In Re James R. Holloway

995 F.2d 1080, 302 U.S. App. D.C. 12, 1993 U.S. App. LEXIS 13584, 1993 WL 195317
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 11, 1993
Docket92-3085
StatusPublished
Cited by48 cases

This text of 995 F.2d 1080 (In Re James R. Holloway) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re James R. Holloway, 995 F.2d 1080, 302 U.S. App. D.C. 12, 1993 U.S. App. LEXIS 13584, 1993 WL 195317 (D.C. Cir. 1993).

Opinions

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by Chief Judge MIKVA.

STEPHEN F. WILLIAMS, Circuit Judge:

On October 8, 1991, in the course of a six-defendant drug trial (United States v. Rascoe), District Judge Norma Holloway Johnson entered an oral order holding one of the defense counsel, James R. Holloway, in criminal contempt. Judge Johnson later that day issued a written order and certificate of contempt pursuant to Fed.R.Crim.P. 42(a). On March 10, 1992, Judge Johnson imposed sentence in the form of a $1,000 fine. Because we find that there was an adequate basis to support the contempt conviction and no procedural error, we affirm.

Sufficiency of the Evidence

Judge Johnson convicted appellant under 18 U.S.C. § 401, which provides that:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

Neither the contempt order, the contempt certificate, nor the record indicates which of the three subsections Judge Johnson invoked. Subsection (2) is clearly inapplicable: an attorney is not an “officer” of the court within the meaning of 18 U.S.C. [1082]*1082§ 401(2). See Cammer v. United States, 350 U.S. 399, 404-05, 76 S.Ct. 456, 458-59, 100 L.Ed. 474 (1956); In re Brown, 454 F.2d 999, 1003 (D.C.Cir.1971). Because we find the conviction valid under subsection (3), we need not address subsection (1).1

The elements of contempt under § 401(3) are straightforward. First, the alleged contemnor must “[d]isobe[y] or resist[ ] ... [the] lawful writ, process, order, rule, decree, or command” of the court. 18 U.S.C. § 401(3). Of course, the relevant order or command must be sufficiently “clear and unequivocal at the time it is issued.” Traub v. United States, 232 F.2d 43, 47 (D.C.Cir.1955). Whether an order is clear enough depends on the context in which it is issued and the audience to which it is addressed. See, e.g., United States v. Robinson, 922 F.2d 1531, 1534 (11th Cir.1991); accord United States v. Turner, 812 F.2d 1552, 1567 (11th Cir.1987) (“[e]ven an egregiously vague order may be thought adequate to cover conduct so gross as to fall within its core.”).

Second, although § 401(3) does not explicitly mention mens rea, wrongful intent is necessary. The disregard of authority must be willful; willfulness ‘“may be inferred if a lawyer’s conduct discloses a reckless disregard for his professional duty.’” In re Farquhar, 492 F.2d 561, 564 (D.C.Cir. 1973) (quoting Sykes v. United States, 444 F.2d 928, 930 (D.C.Cir.1971)); see also United States v. Greyhound Corp., 508 F.2d 529, 531-32 (7th Cir.1974) (stating that criminal contempt requires “a volitional act done by one who knows or should reasonably be aware that his conduct is wrongful”) (emphasis added) (internal quotations omitted). While the reviewing court may not affirm if the cited conduct has not been contumacious, see United States v. Lumumba, 794 F.2d 806, 811 (2d Cir.1986), the analysis of intent properly encompasses the contemnor’s behavior in related incidents such as disobedience or resistance to other orders of the court. See id.; see also Farquhar, 492 F.2d at 564 (contrasting aberrational with recurrent lapses when analyzing intent).

In deciding whether the evidence is sufficient to support a contempt conviction, we use the familiar standard for any criminal conviction, asking whether “a fair-minded and reasonable trier of fact [could] accept the evidence as probative of a defendant’s guilt beyond a reasonable doubt”. In re Joyce, 506 F.2d 373, 376 (5th Cir.1975); accord In re Brown, 454 F.2d 999, 1008 (D.C.Cir.1971).

The key colloquy — set forth verbatim in Judge Johnson’s certificate of contempt and in Appendix A to this opinion — occurred during Holloway’s direct examination of Officer Darrell Young, conducted by Holloway on behalf of his client, Kelvin Rascoe. Before that passage, Young testified that he prepared an arrest form for Rascoe — known as a “PD 163” — that contained a narrative statement of facts relating to the arrest and alleged offense. Young also confirmed the earlier testimony of Officer Edward Trues-dale, who said that Young, in preparing the statement of facts for his PD 163, had relied on information provided by Truesdale and a third officer. In addition, Young confirmed Truesdale’s testimony that Young had not personally observed any of the events reported in Young’s PD 163. See Tr. 10/8 at 70-71, 74, 76-77; see also Tr. 9/30 at 48-49.

After eliciting that evidence, Holloway proceeded to ask Young a series of questions regarding what information did and did not appear in the fact statement of his PD 163. See Tr. 10/8 at 72-73. Following an objection, the court ruled the line of inquiry impermissible because Young had no personal knowledge about any of the information in the statement. See id. at 73. This ruling led to a question from Holloway, to which Young replied unequivocally, “I don’t have any personal knowledge of the crime being committed” — namely, the “transaction ... in[1083]*1083dicated in that first paragraph [of the PD 163].” Id. at 77 (latter quotation taken from appellant’s question).

Now we come to the incident that is at issue and is quoted in full in Appendix A. First, Holloway asked the court for permission to mark for identification a document in the court’s own case files — a “Gerstein statement”, i e., an affidavit filed to provide a proper basis for the judicial finding of probable cause that Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), requires to justify restraint after an arrest. That document contained a narrative statement to which yet another officer, Robert Condit, had sworn after Young completed his PD 163. Holloway stated that he wanted to show Young the Gerstein affidavit to enable Young to compare it to his PD 163 and to offer an opinion on whether Condit photocopied the statement of facts from Young’s PD 163 onto the Gerstein affidavit. The Court ruled that such an opinion would be “totally irrelevant”. Tr. 10/8 at 78.

Hplloway responded that he wanted to have Young make the comparison in preparation for a planned examination of Condit about where he obtained the information for his Gerstein statement.

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Cite This Page — Counsel Stack

Bluebook (online)
995 F.2d 1080, 302 U.S. App. D.C. 12, 1993 U.S. App. LEXIS 13584, 1993 WL 195317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-james-r-holloway-cadc-1993.