree, 741 F.3d at 135) (citation
omitted).
Federal Rule of Criminal Procedure 42(a) establishes the
procedures for indirect contempt; Rule 42(b) allows for
summary contempt procedures in cases of direct contempt. See
Fed. R. Crim. P. 42(b) (“[T]he court … may summarily punish
a person who commits criminal contempt in its presence if the
judge saw or heard the contemptuous conduct and so certi‐
fies.”). Summary disposition of contempt is appropriate only
“when ‘the express requirements of [Rule 42(b)] are met and
when there is a ‘compelling reason for an immediate remedy’
or time is of the essence.” FTC v. Trudeau, 606 F.3d 382, 386 (7th
Cir. 2010) (quoting United States v. Moschiano, 695 F.2d 236, 251
(7th Cir. 1982)). The first requirement means that the contempt
occurred in the judge’s presence and “the judge saw or heard
the contemptuous conduct … .” Id. (quoting Fed. R. Crim. P.
42(b)). If the judge has to rely on extrinsic evidence to make a
contempt finding, summary procedures are inappropriate. See
id. at 387. As for the second requirement, “[t]he need for the
court to conduct its duties is the fundamental rationale
underlying the court’s summary contempt powers.” Id. at 389.
No. 12‐3711 9
None of Brindley’s conduct satisfies these requirements for
summary adjudication. The failure to appear at the November
26 status conference did not occur in the court’s actual pres‐
ence. See, e.g., In re Gates, 600 F.3d 333, 339 (4th Cir. 2010)
(“[M]ere tardiness or absence at a scheduled court appearance
is not a direct contempt subject to summary disposition under
Rule 42(b).”); see also United States v. Peoples, 698 F.3d 185,
192 (4th Cir. 2012) (citing cases). The statements purported to
be false in the motion to continue did not occur in the court’s
presence either. See United States v. Oberhellmann, 946 F.2d 50,
52 (7th Cir. 1991) (“[A] mere filing in the clerk’s office could
not rise to the level of a contempt committed in the ‘actual
presence of the court… .’”). And the testimony at the show
cause hearing can be found contemptuous only once the judge
relies on extrinsic evidence and engages in fact‐finding; thus
summary disposition was improper. See Trudeau, 606 F.3d at
387–88. The same is true for the suspect statements in the
motion to continue. Furthermore, with respect to all three
instances of conduct, there was no need for immediate punish‐
ment: Brindley’s actions did not obstruct any proceedings or
other court function. See Trudeau, 606 F.3d at 389 (“[B]ecause
the conduct occurred outside the judge’s presence and, rather
than being forced to stop proceedings by [the] behavior, the
judge had to actually convene proceedings … , summary
contempt should never have been an option here.”).
That brings us to the question of remedy. Brindley argues
that the evidence at the contempt hearing was insufficient as a
matter of law to establish contempt. Specifically, he argues
there was no evidence that his failure to appear on November
26 was willful and there was no evidence that his false state‐
10 No. 12‐3711
ment about the Eatman trial setting was intentional. He also
challenges the judge’s finding that he lied at the contempt
hearing.
Even assuming we have the discretion to address Brindley’s
sufficiency of the evidence challenge, see Gates, 600 F.3d at 342
(concluding that a remand “would serve no purpose” where
the record was “devoid of evidence” that the defense attorney
willfully failed to appear on time for plea hearing or failed to
appear on other occasions); United States v. Seale, 461 F.2d 345,
352, 371 (7th Cir. 1972) (finding four of sixteen contempt
charges “insufficient as a matter of law” under 403(1) where
“no actual, material obstruction occurred”), the better course
is to remand for further proceedings under Rule 42(a). This is
the path we have chosen in more recent cases. See Trudeau, 606
F.3d at 390–91 (declining to resolve substantive arguments
about the evidence and remanding for development of a more
complete record); Troutt, 460 F.3d at 892–93, 895 (concluding
“that procedural shortcomings in these proceedings require a
remand” and declining to address the argument whether the
evidence supported a finding of criminal contempt).
While we agree that “[n]egligence … is insufficient to
sustain a conviction under 18 U.S.C. § 401(3),” Gates, 600 F.3d
at 342, the limited record before us does not foreclose the
conclusion that further factual development in accordance with
the procedures under Rule 42(a) could sustain a finding of
criminal contempt. Similar to Trudeau, “[t]he posture of this
case,” 606 F.3d at 390, on appeal from summary disposition,
makes it impossible to determine whether Brindley’s conduct
violated § 401. See id. As noted, some of the conduct for which
the district court found him in contempt occurred off the
No. 12‐3711 11
record, and other facts outside the record bear on whether he
intentionally made false representations in his motion to
continue and gave false testimony. Even apart from the
question of whether Brindley’s failure to appear on November
26 was willful, the sequence of the events leading up to the
filing of the motion to continue on November 28, the motion
itself, and certain aspects of his testimony on November 30 are
sufficiently troubling to preclude a determination on the record
before us that contempt cannot be proved as a matter of law.
We do not know whether the district court will continue
with the contempt proceedings, but if it does, the proceedings
will be conducted by a different district judge because Judge
McCuskey has recused himself from this case. And should the
district court resume the contempt proceedings, it will need to
refer the matter to a prosecutor under Rule 42(a), and it is
unclear what charges the prosecutor may pursue. As in
Trudeau, arguments about whether any of Brindley’s conduct
was contemptuous “should be made in the first instance in the
district court.” Id.
Finally, we note that Brindley’s suggestion that a remand
presents double jeopardy concerns is unfounded. See Trudeau,
606 F.3d at 390 (citing Lockhart v. Nelson, 488 U.S. 33, 38 (1988)
(“[T]he Double Jeopardy Clause’s general prohibition against
successive prosecutions does not prevent the government from
retrying a defendant who succeeds in getting his first convic‐
tion set aside … because of some error in the proceedings
leading to conviction.”)).
12 No. 12‐3711
III. CONCLUSION
We VACATE the district court’s contempt finding and
remand for further proceedings consistent with this opinion.