dissenting:
With due respect for the views of my colleagues, I must dissent. This is a classic case of willful disobedience by an experienced trial lawyer, followed by insulting and vicious accusations of judicial misconduct and collusion with a prosecutor.
My review of the facts leads me to conclude that the district court properly invoked the summary criminal contempt provisions of Rule 42(a) of the Federal Rules of Criminal Procedure.
Attorney Gustafson read his closing argument to the jury from a prepared text, and was reading so rapidly that the court was forced to ask counsel to slow down so that the reporter could record the argument. Refusing to heed the admonition, Gustafson continued in a manner that forced the court to interrupt him 19 times to request that he slow the speed of his delivery. These requests were ignored, and the court eventually ordered the reporter to utilize a tape recorder for the balance of the argument.
Repeatedly during Gustafson’s closing argument, the government objected to his improper statements. The court sustained the objections, and admonished Gustafson to confine his argument to the facts. The argument concluded with the colloquy quoted by the majority at page 2, ante.
I view this conduct as willful and deliberate defiance of the court’s orders. There is absolutely no justification in the record for the behavior, particularly the suggestion to the jury that the court and the prosecution had conspired to prevent or impede counsel in the defense of his client.
As I shall explain, I believe that Gustaf-son’s conduct was contemptuous. I cannot subscribe to the doubts of the majority opinion on that score and the observation that the remarks “may have been contemptuous.”
Further, I am satisfied that the contempt was punishable summarily.
1. The Conduct was Contemptuous
In In Re Buckley, 10 Cal.3d 237, 110 Cal.Rptr. 121, 514 P.2d 1201, Anno. 68 ALR3d 248 (1973), cert. den., Buckley v. California, 418 U.S. 910, 94 S.Ct. 3202, 41 L.Ed.2d 1156 (1974), the California Supreme Court recognized that accusations of judicial bias are contemptuous on their face and summarily punishable:
[A]n attorney commits a direct contémpt when he impugns the integrity of the court by statements made in open court . 527 ..
We hold here that when petitioner’s argument turned from advocacy to insult, the trial court was acting properly in holding him in contempt.
110 Cal.Rptr. at pp. 127,133, 514 P.2d at pp. 1207, 1213. The Buckley court relied on the earlier case of Hume v. Superior Court, 17 Cal.2d 506, 110 P.2d 669 (1941), in which the *1363California Supreme Court upheld a finding of contempt based on an attorney’s allegations that the judge was biased in favor of the prosecution:
said statements were contemptuous in that they reflected upon the integrity of the trial court and the judge thereof, imputing collusion of the judge with the attorney-general .
110 P.2d at pp. 673-674. A similar charge of collusion served as the basis for the instant finding of contempt by Gustafson.
In Alexander v. Sharpe, 245 A.2d 279 (Me.1968), the Supreme Judicial Court of Maine reached a similar conclusion. Responding to a ruling of the trial judge, an attorney said «to the judge: “I think it demonstrates your prejudice without doubt.” Id. at p. 281.
The appellate court commented:
Petitioner’s accusation of prejudice was clearly an act of contempt of court. Its immediate and obvious results were to disrupt the trial, to inject in the minds of the jurors strong resentments incompatible with the dispassionate determination of the issues before them, and to deprive both plaintiff and defendant of an early resolution of their litigation. A more extended harm to be expected from such an accusation on the part of an officer of the court is a lessening of public respect for the bench, the bar and the judicial process.
Id. at p. 283. The court went on to quote with approval the order of the trial judge:
Trials are open to the public and what transpires in the courtroom is of public notice and concern. The jury, counsel, litigants, witnesses, court officers, representatives of the press and spectators are all observers of courtroom proceedings. They hear and see trial action and carry a message to the public as to what might be expected by any litigant who seeks judgment in a court of law. The message they carry is dependent upon a Judge’s supervision in conducting a trial and counsel’s conduct including his respect for and civility to a Court. A member of the legal profession, above all others, should be sensitive to the respect a Judge is entitled to while performing his duties in a court of law and conduct himself accordingly.
Id. at p. 284. (Emphasis supplied). The accusation of prejudice which led to Gustaf-son’s contempt is equally damaging to the integrity of the judicial system. It should be noted that the allegation of prejudice in Alexander v. Sharpe, supra, was made by plaintiff’s attorney in a civil suit. More damaging to the public’s view of our system of justice is an accusation of collusion between a judge and a prosecutor in a criminal case. Such an allegation reenforces the belief that American jails are filled with “political prisoners” who were denied fair trials.8
It is not the role of attorneys to lend support to such beliefs. Canon 8 of the Code of Professional Responsibility reads: “A Lawyer Should Assist in Improving the Legal System.” Disciplinary Rule 8-102(B) provides: “A lawyer shall not knowingly make false accusations against a judge or other adjudicatory officer.”
There is no evidence to support Gustaf-son’s accusation of collusion between judge and prosecutor. His violation of the Code of Professional Responsibility was so flagrant as to merit and to require the punishment imposed by the experienced trial judge. Anything short of a prompt contempt citation would only encourage fur*1364ther erosion of the public’s confidence in our judicial system.
Gustafson was not a novice attorney or recent admittee to the bar. He was admitted to practice law in California and before this court in 1963. He had been a Navy Judge Advocate for more than 15 years. Had he been a new, younger lawyer with limited experience, one might overlook his statements as those of an overzealous advocate. But such statements and conduct by an attorney of extensive experience are inexcusable, inappropriate and intolerable.
I disagree with the conclusion of the majority that Gustafson’s conduct did not significantly impair the integrity of the proceedings or disrupt the processes of the court. His behavior required the court to stop the proceedings repeatedly and eventually to order the reporter to improvise with other measures.
Even more telling, however, is the fact that two of the codefendants in the principal case argued on appeal that Gustafson’s remarks prejudiced their right to a fair trial. I observe that other parties and their counsel felt Gustafson’s conduct affected the integrity of the proceedings.
2. Rule 42(a) was Properly Invoked
Read literally, Rule 42(a) sanctions summary punishment of criminal contempt when two requirements are met: (1) the contumacious behavior occurs in the presence of the court, and (2) the judge certifies that he saw or heard it. It affords protection when “the trial judge [must] . act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress of a criminal trial.” United States v. Wilson, 421 U.S. 309, 319, 95 S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975).
The majority opinion significantly diminishes a trial judge’s discretion by adding a third requirement to Rule 42(a). It holds contumacious behavior may not be summarily punished unless the behavior also constitutes a “material obstruction” of the court’s business under circumstances in which “time is of the essence.” When the obstruction is not “material” or “time is not of the essence”, then Rule 42(a) could not be invoked, says the majority opinion, even if the contemptuous conduct occurred in the judge’s presence and in open court.
It is not our function to rewrite the Rules of Criminal Procedure when we believe we can improve upon the work of the draftsmen, any more than it is our business to rewrite a statute to improve upon congressional grammar or to provide a remedy not given or intended in the law. Justice Harlan commented on such attempts by appellate courts:
What was said in Ex parte Kearney, 7 Wheat. 38, 45, [5 L.Ed. 391,] may be here repeated: “Wherever power is lodged it may be abused. But this forms no solid objection against its exercise. Confidence must be reposed somewhere; and if there should be an abuse, it will be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice.”
Ex parte Terry, 128 U.S. 289, 309, 9 S.Ct. 77, 81, 32 L.Ed. 405 (1888).
A. The Draftsmen’s Intent
The majority’s revision ignores the Advisory Committee’s intent as to the scope of Rule 42(a). Its Note to subdivision (a) reads: “This rule is substantially a restatement of existing law, Ex parte Terry, [supra ]; Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 [1925].’’ As recently as 1975, the Supreme Court so stated in United States v. Wilson, supra : “Rule 42 has consistently been recognized to be no more than a restatement of the law existing when the Rule was adopted . . ..” 421 U.S. at 317, 95 S.Ct. at 1807.
The existing law to which we are referred by the Supreme Court and by the Advisory Committee contains nothing which even remotely suggests a judge’s power to punish contempt in his presence is limited by a requirement that there be a *1365“material obstruction” when “time is of the essence.” Justice Harlan, writing for the Court in Ex parte Terry, declared:
“The power to commit or fine for contempt is essential to the existence of every court. Business cannot be conducted unless the court can suppress disturbances and the only means of doing that is by immediate punishment.”
128 U.S. at 308, 9 S.Ct. at 81, quoting State v. Woodfin, 27 N.C. 199, 5 Iredells’ Law 199 (1844).
In Cooke v. United States, supra, cited by the Advisory Committee and also by the Wilson Court, Chief Justice Taft thus defined summary contempt:
To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.
267 U.S. at 534, 45 S.Ct. at 394. He said nothing to suggest a judge must hold a hearing unless the contumacious conduct causes a “material obstruction” when “time is of the essence.” In Chief Justice Taft’s view, time is always of the essence when the court’s honor is impugned. I agree.
B. United States v. Wilson
The majority purports to find the “material obstruction” and “time is of the essence” requirement in United States v. Wilson. I believe the majority misinterprets that decision.
The Court states its holding clearly and succinctly in Part II of Wilson :
Rule 42(a) was never intended to be limited to situations where a witness uses scurrilous language, or threatens or creates overt physical disorder and thereby disrupts a trial. All that is necessary is that the judge certify that he “saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.”
421 U.S. at 315, 95 S.Ct. at 1806 (emphasis supplied). In Part IV, the Court acknowledges that (1) trial judges have the discretion to invoke summary proceedings in exceptional circumstances and (2) appellate courts may remedy abuses of that discretion:
As with all power, the authority under Rule 42(a) to punish summarily can be abused; the courts of appeals, however, can deal with abuses of discretion without restricting the Rule in contradiction of its own express terms, and without unduly limiting the power of the trial judge to act swiftly and firmly to prevent contumacious conduct from disrupting the orderly progress of a criminal trial.
Id. at 319, 95 S.Ct. at 1808.
The majority’s footnote 3 suggests I read those words out of context. I do say Parts II and IV constitute the core of the opinion. Wilson is divided into four sections. The first explains the facts. The second sets forth the rule of law. The third distinguishes an earlier case, and the fourth summarizes the holding.
The majority ignores Part II and the summary of the holding in Part IV, while relying heavily on Part III and dictum in Part IV. In Part III, the Court distinguished Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965) by noting that the refusal to testify in Harris did not disrupt an ongoing trial, while in Wilson the trial was delayed. In Part IV, the Court prefaces its summary of the holding of the case with words of caution:
Rule 42(a) provides an appropriate remedial tool to discourage witnesses from contumacious refusals to comply with lawful orders essential to prevent a breakdown of the proceedings. Where time is not of the essence, however, the *1366provisions of Rule 42(b) may be more appropriate to deal with contemptuous conduct. We adhere to the principle that only “ ‘[t]he least possible power adequate to the end proposed” should be used in the contempt cases.
421 U.S. at 319, 95 S.Ct. at 1808 (emphasis supplied). Reading Part III together with the introductory language in Part IV, the majority extracts a new requirement: summary contempt is only available when the contumacious conduct causes a “material obstruction” at a point when “time is of the essence.”
The majority cites Wilson out of context. How could it be said in Part II that Rule 42 is a mere codification of the Terry and Cooke cases if the Court was significantly modifying the Rule? If it meant to require the use of 42(b) when “time is not of the essence”, why say that 42(b) may be more appropriate? If the Court really intended to declare a new rule of procedure, why would it do so in such an offhand fashion?
In essence, the majority opinion limits Wilson to its facts. It reads Wilson to allow a trial judge to hold a witness in contempt summarily when he refuses to testify because the trial court cannot otherwise continue. In all other circumstances, however, it would require the trial judge to implement the notice and hearing provisions of Rule 42(b). This interpretation ignores the Court’s statement of law in Parts II and IV.
C. Case Law
In Maclnnis v. United States, 191 F.2d 157 (9th Cir. 1951), cert. denied; 342 U.S. 953, 72 S.Ct. 628, 96 L.Ed. 708 (1952) this court affirmed a judgment of summary contempt under 18 U.S.C. § 401 and Rule 42(a) for conduct similar to Gustafson’s. A Roman Catholic priest was testifying in a criminal trial and the judge asked him: “Have you been recently subjected to medical treatment, Father?” 191 F.2d at 159. Maclnnis’s co-counsel objected to the question. Attorney Maclnnis also objected, and then addressed these comments to the court:
I think you should cite yourself for misconduct. . . .1 have never heard anything like that. You ought to be ashamed of yourself.
Id.
On the following day the judge declared Maclnnis’s conduct contemptuous, but he withheld the order of contempt until after the trial. Two months later, when the trial was over, he summarily held Maclnnis in contempt under Rule 42(a).
On appeal, this court affirmed the contempt order. We stated:
The act of addressing the court in open session with the statements “You should cite yourself for misconduct” and “You ought to be ashamed of yourself”, unmodified, are, per se, contemptuous.
191 F.2d at 160. The court also held that the trial judge properly proceeded under Rule 42(a) even though the trial had already ended.
In my view, there is no way to reconcile this holding with the present majority opinion that requires a finding of “material obstruction when time is of the essence.” Should the majority assert that the law of contempt was changed by the Supreme Court in Wilson, supra, it must also explain why the Wilson court never explicitly stated it was departing from established precedent, and why the Wilson court affirmatively cited such older contempt cases as Cooke, supra. Maclnnis is still the law of this Circuit, and can only be overruled by the Supreme Court or by this court sitting en banc.
I note that in United States v. Marshall, 451 F.2d 372 (9th Cir., 1971), relied on by the majority, Maclnnis is cited with approval. Id. at 377.
A review of post- Wilson decisions supports the conclusion that the majority’s revision of Rule 42(a) is unfounded. In Gordon v. United States, 592 F.2d 1215 (1st Cir.), cert. denied, 441 U.S. 912, 99 S.Ct. 2011, 60 L.Ed.2d 384 (1979), the court of appeals upheld a summary contempt order against Gordon, who appeared pro se, for *1367his “vituperous dissertation” given in response to a question by the trial court. Id. at 1217. In its review of the propriety of summary proceedings, the court of appeals applied Rule 42(a) according to its plain terms. Id. It rejected Gordon’s contention that Rule 42(a) must not be used unless the contumacious conduct brings the proceedings to a halt. Id. It held the trial judge could exercise his summary contempt power at the end of the trial:
If the trial court, in its discretion, decides to weather the storm of misconduct, such a decision does not negate the power to impose summary punishment at the end of the proceeding. Indeed, to force the court to act immediately or not at all would work against the policy of distinguishing between true misconduct and conduct that merely angers the trial court.
Id. at 1218. Obviously, time is not of the essence after the conclusion of a trial.
The majority cites Gordon but ignores this language and takes other phrases out of context. It relies on Gordon for the proposition that the delay caused by Gordon’s outburst amounted to a “material obstruction” justifying summary proceedings. The majority fails to indicate that it draws the “material obstruction” discussion from the Gordon court’s analysis of whether Gordon’s speech amounted to criminal contempt. Id. at 1217-18. The court’s discussion of the propriety of the summary proceedings makes no mention of “material obstruction.”
In a second decision relied on by the majority, Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers, 552 F.2d 498 (3rd Cir.), cert. denied sub nom., Freedman of Higginbotham, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977), the court concluded the trial court properly invoked summary contempt procedures. The court found counsel’s “flouting [the] trial judge’s commands is the essence of obstructing the administration of justice” and thereby warranted summary proceedings. Id. at 509.
The court stated “to hold otherwise would be to strip trial judges of their power to supervise the proceedings before them, and to clothe counsel with the authority to conduct trials in whatever manner they deem appropriate.” Id. As further evidence of counsel’s “obstructiveness”, the court noted that counsel’s contumacious conduct resulted in a delay of the trial. Id.
While the court noted the delay, it did not intimate, as the majority suggests, that contemptuous conduct must cause a “material obstruction” before summary proceedings are appropriate. The Local Union 542 decision holds merely that flouting a judge’s orders is an obstruction of justice warranting invocation of summary contempt proceedings. See United States v. Mars, 551 F.2d 711 (6th Cir. 1977) (defendant’s refusal to obey the district court’s order constitutes an exceptional circumstance justifying summary conviction for contempt).
A recent Eighth Circuit decision, Schleper v. Ford Motor Co., Auto Division, 585 F.2d 1367 (8th Cir. 1978) counters any suggestion that Wilson restricts Rule 42(a). Citing Wilson, the Schleper court declared:
Summary contempt proceedings are permissible only when the contumacious behavior is committed in the presence of the judge and known to him personally, requiring immediate corrective action to restore the authority and dignity of the court. United States v. Wilson, 421 U.S. 309, 315, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975).
Id. at 1371.
Finally, no other post- Wilson authority forbids the exercise of Rule 42(a) in the face of vituperative and disruptive language. All recognize summary contempt is a powerful sanction to be exercised with discrimination. But no court disallows the use of summary proceedings in the absence of an abuse of discretion.
D. Conclusion
While the courtroom still echoes with contemptuous language, a judge must act immediately or not at all if he is to reassert the court’s authority and dignity. In the instant case, Gustafson’s outrageous accusation of judicial collusion was ringing in the ears of all present in the courtroom. In the *1368court’s judgment, inaction might have been deemed admission of judicial misconduct and collusion.
We need not attempt to imagine the myriad circumstances which might confront a trial judge. Trial judges of long service well know the unpredictable nature of courtroom life. Rule 42(a) is their most effective weapon in combating courtroom misconduct precisely because it is broad enough to encompass all possibilities. By attempting to restrict the Rule, the majority opinion short-sightedly removes this defensive armor from a judge’s arsenal.
In light of the original intent of the draftsmen of Rule 42(a), Wilson, supra, and post- Wilson authority, I cannot subscribe to the majority’s opinion and I respectfully dissent.
. Imputation of judicial bias was always regarded as contemptuous in England. See generally Oswald on Contempt, (1911) at 49-50. In one well-known English case the court declared:
A libel upon a Court is a reflection upon the King, and telling the people that the administration of justice is in weak or corrupt hands, that the fountain of justice itself is tainted, and consequently that judgments which stream out of that fountain must be impure and contaminated.
R. v. Almon, (1765), Wilm. 243, quoted in Oswald, supra, at 50.