PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: BRYAN GATES, JR.,
Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-4125
v.
NICHOLAS SANCHEZ HERNANDEZ,
Defendant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
James A. Beaty, Jr., Chief District Judge.
(1:08-cr-00409-JAB-1)
Argued: January 28, 2010
Decided: March 26, 2010
Before TRAXLER, Chief Judge, and KING and
GREGORY, Circuit Judges.
Reversed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge King and Judge Gregory joined.
COUNSEL
ARGUED: Bryan Gates, Jr., Winston-Salem, North Carolina,
for Appellant. Terry Michael Meinecke, OFFICE OF THE
2 IN RE: GATES
UNITED STATES ATTORNEY, Greensboro, North Caro-
lina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, L. Patrick Auld, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
OPINION
TRAXLER, Chief Judge:
Bryan Emery Gates, Jr., appeals his contempt conviction
under 18 U.S.C. § 401(3) for failing to appear in court on time
for a plea hearing. We conclude that the district court errone-
ously imposed punishment in a summary proceeding without
affording Gates notice or a meaningful opportunity to respond
to the charges against him. For the reasons that follow, we
reverse.
I.
Gates, an attorney practicing in North Carolina, was
appointed by the district court to represent Nicholas Sanchez
Hernandez with respect to federal criminal charges in a ten-
count indictment filed in the Middle District of North Caro-
lina. On December 2, 2008, Hernandez pled not guilty to all
counts. The district court entered a general scheduling order
applicable to all cases arraigned in the Middle District of
North Carolina during December 2008, requiring that any
plea agreements be filed by December 31, 2008, and prelimi-
narily setting all change of plea hearings for January 5, 2009.
Hernandez ultimately pled guilty to five counts in the
indictment. The district court scheduled and rescheduled Her-
nandez’s plea hearing three times, relying on the office of the
United States Attorney to notify Gates of the date and time.
As was apparently common practice, Mr. Owens, a staff
IN RE: GATES 3
employee of the United States Attorney, communicated the
hearing schedule by telephone rather than formal, written
notice.
On January 5, despite the fact that Hernandez had not yet
agreed to the terms of a plea agreement, the government
requested that the district court direct him to appear for a
change of plea hearing in accordance with the date established
by the general scheduling order. Because Hernandez was in
state custody at the time, the government moved for, and the
district court granted, a Writ of Habeas Corpus Ad Prose-
quendum to secure Hernandez’s presence for a change of plea
hearing. On January 7, 2009, Hernandez appeared for the
hearing, but, having no written plea agreement in place,
"elected not to enter a plea of guilty." J.A. 3.
State officials subsequently transferred custody of Her-
nandez to federal agents. On January 29, 2009, the govern-
ment moved for an order of detention; by this time, however,
Hernandez had decided to change his plea on five of the ten
counts and signed a waiver of his right to a detention hearing.
Although a plea agreement still had not been filed, the district
court proceeded to schedule a change of plea hearing for
Monday, February 2, 2009, which was also the trial date.
On Thursday, January 29, however, the district court
decided to reschedule Hernandez’s plea hearing for the morn-
ing of Friday, January 30—the next day. When the court cal-
led Hernandez’s case at 10:50 a.m. Friday morning, shortly
after the government filed the signed plea agreement, neither
Gates nor Hernandez was present. The district judge inquired
whether the government notified Gates of the last-minute
scheduling change:
THE COURT: Have you had communication with
Mr. Gates?
4 IN RE: GATES
[AUSA]: I have not personally [spoken] with him.
My understanding was that . . . he left some time ago
from his office to appear in court this morning.
THE COURT: Had you previously given him notice
that the case was scheduled for . . . [a] change of
plea today?
[AUSA]: Our office did . . . yesterday afternoon. . . .
I checked with Mr. Owens [the staffer who oversees
scheduling matters] in our office, who indicated that
he had spoken to Mr. Gates and let him know that it
was on for this morning.
THE COURT: For the record, show that this matter
is being called. Mr. Gates has not yet appeared, even
though he had been given earlier advice yesterday to
be in court this morning . . . . The Court will note
that this is not the first time Mr. Gates has not made
a timely appearance in the court after having advice
that his case was scheduled for trial.
J.A. 6-7.
Gates arrived in court fifteen minutes later and attempted
to explain his tardiness to the district court:
THE COURT: Mr. Gates, on this occasion and other
occasions we’ve been trying to find you for matters
before this Court and you’re always not here on
time. What is your explanation today?
MR. GATES: . . . This morning—the last message
I got was that this case was on for change of plea on
Monday [February 2].
THE COURT: Did you get a message yesterday
about this case from Mr. Owens in the U.S. Attor-
ney’s office?
IN RE: GATES 5
MR. GATES: I got a message yesterday that said it
may be rescheduled for today and I was awaiting to
hear further.
When I talked with Mr. Owens this morning, he
said, "I left a message with your assistant saying that
it had been changed." My assistant has the day off,
so I couldn’t ask her about that.
. . . . [S]he did come in personally [referring to
January 29, the day before the hearing] and tell me
that . . . there was the possibility that this case was
going to be rescheduled for today.
THE COURT: And what effort did you make to find
out?
MR. GATES: I waited to hear for when that would
be confirmed. . . .
THE COURT: You didn’t pick up the phone to call
somebody to find out since you knew there might be
some confusion as to being scheduled today?
MR. GATES: I interpreted the message . . . as a
warning [that] this may be in the works.
THE COURT: The Court does not accept the expla-
nation you’re giving . . . [and] finds that the action
that you’re taking in delaying this matter on this
occasion and your appearance on other occasions in
the matter delayed the Court, having to inquire into
your whereabouts, to call and find you to be here.
The Court finds that to be contemptuous conduct. . . .
That does not affect your client’s actions . . . but
just your conduct of continued failure to appear in a
timely fashion. You made no effort to follow up. To
6 IN RE: GATES
suggest to the Court that you sat back and waited for
somebody to tell you whether or not your case is
scheduled for trial is just not acceptable.
J.A. 7-10 (emphasis added). Having concluded Gates’s con-
duct was contemptuous, the district court imposed a $200 fine
against Gates.
On appeal, Gates argues that because his alleged contempt
was committed, if at all, outside of the district court’s pres-
ence, the court was precluded from summarily imposing con-
tempt sanctions. Instead, Gates claims he was entitled, at a
minimum, to reasonable notice and a chance to prepare a
defense against allegations that his failure to be on time for
Hernandez’s hearing, as well as his failure to appear on other
unspecified occasions, constituted criminal contempt under 18
U.S.C. § 401(3). Moreover, Gates argues that because the
record contains no evidence of the kind of intentional conduct
required for a criminal contempt conviction under § 401(3),
there is no reason for us to remand for a plenary contempt
hearing. We conclude that on both points Gates is correct.
II.
Gates did not object to the summary procedure employed
by the district court in its consideration of criminal contempt
sanctions against him, nor did he specifically challenge the
sufficiency of the evidence to satisfy the elements of a crimi-
nal contempt offense. Thus, the plain error standard of review
applies. See Fed. R. Crim. P. 52(b) ("A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention."). We recognize, however,
that until the very moment the district court imposed a fine
against Gates, it was not at all clear that the district court was
contemplating criminal contempt sanctions. The district court
simply asked Gates to explain why he failed to make a timely
appearance for Hernandez’s plea hearing. The court did not
indicate that contempt sanctions were a possibility, and we
IN RE: GATES 7
see nothing in the record suggesting that Gates should have
understood that the court was weighing the possibility of a
contempt citation. Under the circumstances, Gates’s failure to
raise a timely objection to the court’s summary contempt pro-
ceeding is understandable.
Nonetheless, as reasonable as Gates’s response may have
been, the issues before us on appeal were not raised or tested
below, and therefore we are constrained to apply the plain
error standard of review. See United States v. Olano, 507 U.S.
725, 731-32 (1993); see also United States v. Neal, 101 F.3d
993, 996 (4th Cir. 1996) (reviewing for plain error the district
court’s failure to appoint an independent prosecutor to pursue
contempt sanctions); United States v. Hawkins, 76 F.3d 545,
552 (4th Cir. 1996) (per curiam) (considering whether the dis-
trict court’s notice of contempt proceedings was so inadequate
that its issuance constituted plain error). Accordingly, we
must determine whether (1) the district court committed an
error, (2) whether the error committed is plain, and (3)
whether the district court’s error "affects substantial rights."
Olano, 502 U.S. at 732 (internal quotation marks and alter-
ation omitted). Even if these prerequisites are satisfied, how-
ever, "Rule 52(b) leaves the decision to correct the forfeited
error within the sound discretion of the court of appeals, and
the court should not exercise that discretion unless the error
seriously affects the fairness, integrity or public reputation of
judicial proceedings." Id. (internal quotation marks and alter-
ation omitted).
A.
We first consider whether the district court made an error
by summarily concluding that Gates committed criminal con-
tempt by failing to appear on time for the plea hearing. There
is a fundamental distinction between contemptuous conduct
that occurs in the presence of the judge (direct contempt) and
contemptuous behavior that occurs beyond the courthouse
doors and outside of the judge’s presence (indirect contempt).
8 IN RE: GATES
See Young v. United States ex rel. Vuitton et Fils S.A., 481
U.S. 787, 798 (1987). As Judge Wilkins explained in Neal,
only direct contempt may be addressed summarily:
Direct, or in-court, contempt involves conduct occur-
ring "in the presence of the judge, which disturbs the
court’s business, where all of the essential elements
of the misconduct are under the eye of the court . . .
and where immediate punishment is essential to pre-
vent demoralization of the court’s authority before
the public." In re Oliver, 333 U.S. 257, 275 (1948)
(internal quotation marks omitted); see United States
v. Willett, 432 F.2d 202, 204 (4th Cir. 1970) (per
curiam). Direct contempt may be punished summa-
rily without notice and a hearing. See Bloom v. Illi-
nois, 391 U.S. 194, 204 (1968). . . . Indirect, or out-
of-court, contempt does not occur within the pres-
ence of the court and must be proven through the tes-
timony of third parties or the testimony of the
contemnor. See Willett, 432 F.2d at 204; In re Heath-
cock, 696 F.2d 1362, 1365 (11th Cir. 1983). The
inherent power of the court to punish indirect con-
tempt is limited because conduct occurring out of the
presence of the court does not "threaten[ ] a court’s
immediate ability to conduct its proceedings." [Inter-
national Union, UMWA v. Bagwell, 512 U.S. 821,
832 (1994)]. Thus, indirect contempt may never be
punished summarily, see Cooke v. United States, 267
U.S. 517, 536-37 (1925), but rather requires adher-
ence to "‘more normal adversary procedures,’"
Young, 481 U.S. at 798 (quoting Bloom, 391 U.S. at
204).
Neal, 101 F.3d at 997.
Rule 42 of the Federal Rules of Criminal Procedure "pre-
serves the historical distinction between in-court and out-of-
court contempt." Id. at 997 n.2. Rule 42(b) applies to direct
IN RE: GATES 9
contempts, permitting a district court to summarily punish a
person for criminal contempt that occurs "in its presence if the
judge saw or heard the contemptuous conduct and so certi-
fies." Fed. R. Crim. P. 42(b); see United States v. Rangolan,
464 F.3d 321, 324 (2d Cir. 2006).
Rule 42(a), by contrast, applies to indirect contempts, per-
mitting punishment "after prosecution on notice." Fed. R.
Crim. P. 42(a); see In re Troutt, 460 F.3d 887, 893 (7th Cir.
2006) (noting that "[r]ule 42(a), in effect, addresses indirect
contempts"). Under Rule 42(a), the alleged contemnor enjoys
three essential procedural safeguards: notice of contempt
charges against him, the appointment of an independent pros-
ecutor, and disposition after a trial. See Fed. R. Crim. P.
42(a); see also In re Troutt, 460 F.3d at 894. Of primary
importance in this appeal is the requirement that "[t]he court
. . . give the person notice in open court, in an order to show
cause, or in an arrest order." Fed. R. Crim. P. 42(a)(1). The
requisite notice must (1) "state the essential facts constituting
the charged criminal contempt and describe it as such," Fed.
R. Crim. P. 42(a)(1)(C); (2) permit the alleged contemnor "a
reasonable time to prepare a defense," Fed. R. Crim. P.
42(a)(1)(B); and (3) include the trial date, see Fed. R. Crim.
P. 42(a)(1)(A).
Before we can determine whether the district court erred,
we must classify the conduct in question as either direct con-
tempt or indirect contempt. The district court determined that
Gates’s failure to appear on time for Hernandez’s plea hearing
violated the federal contempt statute. See 18 U.S.C. § 401.
The federal contempt law bestows power on federal courts to
punish "[d]isobedience or resistance to its lawful writ, pro-
cess, order, rule, decree, or command." 18 U.S.C. § 401(3). In
order to support a conviction under § 401(3), the evidence
must demonstrate that "the defendant willfully violated a
decree that was clear and left no uncertainty in the minds of
those that heard it." United States v. Linney, 134 F.3d 274,
278 (4th Cir. 1998) (emphasis added); see United States v.
10 IN RE: GATES
Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam) ("[T]he
elements of criminal contempt under 18 U.S.C. § 401(3) are:
(1) a reasonably specific order; (2) violation of the order; and
(3) the willful intent to violate the order." (internal quotation
marks omitted)). "Criminal intent is an essential element of
the offense." United States v. Marx, 553 F.2d 874, 876 (4th
Cir. 1977). Therefore, absence or tardiness alone is not con-
temptuous; the reasons for the failure to appear at the
appointed time are of central importance. See In re Chandler,
906 F.2d 248, 250 (6th Cir. 1990) ("[A]bsence alone cannot
be contempt. . . . The court must learn why the attorney was
late in order to determine whether the attorney had criminal
intent."). Although the fact of an attorney’s or party’s absence
from a scheduled proceeding may be obvious and "within the
knowledge and presence of the court," United States v. Bal-
dwin, 770 F.2d 1550, 1555 (11th Cir. 1985) (internal quota-
tion marks omitted), the reason for the absence is not, see In
re Smothers, 322 F.3d 438, 440 (6th Cir. 2003) (explaining
that the reason for an "attorney’s absence is not something
obvious to the court and therefore cannot fall under [the sum-
mary disposition provision of Rule 42]"); see also In re Allis,
531 F.2d 1391, 1392 (9th Cir. 1976) (recognizing that "the
contempt consists not in the absence from the courtroom but
in the reasons for the attorney’s presence elsewhere, and the
presence elsewhere was, of course, not in the actual presence
of the Court").
It has long been the rule in the Fourth Circuit that the mere
failure to appear in court at a scheduled proceeding is "not an
act committed ‘in the actual presence of the court,’ and [is]
therefore not punishable summarily under Rule 42[(b)]."
United States v. Willett, 432 F.2d 202, 205 (4th Cir. 1970)
(per curiam). Our position is squarely in line with the majority
rule that mere tardiness or absence at a scheduled court
appearance is not a direct contempt subject to summary dispo-
sition under Rule 42(b). See, e.g., In re Contempt Order, 441
F.3d 1266, 1268 (10th Cir. 2006) (explaining that attorney’s
failure to appear "by no stretch . . . occur[red] within the pres-
IN RE: GATES 11
ence of the court"); In re Chandler, 906 F.2d at 249-50 ("‘A
lawyer’s failure to attend court is not a contempt in the pres-
ence of the court.’" (quoting United States v. Onu, 730 F.2d
253, 255-56 (5th Cir. 1984))); United States v. Nunez, 801
F.2d 1260, 1264 (11th Cir. 1986) (per curiam) ("[T]he major-
ity of circuits which have considered the issue have concluded
that counsel’s tardiness or absence cannot be characterized as
contempt in the presence of the court.").
Accordingly, Gates’s tardiness was not subject to summary
disposition under Rule 42(b), and the district court should
have applied the procedural safeguards set forth in Rule 42(a)
in considering Gates’s conduct. Gates received no prior notice
that the district court considered his failure to appear on time
contemptuous and intended to try him for it, no summary of
the conduct forming the basis of the alleged contempt, and no
opportunity to prepare a defense. See Fed. R. Crim. P.
42(a)(1)(C) (requiring the notice issued by the district court to
include "the essential facts constituting the charged criminal
contempt" and to "describe it as such"). Clearly, the district
court failed to follow the requirements of Rule 42(a) and dis-
posed of the matter as if it were direct contempt. This was
error. See Richmond Black Police Officers Ass’n v. City of
Richmond, 548 F.2d 123, 126 (4th Cir. 1977) (finding error in
indirect contempt case where "the defendants were not given
a specification of the essential facts constituting the criminal
contempt nor was it described as such" and some of the defen-
dants "were not even directed to show cause, yet they were
held in contempt due to their alleged violation of the consent
decree").
B.
The next question for us is whether the district court’s error
was "plain." An error, to be plain, must be "clear" or "obvi-
ous." Olano, 507 U.S. at 734 (internal quotation marks omit-
ted); Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)
("[T]he legal error must be clear or obvious, rather than sub-
12 IN RE: GATES
ject to reasonable dispute."). "This standard is satisfied when
the settled law of the Supreme Court or this circuit establishes
that an error has occurred." Neal, 101 F.3d at 998 (internal
quotation marks omitted). In view of our clear statement in
Willet that an attorney’s absence or failure to appear on time
is "not an act committed ‘in the actual presence of the court,’"
and therefore cannot be disposed of summarily, 432 F.2d at
205, we conclude the error was plain.
C.
We next address the question of whether the error affects
substantial rights. See Olano, 507 U.S. at 734. An error that
affects substantial rights is an error that has a prejudicial
effect on the outcome: there is "a reasonable probability that,
but for the error claimed, the result of the proceeding would
have been different." United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004) (internal quotation marks and alteration
omitted). It is similar to the harmless error test except that the
burden is on the defendant in the plain error context. See
Olano, 507 U.S. at 734-35.
There is, however, "a special category of forfeited errors
that can be corrected regardless of their effect on the out-
come." Id. at 735. Such errors "render a trial fundamentally
unfair," Rose v. Clark, 478 U.S. 570, 577 (1986), and thus
"‘necessarily’ affect substantial rights," Neal, 101 F.3d at 999
(quoting United States v. David, 83 F.3d 638, 647 (4th Cir.
1996)). In Neal, for example, we concluded the district judge
committed an error within this category in failing to appoint
a prosecutor to pursue indirect contempt charges against a
witness who failed to appear pursuant to a subpoena. See id.
at 999 (explaining that "[t]he assumption of the role of prose-
cutor by the district court is the kind of error that we have
long understood to undermine the integrity of court proceed-
ings").
Because "criminal contempt [is] a crime in the ordinary
sense," the alleged contemnor is entitled to invoke fundamen-
IN RE: GATES 13
tal procedural safeguards. Young, 481 U.S. at 799 (internal
quotation marks omitted); see In re Troutt, 460 F.3d at 893
("It is worth underscoring, in this regard, that criminal con-
tempt is a crime, like all other crimes. It is for that reason that
the Supreme Court has held that a person accused of criminal
contempt enjoys the normal range of procedural rights." (cita-
tion omitted)). Of course, "[t]he fundamental requirement of
due process is the opportunity to be heard at a meaningful
time and in a meaningful manner." Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (internal quotation marks omitted); see
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950) ("Many controversies have raged about the cryptic
and abstract words of the Due Process Clause but there can
be no doubt that at a minimum they require that deprivation
of life, liberty or property by adjudication be preceded by
notice and opportunity for hearing appropriate to the nature of
the case."). Therefore, due process requires that a person
accused of contempt receive, at a minimum, notice and a
chance to respond to the charges against him. See Taylor v.
Hayes, 418 U.S. 488, 500 n.9 (1974) (recognizing that "[a]
contemnor is entitled to the elementary due process protec-
tions of reasonable notice of the specific charges and opportu-
nity to be heard in his own behalf" (internal quotation marks
omitted)).
As previously stated, Gates received no prior notice of the
alleged contempt nor any meaningful opportunity to answer
the charges. The district court merely asked Gates to explain
his failure to appear on time. Although the district judge was
clearly irritated (and perhaps with good reason), the court did
not indicate, even implicitly, that Gates was being tried for
willful "[d]isobedience or resistance" to the court’s directive,
in violation of 18 U.S.C. § 401(3). Unaware of this fact, Gates
had no real opportunity to respond to the criminal intent ele-
ment of a contempt charge. See Marx, 553 F.2d at 876.
Compounding the lack of prior notice was the lack of clar-
ity as to Gates’s allegedly contemptuous conduct. The district
14 IN RE: GATES
court’s comments from the bench admit no conclusion but
that the district court imposed punishment for more than one
instance where Gates was tardy. Without ever identifying any
other instances, the court stated that it "[found] that the action
that [Gates took] in delaying this matter on this occasion and
[his] appearance on other occasions in the matter" was "con-
temptuous conduct." J.A. 9 (emphasis added). Even with prior
notice, Gates could not have responded to contempt charges
for unspecified conduct occurring at unspecified times.
For these reasons, we conclude that the error here was one
that affected Gates’s substantial rights.
D.
Having concluded that Gates has satisfied the prerequisites
for establishing plain error, we still must decide whether to
exercise our discretion to correct the error. See Neal, 101 F.3d
at 999 ("Even if a district court commits an error that is plain
and that affects substantial rights, the use of our authority to
correct the error remains discretionary."). Thus, even where
the first three plain error elements are established, we will
exercise our discretion to correct the error only when "the
error seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings." Olano, 507 U.S. at 736 (inter-
nal quotation marks omitted). This is so even when the error
at issue is not one that is subject to harmless error review. See
United States v. David, 83 F.3d 638, 647-48 (4th Cir. 1996).
The error here—the failure to provide any notice that Gates
would be required to answer contempt charges or even to
describe all of the conduct that formed the basis of such
charges—was of the most fundamental kind. Notice of crimi-
nal charges and an opportunity to respond to them are bedrock
principles in our system of justice. We are compelled, there-
fore, to exercise our discretion to correct the error.
IN RE: GATES 15
III.
Gates asserts that there is no reason to remand for the dis-
trict court to follow the proper procedures under Rule 42(a)
as there is insufficient evidence in the record to sustain his
conviction under 18 U.S.C. § 401(3). Again, in order to sup-
port a conviction under § 401(3), the evidence must establish
that "the defendant willfully violated a decree that was clear
and left no uncertainty in the minds of those that heard it."
Linney, 134 F.3d at 278; see 18 U.S.C. § 401(3) ("A court of
the United States shall have power to punish . . .
[d]isobedience or resistance to its lawful writ, process, order,
rule, decree, or command.").
We agree with Gates. We find the record completely lack-
ing any evidence from which the court could find that Gates
had the requisite criminal intent to support a conviction under
§ 401(3). The record is devoid of evidence showing that Gates
willfully refused to appear for Hernandez’s plea hearing on
Friday, January 30, and there is certainly no evidence of will-
fulness on the other unspecified instances for which the dis-
trict court found Gates in contempt. The only evidence in the
record was supplied by Gates, who stated simply that, while
he knew a Friday hearing was possible, he did not understand
that the hearing had actually been rescheduled until he was
informed by the office of the United States Attorney on the
morning of the hearing. The district court apparently found
that Gates’s failure "to follow up" on the possibility that the
hearing had again been rescheduled was evidence of intent:
"To suggest to the Court that you sat back and waited for
someone to tell you whether or not your case is scheduled for
trial is just not acceptable." J.A. 9-10. We disagree this shows
any willfulness or recklessness on the part of Gates. There is
no evidence that Gates knew that the hearing had been res-
cheduled; rather, there is evidence only that Gates knew it
was a possibility. At most, Gates might have been negligent
in failing to be more active. Negligence, however, is insuffi-
cient to sustain a conviction under 18 U.S.C. § 401(3). See
16 IN RE: GATES
United States v. Mottweiler, 82 F.3d 769, 771-72 (7th Cir.
1996). Thus, we conclude that, in light of the record, remand-
ing the case for a hearing under Rule 42(a) would serve no
purpose.
IV.
Although we are not without sympathy for district judges
forced to deal with habitually tardy attorneys, we must ensure
that the extraordinary contempt power wielded by federal
courts is exercised in a manner that comports with due pro-
cess. Accordingly, for the foregoing reasons, we reverse
Gates’s contempt conviction.
REVERSED