United States v. Branch

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 2000
• Docket: 99-50537
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________________

No. 99-50537 ___________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

TOMMY LYNN BRANCH, Defendant-Appellant.

___________________________________________________

Appeals from the United States District Court for the Western District of Texas, Waco Division (98-CR-104-ALL) ___________________________________________________ May 5, 2000

Before WIENER, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Tommy Branch appeals his conviction for

possession with intent to distribute methamphetamine in violation

of 21 U.S.C. § 841(a)(1), as well as his two convictions for

criminal contempt under 18 U.S.C. § 401(1) and (3). We affirm

Branch’s conviction for possession with intent to distribute

methamphetamine, but reverse his convictions for criminal contempt.

Branch alleges only one point of error with regard to his

conviction for possession with intent to distribute

methamphetamine: He contends that the district court erred in

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 failing to order the government to disclose the identities of its

confidential informants. This argument is without merit. The

government ordinarily is entitled to keep the names of its

informants confidential.1 Although this privilege must yield under

certain circumstances,2 it is virtually absolute when an informant

is shown to be a “mere tipster.”3 The informants at issue in the

instant case did no more than tell the police that they had seen

Branch and his brother in possession of and selling

methamphetamine. There is no reason to believe, as Branch

contends, that any of these informants would have been able to

testify as to the ownership of the various methamphetamine-filled

containers that the police found in Branch’s house. The district

court did not err in refusing to order the government to disclose

the identities of the informants.

Branch’s convictions for criminal contempt present closer

questions. Branch, who represented himself pro se at trial,

repeatedly re-asked questions to which objections had been made and

sustained. After being warned that he would be held in contempt if

he again re-asked a question to which an objection had been

sustained, the following colloquy ensued:

Branch (questioning a witness): Have you ever sold him any drugs, Mr. Briscoe?

A: No, I haven’t

1 Roviaro v. United States, 353 U.S. 53, 60 (1957). 2 Id at 60-61. 3 United States v. Cooper, 949 F.2d 737, 749 (5th Cir. 1991).

2 Branch: You’ve never sold him no drugs?

A: (Shaking head).

Branch: Are you aware of a murder that he did that he hasn’t been prosecuted for?

Mr. Snyder (the prosecutor): What has this got to do with anything, Your Honor?

The Court: I can’t imagine. Sustain the objection, not relevant.

Branch: But you’ve never sold Mr. Harmon any drugs?

A: No.

The Court: Mr. Branch, you are now in contempt of Court.

Branch was convicted of criminal contempt under 18 U.S.C. § 401(3),

which allows any court of the United States to punish an individual

for “[d]isobedience or resistance to its lawful writ, process,

order, rule, decree, or command.”

Branch challenges the sufficiency of the evidence to sustain

his conviction under Section 401(3). “A criminal contempt

conviction for disobedience of a court order requires proof beyond

a reasonable doubt of: (1) a reasonably specific order, (2)

violation of the order, and (3) the willful intent to violate the

order.”4 To uphold the conviction, the order must be clear and

unambiguous, with any ambiguity being resolved in favor of the

defendant.5

In the instant case, the only thing that the court’s order

4 Matter of Hipp, Inc., 5 F.3d 109, 112 (5th Cir. 1993) (citations omitted). 5 Cooper v. Texaco, Inc., 961 F.2d 71, 72 (5th Cir. 1992).

3 unambiguously prohibited Branch from doing was re-asking the

witness any questions concerning his knowledge of an alleged

unprosecuted murder. It may be that the district court intended

its order to cut short Branch’s entire line of questioning on the

grounds that it was irrelevant, but it cannot be said that the

court’s order unambiguously conveys such a prohibition. Branch’s

conviction under 18 U.S.C. § 401(3) is therefore reversed.

We also reverse Branch’s conviction for criminal contempt

under 18 U.S.C. § 401(1). In response to a plea made by the

prosecutor that Branch hurry along his questioning of a witness,

Branch responded: “Hey, all I’ve got to do today is play Spades

with a bunch of niggers, you can wait.” Branch’s remark was

contemptuous in a broad sense, but nevertheless it was not properly

subject to sanctions under Section 401(1). “Four elements must be

proven beyond a reasonable doubt to show a violation of Section

401(1): (1) misbehavior, (2) in or near the presence of the court,

(3) with criminal intent, (4) that resulted in an obstruction of

the administration of justice.”6 Branch’s comments clearly

constituted misbehavior in the presence of the court. There is no

evidence in the record, however, indicating that Branch’s racially

offensive, flippant remark resulted in an actual obstruction of the

administration of justice. To demonstrate an obstruction of the

administration of justice, it must at a minimum be shown that “the

6 American Airlines, Inc. v Allied Pilots Ass’n, 968 F.2d 523, 531 (5th Cir. 1992).

4 defendant’s conduct had an effect on the proceedings.”7

“[O]bstruction can be shown by establishing that the defendant’s

acts delayed the proceedings, made more work for the judge, induced

error or imposed unnecessary costs on the other parties.”8

Branch’s outrageous wisecrack did not have such a serious effect on

the proceedings in the district court; the record indicates that it

caused no more than a momentary disruption, and as such it was not

properly subject to the severe sanction of a conviction for

criminal contempt under 18 U.S.C. § 401(1).

For the reasons given, Branch’s conviction for possession with

intent to distribute methamphetamine is affirmed, and his two

convictions for criminal contempt are reversed.

AFFIRMED IN PART, REVERSED IN PART.

7 Id at 532; see also In re McConnell, 370 U.S. 230, 234 (1962). 8 American Airlines, 968 F.2d at 532.