United States v. Mourad

United States Court of Appeals
For the First Circuit

No. 00-2456

UNITED STATES OF AMERICA,

Appellee,

v.

ALPHONSE MOURAD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Joseph S. Berman, with whom Berman & Dowell was on brief, for
appellant.
Denise Jefferson Casper, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
May 14, 2002

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 Per Curiam. Defendant-appellant Alphonse Mourad was convicted

of criminal contempt for violating a court order. He appeals this

conviction, claiming that the order was void and that his violation of

it was not willful. Because we find that the order was not

"transparently invalid," was in effect on the date of its

transgression, and was willfully violated, we affirm the appellant's

conviction.

I.

Alphonse Mourad was the president, sole shareholder, and

director of V&M Management, Inc. ("V&M"), which owned a low-income

apartment complex in Roxbury, Massachusetts. On January 8, 1996,

Mourad filed for Chapter 11 bankruptcy on behalf of V&M. During the

ensuing litigation in the bankruptcy court, the appellant, as a result

of his dissatisfaction with certain legal rulings, filed a number of

motions requesting Chief Judge Kenner, the presiding judge, to recuse

herself. Then, on November 5, 1998, Mourad filed an "Emergency Motion

to Be Imprisoned, and To Go On A Hunger Strike Protest Until Judge

Kenner Rules on Mourad's Six Motions That Have Been Pending Since

January of 1998." On November 13, 1998, the appellant followed this

with an "Emergency Motion Vowing Not to Leave Chief Justice Kenner's

Courtroom and Be Arrested and Go On A Hunger Strike, Unless She

(Kenner) Recognizes His (Mourad's) Claims and Sets Date to Hear His

Motions." The bankruptcy court noted that on both November 5 and 13,

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1998, the appellant "appeared at the premises of this Court in attempts

to disrupt Court business by vowing not to leave the premises of the

Bankruptcy Court and courtrooms," which are located on the eleventh

floor of the O'Neill building in Boston, Massachusetts.

In response to these disruptive actions, on November 16,

1998, Chief Judge Kenner issued an order barring Mourad "from entering

the Eleventh Floor of the O'Neill Building . . . until further order of

this Court," except for a hearing scheduled for November 30, 1998 in

V&M's bankruptcy case. A copy of the order was both personally served

on and mailed to the appellant on November 16, 1998.

After entry of the order, Mourad repeatedly expressed his

intention to violate it. Sometime after November 16, 1998, the

appellant telephoned Deputy U.S. Marshal Stephen Donaher, telling

Donaher that he wanted to be arrested to attract media attention for

his case. Then, at the November 30, 1998 hearing before the bankruptcy

court, Mourad told the court, "I want to go to prison and stay there

and go on a hunger strike today," and "I'm asking you [the court]

politely to ask the U.S. Marshal to take me away." On December 8,

1998, the appellant telephoned the pro se clerk of the district court,

informing her that he wanted to be taken into custody by the U.S.

Marshals. Also in December, 1998, Mourad appeared at the security

checkpoint on the eleventh floor of the O'Neill building, where he told

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the security officers that he wanted to be arrested. One of the

security officers persuaded Mourad to leave.

On May 12, 1999, Mourad, carrying a copy of Judge Kenner's

order, appeared at the eleventh floor security checkpoint of the

O'Neill building. He informed the security officers that he was there

to violate the order and be arrested. Deputy U.S. Marshal Donaher led

Mourad to a conference room where he attempted to convince Mourad to

leave. After the appellant repeatedly refused, the Deputy Marshal

arrested him.

At trial in the district court, Mourad testified that he was

confused about whether the order was still in effect when he entered

the eleventh floor of the O'Neill building on May 12, 1999. The

appellant further testified that he entered the eleventh floor on that

day to determine whether another lawsuit that he had filed had been

docketed in the bankruptcy court; he denied any intent to get arrested.

The trial judge, determining that the order was not "patently

unconstitutional," precluded the appellant from challenging the

validity of the order itself under the collateral bar rule. Moreover,

the district court, finding that the order was still in effect on May

12, 1999, and that the defendant intentionally violated the order,

convicted the appellant of criminal contempt under 18 U.S.C. § 401(3).

II.

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 On appeal, Mourad raises three challenges to his conviction.

First, he argues that the district court erred in applying the

collateral bar rule to prevent him from challenging the validity and

constitutionality of the order. Second, he contends that, contrary to

the district court's finding, the order was no longer in effect at the

time of its alleged violation. Third, the appellant asserts that there

was insufficient evidence to support the district court's finding that

he acted willfully in disobeying the court's order.

This Court reviews a district court's criminal contempt

finding for abuse of discretion. See United States v. Winter, 70 F.3d

655, 659 (1st Cir. 1995). Within this context, factual findings will

be upheld unless there is clear error, but legal questions will be

reviewed de novo. See id. Keeping these standards in mind, we turn to

the appellant's allegations of error.

A.

The appellant's first claim of error is that the district

court erroneously applied the collateral bar rule to his case. The

collateral bar rule provides that "a party may not violate an order and

raise the issue of its unconstitutionality collaterally as a defense in

the criminal contempt proceeding." In re Providence Journal Co., 820

F.2d 1342, 1346 (1st Cir. 1986) ("Providence I "), modified on reh'g en

banc, 820 F.2d 1354 (1987) ("Providence II"). "Rather, the appropriate

method to challenge a court order is to petition to have the order

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vacated or amended." Id. The rationale for this rule is "both to

protect the authority of the courts when they address close questions

and to create a strong incentive for parties to follow the orderly

process of law." Id. at 1347. In short, "no man can be judge in his

own case." Walker v. City of Birmingham, 388 U.S. 307, 320 (1967)

(holding that petitioners, who deliberately violated injunction without

first attempting to dissolve injunction, were properly convicted of

criminal contempt). Although Mourad acknowledges the general

application of the collateral bar rule, he contends that an exception

for "transparently invalid" orders prevents its application in this

case.

Under this exception, if an order is "transparently invalid,"

a party may challenge the order's validity or constitutionality as a

defense in a criminal contempt proceeding. See Providence I , 820 F.2d

at 1347-48. When an order is clearly invalid, the rationale for the

collateral bar rule dissolves because "in that instance the court is

acting so far in excess of its authority that it has no right to expect

compliance and no interest is protected by requiring compliance." Id.

at 1347. The appellant argues that the order here is transparently

invalid, so that the district court should have allowed him to attack

the order's validity.1

1 The appellant also asserts that he has met the prerequisite for
applying this exception by making a good faith attempt to seek
emergency appellate relief from the order. See Providence II, 820 F.2d

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 Mourad points to two factors to support his position that the

order was transparently invalid: the order's unlimited duration and the

lack of procedural due process. He notes that, although a court has

the power to enjoin "a party from filing and processing frivolous and

vexations lawsuits," any such injunction must be narrowly tailored so

as not to offend the individual's right of access to the courts.

United States v. Castro, 775 F.2d 399, 408, 410 (1st Cir. 1984) (per

curiam). An injunction in effect "until further order of this Court,"

Mourad argues, is not narrowly tailored. Moreover, the appellant

asserts that the order was clearly invalid because it was issued

without notice or a hearing, in disregard of procedural due process

requirements.

Under our precedent, an order should be considered

transparently invalid only if "the court reviewing the order finds the

order to have had [no] pretence to validity at the time it was issued."

Providence I , 820 F.2d at 1347. In this case, we cannot say that the

order is transparently invalid under either of the appellant's

proffered theories.

The Bankruptcy Code grants the bankruptcy court broad

authority to:

at 1355. The appellee disputes that the appellant has made any such
good faith attempt. We need not decide this issue since we find the
exception inapplicable.

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 issue any order, process, or judgment that is
necessary or appropriate to carry out the
provisions of this title. No provision of this
title . . . shall be construed to preclude the
court from, sua sponte, taking any action or
making any determination necessary or appropriate
to enforce or implement court orders or rules, or
to prevent an abuse of process.

11 U.S.C. § 105(a) (emphasis added). The purpose of the bankruptcy

court's order excluding the appellant from the eleventh floor of the

O'Neill building was to prevent the disruption of judicial proceedings

that was threatened by Mourad's behavior. Given that more drastic

orders have been upheld under the bankruptcy court's § 105 powers to

protect the orderly administration of justice, Chief Judge Kenner's

order seems to fall well within the bankruptcy court's general

authority, particularly since the appellant was still able to make

filings and inquiries with the court by mail or telephone. See, e.g.,

In re Casse, 198 F.3d 327, 339, 341 (2d Cir. 1999) (upholding power of

bankruptcy court under § 105 to prohibit "serial filer" from future

filings for extended time periods to safeguard against abuse of the

bankruptcy process); In re Volpert, 110 F.3d 494, 500 (7th Cir. 1997)

(affirming bankruptcy court's power to sanction party under § 105 for

"unreasonably and vexatiously" increasing the court's workload).

Moreover, "[t]he ability to prevent the type of behavior exhibited in

this case is necessary if the bankruptcy courts are to carry out

efficiently and effectively the duties assigned to them by Congress"

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and "to maintain control of their courtrooms and of their dockets." In

re Volpert, 110 F.3d at 500, 501.

Although the appellant does not specifically dispute the

bankruptcy court's general authority under § 105, he claims that the

order is transparently invalid because its denial of access to the

court "apparently was effective in perpetuity." Section 105, however,

does not limit the bankruptcy court's authority to issue orders with a

set expiration date. See 11 U.S.C. § 105(a). As long as the order is

narrowly tailored to curb the litigant's abuse of process, as this

order arguably was, it cannot be transparently invalid. See Castro,

775 F.2d at 408-10.

Mourad also bases his claim of transparent invalidity on the

lack of due process because no notice or hearing was provided prior to

the order's issuance. Although a denial of meaningful access to the

courts may constitute a deprivation of a life, liberty, or property

interest, thereby triggering due process protections, see Rogan v. City

of Boston, 267 F.3d 24, 28 (1st Cir. 2001), that is not the situation

presented here. The appellant was only barred from physically entering

the eleventh floor of the O'Neill building. Although this did prevent

his physical access to the clerk's office, Mourad was still able to

file documents with the court either via mail or by hand delivery to

the security guards at the entrance to the eleventh floor. The order

limited only his ability to be physically present in the bankruptcy

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court; it did not deny him meaningful access to the court. Therefore,

due process protections, such as notice and a hearing, were never

triggered.

Neither rationale advanced by the appellant convinces us that

the bankruptcy court's order had no "pretence to validity." Providence

I, 820 F.2d at 1347. As a result, the district court correctly applied

the collateral bar rule to prevent Mourad from attacking the order's

validity.

B.

Mourad's second challenge to his contempt conviction is that

the order had expired by the time he allegedly violated it. As this

presents primarily a legal question, we review the appellant's claim de

novo. See Winter, 70 F.3d at 659.

The appellant argues that, on December 23, 1998, Chief Judge

Kenner effectively "closed" the bankruptcy case, except for two matters

specifically excluded, by granting the Amended Motion for Entry of

Final Decree Closing Bankruptcy Case. Thus, after this date, Mourad

contends that, with the exception of those two matters, the bankruptcy

court was relieved of jurisdiction over the case. As a result, the

appellant asserts that the order, which did not relate to the excepted

matters, was no longer in effect when he entered the eleventh floor of

the O'Neill building on May 12, 1999. We disagree.

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 First, the December 23, 1998 order did not close the case,

as the appellant states. Rather, the order stated that the case would

remain open as to those matters pending on appeal and as to those

matters which could still be appealed. As late as November 10, 1999,

almost six months after Mourad's violation of the order, the bankruptcy

court noted that there were still pending matters in the case which

prevented it from entering a final decree. Therefore, even in November

of 1999 the case was not yet closed.

Second, even if we were to credit Mourad's argument that the

bankruptcy case was closed, the court still would not have lost

jurisdiction to enforce its order. See Koehler v. Grant, 213 B.R. 567,

569-70 (B.A.P. 8th Cir. 1997) (stating that "it is well-established

that courts retain jurisdiction to enforce their own orders," even

after the bankruptcy court has closed the case); accord In re Lemco

Gypsum, Inc., 910 F.2d 784, 788 (11th Cir. 1990).

Thus, because the case was not closed and the bankruptcy

court had continuing jurisdiction to enforce its orders, the district

court properly found that Chief Judge Kenner's order was still in

effect at the time of the appellant's entry onto the eleventh floor.

C.

The appellant alternatively claims that, even if the order

was legal and in effect, there was insufficient evidence of a willful

violation of the order to support his conviction. To convict a

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defendant of criminal contempt under 18 U.S.C. § 401(3), the government

must prove beyond a reasonable doubt that the defendant willfully

violated a lawful order of reasonable specificity. See United States

v. Michaud, 928 F.2d 13, 15 (1st Cir. 1991) (per curiam). Mourad

essentially argues that the district court erred in finding the

willfulness element satisfied because there was no evidence of Mourad's

intent on May 12, 1999 to violate the order, particularly since he

claims he was unaware on that day of whether the order was still in

effect. We review the district court's factual findings for clear

error. See Winter, 70 F.3d at 659.

The requirement of willfulness contemplates knowledge that

one is violating a court order. See United States v. Marquardo, 149

F.3d 36, 43 n.4 (1st Cir. 1998); United States v. Themy-Kotronakis, 140

F.3d 858, 864 (10th Cir. 1998) (defining willfulness as a "volitional

act" committed with knowledge or awareness that it is wrongful). In

this case, there was ample evidence to support the district court's

finding of willfulness.

Mourad made numerous statements about his intention to be

arrested for violation of the order. At the conclusion of the

bankruptcy court hearing on November 30, 1998, the appellant stated, "I

want to go to prison and stay there and go on a hunger strike today."

He then indicated his wish to be arrested: "I'm asking you politely to

ask the U.S. Marshal to take me away." Deputy U.S. Marshal Donaher

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provided the court with an affidavit, stating that when the appellant

arrived on the eleventh floor of the O'Neill building on May 12, 1999,

he "inform[ed] them that he knew he was not supposed to be present in

the Bankruptcy Court," and then told Donaher, while showing him a copy

of Chief Judge Kenner's order, that "he was there to be arrested." In

addition, at the hearing before the district court after his arrest,

the appellant stated, "My whole purpose today is to protest Judge

Kenner's action," and that he wanted to stay in jail on a hunger strike

to attract national attention. Based on the district court's decision

to credit this and other evidence, we find no clear error in its

finding that the appellant intentionally and willfully violated Chief

Judge Kenner's order.

III.

For the reasons stated above, we affirm the appellant's

criminal contempt conviction for violation of the bankruptcy court's

order.

Affirmed.

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