United States v. Arredondo

7RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Arredondo No. 02-1394
ELECTRONIC CITATION: 2003 FED App. 0403P (6th Cir.)
File Name: 03a0403p.06 James A. Brunson, ASSISTANT UNITED STATES
ATTORNEY, Bay City, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________

UNITED STATES OF AMERICA , X BOGGS, Chief Judge. The district court held Ricardo
Arredondo in criminal contempt of court after finding that he
Plaintiff-Appellee, - gave fabricated evidence of ineffective assistance of counsel
-
- No. 02-1394 to support his petition for postconviction relief from a federal
v. - sentence for drug trafficking. Mr. Arredondo appeals from
> this contempt conviction and from the district court’s
, accompanying denial of relief from his drug sentence. For the
RICARDO ARREDONDO, -
Defendant-Appellant. - reasons explained below, we reverse the conviction for
contempt but affirm the denial of postconviction relief.
N
Appeal from the United States District Court I
for the Eastern District of Michigan at Bay City.
No. 89-20081—Robert H. Cleland, District Judge. Arredondo was convicted in 1990 of three counts of
distribution of heroin and conspiracy to distribute heroin, and
Argued: September 16, 2003 sentenced to 20 years in prison. In 1996, with the assistance
of another inmate, he filed a pro se petition under 28 U.S.C.
Decided and Filed: November 13, 2003 § 2255 seeking relief from the sentence. As relevant here, the
petition asserted that his appointed attorney, Thomas Plachta,
Before: BOGGS, Chief Judge; and KRUPANSKY and provided constitutionally ineffective representation at
CLAY, Circuit Judges. sentencing by failing to communicate two alleged
government plea offers to Arredondo for approval.
_________________ Arredondo claims he would have accepted either of the offers
if given the chance, and would thereby have obtained a lighter
COUNSEL sentence than the one imposed on him. However, he stated,
Plachta “never advised [him] of any Plea Offer.”
ARGUED: Kevin M. Schad, SCHAD & COOK, Indian
Springs, Ohio, for Appellant. James A. Brunson, Arredondo’s trial judge had fixed a pretrial deadline of
ASSISTANT UNITED STATES ATTORNEY, Bay City, August 27, 1990, after which no plea offers could be
Michigan, for Appellee. ON BRIEF: Kevin M. Schad, extended. It is undisputed that Assistant United States
SCHAD & COOK, Indian Springs, Ohio, for Appellant. Attorney Michael Hluchaniuk made one plea offer to Plachta
before this deadline, which would have involved a

1
No. 02-1394 United States v. Arredondo 3 4 United States v. Arredondo No. 02-1394

recommended sentence of five to ten years, and that Plachta the statement in the earlier affidavit that Plachta had “never
rejected this offer. The disputed issue regarding this offer is advised” him of any offer. However, in the same paragraph
whether Plachta first communicated it to Arredondo for of the second affidavit, Arredondo affirmed that Plachta never
approval. “made [Arredondo] aware” of a plea offer prior to trial. It is
thus fairly clear that by “made aware” Arredondo meant
Arredendo’s petition further alleged that Hluchaniuk made communicating the offer before rejecting it. The district court
a second offer of a ten-year sentence to Plachta on the day of denied the motion for reconsideration and Arredondo
trial, and that Plachta also rejected this offer without appealed to this court.
conveying it to his client. Arredondo supported this
allegation with two affidavits. One affiant, Maria Teneyuque, We reversed in part and remanded for an evidentiary
stated that her sister Mary Jane Dietrich (a material witness in hearing on the petition. Arredondo v. United States, 178 F.3d
Arredondo’s trial) had overheard Plachta and Hluchaniuk 778 (6th Cir. 1999). We agreed with the district court that
discussing a plea before the trial. Arredondo also filed his Arredondo was not entitled to a hearing on his allegations
own affidavit testifying that he had seen his lawyer talking concerning the supposed second plea offer.1 Id. at 782-83 &
with Hluchaniuk on the day of trial, and had seen Plachta n.3. However, we held that he was entitled to a hearing on
shake his head “no.” the circumstances surrounding the first plea offer. Id. at 789.2
Both Plachta and Hluchianiuk denied that any second offer In closing, we noted that the inconsistent accounts in the
was made. Plachta did not squarely deny Arredondo’s claim affidavits of Plachta, Hluchaniuk, and Arredondo suggested
that Plachta had failed to communicate the first offer. that someone was not telling the truth:
Instead, Plachta filed an affidavit stating that he could not
specifically remember the events of that day, but that “my Arredondo has lodged serious claims that attack his
practice has always been to communicate any plea offer made attorney’s professional competence. If true, his petition
by the prosecution to my client regardless of my personal deserves our attention. ... If false, Arredondo has
view as to the merits of the offer.”
The district court denied Arredondo’s Section 2255 petition 1
W e held that the original supporting affidavit accompanying the
without an evidentiary hearing. Arredondo then retained a petition (in which M s. Teneyuq ue repo rted hearing the lawyers d iscuss a
different inmate paralegal to assist him and filed a pro se second plea o ffer on the day of trial) was inadmissible as hearsay and
motion for reconsideration of the denial, pursuant to Fed. R. implausible on its face, since the district judge in question had a firm
Civ. P. 59(e). This motion was accompanied by a new policy of refusing to accept any negotiated pleas after the pretrial cut-off
affidavit from Arredondo that included new allegations: that date. W e also rejected Arredon do’s second affidavit as a p ossible basis
for a hearing, because the conversa tion sup posedly overheard by
Arredondo had himself heard some snippets of the alleged Arredondo was not newly discovered evidence, and Arredondo had
plea conversation between Plachta and Hluchaniuk on the day presented no valid reason for failing to include it with his original petition
of trial, including a reference to a ten-year sentence. In this for relief.
affidavit, Arredondo stated that he had seen the prosecutor
2
shake his head “no.” The new affidavit also alleged that W e also held that Arredondo should receive a hearing on his other
Plachta “advised” Arredondo “in words” on the day of trial ineffective assistance claim regarding counsel’s failure to challenge the
that he had rejected a government plea offer, in tension with drug quantity in the pre-sentenc e report (P SR). Arredondo, 178 F.3d at
789.
No. 02-1394 United States v. Arredondo 5 6 United States v. Arredondo No. 02-1394

lied in a self-interested endeavor that could have caused of criminal contempt and imposed a sentence of six months
unwarranted discipline of his attorney. The courts should in prison, consecutive to his prior sentence, and a $3,000 fine.
not encourage such actions by refusing to punish The court found that Arredondo had engaged in a series of
demonstrably false claims of ineffective assistance of fabrications. It noted that Arredondo’s story had changed
counsel. materially from his first affidavit to his second one: after the
district court rejected the Teneyuque affidavit as hearsay,
Id. at 790. Arredondo introduced an assertion that he had heard part of
the day-of-trial plea discussion, without explaining why this
The district court held an evidentiary hearing on seemingly important fact was not included in his first
Arredondo’s petition on January 13, 2000. Arredondo affidavit. The court concluded that Arredondo’s second
repeated in court the allegations of his second affidavit: affidavit had “learned” from the testimony that had come to
Plachta had failed to secure his client’s permission to reject light, suggesting a deliberate fabrication. The court deemed
two plea offers, and Arredondo had personally heard the affidavit particularly incredible in light of Hluchaniuk’s
fragments of the discussion concerning the second offer being denial of making any second plea offer. It also discounted
discussed. Assistant United States Attorney Hluchaniuk Arredondo’s claim that Plachta failed to pass on the first plea
again testified that he made one plea offer to Plachta prior to offer. Drawing on its own knowledge of Plachta’s
the court deadline, but no second offer. Plachta testified that “fastidious” work habits, the court found that he had duly
he did not specifically recall the plea discussions in passed on the first plea offer to Arredondo, and that
Arredondo’s case, but that it was always his practice to pass Arredondo had simply fabricated his testimony to the
on such offers to his clients for approval. contrary.
The district court denied Arredondo’s Section 2255 The district court went on to hold that the fabrications it
petition. It rejected his testimony about the existence of the identified had significantly obstructed the administration of
second plea offer and about Plachta’s handling of the first justice, thereby amounting to a contempt of court. It
offer.3 The court went further, ordering a hearing on whether described Arredondo’s testimony as involving “egregious,”
Arredondo had committed criminal contempt of court by “blatant,” and “transparently false” perjuries. It also noted
knowingly offering false evidence to support his petition. that the perjured allegations of misconduct were integral to
Arredondo’s Section 2255 petition – the postconviction
After briefing and a hearing on the contempt issue, pursuant litigation, which had consumed a significant amount of
to Fed. R. Crim. P. 42(a),4 the court found Arredondo guilty judicial and public resources, had been founded chiefly on
falsehoods. Finally, the court reasoned that Arredondo’s false
testimony about Plachta had threatened to impose
3 unwarranted professional discipline on an attorney, which
The court also rejected a separate claim of ineffective assistance
premised on co unsel’s failure to challenge the PS R. Arredondo has also revealed a tendency to obstruct the administration of the
abando ned this issue on app eal. justice system.
4
At the time of the district court proceedings, the notice-and-hearing Arredondo timely appealed from the contempt conviction
procedure used in Arredondo’s contempt proceeding was found at Fed. R. and the denial of postconviction relief.
Crim. P. 42(b). However, the rule underwent a technical revision on
December 1, 20 02. T he procedure is now found at Fed. R. Crim. P. 42(a).
No. 02-1394 United States v. Arredondo 7 8 United States v. Arredondo No. 02-1394

II Section 2255 petition, we affirm the denial of his petition
without further discussion.
We find no basis for disturbing the district court’s factual
findings that Arredondo willfully fabricated the allegations III
about Plachta’s misconduct in his affidavit and oral
testimony. The record plainly supports the finding that The remaining question is whether Arredondo’s
Arredondo’s statements about the alleged second plea offer falsifications constituted contempt of court under 18 U.S.C.
were willfully false; indeed, Arredondo has not meaningfully § 401.
challenged this conclusion. However, Arredondo does
contest the finding that he lied about Plachta’s failing to pass The power to punish contempts is “inherent in all courts,”
on the first plea offer. While the evidence for this conclusion Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
was controverted, it was sufficient to support the district 787, 795 (1987) (quotation marks omitted), allowing them to
court’s finding. Plachta testified that he always passed on protect themselves against assaults on their authority.
plea offers to clients. He had already represented five to However, because this power may be exercised without many
fifteen criminal defendants in federal court at the time of of the normal procedural protections of a criminal trial, it is
Arredondo’s trial, and had undertaken more representations subject to constitutional and statutory limitations. A federal
since then. In light of Plachta’s experience, his habit court has the power, codified in 18 U.S.C. §§ 401 and 401(1),
testimony was admissible under Fed. R. Evid. 406 to show to punish “such contempt of its authority, and none other, as
that he acted in conformity with that habit in this case.5 We [the following:] [m]isbehavior of any person in its presence
cannot say the district court’s decision to credit Plachta’s or so near thereto as to obstruct the administration of justice.”
testimony about the first plea offer and its finding that This statutory language originated in the federal Act of 1831,
Arredondo willfully fabricated his contrary testimony were and represented a “drastic curtailment of the contempt power”
clearly erroneous, especially in light of Arredondo’s previously recognized. Bloom v. Illinois, 391 U.S. 194, 203
established lack of credibility in other matters such as the (1968).
second plea offer.
The narrow category of contempts committed “in the actual
These findings eliminate the factual basis for Arrendondo’s presence of the court” may be punished immediately by the
claim that his counsel provided ineffective assistance by judge who saw or heard the offending conduct. Fed. R. Crim.
failing to pass on plea offers to him. Since that is the only P. 42(b). This summary power is reserved for “exceptional
ground on which Arredondo has appealed the denial of his circumstances . . . such as acts threatening the judge or
disrupting a hearing or obstructing court proceedings.”
Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir. 1985).
5 Other contempts, which need only be “in or near”6 the court’s
See Perrin v. Anderson, 784 F.2d 1040 (10 th Cir. 1986) (testimony
of five prio r incidents in which the defendant responded violently to the
presence of uniformed police officers, with proffer of three more 6
incidents, sufficed to estab lish “habit” under Fed. R. E vid. 40 6); United An element of every contempt proceeding under 18 U.S.C. § 401(1)
States v. Floulis, 457 F. Supp. 1350, 1355 n.2 (W.D. Pa. 1978) is proof that the alleged contemptuous conduct was “in . . . or . . . near”
(permitting the IN S to prove that defendant had been informed of his right the presence of the court. Ibid.; see Vaughn, 752 F.2d at 1167. T his
to contact his consulate using evidence of INS’s routine office element is to be understood “geographical[ly],” as requiring physical
procedures). proximity to the co urt’s presence. Nye v. United States, 313 U.S. 33, 48-
No. 02-1394 United States v. Arredondo 9 10 United States v. Arredondo No. 02-1394

presence, must be adjudicated according to the more review this mixed legal and factual question de novo. See
developed procedure of Fed. R. Crim. P. 42(a), the procedure United States v. Baggett, 342 F.3d 536, 541 (6th Cir. 2003)
followed in this case, which mandates notice and an adversary (applying this standard of review to obstruction of justice
hearing. Even so, the Rule 42(a) procedure is “pretty enhancement under U.S. Sentencing Guidelines).
summary,” United States v. Oberhellman, 946 F.2d 50, 52
(7th Cir. 1991), since the offended judge may initiate the Two Supreme Court decisions provide important guidance.
proceeding without indictment, may impose sentence on the In Ex parte Hudgings, 249 U.S. 378 (1919), the Court granted
convicted contemnor, and, in a nonjury case like this one, a writ of habeas corpus to a federal witness who had been
may try the case himself. For this reason, contempt liability imprisoned for contempt after giving implausible testimony
under Rule 42(a) should be “circumscribed as narrowly as is that he could not verify the handwriting of his own business
consistent with the maintenance of order and decorum partners. The Court held that “in order to punish perjury in
essential to the effective operation of the judicial system.” Id. the presence of the court as a contempt there must be added
at 53. to the essential elements of perjury . . . the further element of
obstruction to the court in the performance of its duty.” Id. at
A witness’s misconduct must “obstruc[t] the administration 383 (emphasis added). Cautioning against “mistakenly
of justice” in order to be punishable as contempt. 18 U.S.C. attribut[ing] a necessarily inherent obstructive effect to false
§ 401(1); Vaughn, 752 F.2d at 1167. Arredondo’s main swearing,” it emphasized the “potentiality of oppression and
argument for reversal is that even if he gave knowingly false wrong” that would arise if courts could summarily punish
oral and written testimony in support of his Section 2255 witnesses for giving testimony with which the court
petition, this was legally insufficient under the circumstances disagreed. Id. at 384.
here to constitute an obstruction of justice under § 401. We
The Court reaffirmed Hudgings in In re Michael, 326 U.S.
224 (1945), upon which Arredondo principally relies. A
49 (1941) (reversing contempt conviction of petitioners who used liquor
grand jury subpoenaed Michael, a bankruptcy trustee, to
to coerce an infirm, elderly man into filing letters in federal district court testify about numerous checks that had been written from the
seeking to dismiss the man’s civil action against petitioners’ friend; bankrupt’s assets. He gave direct, unequivocal responses to
coercive actions took place over 100 miles from the district court). It may questions before the grand jury, but the district court found
be questioned whether Arredondo’s filing of false affidavits was that his answers were lies.7 The lower courts held Michael
sufficiently “near” the district court to be punished as contempt. Our
precedents suggest that the answer depends on whether the court was then
guilty of contempt, reasoning that he had “block[ed] the
in session. See Schmidt v. United States, 124 F.2d 17 7, 177 (6th Cir. inquiry” of the grand jury by giving false testimony about the
1941) (holding that defendant’s filing of false papers with clerk could not purposes of the checks. Id. at 229. The Supreme Court
be punished as contempt, “since it does not appear that the court was in
session at the time.”).
Neither party has disc ussed this issue. W e need not resolve it, 7
because in the evid entiary hearing that followed our first remand, Indeed, the facts given by the Supreme Court and in the lower
Arredondo orally repeated in the presence of the court the allegations court’s opinion, 14 6 F.2 d 62 7 (3d Cir. 194 4), suggest that M ichael’s
contained in his written affidavits. We will assume without deciding that falsifications may ha ve be en self-serving. T he grand jury summ oned him
Arredon do’s affidavits were also given “in or near” the court’s presence, in the course of “a general investigation of frauds against the United
because as discussed below, they nevertheless fall outside the scope of States.” Mic hael, 326 U.S. at 226. If the bankrupt’s assets were being
contempt liability, as they d id not obstruct justice within the meaning of dissipated for imp roper purposes, then Michael might have faced
§ 401. indictm ent.
No. 02-1394 United States v. Arredondo 11 12 United States v. Arredondo No. 02-1394

unanimously reversed. It emphasized that the natural Michael and Essex together make clear that “false
tendency of all false testimony is to mislead the finder of fact, testimony alone,” whether written or oral, “will not amount to
but this does not, as such, render it contemptuous: contempt of court.” Ibid. The government argues that several
grounds distinguish Arredondo’s conduct from the conduct at
All perjured relevant testimony is at war with justice issue in Michael and Essex. Upon consideration, however,
since it may produce a judgment not resting on truth. we must reject each of these arguments for upholding
Therefore it cannot be denied that it tends to defeat the Arredondo’s contempt conviction.
sole ultimate objective of a trial. It need not necessarily,
however, obstruct or halt the judicial process. For the First, the government argues that because Arredondo’s false
function of trial is to sift the truth from a mass of allegations concerned the performance of his attorney in his
contradictory evidence, and to do so the factfinding criminal trial, they obstructed the operation of the justice
tribunal must hear both truthful and false witnesses. system in a way that routine perjuries do not. While the
government cites no authority for this proposition, the
Id. at 227-28. Supreme Court upheld a contempt conviction for false
swearing under a somewhat similar theory in Clark v. United
We applied Michael in United States v. Essex, 407 F.2d 214 States, 289 U.S. 1 (1933). Clark was a venire member who
(6th Cir. 1969), to reverse the obstruction of justice lied her way on to the jury with representations that she was
conviction of a witness who had filed a perjured affidavit. unbiased, despite the fact that she was an ally of the defendant
After the trial court disbelieved Essex’s written testimony that who would have voted for an acquittal regardless of the
she had sexual relations with several jurors in the trial of evidence. Id. at 8-11. The Supreme Court held that she had
Jimmy Hoffa, see United States v. Hoffa, 247 F. Supp. 692 “trifled with the court of which she was a part, and made its
(E.D. Tenn. 1965) (denying Hoffa a new trial), she was processes a mockery,” which was “contempt, whatever else
prosecuted and convicted under the federal obstruction of
justice statute, 18 U.S.C. § 1503. Essex, 407 F.2d at 215-16.
We noted that §1503 had grown out of the same 1831 act as
the federal contempt statute, 18 U.S.C. § 401, and therefore “corruptly . . . influenc[ing], obstruct[ing], or imped [ing], or
concluded that the dispositive issue was whether Essex’s “act endeavor[ing] to influence, obstruct, or impede, the due administration of
of filing a false affidavit . . . constitute[d] a contemptuous act justice.” 18 U .S.C. § 150 3(a).
within the meaning of . . . § 1503.” Essex, 407 F.2d at 217. The difference in language suggests that § 1503 may have a broader
reach than § 401. Moreover, assigning a wider scop e to § 150 3 liability
We held that it did not. Ibid.8 raises no procedural or separation of powers concerns, because a violation
of § 1503 cannot be punished using the summary contempt mechanisms
of Fed. R. Crim. P. 4 2. See Griffin , 589 F .2d at 205 -06. Instead, a
8
prosecution must be initiated by indictment and the case must be tried
As the Fifth Circuit has observed, it may be questionable whether before a new judge. Accordingly, we have “severely limited” Essex’s
Essex correctly interpreted the scop e of 18 U .S.C. § 150 3. See United holding in subsequent § 150 3 cases. United States v. Co llis, 128 F.3d
States v. Griffin, 589 F.2d 20 0, 204-06 (5 th Cir. 1979). Essex used the 313, 318 (6 th Cir. 1997) (upholding § 1503 co nviction of prisoner who
Suprem e Court’s § 401 contempt cases to interpret § 150 3, see 407 F.2d submitted a fabricated letter attesting to his good character in an attempt
at 217 -18, yet the operative provisions of these two statutes are not the to influence his sentencing hearing).
same. Section 40 1(1) prohibits misbehavior that “obstruct[s] the Neve rtheless, these criticisms o f Essex do not extend to the § 401
administration of justice.” 18 U.S.C. § 40 1(1); see also Vaughn, 752 F.2d context. Essex remains instructive authority on the scope of contempt
at 116 8. Section 1 503 prohibits, am ong o ther kind s of conduc t, liability in this circuit.
No. 02-1394 United States v. Arredondo 13 14 United States v. Arredondo No. 02-1394

it may be besides.” Id. at 12. However, Clark and its court proceeding that likewise would have been premised on
progeny, e.g., In re Brogdon, 625 F. Supp. 422 (W.D. Ark. falsehood. Yet we held that Essex’s conduct was not “a
1985) (upholding contempt conviction of juror who lied about contemptuous act,” and we take the same view of
his bias and prior knowledge of events at trial), are Arredondo’s conduct here. Essex, 407 F.2d at 218.
distinguishable from Arrendondo’s case. Jurors and
veniremen are officers of the court. Their conduct is Finally, the government suggests that Arredondo’s false
governed by a separate section of the federal contempt statute, statements are contemptuous because they were not merely
18 U.S.C. § 401(2) (prohibiting “misbehavior” by a court false, but “blatant fabrications.” The district court also
officer), as well as the generally applicable contempt appears to have taken this view. Courts may indeed punish as
provision of 18 U.S.C. § 401(1). Here, Arredondo was only contempt testimony that is “a mere sham.” United States v.
a party, not an officer of the court. Clark is also Appel, 211 F. 495, 497 (S.D.N.Y. 1913) (L. Hand, J.); see
distinguishable from Arredondo’s case in that Clark’s Hudgings, 249 U.S. at 383 (approving Appel); Collins v.
falsehoods interfered with the machinery of the very trial in United States, 269 F.2d 745 (9th Cir. 1959). A witness’s
which she participated. As the Supreme Court later refusal to respond to questions is a classic form of contempt.
explained, Clark’s perjury “prevent[ed] the . . . formation of United States v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973).
a proper judicial tribunal.” Michael, 326 U.S. at 228. In By extension, an answer patently false on its face is
contrast, while Arredondo’s falsehoods could be said to be equivalent to a refusal to testify and may be similarly
about the “administration of justice,” 18 U.S.C. § 401, punished.9 However, “this power must not be used to punish
inasmuch as the subject matter of his testimony and his perjury.” Appel, 211 F. at 496. To prevent the exception
Section 2255 petition was the supposed ineffective assistance from swallowing the rule, courts employ a technical
rendered by his counsel in an earlier court proceeding, his distinction: testimony is not a contemptuous sham unless the
falsehoods did not interfere with the administration of justice court can take “judicial notice” of its falsity, see, e.g., Harbor
in his Section 2255 proceeding, aside from the necessary Tank Storage Co. v. De Angelis, 204 A.2d 13, 17 (N.J. Super.
obstructive effect exercised by all false testimony. As App. Div. 1964), or, put differently, unless the falsity is
Michael makes plain, that is not enough for contempt. apparent without reference to extrinsic evidence in the record.
The test is whether “on its mere face, and without inquiry
Second, the government seeks to distinguish Michael on the collaterally,” the testimony is “not a bona fide effort to
ground that Arredondo was not, like Michael, a passive answer the questions at all.” Michael, 326 U.S. at 228-29
witness called to the stand. Instead, Arredondo gave his false (quoting Appel, 211 F. at 496).
testimony in a postconviction proceeding that he himself had
initiated. The government therefore argues that Arredondo’s
act of filing a Section 2255 petition substantially premised on
false accusations suggests a degree of willful interference 9
As Judge Hand put it: “It could not be enough for a witness to say
with the judicial process greater than the typical episode of he did not remember where he had slept the night before, if he was sane
perjury. We acknowledge the inherent plausibility of this and sobe r, or that he cou ld not tell whether he had been married more than
argument. However, it cannot be squared with our decision a week.” Appel, 211 F. at 495-96; In re We iss, 703 F.2d 6 53, 663 (2d Cir.
in Essex. After all, Essex submitted her false affidavit in 1983) (characterizing such responses as a “middle category of testimonial
support of Hoffa’s motion to secure a retrial. If the court had obd uracy” between perjury and refusal to respond). An answer need not
be evasive to be punishable. “On Venus” would also be a contemptuous
believed her, it might have ordered a lengthy, costly new response to the question of a party’s whereabouts the night before.
No. 02-1394 United States v. Arredondo 15 16 United States v. Arredondo No. 02-1394

By this standard, Arredondo’s testimony, though weak, was “testimony of other witnesses,” Michael, 329 U.S. at 229, his
not a contemptuous sham. His testimony about Plachta’s conduct does not fall under the Appel exception.
failure to convey the first plea offer certainly was not false on
its face. The district court faced a significant evidentiary Arredondo’s false testimony was harmful. It compelled the
conflict about this matter, which it resolved against expenditure of scarce judicial resources in the district court
Arredondo. The question is closer with respect to and in this court to analyze his allegations, and it threatened
Arredondo’s testimony about Plachta’s failure to pass on the unwarranted professional discipline of an attorney. It was
(nonexistent) second plea offer. His original affidavit that also self-serving: Arredondo sought to wangle relief from a
stated that Arredondo had seen Plachta and Hluchaniuk sentence duly imposed on him for serious drug crimes. We
talking on the day of trial and that Plachta had shaken his are sympathetic to the district court’s view that Arredondo’s
head “no.” After the court rejected Arredondo’s petition, he false testimony had a sufficiently unusual obstructive effect
filed a new affidavit with his motion for reconsideration, to to justify a finding of contempt. Indeed, the district court’s
which he added an assertion that he had overheard relevant decision appears have been guided in part by dicta in our own
snippets of the supposed plea conversation, and that prior opinion in this case. See Arredondo, 177 F.3d at 790
Hluchaniuk had shaken his head “no.” It is hard to see why (stating that “courts should not . . . refus[e] to punish
these significant facts were not included in the original demonstrably false claims of ineffective assistance of
affidavit. The district court correctly noted that Arredondo’s counsel.”). However, after full briefing and argument on the
oral testimony in the Section 2255 hearing was evasive, and issue, we conclude that contempt liability cannot be imposed
his own statements on this issue cast grave doubt on the truth in this case, consistently with a fair reading of Michael and
of his assertions. Nevertheless, the second affidavit (and Essex. It remains open for “courts . . . to punish” such false
Arredondo’s corresponding oral testimony at the Section claims by means of a perjury prosecution.
2255 hearing) was not patently false on its face. There were
inconsistencies between the two affidavits, which properly IV
influenced the district court’s decision to reject Arredondo’s
claims, but not the sort of blatant contradiction that might For the foregoing reasons, Arredondo’s conviction for
permit a contempt finding. Cf. Collins, 269 F.2d at 751 contempt is REVERSED and the denial of his petition for
(affirming contempt conviction where witness told grand jury postconviction relief from his sentence is AFFIRMED.
three different, contradictory stories about his role in a murder
and burglary). Moreover, Arredondo’s testimony as to the
crucial issue in the case – the handling of the plea offer or
offers – does not appear clearly false until placed in the
context of the other testimony. If Assistant United States
Attorney Hluchaniuk had testified, for example, that he did
make a second plea offer to Plachta on the day of trial, while
Plachta denied it, then the factfinder might have hesitated to
hold that Arredondo fabricated his testimony about Plachta’s
handling of that offer. Since the falsity of Arredondo’s
testimony cannot be plainly established without invoking the