United States v. Eugene Forte

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2018
• Docket: 17-10182
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10182

Plaintiff-Appellee, D.C. No. 1:17-cr-00036-TLN-1 v.

EUGENE E. FORTE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Submitted July 13, 2018** San Francisco, California

Before: HAWKINS, BEA, and HURWITZ, Circuit Judges.

Eugene Forte appeals his conviction and $150 fine for criminal contempt, 18

U.S.C. § 401. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Substantial evidence supported the judgment of conviction. The district

court had entered an order prohibiting Forte from making “further accusations and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). statements of disrespect” against the presiding judge. In a subsequent filing, Forte

nonetheless described the judge as “a judge by title only,” “a liar,” and “inept.” See

United States v. Rylander, 714 F.2d 996, 1001–02 (9th Cir. 1983) (“Criminal

contempt is established when it is shown that the defendant is aware of a clear and

definite court order and willfully disobeys the order.” (citing United States v.

Powers, 629 F.2d 619, 627 (9th Cir. 1980))). Forte argues that “affronts to [the]

dignity of the court . . . do not . . . constitute criminal contempt,” unless they

“obstruct the proceedings or threaten dispassionate administration of justice.” But,

contempt “requires only that there has been ‘disobedience or resistance’ to a court’s

‘lawful writ, process, order, rule, decree, or command.’” United States v. Galin, 222

F.3d 1123, 1127 (9th Cir. 2000) (per curiam) (quoting 18 U.S.C. § 401(3)).1

2. We reject Forte’s argument that his conviction cannot be upheld because

the order he violated is unconstitutional. The collateral bar rule “permits a judicial

order to be enforced through criminal contempt even though the underlying decision

may be incorrect and even unconstitutional.” In re Establishment Inspection of Hern

Iron Works, Inc., 881 F.2d 722, 725 (9th Cir. 1989) (citations omitted). Thus, even

if the order were unconstitutional, that fact would not bear on the validity of his

1 Forte also argues that the order was not “clear and definite” because it contained language granting a subpoena request. But Forte testified below that he was aware of the court’s instruction concerning disrespect, and does not assert otherwise on appeal.

2 conviction. But, in any case, the order is constitutional. See Zal v. Steppe, 968 F.2d

924, 928 (9th Cir. 1992) (“[I]t is the right of . . . every litigant to press his claim[,] .

. . [b]ut if the ruling is adverse, it is not counsel’s right to resist it or to insult the

judge—his right is only respectfully to preserve his point for appeal.” (emphasis

omitted) (quoting Sacher v. United States, 343 U.S. 1, 9 (1952))).

3. Forte argues that the $150 fine imposed for his contempt conviction should

be overturned because it was based on his violation of an unlawful order. But, the

order was valid, and the fine was not “shockingly high . . . or otherwise

unsupportable as a matter of law.” United States v. Ressam, 679 F.3d 1069, 1088

(9th Cir. 2012) (en banc) (quoting United States v. Rigas, 583 F.3d 108, 123 (2d Cir.

2009) (citation omitted)).

AFFIRMED.