United States v. West

21 F.3d 607, 1994 U.S. App. LEXIS 10570, 1994 WL 180410
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 12, 1994
Docket93-04319
StatusPublished
Cited by9 cases

This text of 21 F.3d 607 (United States v. West) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. West, 21 F.3d 607, 1994 U.S. App. LEXIS 10570, 1994 WL 180410 (5th Cir. 1994).

Opinions

EMILIO M. GARZA, Circuit Judge:

Michael Fawer appeals his conviction and sentence for criminal contempt of court in violation of 18 U.S.C. § 401 (1988). Because Fawer’s cited conduct was not contemptuous — i.e., Fawer did not disobey a specific court order or in any way obstruct or imminently threaten the administration of justice — we reverse.

[608]*608Fawer represented Bruce West, Sr., who was prosecuted on charges of fraud and conspiracy to commit fraud. During trial, the district court summarily punished Fawer for criminal contempt of court pursuant to Fed. R.Crim.P 42(a), citing Fawer’s continued argument, disobedience of the court’s orders, and disrespectful behavior. The court initially sentenced Fawer to pay a $200.00 fine, but later changed the sentence to a twelve-hour jail term. Fawer contends on appeal that the evidence was insufficient to support his criminal contempt conviction.

The statute under which Fawer was convicted of criminal contempt allows a district court to “punish by fine or imprisonment, at its discretion, such contempt of its authority ... as [misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice.” 18 U.S.C. § 401 (1988); see also Eaton v. City of Tulsa, 415 U.S. 697, 698, 94 S.Ct. 1228, 1229, 39 L.Ed.2d 693 (1974) (holding that the conduct underlying a criminal contempt conviction “must constitute an imminent, not merely likely, threat to the administration of justice”). The disobedience of a specific court order can also result in a criminal contempt conviction. See 18 U.S.C. § 401(3); see e.g., In re Boyden, 675 F.2d 643, 644 (5th Cir.1982). “[F]or a criminal contempt conviction to stand, the evidence [viewed in the light most favorable to the government] must show ‘both a contemptuous act and a willful, contumacious, or reckless state of mind.’ ” United States v. McCargo, 783 F.2d 507, 510 (5th Cir.1986) (quoting United States v. Hilburn, 625 F.2d 1177, 1180 (5th Cir.1980)).

“A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.” Fed.R.Crim.P. 42(a). “The procedures for summary disposition of contempt charges are reserved for ‘exceptional circumstances, ... such as acts threatening the judge or disrupting a hearing or obstructing court proceedings.’ ” United States v. Onu, 730 F.2d 253, 255 (5th Cir.) (quoting Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965)), cert. denied, 469 U.S. 856, 105 S.Ct. 182, 83 L.Ed.2d 116 (1984). Because Fawer does not contend that the district court abused its discretion by invoking the summary procedures of Rule 42(a), as opposed to the notice and hearing procedures set forth in Fed.R.Crim.P. 42(b), we do not address whether an abuse of discretion occurred. Instead, our discussion is limited to deciding whether the evidence was sufficient to support Fawer’s criminal contempt conviction.

In its certificate of contempt, the district court stated that its “finding of contempt and sentence relate specifically to the conduct of Mr. Fawer disclosed by Exhibit ‘A.’ ” Exhibit A is an unofficial transcript of that portion of the trial proceedings immediately preceding the court’s summary contempt order.1 The district court further stated that “Fawer was found in contempt for his continued argument and for his failure to obey the Orders of this Court,” conduct which “constituted intentional, actual and material obstruction of the judicial proceedings then in session and total disrepect [sic] for this Court.”

After reviewing the conduct cited by the district court as supporting its criminal contempt order, we cannot find any instances where Fawer willfully disobeyed a court order. Prior to sentencing Fawer to a twelve-hour jail term, the district court instructed Fawer not to exceed the scope of direct examination when he conducted his cross-examination of witness Jack Franks. The government concedes that Fawer did not disobey this order since Fawer’s “questions were not outside the scope of direct examination.”

Fawer was also ordered to pay a $200.00 fine by 5 p.m. the next day. The government argues that Fawer’s stated refusal to pay the court-ordered fine amounted to the willful disobedience of a specific court order, thus providing sufficient evidence to support Fawer’s conviction for contempt. We disagree. As the record shows, Fawer stated his inten[609]*609tion of not paying the fine — ‘Tour Honor, I will not [pay the fine]” — which at most could be characterized as an insolent or defiant remark. Fawer could not have disobeyed the court’s order unless he actually failed to pay the fine by 5 p.m. the next day.2 Consequently, Fawer’s stated intention of not paying the fine could not itself amount to the disobedience of the court’s order. The government’s reliance upon United States v. Giovanelli, 897 F.2d 1227 (2d Cir.), cert. denied, 498 U.S. 822, 111 S.Ct. 72, 112 L.Ed.2d 46 (1990), is misplaced. In Giovanelli, counsel also stated his intention of not paying a court-ordered fine — “I won’t pay. You can put me in jail, Judge.” Id., 897 F.2d at 1230. In affirming the district court’s finding of contempt, the Second Circuit characterized counsel’s misbehavior as an insolent remark, rather than a failure to obey a court order. See id. at 1232.

The government also contends that Fawer’s exchanges with the district court concerning (1) the court’s order to confine cross-examination to the scope of direct examination, and (2) the court’s contempt citation, amounted to the intentional disobedience of the court’s prior order not to “argue with me when I rule.” We think it clear that this standing order was not sufficiently definite or specific to support a contempt citation. See Whitfield v. Pennington, 832 F.2d 909, 913 (5th Cir.1987) (“A party may be held in contempt if he violates a definite and specific court order requiring him to perform or refrain from performing a particular act or acts with knowledge of that order.”), cert. denied, 487 U.S. 1205, 108 S.Ct. 2846, 101 L.Ed.2d 883 (1988); see also In re Holloway,

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Bluebook (online)
21 F.3d 607, 1994 U.S. App. LEXIS 10570, 1994 WL 180410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-west-ca5-1994.