United States v. West

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 93-4319
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UNITED STATES OF AMERICA,

Plaintiff,

versus

BRUCE R. WEST, SR.,

Defendant.

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MICHAEL S. FAWER,

Appellant.

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Appeal from the United States District Court
For the Eastern District of Texas
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(May 12, 1994)

Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Michael Fawer appeals his conviction and sentence for criminal

contempt of court in violation of 18 U.S.C. § 401 (1988). Because

Fawer's cited conduct was not contemptuous))i.e., Fawer did not

disobey a specific court order or in any way obstruct or imminently

threaten the administration of justice))we reverse.

Fawer represented Bruce West, Sr., who was prosecuted on

charges of fraud and conspiracy to commit fraud. During trial, the

district court summarily punished Fawer for criminal contempt of

court pursuant to Fed. R. Crim. P 42(a), citing Fawer's continued
argument, disobedience of the court's orders, and disrespectful

behavior. The court initially sentenced Fawer to pay a $200.00

fine, but later changed the sentence to a twelve-hour jail term.

Fawer contends on appeal that the evidence was insufficient to

support his criminal contempt conviction.

The statute under which Fawer was convicted of criminal

contempt allows a district court to "punish by fine or

imprisonment, at its discretion, such contempt of its authority .

. . as [m]isbehavior of any person in its presence or so near

thereto as to obstruct the administration of justice." 18 U.S.C.

§ 401 (1988); see also Eaton v. City of Tulsa, 415 U.S. 697, 698,

94 S. Ct. 1228, 1229, 39 L. Ed. 2d 693 (1974) (holding that the

conduct underlying a criminal contempt conviction "must constitute

an imminent, not merely likely, threat to the administration of

justice"). The disobedience of a specific court order can also

result in a criminal contempt conviction. See 18 U.S.C. § 401(3);

see e.g., In re Boyden, 675 F.2d 643, 644 (5th Cir. 1982). "[F]or

a criminal contempt conviction to stand, the evidence [viewed in

the light most favorable to the government] must show `both a

contemptuous act and a willful, contumacious, or reckless state of

mind.'" United States v. McCargo, 783 F.2d 507, 510 (5th Cir.

1986) (quoting United States v. Hilburn, 625 F.2d 1177, 1180 (5th

Cir. 1980)).

"A criminal contempt may be punished summarily if the judge

certifies that he saw or heard the conduct constituting the

contempt and that it was committed in the actual presence of the

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court. The order of contempt shall recite the facts and shall be

signed by the judge and entered of record." Fed. R. Crim. P.

42(a). "The procedures for summary disposition of contempt charges

are reserved for `exceptional circumstances, . . . such as acts

threatening the judge or disrupting a hearing or obstructing court

proceedings.'" United States v. Onu, 730 F.2d 253, 255 (5th Cir.)

(quoting Harris v. United States, 382 U.S. 162, 164, 86 S. Ct. 352,

354, 15 L. Ed. 2d 240 (1965)), cert. denied, 469 U.S. 856, 105 S.

Ct. 182, 83 L. Ed. 2d 116 (1984). Because Fawer does not contend

that the district court abused its discretion by invoking the

summary procedures of Rule 42(a), as opposed to the notice and

hearing procedures set forth in Fed. R. Crim. P. 42(b), we do not

address whether an abuse of discretion occurred. Instead, our

discussion is limited to deciding whether the evidence was

sufficient to support Fawer's criminal contempt conviction.

In its certificate of contempt, the district court stated that

its "finding of contempt and sentence relate specifically to the

conduct of Mr. Fawer disclosed by Exhibit `A.'" Exhibit A is an

unofficial transcript of that portion of the trial proceedings

immediately preceding the court's summary contempt order.1 The

district court further stated that "Fawer was found in contempt for

his continued argument and for his failure to obey the Orders of

this Court," conduct which "constituted intentional, actual and

material obstruction of the judicial proceedings then in session

and total disrepect [sic] for this Court."

1
See Appendix.

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 After reviewing the conduct cited by the district court as

supporting its criminal contempt order, we cannot find any

instances where Fawer willfully disobeyed a court order. Prior to

sentencing Fawer to a twelve-hour jail term, the district court

instructed Fawer not to exceed the scope of direct examination when

he conducted his cross-examination of witness Jack Franks. The

government concedes that Fawer did not disobey this order since

Fawer's "questions were not outside the scope of direct

examination."

Fawer was also ordered to pay a $200.00 fine by 5 p.m. the

next day. The government argues that Fawer's stated refusal to pay

the court-ordered fine amounted to the willful disobedience of a

specific court order, thus providing sufficient evidence to support

Fawer's conviction for contempt. We disagree. As the record

shows, Fawer stated his intention of not paying the fine))"Your

Honor, I will not [pay the fine]"))which at most could be

characterized as an insolent or defiant remark. Fawer could not

have disobeyed the court's order unless he actually failed to pay

the fine by 5 p.m. the next day.2 Consequently, Fawer's stated

intention of not paying the fine could not itself amount to the

disobedience of the court's order. The government's reliance upon

United States v. Giovanelli, 897 F.2d 1227, (2d Cir.), cert.

denied, 498 U.S. 822, 111 S. Ct. 72, 112 L. Ed. 2d 46 (1990), is

misplaced. In Giovanelli, counsel also stated his intention of not

2
Whether Fawer ever paid the fine is not disclosed by
Exhibit A, the sole basis for the court's finding of contempt. We
therefore need not concern ourselves with this question.

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paying a court-ordered fine))"I won't pay. You can put me in jail,

Judge." Id., 897 F.2d at 1230. In affirming the district court's

finding of contempt, the Second Circuit characterized counsel's

misbehavior as an insolent remark, rather than a failure to obey a

court order. See id. at 1232.

The government also contends that Fawer's exchanges with the

district court concerning (1) the court's order to confine cross-

examination to the scope of direct examination, and (2) the court's

contempt citation, amounted to the intentional disobedience of the

court's prior order not to "argue with me when I rule." We think

it clear that this standing order was not sufficiently definite or

specific to support a contempt citation. See Whitfield v.

Pennington, 832 F.2d 909, 913 (5th Cir. 1987) ("A party may be held

in contempt if he violates a definite and specific court order

requiring him to perform or refrain from performing a particular

act or acts with knowledge of that order."), cert. denied, 487 U.S.

1205, 108 S. Ct. 2846, 101 L. Ed. 2d 883 (1988); see also In re

Holloway, 995 F.2d 1080, 1097 (D.C. Cir. 1993) (Mikva, J.,

dissenting) ("[T]rial attorneys are ethically obligated to argue

with the court, to challenge its actions, and to attempt to change

its mind."), petition for cert. filed, 62 U.S.L.W. 3430 (Dec.

1993).3

3
Moreover, even were we to assume that the court's prior
order was reasonably specific, we would not be able to conclude
from the record that Fawer acted willfully or contumaciously in
disobeying that order.

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 We further cannot find a single instance in Fawer's cited

conduct where Fawer's colloquies with the district court obstructed

or imminently threatened the administration of justice. Although

Fawer challenged the authority of the district court by stating his

intention of not paying the $200.00 fine, Fawer did so outside the

presence of the jury. The government has not shown how Fawer's

conduct, confined to this set of facts, obstructed or imminently

threatened the administration of justice. Compare Giovanelli, 897

F.2d at 1232 (holding that a court may properly hold counsel in

contempt of court for challenging its authority in the jury's

presence, particularly where counsel's misbehavior required the

jury, which had just returned to the courtroom, to retire again).

While Fawer's stated refusal to pay the fine should neither be

condoned nor encouraged, it does not cross the line between a

disrespectful remark and one that should be punished as

contemptuous for obstructing the administration of justice. We

therefore hold that Fawer's cited conduct was insufficient to

support his conviction for criminal contempt of court.4

4
The government also argues that Fawer's cited conduct
amounted to contemptuous behavior when placed in the context of
Fawer's other conduct not described in Exhibit A. When reviewing
a sufficiency claim, our review of the record is limited to the
conduct the trial court specifically relied upon in finding the
defendant guilty of criminal contempt. See Eaton, 415 U.S. 697,
698-99, 94 S. Ct. 1228, 1230, 39 L. Ed. 2d 693 (1974) ("[T]he
question is not upon what evidence the trial judge could find
petitioner guilty but upon what evidence the trial judge did find
petitioner guilty."). While we recognize that uncited closely
related conduct can be used to determine if the cited conduct is
willful or contumacious, we note that the government in this case
is attempting to use uncited conduct in a different fashion))i.e.,
to show that the cited conduct was contemptuous. This the
government cannot do.

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For the foregoing reasons, we REVERSE.

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 APPENDIX

The portion of the trial proceedings reflected by Exhibit A
provides the following:

BY MR. FAWER:

Q. Did I understand correctly there was some
transaction involving property with Mr. Gann?

A. Well, I understood your question to be only which
occurred first of the two transactions, Bermuda Dunes
and/or Skypoint?

Q. No, I'm including the others as well. I'm trying to
-- I want to get a chronology and then ask you about
them.

A. Go ahead.

Mr. FRANK: Your Honor, I would object under 403 at Mr.
Fawer's tone of voice. I think it's demeaning and its
prejudicial.

Mr. FAWER: Your Honor, I would take objection to that.

THE COURT: Well, confine your question to transactions
that were referred to in direct examination.

MR. FAWER: That's not his objection. He said I said
something demeaning.

THE COURT: I'm telling you, I'm telling you to confine
your questioning of this witness --

MR. FAWER: I am, Your Honor. That's precisely what I'm
asking about.

THE COURT: You asked him about transactions,
plural.

MR. FAWER: No, I didn't. I asked about the Gann
transaction, Your Honor.

THE COURT: Come to the bench.

(Side bar discussion was had between the Court and
counsel out to the hearing of the jury as follows:)

THE COURT: I am going to take a 15-minute recess, and
I'll ask the court reporter to see if he can find that
last question asked by Mr. Fawer while we're in recess.

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 Can you do that?

THE COURT REPORTER: Yes.

THE COURT: All right.

(The following occurred in the presence and hearing of
the jury as follows:)

THE COURT: Ladies and gentlemen of the jury, at this
time we are going to take a recess for 15 minutes. I
remind you to keep in mind all of the instructions I have
previously given you, and you may now pass to the jury
room.

(Jury left the courtroom at 4:29 p.m.)

THE COURT: Court will be in recess for 15 minutes.
(Recess from 4:29 p.m. to 4:47 p.m.)

AFTER RECESS

THE COURT: Be seated.

Before we bring the jury in, Mr. Fawer, I understand that
you attempted to engage the court reporter in an
argument.

MR. FAWER: That's inaccurate. I deny it.

THE COURT: Anyway --

MR. FAWER: No, wait, it's not "anyway."

THE COURT: I'm just telling you --

MR. FAWER: You heard that, and it's inaccurate.

THE COURT: Sit down.

MR. FAWER: Your Honor is denying me --

THE COURT: Sit down.

MR. FAWER: -- the right to defend myself.

THE COURT: Would you bring John Moore down here. Is he -- I
want him present.

I am telling you, whether you did or you didn't, do not.
The court reporter is here to do one thing, and he is not
here to take abuse or be engaged in arguments by counsel.

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Now, just before we recessed, I instructed you to confine
your interrogation of the witness to transactions that
were inquired about on direct examination. You said you
were. I said you asked him about transactions, plural.
You argued with me, as you have been prone to do, and
told me that you did not. You disputed what --

MR. FAWER: And I --

THE COURT: -- I said.

MR. FAWER: And I still do.

THE COURT: I am going to -- I have listened to the tape. I
am satisfied with what is on the tape.

I hereby fine you $200, which you will pay by check by
not later than 5:00 tomorrow afternoon to the clerk.

MR. FAWER: Your Honor, I will not.

I listened to the tape. The court reporter listened,
played it, and called me over. I asked on the tape and
it is a part of the record that I asked about the two
other Gann transactions which were the very subject
matter of the direct. I was precisely within the
confines of the direct.

And as I walked away, the court reporter said: Come
back. It's not -- there's more. That was the sum and
substance of it.

I have not violated your order and when I do violate it,
I have no problem being castigated or fined. But I did
not. The record will speak for itself.

THE COURT: All right, then, I hereby sentence you to 12 hours
in jail to be served at the conclusion of this trial.

And you may bring the jury in.

And the next time you argue with me about a ruling I have
made, I will have another one for you.

MR. FAWER: May I be heard?

THE COURT: No, sir.

MR. SIMPSON: I forgot where we are. What's next, Your
Honor?

THE COURT: Well, we're waiting on the jury.

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 MR. SIMPSON: Well, we're still on cross? All right, I'm
sorry.

Your Honor, before the jury comes in, I would -- the
presence of the other marshals in the courtroom, I think,
may cause the jury to speculate that it's because of
either -- because of my client, and I don't want them to
speculate that my client is some sort of a threat or
anything like that. And I don't know what the Court can
do in terms of a cautionary instruction that's going to
make things better, but I would like to ask --

THE COURT: I think a lot of it depends on the conduct of Mr.
Fawer throughout the remainder of this trail, but I am going
to have sufficient personnel in this courtroom to maintain
order and enforce the orders of the Court.

MR. FAWER: I take strenuous objection to their presence, as
well.

Your Honor has not been threatened. Nobody has been
threatened. The last time I looked, I have been the only
one who has been threatened here.

THE COURT: The matter is closed.

MR. FAWER: It may be closed, Your Honor, but I --

THE COURT: It's closed.

MR. FAWER: May I be heard about --

THE COURT: No, sir.

MR. FAWER: -- the subject?

THE COURT: No, sir.

MR. FAWER: May the record --

THE COURT: You are ordered to sit down.

MARSHAL MOORE: Take your seat, sir, now.

THE COURT: And bring the jury in.

(Jury entered the courtroom at 5:00 p.m.)

THE COURT: You may be seated, ladies and gentlemen of the
jury, and Mr. Fawer, you may continue your cross examination.

Record on Appeal vol. 10, at 930-36.

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United States v. Fawer, No. 93-4319

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:

Men at some time are masters of their fates:
The fault, dear Brutus, is not in our stars,
But in ourselves....

William Shakespeare, Julius Caesar, act 1, sc. 2, 1.134 (1599).

We have met the enemy and he is us.

Walt Kelly, Pogo (ca. 1950).

Certainly, courts are masters, in large part, of their fate.

In this instance, however, we appear to be working, without legal

justification, against ourselves. The judicial process at trial

must not be obstructed; the trial judge must ensure that it is not.

Accordingly, much discretion is vested in the judge. The reasons

are obvious; they are illumined by increasing lawyer incivility and

lack of professionalism. Such obstruction cannot be tolerated.

And, when it becomes contemptuous, it must be handled swiftly. To

my lights, that is precisely what happened here.

Not much need be said. The majority notes that "[t]he

disobedience of a specific court order can ... result in a criminal

contempt conviction." Maj. Op. at 2. The district judge stated

that Fawer was found in contempt for, inter alia, "his failure to

obey the Orders of this Court...." Only one instance need be

cited; Fawer's stated refusal to pay a $200 fine by 5:00 p.m. the

next day.

Unfortunately, the majority allows Fawer an out, concluding

that he merely "stated his intention of not paying the fine" and

"could not have disobeyed the court's order unless he actually
failed to pay the fine by 5 p.m. the next day." Maj. Op. at 4. It

is a sad day indeed if this is the way we are going to shackle a

district judge in ensuring that lawyers at trial do not obstruct

the administration of justice. I was not aware that courts were

required to allow lawyers time to think about whether they were

going to obey a court order. Moreover, I understood that lawyers

were always taken at their word; when Fawer stated that he would

not pay the fine, that put an end to it. He "crossed the Rubicon".

That was his choice. And, for that choice, among his other

actions, he was properly held in contempt.

Accordingly, I respectfully dissent.

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