United States v. Arredondo

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 13, 2003
• Docket: 02-1394
• Status: Published

Opinion

7RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Arredondo No. 02-1394 ELECTRONIC CITATION: 2003 FED App. 0403P (6th Cir.) File Name: 03a0403p.06 James A. Brunson, ASSISTANT UNITED STATES ATTORNEY, Bay City, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X BOGGS, Chief Judge. The district court held Ricardo Arredondo in criminal contempt of court after finding that he Plaintiff-Appellee, - gave fabricated evidence of ineffective assistance of counsel - - No. 02-1394 to support his petition for postconviction relief from a federal v. - sentence for drug trafficking. Mr. Arredondo appeals from > this contempt conviction and from the district court’s , accompanying denial of relief from his drug sentence. For the RICARDO ARREDONDO, - Defendant-Appellant. - reasons explained below, we reverse the conviction for contempt but affirm the denial of postconviction relief. N Appeal from the United States District Court I for the Eastern District of Michigan at Bay City. No. 89-20081—Robert H. Cleland, District Judge. Arredondo was convicted in 1990 of three counts of distribution of heroin and conspiracy to distribute heroin, and Argued: September 16, 2003 sentenced to 20 years in prison. In 1996, with the assistance of another inmate, he filed a pro se petition under 28 U.S.C. Decided and Filed: November 13, 2003 § 2255 seeking relief from the sentence. As relevant here, the petition asserted that his appointed attorney, Thomas Plachta, Before: BOGGS, Chief Judge; and KRUPANSKY and provided constitutionally ineffective representation at CLAY, Circuit Judges. sentencing by failing to communicate two alleged government plea offers to Arredondo for approval. _________________ Arredondo claims he would have accepted either of the offers if given the chance, and would thereby have obtained a lighter COUNSEL sentence than the one imposed on him. However, he stated, Plachta “never advised [him] of any Plea Offer.” ARGUED: Kevin M. Schad, SCHAD & COOK, Indian Springs, Ohio, for Appellant. James A. Brunson, Arredondo’s trial judge had fixed a pretrial deadline of ASSISTANT UNITED STATES ATTORNEY, Bay City, August 27, 1990, after which no plea offers could be Michigan, for Appellee. ON BRIEF: Kevin M. Schad, extended. It is undisputed that Assistant United States SCHAD & COOK, Indian Springs, Ohio, for Appellant. Attorney Michael Hluchaniuk made one plea offer to Plachta before this deadline, which would have involved a

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recommended sentence of five to ten years, and that Plachta the statement in the earlier affidavit that Plachta had “never rejected this offer. The disputed issue regarding this offer is advised” him of any offer. However, in the same paragraph whether Plachta first communicated it to Arredondo for of the second affidavit, Arredondo affirmed that Plachta never approval. “made [Arredondo] aware” of a plea offer prior to trial. It is thus fairly clear that by “made aware” Arredondo meant Arredendo’s petition further alleged that Hluchaniuk made communicating the offer before rejecting it. The district court a second offer of a ten-year sentence to Plachta on the day of denied the motion for reconsideration and Arredondo trial, and that Plachta also rejected this offer without appealed to this court. conveying it to his client. Arredondo supported this allegation with two affidavits. One affiant, Maria Teneyuque, We reversed in part and remanded for an evidentiary stated that her sister Mary Jane Dietrich (a material witness in hearing on the petition. Arredondo v. United States, 178 F.3d Arredondo’s trial) had overheard Plachta and Hluchaniuk 778 (6th Cir. 1999). We agreed with the district court that discussing a plea before the trial. Arredondo also filed his Arredondo was not entitled to a hearing on his allegations own affidavit testifying that he had seen his lawyer talking concerning the supposed second plea offer.1 Id. at 782-83 & with Hluchaniuk on the day of trial, and had seen Plachta n.3. However, we held that he was entitled to a hearing on shake his head “no.” the circumstances surrounding the first plea offer. Id. at 789.2 Both Plachta and Hluchianiuk denied that any second offer In closing, we noted that the inconsistent accounts in the was made. Plachta did not squarely deny Arredondo’s claim affidavits of Plachta, Hluchaniuk, and Arredondo suggested that Plachta had failed to communicate the first offer. that someone was not telling the truth: Instead, Plachta filed an affidavit stating that he could not specifically remember the events of that day, but that “my Arredondo has lodged serious claims that attack his practice has always been to communicate any plea offer made attorney’s professional competence. If true, his petition by the prosecution to my client regardless of my personal deserves our attention. ... If false, Arredondo has view as to the merits of the offer.” The district court denied Arredondo’s Section 2255 petition 1 W e held that the original supporting affidavit accompanying the without an evidentiary hearing. Arredondo then retained a petition (in which M s. Teneyuq ue repo rted hearing the lawyers d iscuss a different inmate paralegal to assist him and filed a pro se second plea o ffer on the day of trial) was inadmissible as hearsay and motion for reconsideration of the denial, pursuant to Fed. R. implausible on its face, since the district judge in question had a firm Civ. P. 59(e). This motion was accompanied by a new policy of refusing to accept any negotiated pleas after the pretrial cut-off affidavit from Arredondo that included new allegations: that date. W e also rejected Arredon do’s second affidavit as a p ossible basis for a hearing, because the conversa tion sup posedly overheard by Arredondo had himself heard some snippets of the alleged Arredondo was not newly discovered evidence, and Arredondo had plea conversation between Plachta and Hluchaniuk on the day presented no valid reason for failing to include it with his original petition of trial, including a reference to a ten-year sentence. In this for relief. affidavit, Arredondo stated that he had seen the prosecutor 2 shake his head “no.” The new affidavit also alleged that W e also held that Arredondo should receive a hearing on his other Plachta “advised” Arredondo “in words” on the day of trial ineffective assistance claim regarding counsel’s failure to challenge the that he had rejected a government plea offer, in tension with drug quantity in the pre-sentenc e report (P SR). Arredondo, 178 F.3d at 789. No. 02-1394 United States v. Arredondo 5 6 United States v. Arredondo No. 02-1394

lied in a self-interested endeavor that could have caused of criminal contempt and imposed a sentence of six months unwarranted discipline of his attorney. The courts should in prison, consecutive to his prior sentence, and a $3,000 fine. not encourage such actions by refusing to punish The court found that Arredondo had engaged in a series of demonstrably false claims of ineffective assistance of fabrications. It noted that Arredondo’s story had changed counsel. materially from his first affidavit to his second one: after the district court rejected the Teneyuque affidavit as hearsay, Id. at 790. Arredondo introduced an assertion that he had heard part of the day-of-trial plea discussion, without explaining why this The district court held an evidentiary hearing on seemingly important fact was not included in his first Arredondo’s petition on January 13, 2000. Arredondo affidavit. The court concluded that Arredondo’s second repeated in court the allegations of his second affidavit: affidavit had “learned” from the testimony that had come to Plachta had failed to secure his client’s permission to reject light, suggesting a deliberate fabrication. The court deemed two plea offers, and Arredondo had personally heard the affidavit particularly incredible in light of Hluchaniuk’s fragments of the discussion concerning the second offer being denial of making any second plea offer. It also discounted discussed. Assistant United States Attorney Hluchaniuk Arredondo’s claim that Plachta failed to pass on the first plea again testified that he made one plea offer to Plachta prior to offer. Drawing on its own knowledge of Plachta’s the court deadline, but no second offer. Plachta testified that “fastidious” work habits, the court found that he had duly he did not specifically recall the plea discussions in passed on the first plea offer to Arredondo, and that Arredondo’s case, but that it was always his practice to pass Arredondo had simply fabricated his testimony to the on such offers to his clients for approval. contrary. The district court denied Arredondo’s Section 2255 The district court went on to hold that the fabrications it petition. It rejected his testimony about the existence of the identified had significantly obstructed the administration of second plea offer and about Plachta’s handling of the first justice, thereby amounting to a contempt of court. It offer.3 The court went further, ordering a hearing on whether described Arredondo’s testimony as involving “egregious,” Arredondo had committed criminal contempt of court by “blatant,” and “transparently false” perjuries. It also noted knowingly offering false evidence to support his petition. that the perjured allegations of misconduct were integral to Arredondo’s Section 2255 petition – the postconviction After briefing and a hearing on the contempt issue, pursuant litigation, which had consumed a significant amount of to Fed. R. Crim. P. 42(a),4 the court found Arredondo guilty judicial and public resources, had been founded chiefly on falsehoods. Finally, the court reasoned that Arredondo’s false testimony about Plachta had threatened to impose 3 unwarranted professional discipline on an attorney, which The court also rejected a separate claim of ineffective assistance premised on co unsel’s failure to challenge the PS R. Arredondo has also revealed a tendency to obstruct the administration of the abando ned this issue on app eal. justice system. 4 At the time of the district court proceedings, the notice-and-hearing Arredondo timely appealed from the contempt conviction procedure used in Arredondo’s contempt proceeding was found at Fed. R. and the denial of postconviction relief. Crim. P. 42(b). However, the rule underwent a technical revision on December 1, 20 02. T he procedure is now found at Fed. R. Crim. P. 42(a). No. 02-1394 United States v. Arredondo 7 8 United States v. Arredondo No. 02-1394

II Section 2255 petition, we affirm the denial of his petition without further discussion. We find no basis for disturbing the district court’s factual findings that Arredondo willfully fabricated the allegations III about Plachta’s misconduct in his affidavit and oral testimony. The record plainly supports the finding that The remaining question is whether Arredondo’s Arredondo’s statements about the alleged second plea offer falsifications constituted contempt of court under 18 U.S.C. were willfully false; indeed, Arredondo has not meaningfully § 401. challenged this conclusion. However, Arredondo does contest the finding that he lied about Plachta’s failing to pass The power to punish contempts is “inherent in all courts,” on the first plea offer. While the evidence for this conclusion Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. was controverted, it was sufficient to support the district 787, 795 (1987) (quotation marks omitted), allowing them to court’s finding. Plachta testified that he always passed on protect themselves against assaults on their authority. plea offers to clients. He had already represented five to However, because this power may be exercised without many fifteen criminal defendants in federal court at the time of of the normal procedural protections of a criminal trial, it is Arredondo’s trial, and had undertaken more representations subject to constitutional and statutory limitations. A federal since then. In light of Plachta’s experience, his habit court has the power, codified in 18 U.S.C. §§ 401 and 401(1), testimony was admissible under Fed. R. Evid. 406 to show to punish “such contempt of its authority, and none other, as that he acted in conformity with that habit in this case.5 We [the following:] [m]isbehavior of any person in its presence cannot say the district court’s decision to credit Plachta’s or so near thereto as to obstruct the administration of justice.” testimony about the first plea offer and its finding that This statutory language originated in the federal Act of 1831, Arredondo willfully fabricated his contrary testimony were and represented a “drastic curtailment of the contempt power” clearly erroneous, especially in light of Arredondo’s previously recognized. Bloom v. Illinois, 391 U.S. 194, 203 established lack of credibility in other matters such as the (1968). second plea offer. The narrow category of contempts committed “in the actual These findings eliminate the factual basis for Arrendondo’s presence of the court” may be punished immediately by the claim that his counsel provided ineffective assistance by judge who saw or heard the offending conduct. Fed. R. Crim. failing to pass on plea offers to him. Since that is the only P. 42(b). This summary power is reserved for “exceptional ground on which Arredondo has appealed the denial of his circumstances . . . such as acts threatening the judge or disrupting a hearing or obstructing court proceedings.” Vaughn v. City of Flint, 752 F.2d 1160, 1167 (6th Cir. 1985). 5 Other contempts, which need only be “in or near”6 the court’s See Perrin v. Anderson, 784 F.2d 1040 (10 th Cir. 1986) (testimony of five prio r incidents in which the defendant responded violently to the presence of uniformed police officers, with proffer of three more 6 incidents, sufficed to estab lish “habit” under Fed. R. E vid. 40 6); United An element of every contempt proceeding under 18 U.S.C. § 401(1) States v. Floulis, 457 F. Supp. 1350, 1355 n.2 (W.D. Pa. 1978) is proof that the alleged contemptuous conduct was “in . . . or . . . near” (permitting the IN S to prove that defendant had been informed of his right the presence of the court. Ibid.; see Vaughn, 752 F.2d at 1167. T his to contact his consulate using evidence of INS’s routine office element is to be understood “geographical[ly],” as requiring physical procedures). proximity to the co urt’s presence. Nye v. United States, 313 U.S. 33, 48- No. 02-1394 United States v. Arredondo 9 10 United States v. Arredondo No. 02-1394

presence, must be adjudicated according to the more review this mixed legal and factual question de novo. See developed procedure of Fed. R. Crim. P. 42(a), the procedure United States v. Baggett, 342 F.3d 536, 541 (6th Cir. 2003) followed in this case, which mandates notice and an adversary (applying this standard of review to obstruction of justice hearing. Even so, the Rule 42(a) procedure is “pretty enhancement under U.S. Sentencing Guidelines). summary,” United States v. Oberhellman, 946 F.2d 50, 52 (7th Cir. 1991), since the offended judge may initiate the Two Supreme Court decisions provide important guidance. proceeding without indictment, may impose sentence on the In Ex parte Hudgings, 249 U.S. 378 (1919), the Court granted convicted contemnor, and, in a nonjury case like this one, a writ of habeas corpus to a federal witness who had been may try the case himself. For this reason, contempt liability imprisoned for contempt after giving implausible testimony under Rule 42(a) should be “circumscribed as narrowly as is that he could not verify the handwriting of his own business consistent with the maintenance of order and decorum partners. The Court held that “in order to punish perjury in essential to the effective operation of the judicial system.” Id. the presence of the court as a contempt there must be added at 53. to the essential elements of perjury . . . the further element of obstruction to the court in the performance of its duty.” Id. at A witness’s misconduct must “obstruc[t] the administration 383 (emphasis added). Cautioning against “mistakenly of justice” in order to be punishable as contempt. 18 U.S.C. attribut[ing] a necessarily inherent obstructive effect to false § 401(1); Vaughn, 752 F.2d at 1167. Arredondo’s main swearing,” it emphasized the “potentiality of oppression and argument for reversal is that even if he gave knowingly false wrong” that would arise if courts could summarily punish oral and written testimony in support of his Section 2255 witnesses for giving testimony with which the court petition, this was legally insufficient under the circumstances disagreed. Id. at 384. here to constitute an obstruction of justice under § 401. We The Court reaffirmed Hudgings in In re Michael, 326 U.S. 224 (1945), upon which Arredondo principally relies. A 49 (1941) (reversing contempt conviction of petitioners who used liquor grand jury subpoenaed Michael, a bankruptcy trustee, to to coerce an infirm, elderly man into filing letters in federal district court testify about numerous checks that had been written from the seeking to dismiss the man’s civil action against petitioners’ friend; bankrupt’s assets. He gave direct, unequivocal responses to coercive actions took place over 100 miles from the district court). It may questions before the grand jury, but the district court found be questioned whether Arredondo’s filing of false affidavits was that his answers were lies.7 The lower courts held Michael sufficiently “near” the district court to be punished as contempt. Our precedents suggest that the answer depends on whether the court was then guilty of contempt, reasoning that he had “block[ed] the in session. See Schmidt v. United States, 124 F.2d 17 7, 177 (6th Cir. inquiry” of the grand jury by giving false testimony about the 1941) (holding that defendant’s filing of false papers with clerk could not purposes of the checks. Id. at 229. The Supreme Court be punished as contempt, “since it does not appear that the court was in session at the time.”). Neither party has disc ussed this issue. W e need not resolve it, 7 because in the evid entiary hearing that followed our first remand, Indeed, the facts given by the Supreme Court and in the lower Arredondo orally repeated in the presence of the court the allegations court’s opinion, 14 6 F.2 d 62 7 (3d Cir. 194 4), suggest that M ichael’s contained in his written affidavits. We will assume without deciding that falsifications may ha ve be en self-serving. T he grand jury summ oned him Arredon do’s affidavits were also given “in or near” the court’s presence, in the course of “a general investigation of frauds against the United because as discussed below, they nevertheless fall outside the scope of States.” Mic hael, 326 U.S. at 226. If the bankrupt’s assets were being contempt liability, as they d id not obstruct justice within the meaning of dissipated for imp roper purposes, then Michael might have faced § 401. indictm ent. No. 02-1394 United States v. Arredondo 11 12 United States v. Arredondo No. 02-1394

unanimously reversed. It emphasized that the natural Michael and Essex together make clear that “false tendency of all false testimony is to mislead the finder of fact, testimony alone,” whether written or oral, “will not amount to but this does not, as such, render it contemptuous: contempt of court.” Ibid. The government argues that several grounds distinguish Arredondo’s conduct from the conduct at All perjured relevant testimony is at war with justice issue in Michael and Essex. Upon consideration, however, since it may produce a judgment not resting on truth. we must reject each of these arguments for upholding Therefore it cannot be denied that it tends to defeat the Arredondo’s contempt conviction. sole ultimate objective of a trial. It need not necessarily, however, obstruct or halt the judicial process. For the First, the government argues that because Arredondo’s false function of trial is to sift the truth from a mass of allegations concerned the performance of his attorney in his contradictory evidence, and to do so the factfinding criminal trial, they obstructed the operation of the justice tribunal must hear both truthful and false witnesses. system in a way that routine perjuries do not. While the government cites no authority for this proposition, the Id. at 227-28. Supreme Court upheld a contempt conviction for false swearing under a somewhat similar theory in Clark v. United We applied Michael in United States v. Essex, 407 F.2d 214 States, 289 U.S. 1 (1933). Clark was a venire member who (6th Cir. 1969), to reverse the obstruction of justice lied her way on to the jury with representations that she was conviction of a witness who had filed a perjured affidavit. unbiased, despite the fact that she was an ally of the defendant After the trial court disbelieved Essex’s written testimony that who would have voted for an acquittal regardless of the she had sexual relations with several jurors in the trial of evidence. Id. at 8-11. The Supreme Court held that she had Jimmy Hoffa, see United States v. Hoffa, 247 F. Supp. 692 “trifled with the court of which she was a part, and made its (E.D. Tenn. 1965) (denying Hoffa a new trial), she was processes a mockery,” which was “contempt, whatever else prosecuted and convicted under the federal obstruction of justice statute, 18 U.S.C. § 1503. Essex, 407 F.2d at 215-16. We noted that §1503 had grown out of the same 1831 act as the federal contempt statute, 18 U.S.C. § 401, and therefore “corruptly . . . influenc[ing], obstruct[ing], or imped [ing], or concluded that the dispositive issue was whether Essex’s “act endeavor[ing] to influence, obstruct, or impede, the due administration of of filing a false affidavit . . . constitute[d] a contemptuous act justice.” 18 U .S.C. § 150 3(a). within the meaning of . . . § 1503.” Essex, 407 F.2d at 217. The difference in language suggests that § 1503 may have a broader reach than § 401. Moreover, assigning a wider scop e to § 150 3 liability We held that it did not. Ibid.8 raises no procedural or separation of powers concerns, because a violation of § 1503 cannot be punished using the summary contempt mechanisms of Fed. R. Crim. P. 4 2. See Griffin , 589 F .2d at 205 -06. Instead, a 8 prosecution must be initiated by indictment and the case must be tried As the Fifth Circuit has observed, it may be questionable whether before a new judge. Accordingly, we have “severely limited” Essex’s Essex correctly interpreted the scop e of 18 U .S.C. § 150 3. See United holding in subsequent § 150 3 cases. United States v. Co llis, 128 F.3d States v. Griffin, 589 F.2d 20 0, 204-06 (5 th Cir. 1979). Essex used the 313, 318 (6 th Cir. 1997) (upholding § 1503 co nviction of prisoner who Suprem e Court’s § 401 contempt cases to interpret § 150 3, see 407 F.2d submitted a fabricated letter attesting to his good character in an attempt at 217 -18, yet the operative provisions of these two statutes are not the to influence his sentencing hearing). same. Section 40 1(1) prohibits misbehavior that “obstruct[s] the Neve rtheless, these criticisms o f Essex do not extend to the § 401 administration of justice.” 18 U.S.C. § 40 1(1); see also Vaughn, 752 F.2d context. Essex remains instructive authority on the scope of contempt at 116 8. Section 1 503 prohibits, am ong o ther kind s of conduc t, liability in this circuit. No. 02-1394 United States v. Arredondo 13 14 United States v. Arredondo No. 02-1394

it may be besides.” Id. at 12. However, Clark and its court proceeding that likewise would have been premised on progeny, e.g., In re Brogdon, 625 F. Supp. 422 (W.D. Ark. falsehood. Yet we held that Essex’s conduct was not “a 1985) (upholding contempt conviction of juror who lied about contemptuous act,” and we take the same view of his bias and prior knowledge of events at trial), are Arredondo’s conduct here. Essex, 407 F.2d at 218. distinguishable from Arrendondo’s case. Jurors and veniremen are officers of the court. Their conduct is Finally, the government suggests that Arredondo’s false governed by a separate section of the federal contempt statute, statements are contemptuous because they were not merely 18 U.S.C. § 401(2) (prohibiting “misbehavior” by a court false, but “blatant fabrications.” The district court also officer), as well as the generally applicable contempt appears to have taken this view. Courts may indeed punish as provision of 18 U.S.C. § 401(1). Here, Arredondo was only contempt testimony that is “a mere sham.” United States v. a party, not an officer of the court. Clark is also Appel, 211 F. 495, 497 (S.D.N.Y. 1913) (L. Hand, J.); see distinguishable from Arredondo’s case in that Clark’s Hudgings, 249 U.S. at 383 (approving Appel); Collins v. falsehoods interfered with the machinery of the very trial in United States, 269 F.2d 745 (9th Cir. 1959). A witness’s which she participated. As the Supreme Court later refusal to respond to questions is a classic form of contempt. explained, Clark’s perjury “prevent[ed] the . . . formation of United States v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973). a proper judicial tribunal.” Michael, 326 U.S. at 228. In By extension, an answer patently false on its face is contrast, while Arredondo’s falsehoods could be said to be equivalent to a refusal to testify and may be similarly about the “administration of justice,” 18 U.S.C. § 401, punished.9 However, “this power must not be used to punish inasmuch as the subject matter of his testimony and his perjury.” Appel, 211 F. at 496. To prevent the exception Section 2255 petition was the supposed ineffective assistance from swallowing the rule, courts employ a technical rendered by his counsel in an earlier court proceeding, his distinction: testimony is not a contemptuous sham unless the falsehoods did not interfere with the administration of justice court can take “judicial notice” of its falsity, see, e.g., Harbor in his Section 2255 proceeding, aside from the necessary Tank Storage Co. v. De Angelis, 204 A.2d 13, 17 (N.J. Super. obstructive effect exercised by all false testimony. As App. Div. 1964), or, put differently, unless the falsity is Michael makes plain, that is not enough for contempt. apparent without reference to extrinsic evidence in the record. The test is whether “on its mere face, and without inquiry Second, the government seeks to distinguish Michael on the collaterally,” the testimony is “not a bona fide effort to ground that Arredondo was not, like Michael, a passive answer the questions at all.” Michael, 326 U.S. at 228-29 witness called to the stand. Instead, Arredondo gave his false (quoting Appel, 211 F. at 496). testimony in a postconviction proceeding that he himself had initiated. The government therefore argues that Arredondo’s act of filing a Section 2255 petition substantially premised on false accusations suggests a degree of willful interference 9 As Judge Hand put it: “It could not be enough for a witness to say with the judicial process greater than the typical episode of he did not remember where he had slept the night before, if he was sane perjury. We acknowledge the inherent plausibility of this and sobe r, or that he cou ld not tell whether he had been married more than argument. However, it cannot be squared with our decision a week.” Appel, 211 F. at 495-96; In re We iss, 703 F.2d 6 53, 663 (2d Cir. in Essex. After all, Essex submitted her false affidavit in 1983) (characterizing such responses as a “middle category of testimonial support of Hoffa’s motion to secure a retrial. If the court had obd uracy” between perjury and refusal to respond). An answer need not be evasive to be punishable. “On Venus” would also be a contemptuous believed her, it might have ordered a lengthy, costly new response to the question of a party’s whereabouts the night before. No. 02-1394 United States v. Arredondo 15 16 United States v. Arredondo No. 02-1394

By this standard, Arredondo’s testimony, though weak, was “testimony of other witnesses,” Michael, 329 U.S. at 229, his not a contemptuous sham. His testimony about Plachta’s conduct does not fall under the Appel exception. failure to convey the first plea offer certainly was not false on its face. The district court faced a significant evidentiary Arredondo’s false testimony was harmful. It compelled the conflict about this matter, which it resolved against expenditure of scarce judicial resources in the district court Arredondo. The question is closer with respect to and in this court to analyze his allegations, and it threatened Arredondo’s testimony about Plachta’s failure to pass on the unwarranted professional discipline of an attorney. It was (nonexistent) second plea offer. His original affidavit that also self-serving: Arredondo sought to wangle relief from a stated that Arredondo had seen Plachta and Hluchaniuk sentence duly imposed on him for serious drug crimes. We talking on the day of trial and that Plachta had shaken his are sympathetic to the district court’s view that Arredondo’s head “no.” After the court rejected Arredondo’s petition, he false testimony had a sufficiently unusual obstructive effect filed a new affidavit with his motion for reconsideration, to to justify a finding of contempt. Indeed, the district court’s which he added an assertion that he had overheard relevant decision appears have been guided in part by dicta in our own snippets of the supposed plea conversation, and that prior opinion in this case. See Arredondo, 177 F.3d at 790 Hluchaniuk had shaken his head “no.” It is hard to see why (stating that “courts should not . . . refus[e] to punish these significant facts were not included in the original demonstrably false claims of ineffective assistance of affidavit. The district court correctly noted that Arredondo’s counsel.”). However, after full briefing and argument on the oral testimony in the Section 2255 hearing was evasive, and issue, we conclude that contempt liability cannot be imposed his own statements on this issue cast grave doubt on the truth in this case, consistently with a fair reading of Michael and of his assertions. Nevertheless, the second affidavit (and Essex. It remains open for “courts . . . to punish” such false Arredondo’s corresponding oral testimony at the Section claims by means of a perjury prosecution. 2255 hearing) was not patently false on its face. There were inconsistencies between the two affidavits, which properly IV influenced the district court’s decision to reject Arredondo’s claims, but not the sort of blatant contradiction that might For the foregoing reasons, Arredondo’s conviction for permit a contempt finding. Cf. Collins, 269 F.2d at 751 contempt is REVERSED and the denial of his petition for (affirming contempt conviction where witness told grand jury postconviction relief from his sentence is AFFIRMED. three different, contradictory stories about his role in a murder and burglary). Moreover, Arredondo’s testimony as to the crucial issue in the case – the handling of the plea offer or offers – does not appear clearly false until placed in the context of the other testimony. If Assistant United States Attorney Hluchaniuk had testified, for example, that he did make a second plea offer to Plachta on the day of trial, while Plachta denied it, then the factfinder might have hesitated to hold that Arredondo fabricated his testimony about Plachta’s handling of that offer. Since the falsity of Arredondo’s testimony cannot be plainly established without invoking the