United States v. Straub

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 29, 2007
No. 06-14354 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-60237-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GLENN F. STRAUB,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(November 29, 2007)

Before ANDERSON and PRYOR, Circuit Judges, and VINING,* District Judge.

PRYOR, Circuit Judge:

*
Honorable Robert L. Vining, Jr., United States District Judge for the Northern District
of Georgia, sitting by designation.
 Glenn Straub appeals his conviction of criminal contempt for violating a court

order that prohibited his presence on the premises of Broward Yachts while an

unfinished hull that belonged to Seagrove Trading, Inc., was removed from the

premises. See 18 U.S.C. § 401(3). Straub argues that the evidence adduced at trial

was insufficient to support his conviction because the order was not lawful and

reasonably specific and any violation of the order was not willful. Before reaching

the merits, we conclude that the district court had jurisdiction over the charge of

criminal contempt even though the court that issued the order lacked maritime

jurisdiction over the underlying controversy about the unfinished hull. We reject

Straub’s arguments on the merits, because the evidence that he refused to leave the

premises after a deputy marshal read to Straub the relevant portion of the order was

sufficient to support his conviction. We affirm.

I. BACKGROUND

Glenn Straub was the president of Broward Yachts, Inc., which provided

dockage, storage, and haul-out services for a partially completed yacht known as

Destiny Hull that was owned by Seagrove Trading, Inc. Broward Yachts filed an in

rem action against the hull to recover unpaid fees. On June 23, 2003, the district

court dismissed the action for lack of subject matter jurisdiction because the

unfinished hull did not qualify as a vessel for the purpose of invoking maritime

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jurisdiction, and we affirmed. Broward Yachts v. Vessel Known as Destiny Hull, 107

Fed. App’x 183 (11th Cir. 2004) (unpublished table decision).

On March 6, 2003, before the district court dismissed the suit, the court issued

a warrant for the arrest of the hull. On March 19, 2003, the district court ordered the

release of the hull in return for a bond posted by Seagrove. Because the parties could

not agree on the terms and logistics of the transfer, the district court issued a series

of orders clarifying the obligations of the parties. On April 15, 2003, the district

court issued an order that outlined the procedure for the transfer and prohibited

Straub’s presence on the premises during the removal:

Accordingly, it is hereby

ORDERED that Broward shall make the Travelift available to
Seagrove’s Contractors, at such time as they can again be mobilized, for
use in moving Hull No. 4 from Broward’s shed into the water. Seagrove
may also use cranes, trucks or other equipment necessary to assist in the
removal of the hull, engines, and any of its other property still located
on Broward’s premises, and Broward shall provide Seagrove’s
Contractors full access to its premises, including the launching facilities,
for such purposes. Upon placement of Hull No. 4 in the water, Seagrove
will be responsible for towing Hull No. 4 to another location of its
choosing. Seagrove will provide Mega Marine and Broward twenty four
hours’ written notice of its intent to use the Travelift.

IT IS FURTHER ORDERED that the United States Marshal is
hereby directed to use such force as may be necessary to ensure that
Seagrove’s Contractors have the unobstructed use of the Travelift and
have unobstructed access to Broward’s premises and the launching
facilities as ordered herein until Hull No. 4, the engines, and Seagrove’s

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 other property are removed from Broward’s premises, and to prevent
any party, third party, or other person or entity from interfering with, or
otherwise obstructing or preventing the move from taking place when
Seagrove’s Contractors are mobilized.

....

IT IS FURTHER ORDERED that Mr. Glenn Straub shall not
interfere in any manner with the removal of Hull No. 4 and Seagrove’s
other property, and shall not be present on Broward’s premises during
the removal.

The hull was removed from Broward’s property on April 18, 2003. While the

hull was in the water secured to a slip, Straub arrived at the facility. Deputy United

States Marshal Jerome Retto read to Straub the relevant portions of the order that

prohibited Straub’s presence on the premises. Retto told Straub that he would be held

in contempt if he remained on the property and that, if he was arrested, he could not

bring personal property with him. Straub then entered the Broward Yachts building

to leave his personal effects. When Straub returned, Retto told Straub that he could

avoid arrest if he waited in the parking lot. Straub refused to leave and was arrested.

After a bench trial before a magistrate judge, Straub was convicted of criminal

contempt. Straub appealed the judgment to the district court, and the district court

affirmed. The district court concluded that (1) Straub had failed to preserve for

appeal his arguments about (a) the lawfulness of the underlying order and the

applicability of the collateral bar rule and (b) the specificity of the term “premises”;

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(2) the order was reasonably specific; and (3) Straub violated the order willfully.

II. STANDARDS OF REVIEW

To review the sufficiency of the evidence that supports an order of criminal

contempt, we determine whether the evidence, construed in the light most favorable

to the government, permits a finding of guilt beyond a reasonable doubt. United

States v. Bernardine, 237 F.3d 1279, 1281–82 (11th Cir. 2001). When the defendant

does not preserve an argument for appeal, we review for plain error, United States v.

Lewis, 492 F.3d 1219, 1221–22 (11th Cir. 2007), which requires the petitioner to

establish (1) that there was error; (2) that was plain; (3) that affected his substantial

rights; and (4) that seriously affected the fairness, integrity, or public reputation of the

judicial proceeding. Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1180 (11th Cir.

2002) (citing United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999)).

An error is plain if it is “clear” or “obvious.” United States v. Olano, 507 U.S. 725,

734, 113 S. Ct. 1770, 1777 (1993).

III. DISCUSSION

Our discussion is divided in two parts. First, we consider sua sponte whether

the district court had jurisdiction over the charge of criminal contempt even though

the court that issued the order lacked subject matter jurisdiction over the underlying

controversy. We hold that the district court had jurisdiction over the charge of

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criminal contempt. Second, we consider Straub’s argument that the evidence was

insufficient to support his conviction because the government did not establish that

the order was lawful and reasonably specific and that he willfully violated the order.

We conclude that Straub’s arguments fail, and we affirm.

A. The District Court Had Jurisdiction over the Charge of Criminal Contempt.

Before we consider the merits of the appeal, we address sua sponte whether the

district court had subject matter jurisdiction over a charge of criminal contempt based

on the violation of an order issued by a court that lacked subject matter jurisdiction

over the underlying controversy. See Eagerton v. Valuations, Inc., 698 F.2d 1115,

1118 (11th Cir. 1983). At our request, the parties addressed this issue in their oral

arguments. We conclude that, notwithstanding the ultimate dismissal of the

underlying controversy for lack of subject matter jurisdiction, the district court had

jurisdiction over the charge of criminal contempt.

The Supreme Court has held that a district court may impose sanctions, under

Federal Rule of Civil Procedure 11, for conduct that occurred during a proceeding in

which the court lacked subject matter jurisdiction, Willy v. Coastal Corp., 503 U.S.

131, 112 S. Ct. 1076 (1992), and the two-fold reasoning of that decision is

instructive. First, the Willy Court explained that, because the imposition of Rule 11

sanctions did not require an assessment of the legal merits of the complaint, the

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district court did not adjudicate a controversy over which it lacked jurisdiction when

it imposed the sanctions. Id. at 138, 112 S. Ct. at 1080–81. Second, the Court

distinguished Rule 11 sanctions from civil contempt, which requires subject matter

jurisdiction over the underlying controversy. Id. at 138–39, 112 S. Ct. at 1081; see

also U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72,

76–80, 108 S. Ct. 2268, 2270–73 (1988). Civil contempt is remedial and aims to

force compliance with an order of the court. Gompers v. Buck’s Stove & Range Co.,

221 U.S. 418, 441–42, 31 S. Ct. 492, 498 (1911). The punishment for civil contempt

continues until the contemnor chooses to comply with the order. Id. at 442, 31 S. Ct.

at 498. Rule 11 sanctions, in contrast, are punitive. Willy, 503 U.S. at 139, 112 S.

Ct. at 1081. Their purpose is to punish a party who has already violated the rules of

the court. Id.

The difference in purpose between a sanction for civil contempt and a punitive

sanction under Rule 11 determines whether the absence of subject matter jurisdiction

in the underlying proceeding affects the validity of the sanction. The interest of the

court in levying sanctions for civil contempt disappears if the court lacks subject

matter jurisdiction, because the purpose of civil contempt is to force compliance with

an order. Id. The interest of the court in imposing punitive sanctions under Rule 11

does not disappear if the court lacks subject matter jurisdiction, because the court

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retains an interest in parties’ obedience to its authority. Id.

Both aspects of the reasoning of Willy apply to Straub’s conviction for criminal

contempt. First, as with Rule 11 sanctions, the adjudication of a charge of criminal

contempt does not require an assessment of the legal merits of the underlying

controversy, so the court that hears the criminal contempt charge does not adjudicate

a controversy over which it lacks jurisdiction. Whereas “[p]roceedings for civil

contempt are between the original parties, and are instituted and tried as a part of the

main cause[,] . . . proceedings at law for criminal contempt are between the public and

the defendant, and are not a part of the original cause.” Gompers, 221 U.S. at

444–45, 31 S. Ct. at 499. Second, like Rule 11 sanctions, a sanction for criminal

contempt is punitive and aims to vindicate the authority of the court. Id. at 441, 31

S. Ct. at 498. Rule 11 sanctions and criminal contempt both differ from civil

contempt, which is remedial and aims to force compliance with an order of the court.

Id.

Although we have stated in dicta that “if the issuing court lacks subject-matter

jurisdiction over the underlying controversy or personal jurisdiction over the parties

to it, its order may be violated with impunity,” In re Novak, 932 F.2d 1397, 1401

(11th Cir. 1991) (citing In re Green, 369 U.S. 689, 82 S. Ct. 1114 (1962); Ex parte

Fisk, 113 U.S. 713, 718, 5 S. Ct. 724, 726 (1885); United States v. Dickinson, 465

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F.2d 496, 511 (5th Cir. 1972)), that language should be construed narrowly. We

relied upon two decisions of the Supreme Court in which the court that issued the

order either lacked or might have lacked jurisdiction to issue the order itself, and each

of these decisions is distinguishable.

The first decision we cited in our dicta in Novak was Fisk, in which the court

that issued the order had subject matter jurisdiction over the underlying controversy

but lacked jurisdiction to issue the order. Fisk, 113 U.S. at 726, 5 S. Ct. at 730. In

Fisk, a federal court had ordered the defendant in a civil suit to submit to a

deposition, but the Supreme Court determined that a federal statute prohibited the

court from ordering the deposition. 113 U.S. 713, 5 S. Ct. 724. The district court in

Straub’s case, in contrast, lacked jurisdiction over the underlying controversy but

issued an order that was otherwise within the authority of the court.

The second decision we cited in Novak was Green, in which the court that

issued the order might have lacked jurisdiction to issue the order as a result of federal

preemption. In Green, a state court had issued a restraining order that prohibited a

union from picketing. 369 U.S. at 690, 82 S. Ct. at 1115. The Supreme Court held

that the state court violated the defendant’s due process rights when it held him in

contempt without providing him with a hearing to establish whether the restraining

order was preempted by federal law. Id. at 692–93, 82 S. Ct. at 1116–17. The Court

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explained that the contempt conviction could not stand if the restraining order was

preempted by federal law. Id. at 692, 82 S. Ct. at 1117. Green, like Fisk, did not

involve a situation analogous to Straub’s case, in which the court lacked subject

matter jurisdiction over the underlying controversy but issued an order that was

otherwise within its authority. The dicta in Dickinson, which was a decision of our

predecessor court that we also cited in Novak, relied largely on Green. Dickinson,

465 F.2d at 511 & n.16.

The decision of the Supreme Court in Willy resolves this issue. We conclude

that the district court had subject matter jurisdiction to resolve the charge of criminal

contempt against Straub. Our dicta in Novak is inapposite.

B. Straub’s Arguments That the Evidence Was Insufficient Fail.

To convict Straub of criminal contempt, the government had to establish that

the court entered a lawful order of reasonable specificity that Straub willfully

violated, Bernardine, 237 F.3d at 1282 (quoting United States v. Maynard, 933 F.2d

918, 920 (11th Cir. 1991) (per curiam)). Straub makes three arguments that the

evidence against him was insufficient. First, Straub argues that the order was not

lawful because it fell within two exceptions to the collateral bar rule, which prevents

defendants in criminal contempt proceedings from raising the invalidity of the order

as a defense. Second, Straub argues that the order was not reasonably specific

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because the terms “removal” and “premises” were ambiguous. Third, Straub argues

that his violation of the order was not willful. Each of these arguments fails.

1. Straub’s Arguments About the Lawfulness of the Order and the Collateral Bar
Rule Fail.

Straub argues that the order that he was charged with violating fell within two

exceptions to the collateral bar rule and, as a result, was not “lawful.” Ordinarily, the

collateral bar rule operates to prevent defendants in criminal contempt proceedings

from raising the invalidity of the order as a defense. Novak, 932 F.2d at 1400–01;

Dickinson, 465 F.2d at 509–10. A defendant may appeal the order but may not

disobey the order and challenge it collaterally in a criminal contempt proceeding

unless certain exceptions are met. Novak, 932 F.2d at 1401–03; Dickinson, 465 F.2d

at 511–12. Straub argues that “adequate and effective remedies [did not] exist for

orderly review of the challenged ruling,” Novak, 932 F.2d at 1401; accord Dickinson,

465 F.2d at 511, and that the order “require[d] an irretrievable surrender of

constitutional guarantees,” Novak, 932 F.2d at 1401; Dickinson, 465 F.2d at 511.

The government argues that our review of this issue is for plain error, but

Straub argues that he preserved this issue in his motion for a judgment of acquittal

under Rule 29 when he argued that the government must prove that the court entered

a lawful order of reasonable specificity. According to Straub, his motion preserved

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his argument about the collateral bar rule because an order that falls within an

exception to the collateral bar rule is not a “lawful order” as required by section

401(3). To preserve an issue for appeal, “one must raise an objection that is sufficient

to apprise the trial court and the opposing party of the particular grounds upon which

appellate relief will later be sought.” United States v. Dennis, 786 F.2d 1029, 1042

(11th Cir. 1986). The objection must be raised “in such clear and simple language

that the trial court may not misunderstand it.” United States v. Massey, 443 F.3d 814,

819 (11th Cir. 2006) (quoting United States v. Riggs, 967 F.2d 561, 565 (11th Cir.

1992)) (internal quotation mark omitted).

Straub’s objection was insufficient to apprise the court of the grounds for

appeal. Straub did not raise it in such clear and simple language that the trial court

could not misunderstand. After objecting that the order had not been a lawful order

of reasonable specificity, Straub’s counsel explained only why he believed that the

order was not reasonably specific. Straub’s counsel failed to suggest that he intended

to raise an objection based on the collateral bar rule or on the ground that the order

was not lawful. Because Straub did not preserve this argument for appeal, we review

for plain error. See Brough, 297 F.3d at 1180.

Straub argues that because the hull was removed only three days after the order

of April 15 was entered, “adequate and effective remedies [did not] exist for orderly

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review of the challenged ruling.” Novak, 932 F.2d at 1401; accord Dickinson, 465

F.2d at 511. In Walker v. City of Birmingham, the Supreme Court rejected the

argument that adequate remedies did not exist when two days separated the issuance

of an ex parte injunction and the march that it enjoined. 388 U.S. 307, 318–19, 87 S.

Ct. 1824, 1831 (1967). In the light of Walker, the district court did not commit plain

error.

Straub also argues that because the order required him to surrender temporarily

his property rights in the Broward Yachts facility and the Travelift, the order

“require[d] an irretrievable surrender of constitutional guarantees.” Novak, 932 F.2d

at 1401; Dickinson, 465 F.2d at 511. We have suggested that to fall within this

exception the order must cause irreparable harm by irrevocably depriving the

contemnor of a constitutional right. See Dickinson, 465 F.2d at 512–13. Straub cites

no authority for the proposition that requiring his temporary absence from the

property was an irrevocable deprivation. Again, the district court did not commit

plain error.

2. The Order Was Reasonably Specific.

Straub next argues that the order that he was charged with violating was not

reasonably specific. Determining whether an order is reasonably specific involves

a factual inquiry that must consider the context in which the order was entered and

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the audience to which the order was addressed. Bernardine, 237 F.3d at 1282

(quoting In re McDonald, 819 F.2d 1020, 1024 (11th Cir. 1987) (per curiam)). “An

order meets the ‘reasonable specificity’ requirement only if it is a ‘clear, definite, and

unambiguous’ order requiring the action in question.” In re E.I. DuPont De Nemours

& Co.–Benlate Litigation, 99 F.3d 363, 370 (11th Cir. 1996) (quoting United States

v. Koblitz, 803 F.2d 1523, 1527 (11th Cir. 1986)). Straub argues that the order was

not reasonably specific because the term “removal” could have meant “moved from

the shed to the water” instead of “fully launched and towed away.”

Straub’s argument fails. The order of April 15 provided instructions for

“moving Hull No. 4 from Broward’s shed into the water” and for “removal of the

hull, engines, and any of [Seagrove’s] other property still located on Broward’s

premises.” The purpose of the order would have been undermined if it had prohibited

Straub’s interference with the transfer of the hull to the water but not the towing of

the hull. The evidence, viewed in the light most favorable to the government, was

sufficient to support the conclusion that the order was reasonably specific about the

meaning of the term “removal.”

Straub also argues that the term “premises” was not reasonably specific

because it left unclear whether the water and boat slip were included within the

meaning of “premises.” Because Straub did not raise this issue during the contempt

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proceeding, we review for plain error. See Brough, 297 F.3d at 1180. Although the

order of April 15 referred initially to the “premises” as “including the launching

facilities” but later listed the “premises” and the “launching facilities” separately, the

purpose of the order would have been undermined if it had not prohibited Straub’s

presence at the launching facility. It was not plain error for the district court to

conclude that the evidence, viewed in the light most favorable to the government, was

sufficient to determine that the order was reasonably specific about the term

“premises.”

3. The Violation Was Willful.

Straub argues that he did not willfully violate the order because the order was

ambiguous. Willfulness “means a deliberate or intended violation, as distinguished

from an accidental, inadvertent, or negligent violation of an order.” United States v.

Baldwin, 770 F.2d 1550, 1558 (11th Cir. 1985) (quoting Falstaff Brewing Corp. v.

Miller Brewing Co., 702 F.2d 770, 782 (9th Cir.1983)) (internal quotation marks

omitted). Straub’s argument fails.

When we view the evidence in the light most favorable to the government, we

conclude that Straub’s behavior was not the product of reasonable confusion or

misunderstanding. While Straub stood at the launching facility, Retto warned Straub

several times that he would be arrested if he did not leave the premises, and Retto

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read to Straub the relevant portion of the order of April 15. Straub even went inside

the Broward Yachts building to leave his personal effects after Retto informed him

that if he was arrested he could not bring personal property with him. After Straub

returned, Retto advised Straub that he could wait in the parking lot, but Straub still

refused to leave. This evidence was more than sufficient to support a finding that

Straub violated the order willfully.

IV. CONCLUSION

Straub’s criminal contempt conviction is

AFFIRMED.

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