In the Matter of Wm. Bryan Osborne, Contemnor
This text of 344 F.2d 611 (In the Matter of Wm. Bryan Osborne, Contemnor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This proceeding grew out of the trial of one Memphry M. Carter, Jr., No. 33404-CD in the Southern District of California on charges of forging government checks. The visiting judge presiding was the Honorable John F. Kilkenny, sitting by regular assignment from the District of Oregon. Appellant represented Carter as counsel. His client was acquitted on one count, and convicted on two. The trial lasted one and one-half days.
After sentence, the court conducted a summary contempt proceeding, under Rule 42(a) (18 U.S.C.). Appellant was found guilty, was fined $200.00 and sentenced to ten days confinement. The judgment of contempt appears in the margin. 1
*615 Jurisdiction of this appeal rests on §§ 1291 and 1294 of Title 28, U.S.C.
The judgment of contempt clearly discloses facts showing the appellant herein acted in a contemptuous manner toward the court in its presence, and the presence of the jury, i. e., “in open court.” The appellant’s language is quoted in the judgment, and no attack is here made on the authenticity of the quotations. 2
When the court attempted to require the trial to continue in taking of evidence after twelve noon, appellant objected. Shortly after the beginning of the cross-examination of a witness the appellant requested that the noon recess be taken, in order that the appellant could organize his own documents. When the court directed the appellant to continue his cross-examination, counsel refused and continued to refuse, despite repeated directions by the court to proceed with the examination of the witness. The appellant later added another reason for the need of a recess, namely that the jury was hungry. Finally, a third reason, the need to interview a defense witness was added. In the course of the repeated refusals to follow the directions from the bench the appellant accused the court of being antagonistic and treating the appellant in the same way as the noted Mr. Belli was treated in a certain Dallas, Texas trial.
Appellant first urges that there was no contemptuous act. He urges that because this was a criminal trial, his convenience at the trial, and not the court’s, should be considered paramount by us. Nowhere does he point out wherein his client’s rights were not respected by the court. On January 13,1964, the case had been set down for trial on March 31, 1964. Appellant knew of the trial date setting. At the trial on March 31, 1964, he stated he needed time “to examine documents.” They were not named nor described. No showing of “surprise” occasioned by reason of the witness’s testimony was shown, nor attempted to be shown, nor even suggested. Appellant said much more than that he desired “to examine documents,” as is shown above. Appellant changed his ground for his unwillingness to proceed. He was contemptuous in what he said and in the manner in which he said it, and we so hold.
Appellant secondly urges there was no contempt in view of the “provocation” on the part of the trial court. This seems obviously an afterthought by appellant’s counsel, seeking to avail himself of the theory expressed in Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). That case does not aid appellant’s posture. There the conduct of the judge was characterized by the Supreme Court as having “hardly reflected the restraints of conventional judicial demeanor.” Here no such, nor any, lack of judicial restraint is shown. Quite the opposite appears from so much of the record as is before us. 3
As a third reason for us to believe no finding of contempt was proper, appellant urges that we should not prevent counsel from the fearless, vigorous and effective performance of his duty. We completely agree. Sacher v. United States, 343 U.S. 1, 12, 13, 72 S.Ct. 451, 96 L.Ed. 717 (1952). But such a theory does not require us, nor the court below nor any court to countenance the conduct displayed by appellant in this case. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962) is likewise inapplicable. There McConnell was pressing a *616 legal contention, which in no way “create [s] an obstruction which blocks the judge in the preformance of his judicial duty.” Here the appellant created just such an obstacle.
At no time was appellant in the court below attempting to preserve a legal point, or any legal contention. He simply refused to permit the district judge to run his court, and by sly statements obviously made an attempt to influence the jury in his client’s favor.
Assuming the contempt existed, the trial court erred, says appellant in not setting the matter for hearing under Federal Rules of Criminal Procedure 42 (b). Panico v. United States, 375 U.S. 29, 84 S.Ct. 19, 11 L.Ed.2d 1 (1963). Pánico permits such a hearing but does not require it. This contempt was committed in the actual presence of the court. He saw the conduct and heard the language. Such contempt may be summarily punished.
But the court here delayed the summary judgment until after the verdict was returned and the client Carter was sentenced. He did this “in the interest of fairness and justice” to the defendant. The time elapsed was from April 1st to May 14th, 1964, due to the trial judge’s physical absence from the Southern District of California. Appellant states the contention (of fairness to the client Carter) is debatable. We do not see how. We think delay was not only proper, but laudable on the part of the trial judge. The word “summarily” in the rule does not require a hasty determination. Hallinan v. United States, 182 F.2d 880 (9th Cir. 1950).
Finally, appellant urges the sentence was excessive. We note, as appellant requests, that in both Offutt and McConnell, supra, the courts of appeal saw fit to reduce the jail sentences there imposed. We need not even determine if the sentence is severe. For a sentence, even a severe one, is within the court’s discretion. In re Maury, 205 F. 626, 632 (9th Cir. 1913); Hallinan v. United States, supra, 182 F.2d at 888. Nor is the ten day jail sentence cruel or unusual punishment; nor does it shock our respective or collective consciences.
Although not raised by appellant nor mentioned by appellee, we must consider a further point. The power of the court is to punish by fine or imprisonment (18 U.S.C. § 401), and not both. The statute so says, and being criminal, must be strictly construed. In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500 (1943); United States v. De Simone, 267 F.2d 741 (2d Cir.), cert.
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344 F.2d 611, 1965 U.S. App. LEXIS 5875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-matter-of-wm-bryan-osborne-contemnor-ca9-1965.