ROBERT P. ANDERSON, Circuit Judge;
The case of Robert F. Williams v. Trans World Airlines was tried in the United States District Court for the Southern District of New York from October 12, 1973 through October 16, 1973,
before Honorable Richard H. Levet,
Judge,
sitting without a jury. The suit was based upon a claim for damages by Williams, who had a valid and confirmed ticket on a particular flight by Trans World Airlines (TWA) from London, England to Detroit, Michigan, but who was refused carriage on the designated flight by TWA, allegedly because of unjust discrimination and racial prejudice in violation of the provisions of 49 U.S.C. § 1374(b). The district court held, however, that under the circumstances concerning Williams and his proposed air flight, TWA was authorized and justified under 49 U.S.C. § 1511
in refusing him passage. Williams appealed and the judgment has been affirmed by this court.
Several times in the course of the trial the district judge threatened to hold Williams in contempt but actually de
ferred doing so until the end of the trial against TWA. During the morning of the last day of the proceedings the court issued an order to Williams to show cause why he should not summarily be held in contempt “by reason of disorderly conduct, failure to obey the instructions of the court, volunteering answers, [and] improperly attempting to question the court.”
After both sides had rested later in the day, the court took up the show cause order. At the time the order issued there was a mixture of argument and testimony by Williams and his counsel, which ran on for a dozen and a half pages of transcript, until the court terminated it. There was no statement by Williams or argument by his counsel at the time the court declared him guilty. Following these introductory comments we turn to a recitation of the events leading to the contempt citation.
Because of an unavoidable delay in traveling from Michigan to New York, Williams was unable to reach New York in time for the commencement of the trial on Friday, October 12th, but counsel stipulated that the witnesses for the defense could testify first and the plaintiff could follow on Monday, October 15, which he did. As a result of this arrangement Judge Levet had heard the evidence about Williams’ allegedly dangerous character, his schizophrenia, his habit of carrying arms, his tendency toward violence, revolution and political protest against racial segregation and unfair treatment of black people, as well as the information that Williams was under indictment for kidnapping in North Carolina and that he had been and still was a fugitive from justice. The judge was well aware of the many instances in which racial protest had been carried into the courtrooms for the purpose of disrupting and making a shambles out of the trials sought to be conducted there. By Monday, October 15th, when Williams testified, Judge Levet was reasonably certain that the court would probably be faced with protests against racial prejudice, disruption and obstruction to the orderly conduct of the trial. He was properly aware of his duty as the presiding judge to maintain order in the court and to keep the proceedings within lawful bounds. It is also apparent that he was determined to excise, at its very inception, the slightest indication of any deviation from his procedural directions, particularly anything on the part of the plaintiff or his counsel, which suggested argumentation or dissertation on matters involving race prejudice or socio-political theories.
The main thrust of the plaintiff’s case was that TWA had acted unreasonably in refusing him passage from London to Detroit in fulfillment of the ticket plain
tiff had purchased, and that TWA had been derelict in its duty in not investigating the FBI’s sources of information against him. In his brief he says,
“In pursuit of that theory, plaintiff intended to show at trial, at no great length, the racially segregated condition of life in Monroe, North Carolina; plaintiff’s leadership there in the black struggle for equality; the threats and attempts that had consequently been made against his life; that for that reason he had frequently carried weapons with him for self-defense; and the extreme bias against plaintiff by the Monroe, N. C. police, who were the source of the information contained in the FBI Wanted Bulletin.”
Judge Levet ruled the offer of evidence of Williams’ personal history, his struggles to overcome segregation, his conflicts with the Ku Klux Klan and the probable sources of the FBI’s information to be irrelevant to plaintiff’s claims against TWA but said he would admit some of it but “just generally” and indicated it would have to be connected with TWA and the making of its decision to refuse passage to Williams. In this context and obviously motivated by his apprehension that the case could easily get out of hand and be turned into a disorderly and disruptive protest demonstration, he endeavored to keep a very tight rein on Williams’ testimony and showed curtness and impatience in limiting Williams’ answers to questions. Although the contempt certificate speaks in conclusory terms of four different types of offenses against the court, there were no findings; an examination of the minutes of the trial, however, reveals that the offenses most frequently charged in the course of the trial, were “volunteering answers” and “failure to obey the instructions of the court,” principally in testimony regarding various aspects of racial discrimination which, in the trial court’s opinion, either went beyond the bounds of the court’s “just generally” ruling — never clearly defined — or were not responsive to the questions asked.
From the advantageous standpoint of hindsight, which is afforded a reviewing court, it becomes abundantly clear that the circumstances which generated the subject matter of the contempt were brought about by two fatal misconceptions. The first, on the part of the trial judge, was the assumed likelihood that the plaintiff would attempt to disrupt the orderly processes of the trial and use the proceedings as a sounding-board for racial protest and the enunciation of his socio-political views. The second was on the part of the plaintiff who, after years of struggling to combat the evils of race prejudice and discrimination, which had followed him like a malignant shadow practically all of his life, appraised the thoughts and motivations of others and the meaning and significance of actions and events, when adverse to him or his interests, as manifestations of racial discrimination. At the trial he became convinced that the trial judge was strongly prejudiced against him as a black man and that the judge’s rulings and instructions stemmed not from the application of recognized principles of law, but from racial prejudice.
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ROBERT P. ANDERSON, Circuit Judge;
The case of Robert F. Williams v. Trans World Airlines was tried in the United States District Court for the Southern District of New York from October 12, 1973 through October 16, 1973,
before Honorable Richard H. Levet,
Judge,
sitting without a jury. The suit was based upon a claim for damages by Williams, who had a valid and confirmed ticket on a particular flight by Trans World Airlines (TWA) from London, England to Detroit, Michigan, but who was refused carriage on the designated flight by TWA, allegedly because of unjust discrimination and racial prejudice in violation of the provisions of 49 U.S.C. § 1374(b). The district court held, however, that under the circumstances concerning Williams and his proposed air flight, TWA was authorized and justified under 49 U.S.C. § 1511
in refusing him passage. Williams appealed and the judgment has been affirmed by this court.
Several times in the course of the trial the district judge threatened to hold Williams in contempt but actually de
ferred doing so until the end of the trial against TWA. During the morning of the last day of the proceedings the court issued an order to Williams to show cause why he should not summarily be held in contempt “by reason of disorderly conduct, failure to obey the instructions of the court, volunteering answers, [and] improperly attempting to question the court.”
After both sides had rested later in the day, the court took up the show cause order. At the time the order issued there was a mixture of argument and testimony by Williams and his counsel, which ran on for a dozen and a half pages of transcript, until the court terminated it. There was no statement by Williams or argument by his counsel at the time the court declared him guilty. Following these introductory comments we turn to a recitation of the events leading to the contempt citation.
Because of an unavoidable delay in traveling from Michigan to New York, Williams was unable to reach New York in time for the commencement of the trial on Friday, October 12th, but counsel stipulated that the witnesses for the defense could testify first and the plaintiff could follow on Monday, October 15, which he did. As a result of this arrangement Judge Levet had heard the evidence about Williams’ allegedly dangerous character, his schizophrenia, his habit of carrying arms, his tendency toward violence, revolution and political protest against racial segregation and unfair treatment of black people, as well as the information that Williams was under indictment for kidnapping in North Carolina and that he had been and still was a fugitive from justice. The judge was well aware of the many instances in which racial protest had been carried into the courtrooms for the purpose of disrupting and making a shambles out of the trials sought to be conducted there. By Monday, October 15th, when Williams testified, Judge Levet was reasonably certain that the court would probably be faced with protests against racial prejudice, disruption and obstruction to the orderly conduct of the trial. He was properly aware of his duty as the presiding judge to maintain order in the court and to keep the proceedings within lawful bounds. It is also apparent that he was determined to excise, at its very inception, the slightest indication of any deviation from his procedural directions, particularly anything on the part of the plaintiff or his counsel, which suggested argumentation or dissertation on matters involving race prejudice or socio-political theories.
The main thrust of the plaintiff’s case was that TWA had acted unreasonably in refusing him passage from London to Detroit in fulfillment of the ticket plain
tiff had purchased, and that TWA had been derelict in its duty in not investigating the FBI’s sources of information against him. In his brief he says,
“In pursuit of that theory, plaintiff intended to show at trial, at no great length, the racially segregated condition of life in Monroe, North Carolina; plaintiff’s leadership there in the black struggle for equality; the threats and attempts that had consequently been made against his life; that for that reason he had frequently carried weapons with him for self-defense; and the extreme bias against plaintiff by the Monroe, N. C. police, who were the source of the information contained in the FBI Wanted Bulletin.”
Judge Levet ruled the offer of evidence of Williams’ personal history, his struggles to overcome segregation, his conflicts with the Ku Klux Klan and the probable sources of the FBI’s information to be irrelevant to plaintiff’s claims against TWA but said he would admit some of it but “just generally” and indicated it would have to be connected with TWA and the making of its decision to refuse passage to Williams. In this context and obviously motivated by his apprehension that the case could easily get out of hand and be turned into a disorderly and disruptive protest demonstration, he endeavored to keep a very tight rein on Williams’ testimony and showed curtness and impatience in limiting Williams’ answers to questions. Although the contempt certificate speaks in conclusory terms of four different types of offenses against the court, there were no findings; an examination of the minutes of the trial, however, reveals that the offenses most frequently charged in the course of the trial, were “volunteering answers” and “failure to obey the instructions of the court,” principally in testimony regarding various aspects of racial discrimination which, in the trial court’s opinion, either went beyond the bounds of the court’s “just generally” ruling — never clearly defined — or were not responsive to the questions asked.
From the advantageous standpoint of hindsight, which is afforded a reviewing court, it becomes abundantly clear that the circumstances which generated the subject matter of the contempt were brought about by two fatal misconceptions. The first, on the part of the trial judge, was the assumed likelihood that the plaintiff would attempt to disrupt the orderly processes of the trial and use the proceedings as a sounding-board for racial protest and the enunciation of his socio-political views. The second was on the part of the plaintiff who, after years of struggling to combat the evils of race prejudice and discrimination, which had followed him like a malignant shadow practically all of his life, appraised the thoughts and motivations of others and the meaning and significance of actions and events, when adverse to him or his interests, as manifestations of racial discrimination. At the trial he became convinced that the trial judge was strongly prejudiced against him as a black man and that the judge’s rulings and instructions stemmed not from the application of recognized principles of law, but from racial prejudice. This conclusion was reinforced in his mind when the court became increasingly strict in limiting the plaintiff’s testimony as well as being severely critical of his responses to his attorney’s questions on direct examination.
Whatever else may be said of Judge Levet’s conduct of the trial, there is no evidence whatever to support the notion that his actions at any time were tainted
or slanted by considerations of color or race.
Moreover, it is reasonably clear from the record before us that Williams, when he took the witness stand, had no intention or purpose to disrupt or delay the proceedings. This was further evidenced by his stipulation that the trial start two or three days before he could be present. As he now argues, he came into court as a plaintiff in a civil action, seeking the recovery of damages, and not as a defendant in a criminal case who was brought in against his will. There was nothing about his speech or conduct during the very inception of his testimony which would tend to confirm the court’s fears. Early in the plaintiff’s testimony, however, the court quite properly questioned the relevancy of plaintiff’s counsel’s question asking for a description of the conditions of racial segregation in Monroe, North Carolina in Williams’ childhood. A short colloquy between court and counsel ensued and the court decided to admit the question but limited the scope of the answer by saying, “Just generally, sir.” Although repeatedly thereafter the court declared to be irrelevant testimony regarding racial segregation and discrimination and the claimed false and prejudicial information given to the F.B.I. upon which its bulletin and reports were allegedly based, it continued to permit plaintiff’s counsel to ask Williams to testify about similar matters in connection with the background for the kidnapping charge against Williams in North Carolina. The trial judge many times cautioned the plaintiff against volunteering and failing to confine his answers to the precise bounds of the questions. Unfortunately, however, the court was not entirely consistent in this regard and the record shows that at times Williams was tacitly encouraged to say more than a strict interpretation of the question called for. When the judge questioned the relevancy of plaintiff’s counsel’s “theory of the case,” that the FBI bulletin and reports were based upon information given the FBI by the Monroe, N. C. police, who fabricated it out of racial hostility and prejudice against the plaintiff, counsel did not try to support his position by legal argument to the court but instead made emotionally toned attacks on the judge and his rulings which reinforced Williams’ conviction that the judge was prejudiced against blacks and against him in particular.
On redirect examination of Williams the court took over some of the questioning, which concerned the origins of the kidnapping allegation; in the course of it the court charged Williams with volunteering testimony.
The plaintiff then accused the judge of an act of white supremacy and declared that the court was a white supremacy court.
The court issued an order to
Williams, “to show cause now during the trial of this case, . . . why he should not be held in contempt . . .” The court then asked plaintiff’s counsel if he had anything to say, and counsel charged the judge with being responsible for and provoking the statements and behavior on the part of the plaintiff which the court regarded as contempt. He also accused the judge of “baiting” him and his client and of being impatient, hostile and rude. There followed argumentative colloquies between the judge and plaintiff’s counsel and with the plaintiff himself. Although the court had stated that it intended to go forward immediately with the contempt citation, it did not do so. After the arguments between the court and the plaintiff and counsel, the redirect examination of the plaintiff resumed and was followed, by recross-examination. Both parties then rested and counsel made their arguments in Williams v. Trans World Airlines. At thé conclusion of the trial the contempt charge was taken up. Although the court referred to the proceeding as a civil contempt, it was a criminal contempt arising out of a civil action.
See
In Re Union Nacional de Trabajadores, 502 F.2d 113, 120 (1 Cir. 1974). The civil action itself was tried to the court alone, without a jury, and the rulings on evidence did not follow objections by counsel for TWA. In fact, in the course of the trial TWA’s counsel offered few, if any, objections or motions to strike. The court itself raised practically all of the questions on admissibility in an effort strictly to confine Williams’ testimony to what it considered relevant. Its manner of doing so appears to have been peremptory and brusque, which convinced Williams that the court was intent upon preventing him from proving his case because he, Williams, was black. While we are satisfied that the court was at no time motivated by any such consideration, the lack of clarity between what testimony was relevant and what was irrelevant, the lack of definite and unambiguous instructions to Williams, as a lay witness, as to what constituted a full and responsive answer to a question which did not, at the same time, become so extended that it crossed the boundary into the forbidden realm of testimony volunteered, i. e. that it went beyond the reasonable scope of the question, raises serious doubts as to the propriety of the citation for contempt. There are also issues concerning the lack of certification and of findings of fact, and whether in his colloquies with the plaintiff and with plaintiff’s counsel the trial judge personally embroiled himself in a running controversy with the plaintiff and plaintiff’s counsel.
The charge itself consisted of four conclusory allegations: disorderly conduct, failure to obey the instructions of the court, volunteering answers, and improperly attempting to question the court. For the purposes of review the lack of certification and the absence of factual findings which would state explicitly on what conduct each of these charges is based, are serious omissions. Rule 42(a), F.R.Crim.P., dealing with summary disposition in criminal contempt requires that the order of contempt “shall recite the facts . . . .” The trial court prefaced its order by saying, “. . .it appearing from said hearing and from the record of the trial ,” but this court, speaking through Judge Smith, had already ruled upon the inadequacy of such a procedure in reviewing a contempt order by the same trial judge,
“If in basing the contempt conviction ‘upon * * * the record of this court’ Judge Levet intended to rely upon all the other contumacious incidents set forth in the government’s appendix, we would doubt whether the certificate was sufficiently informative. While a certificate in support of a summary contempt conviction need not and probably should not set out all the relevant incidents verbatim from the record, it should summarize them, with appropriate references to the record, in such a way as to make clear their nature and contumacious tendency.” United States v. Galante, 298 F.2d 72 at 75, n. 1 (2 Cir. 1962).
Pietsch v. President of United States, 434 F.2d 861, 864 (2 Cir. 1970), cert. den. 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971).
See also
United States v. Schrimsher, 493 F.2d 842, 845 (5 Cir. 1974), which quotes, with approval, from United States v. Marshall, 451 F.2d 372, 375 (9 Cir. 1971), as follows:
“ ‘Informed appellate review’ is possible only if the facts are stated in sufficient detail for the appellate court to determine whether the conduct upon which the conviction rests was contemptuous, factually and legally; whether it was of such character, and occurred in such circumstances, as to permit summary conviction under Rule 42(a), and because Rule 42 sentences are subject to appellate review and revision, whether the conduct relied upon justified the sentence imposed.” (Footnotes omitted.)
With regard to the trial judge’s personal embroilment in disputes over evidentiary issues which involved increasing personal overtones between the trial judge and plaintiff’s counsel and between the judge and the plaintiff, a thorough study of the entire record discloses that these personal attacks and counter-attacks started early in the trial and culminated in the citation for contempt. It is true that the provocations ran both ways, but “. . . instead of representing the impersonal authority of law, the trial judge permitted himself to become personally embroiled with the petitioner” and his counsel. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). This raises the question of whether the contempt issue should have been heard by another, judge who was not presiding at the time of the charged misconduct. But for reasons hereinafter stated we do not need to pass upon this claim in the present case.
The minutes of the trial make clear that the most frequent and most serious transgression in the view of the trial judge, on the basis of which he found the plaintiff in contempt, was plaintiff’s proclivity to volunteer testimony which, once repeated, also constituted a failure to obey the instructions of the court. Although the trial judge was satisfied that Williams knew what “volunteering” meant and Williams’ counsel had, at the direction of the court, privately informed Williams what was meant by it, the record does not disclose what those instructions were. Williams appears to have been intelligent and articulate and was making a good faith effort to answer the questions propounded to him in a responsive and responsible manner.
As a layman he did not understand the rules of evidence and could not fully comprehend what constituted a complete and responsive, but narrowly precise answer to a specific question, particularly in view of the judge’s rulings which called for the most terse and literal response conceivable to a specific question.
The matter was further confused by the court, in several instances, by permitting what it had been referring to as volunteering and therefore prohibited, to be received in evidence.
Moreover, instead of ruling out as entirely irrelevant the early history of Williams’ life, his experiences with racial segregation and like matters, the court ruled it could be testified to, but “just generally.” A lay witness should not be held in contempt where there is ambiguity in the court’s directions. Granny Goose Foods Inc. v. Teamsters, 415 U.S. 423, 444, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), citing International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). The court’s rulings on relevancy and on volunteering testimony were likely to confuse a layman, and Williams received no apparent help from counsel. “. . . [W]here there is ambiguity in the court’s direction, it precludes the essential finding in a criminal contempt proceeding of willful and contumacious resistance to the court’s authority.” United States v. Joyce, 498 F.2d 592, 596 (7 Cir. 1974).
It is true that the record discloses several instances where it may be said that the plaintiff was discourteous and accusatory in his addresses to the court, particularly when he said that the judge was prejudiced and a racist, exercising white supremacy, and that the court was a white supremacy court. But the appellee expressly disclaims that the contempt order was based on these statements. In other circumstances such conduct might be held to be contumacious. Nothing in the record suggests that these remarks were accompanied by rude and hostile gestures, nor was Williams loud or boisterous or brazenly hostile. To Warrant a conviction in criminal contempt, the contemnor’s conduct must constitute misbehavior which rises to the level of an obstruction of and an imminent threat to the administration of justice, and it must be accompanied by the, intention on the part of the contemnor to obstruct, disrupt or interfere with the administration of justice. Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972); United States v. Seale, 461 F.2d 345, 367 — 368 (7 Cir. 1972). A thorough review of the entire record in this case fails to disclose evidence sufficient to prove beyond a reasonable doubt that the plaintiff possessed such an intent in this case.
The judgment holding Williams in contempt is reversed.