United States v. James T. Skuthan , 442 F. App'x 460 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10061 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 3, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cr-00223-GKS-DAB-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JAMES T. SKUTHAN,
llllllllllllllllllllllllllllllllllllllll Interested Party-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 3, 2011)
Before BARKETT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Attorney James Skuthan appeals his conviction for criminal contempt, under
18 U.S.C. § 401(3) and Fed.R.Crim.P. 42(a), for failure to appear and failure to
provide the court with notice of a conflict during his representation of a client at a
sentencing hearing before district court Judge G. Kendall Sharp. Skuthan was not
present when his case before Judge Sharp was first called because he was tending
to matters of other clients before another district court judge, Chief Judge Conway,
and he failed to file a notice of conflict with the court regarding his conflicting
hearing obligations.
On appeal, Skuthan first argues that the district court’s order of contempt is
procedurally deficient since Rule 42(b) does not authorize the court to summarily
dispose of criminal contempt proceedings where, as here, the contemptuous
conduct occurred outside the presence of the judge. Instead, Skuthan argues, he
was entitled to notice of the proceeding and an opportunity to obtain counsel and
present evidence in his defense, as required by Rule 42(a). Secondly, he argues
that the district court’s order is substantively deficient since there was no
reasonably specific order in existence for him to violate, and there is no evidence
that his actions were willful, intentional, or reckless. Specifically, he contends
that he made substantial efforts to reconcile his conflicting hearing obligations by
contacting Judge Conway’s chambers weeks before the hearing date, and it was
his understanding that Judge Conway’s chambers had contacted Judge Sharp’s
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chambers regarding the scheduling conflict.
As a preliminary matter, the district court did not indicate whether it was
finding Skuthan in criminal or civil contempt of court. However, we have
“uniformly regarded the imposition of a penalty against attorneys for a punitive
purpose as a criminal contempt sanction.” United States v. KS & W Offshore
Engineering, Inc., 932 F.2d 906, 908 (11th Cir. 1991); see also Romero v.
Drummond Co., 480 F.3d 1234, 1242 (11th Cir. 2007) (stating that, “[b]ecause the
district court assessed a punitive fine against the [attorney], the contempt order
[was] criminal in nature”). “Unlike civil contempt, an order of criminal contempt
is a final decision that is immediately appealable.” Drummond, 480 F.3d at 1242.
The district court here erred in summarily disposing of the criminal
contempt charge against Skuthan. First, since Skuthan was subject to an indirect
contempt order, summary disposition would normally not be appropriate.
Secondly, although Skuthan provided the court with an explanation for his
absence and failure to file a notice of conflict prior to the court’s finding of
contempt, this is the type of situation in which the attorney would benefit from the
opportunity to call witnesses in his defense. Therefore, Skuthan was entitled to
the procedural protections of Rule 42(a). Even if this were the type of case where
the procedures of Rule 42(a) need not be followed, there is not sufficient evidence
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to support a charge of criminal contempt.
Although Skuthan violated the court’s order to appear at his client’s
sentencing hearing, his conduct does not rise to the level of willfulness. Since
there is insufficient evidence to support a finding of criminal contempt, remand to
the district court to comply with the procedures of Rule 42(a) would not be proper.
See Robinson, 922 F.2d at 1535 (holding that, where the attorney’s conduct did
not constitute contempt, “a remand to the district court to allow compliance with
Rule 42(a) would be fruitless”). Accordingly, we reverse the district court’s
contempt order and dismiss the proceedings against Skuthan.
REVERSED AND DISMISSED.
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