United States v. Time ( 1994 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________
No.92-1797
_______________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED TIME,
Defendant-Appellant.
____________________________________________
No. 92-1798
_____________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STANLEY WEINBERG,
Defendant-Appellant.
________________________________________________
No. 93-1300
________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRED TIME and STANLEY WEINBERG,
Defendants-Appellants.
__________________________________________________________________
Appeals from the United States District Court
for the Northern District of Texas
___________________________________________________________________
(May 17, 1994)
1
Before REAVLEY and JOLLY, Circuit Judges, PARKER1, District Judge.
PARKER, District Judge:
Fred Time ("Time") and Stanley Weinberg ("Weinberg") were found
in criminal contempt of court in violation of 18 U.S.C. § 401 and
fined. They appealed and their consolidated appeals are now before
this Court.
FACTS
Appellants Time and Weinberg served as attorneys for Russell
Fagan (Fagan), a defendant in a criminal action tried before United
States District Judge Jorge A. Solis. On August 6, 1992, during
Fagan's case-in-chief, Fagan called Gary Jordan (Jordan) to the
stand. Jordan had agreed to testify for Fagan, but his testimony
apparently surprised Fagan's counsel at trial and damaged Fagan's
case. After direct and cross-examination of Jordan, the government
asked the court to instruct Jordan to remain available on a standby
basis, in the event the government decided to call him in rebuttal.
The court instructed Jordan that he was free to go, but to be
available by phone. After the lunch break, at the prosecutor's
request, Federal Bureau of Investigation (FBI) Agent Harris related
to the Judge that he had called Jordan to advise him that he might
be recalled. Agent Harris stated that Jordan told him that Time
had whispered to him, "try not to be available," as he left the
witness stand. Jordan also told Harris that "Weinberg or Time"
1
Chief Judge of the Eastern District of Texas, sitting by
designation.
2
said that if he "would not be around this afternoon...it would be
a whole lot better." It is unclear from the record whether Agent
Harris was under oath at the time he made these statements to the
court.
Judge Solis allowed both attorneys to respond to the allegation
briefly. Weinberg told the court that Jordan had approached him
outside the courtroom and asked him, "What did he mean?...Do you
want me around?" Weinberg said that he answered, "I'm not telling
you not to go anywhere. I said be available. I said...I can't
control what you are doing, but I told him be available." Time
flatly denied telling the witness to be unavailable.
Later that day, Jordan was called back and questioned by the
Judge, and testified under oath to much the same story as Agent
Harris had earlier related to the court.
After Fagan's trial concluded on August 7, 1992, the court gave
the Appellants the option of going forward with a contempt hearing
at that time or setting it down for a future hearing. Weinberg,
speaking for both appellants, asked for more time to get counsel
and prepare a defense, which the court granted. The court issued
an order to show cause why each should not be held in criminal
contempt and set a hearing date. After granting one additional
continuance, the court heard the matter on September 4, 1992.
The court began by asking the Assistant United States Attorneys
(one of whom had participated in the Fagan prosecution) if they had
anything they wished to present. One of the prosecutors responded,
"We have nothing,...other than what's in the record currently."
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The previous proceedings had been transcribed, and the court stated
on the record that everyone had copies of the transcription.
Although it was never formally offered into evidence at the second
hearing, that transcript was made part of the record on this
appeal.
Judge Solis then called Valerie Conn, the court reporter during
Fagan's trial, as a witness. The court questioned Conn, who
testified that she heard Time say to Jordan, "be out of pocket,"
but did not know the context of the statement, as she could not
hear the rest of the conversation. The appellants cross examined
her, but the Assistant United States Attorneys asked no questions.
The Assistant United States Attorneys called no witnesses.
The Appellants both testified, and each called numerous
character witnesses. The prosecutor cross examined only the
Appellants themselves.
In an Order dated September 30, 1993, the trial court found
that Weinberg told the witness to disregard instructions from the
court, that he was therefore in criminal contempt of court and
fined Weinberg $2,500. The trial court entered a similar order as
to Time, but, finding him more culpable, assessed a fine of $5,000.
Appellants later learned that Jordan had cooperated with the
FBI in the Fagan prosecution and in other cases. Appellants moved
for a new contempt trial when the government revealed this
information at Fagan's sentencing in November 1992. The trial
court denied the motion for new trial.
THE PROSECUTION OF THE CONTEMPT
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a. Who prosecuted the contempt?
Appellants allege that Judge Solis acted as both the prosecutor
and the judge of the contempt proceedings. In a criminal contempt
action conducted pursuant to Federal Rule of Criminal Procedure
42(b), the judge may not prosecute the contempt and at the same
time act as judge. American Airlines, Inc. v. Allied Pilots Ass'n,
968 F.2d 523 (5th Cir. 1992) (citing In re Davidson, 908 F.2d 1249,
1251 (5th Cir. 1990)). A review of the record leads us to the
conclusion that the United States Attorney's office prosecuted the
action against the Appellants. The alleged contempt was discovered
by Assistant U.S. Attorney (AUSA) Hastings who brought it to the
attention of the judge in open court, on the record. Hastings
called Agent Harris, who advised the court of the allegations.
Judge Solis allowed appellants to respond briefly, then continued
Fagan's trial. Jordan, having been requested to return to court by
Agent Harris, responded to questioning by the court, the appellants
and AUSA Hastings. At the later hearing, the court began by asking
AUSA Melsheimer if he was present to represent the government, to
which he replied, "I am, Your Honor, along with Mr. Webster from
our office." AUSA Melsheimer indicated that he would rely on the
testimony already in the record. Prior to asking the court
reporter to testify, the court noted that he had advised "counsel
for the defense, as well as counsel for the government," that the
court reporter had information about the contempt allegations. The
appellants note that the AUSA declined to cross examine the
witnesses called by the Appellants, except the Appellants
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themselves. However, the court specifically asked the prosecutors
after each direct examination if they had any questions for the
witness, and the prosecutors responded by cross examining the
witness or declining to do so.
In summary, the AUSA initiated the proceedings in open court,
on the record, and called the first witness. The court's procedure
thereafter follows the accepted adversary process wherein the
prosecutor makes his case first, and the defendants then call
witnesses that the prosecutor is given the opportunity to cross
examine. The prosecutors exercised their judgment by declining to
cross examine the character witnesses, who did not claim to have
any personal knowledge of the fact issue before the court. It
certainly cannot be error for the judge to accept that decision and
allow the hearing to continue. The judge called one witness and
questioned her, as well as questioning only one other witness, out
of a total of fifteen witnesses.
The appellants make much of the fact that the court called and
questioned the court reporter and questioned Jordan. Federal Rules
of Evidence 614(a)(b) and (c) provide:
(a) Calling by court. The court may, on its own motion
or at the suggestion of a party, call witnesses, and all
parties are entitled to cross-examine witnesses thus
called.
(b) Interrogation by court. The court may interrogate
witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses
by the court or to interrogation by it may be made at the
time or at the next available opportunity when the jury
is not present.
The judge's right to question a witness is within his
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discretion so long as he remains impartial and does not exhibit
prosecutorial zeal. United States v. Zepeda-Santana, 569 F.2d
1386, 1289 (5th Cir. 1978). The record indicates that the court
gave advance warning to both parties concerning his intent to call
the witness so that they could prepare for cross examination and
objections and it reveals no prosecutorial zeal in the judge's
exercise of his Rule 614 authority. The Appellants, however, did
not timely object to the calling of the court reporter or to the
questions posed to either witness. In fact they have never
advanced any objection or reason that would lead us to believe that
the evidence adduced from the court reporter or Jordan was
inadmissible or otherwise improper.
We hold, under the facts of this case, that the judge never
assumed the role of prosecutor of the contempt action, but served
solely as an impartial judge.
b. Disqualification
Appellant Time complains that Judge Solis should have
disqualified himself from hearing the contempt action. Federal
Rule of Criminal Procedure 42(b) provides that a different judge
must hear the contempt action whenever the conduct is based on
disrespect to, or criticism of, the judge personally. There were
no allegations and no evidence of a personal attack on Judge Solis,
and the record reveals no hint that Judge Solis was personally
aggrieved by the conduct alleged against Appellants. This argument
is without merit.
c. Was the United States Attorney's office precluded from
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prosecuting this case?
Appellants argue that the United States Attorney's office was
precluded from prosecuting this action because they represented, in
the underlying criminal case, the party who was the beneficiary of
the Court's order that was at the heart of the contempt action.
The question of whether the Supreme Court's holding in Young v.
U.S. ex rel Vuitton et Fil, S.A., 481 U.S. 787, 107 S.Ct. 2124, 95
L.Ed.2d 740 (1987) requires the disqualification of the local
federal prosecutor when the government was the beneficiary of the
subject order has not been addressed by this or any other circuit
court.
In Young, Petitioners were found guilty of criminal contempt by
a jury, for violating the district court's injunction prohibiting
trademark infringement. Vuitton, S.A. was a French leather goods
manufacturer who sued several members of the Klayminc family for
manufacturing imitation Vuitton goods. The suit settled, with an
agreement that the Klaymincs would pay damages and consent to the
entry of a permanent injunction prohibiting them from manufacturing
or distributing imitation Vuitton goods in the future. Less than
a year later, Vuitton began to suspect that the Klaymincs were
violating the injunction, and hired an investigation firm that
confirmed their suspicion. Vuitton's attorney, J. Joseph Bainton
requested that the district court appoint him as special counsel to
prosecute a criminal contempt action for violation of the
injunction. The court found probable cause to believe that
petitioners were engaged in conduct contumacious of the court's
8
injunctive order, and appointed Bainton and his colleague Devlin to
represent the United States in the investigation and prosecution of
the contempt, as proposed by Bainton. The United States Supreme
Court reversed the convictions, holding that counsel for a party
that is the beneficiary of a court order may not be appointed to
undertake contempt prosecutions for alleged violations of that
order. Young, 481 U.S., at 790, 107 S.Ct., at 2128.
The Supreme Court began its analysis in Young, by noting that
courts possess inherent authority to initiate contempt proceedings
for disobedience to their orders. The manner in which the court's
prosecution of contempt is exercised may be regulated by Congress,
Michaelson v. United States, 266 U.S. 42, 65-66, 45 S.Ct. 18, 19-
20, 69 L.Ed. 162 (1924), and by the Supreme Court by constitutional
review, Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d
522 (1968), or supervisory power, Cheff v. Schnackenberg, 384 U.S.
373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966), but cannot be abrogated
or rendered practically inoperative. Michaelson, supra, 266 U.S.,
at 66, 45 S.Ct., at 20. While a court has the authority to
initiate criminal contempt proceedings, its exercise of that
authority must be restrained by the principle that "only '[t]he
least possible power adequate to the end proposed' should be used
in contempt cases." United States v. Wilson, 421 U.S. 309, 319, 95
S.Ct. 1802, 1808, 44 L.Ed.2d 186 (1975)(quoting Anderson v. Dunn,
6 Wheat., at 231). The principle of restraint in contempt counsels
caution in the exercise of the power to appoint a private
prosecutor. The rationale for the appointment authority is
9
necessity, and logic requires a court to first request the
appropriate prosecuting authority to prosecute contempt action, and
appoint a private prosecutor only if that request is denied.
Young, 481 U.S., at 801, 107 S.Ct., at 2134. Indeed, if the court
finds it necessary to appoint a private attorney to prosecute a
contempt, the standard that the appointee is held to is "as
disinterested as a public prosecutor who undertakes such a
prosecution." Id. at 2136. In a case where an appointed
prosecutor also represents an interested private party, the ethics
of the legal profession require that the prosecutor take into
account an interest other than the Government's, thus subjecting
him to an inherent conflict of roles. Id. at 2138.
In the case at bar, three different Assistant United States
Attorneys participated in prosecuting the contempt. Two of them
were also involved in the Fagan prosecution. The record reveals no
interest other than the government's that would require the
allegiance of any of these lawyers. The Young plurality concludes
by saying, "we must have the assurance that those who would wield
this power will be guided solely by their sense of public
responsibility for the attainment of justice. A prosecutor of a
contempt action who represents the private beneficiary of the court
order allegedly violated cannot provide such assurance, for such an
attorney is required by the very standards of the profession to
serve two masters." Id. at 2141. Because the United States
Attorneys did not represent a private beneficiary of the court
order allegedly violated, and because they were responsible solely
10
to the sovereign and therefore were charged with the responsibility
to seek justice, not merely to convict in both the Fagan trial and
Appellants' trial, see MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-13
(1982), we hold that the Assistant United States Attorneys who
prosecuted this case were not precluded from that role by the Young
prohibition.
SUFFICIENCY OF THE EVIDENCE
Appellants challenge their convictions, claiming that the
evidence was not sufficient to sustain a finding that they were
guilty beyond a reasonable doubt of criminal contempt. In
reviewing the sufficiency of the evidence, we consider the evidence
in the light most favorable to the government. United States v.
Hilburn, 625 F.2d 1177, 1180 (5th Cir. 1980).
The court's show cause order does not identify the statutory
source of the contempt allegation, nor does the order of contempt.
Appellants ask us to assume that the court entered its order
pursuant to 18 U.S.C. § 401, which provides as follows:
§ 401 Power of court
A court of the United States shall have power to punish
by fine or imprisonment, at its discretion, such contempt
of its authority, and none other, as --
(1) Misbehavior of any person in its presence or so
near thereto as to obstruct the administration of
justice;
(2) Misbehavior of any of its officers in their
official transactions;
(3) Disobedience or resistance to its lawful writ,
process, order, rule, decree, or command.
The court cannot have relied on § 401(1), because there is no
support in the record for a finding that the alleged misbehavior
actually obstructed justice. There is no indication that
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Appellants' acts made more work for the judge, induced error or
imposed unnecessary costs on the other parties. American Airlines,
Inc. v. Allied Pilots Association, 968 F.2d 523, 532 (5th Cir
1992)(citing United States v. Oberhellmann, 946 F.2d 50, 52 (7th
Cir. 1991)). The time consumed by the contempt investigation
itself is not considered in this analysis. Id.Likewise, any reliance on § 401(2) would be misplaced. The
term "court officers" in that provision does not apply to counsel
appearing before the court. Cammer v. United States, 350 U.S. 399,
405, 76 S.Ct. 456, 459, 100 L.Ed. 474 (1956). The language refers
to court clerks and other "conventional court officers." Id.There is no evidence that Appellants disobeyed the court's
order, since the order did not direct them to do or refrain from
doing any act. Therefore, in order to sustain the contempt decree,
we must find that the Appellants' conduct was a "resistance" to a
lawful order, implying a willful purpose to interfere so as to
prevent the order from being carried out. See, Raymor Ballroom Co.
v. Buck, 110 F.2d 207, 211 (1st Cir. 1940). We find that the
evidence in the record is sufficient to sustain a finding that
Appellants resisted a lawful order of the Court. We find no merit
in Appellants' argument that resistant under § 401(3) is limited to
situations where a person resists service of process or subpoena.
The plain language of the statute lists resistance to "writ,
process, order, rule, decree, and command." The cases relied on by
Appellants, Raymor Ballroom Co. v. Buck, 110 F.2d 207 (1st Cir.
1940); The P.I Nevius, 48 F. 927 (DC NY 1892); In re Noyes, 121 F.
12209 (9th Cir. 1902), are examples of fact situations where there
was resistance to a process or subpoena, but in no way interpret
the statute in the restrictive way that Appellants propose.
Appellant Time also complains that the District Court failed to
find beyond a reasonable doubt that Time acted willfully and with
criminal intent. Appellants point to no authority and we know of
none that requires the district court to recite in his order that
the finding of guilt was made using the appropriate standard of
proof. The court's statements finding Time engaged in the alleged
conduct, was present in court when the order was entered, and was
therefore in contempt of court is sufficient.
RULE 42(b) REQUIREMENTS
Rule 42(b) of the Federal Rules of Civil Procedure
prescribes the procedure regarding the notice which must be given
to one charged with criminal contempt outside the presence of the
court. The rule provides:
...criminal contempt...shall be prosecuted on notice.
The notice shall state the time and place of hearing,
allowing a reasonable time for the preparation of the
defense, and shall state the essential facts constituting
the criminal contempt charged and describe it as such.
The notice shall be given orally by the judge in open
court in the presence of the defendant or, on application
of the United States Attorney or of an attorney appointed
by the court for that purpose, by an order to show cause
or an order of arrest.
Appellants claim that no oral notice was given, and that no
application was made by the United States Attorneys' office,
although they do not challenge the sufficiency of the content of
the show cause order. At the end of the oral proceeding,
Appellants were advised by the trial court of the essential facts
13
constituting the contempt charge, that it was in fact criminal
contempt, and that the time and place for hearing was "here and
now." They requested a continuance for preparation of a defense,
which was granted. The granting of the continuance did not
necessitate new 42(b) notice. We therefore hold that the trial
court complied with the requirements of Rule 42(b).
JURY TRIAL
Appellants complain for the first time on appeal that they were
entitled to a jury trial and did not waive that right.
No right to trial by jury exists for petty crimes. Bloom v.
Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522(1968). Petty crimes, as defined in 18 U.S.C. § 19, encompass
offenses punishable by fines up to $5000.00. When no maximum
penalty has been affixed through legislation, the courts look to
the penalty actually imposed as the best evidence of the
seriousness of the crime. Id. at 211, 88 S.Ct., at 1487.
Appellants cite cases decided prior to the enactment of the § 19
$5000.00 limit for the proposition that the limit should be ignored
or changed. This argument is not persuasive.
Appellants also note that if a defendant can demonstrate that
any additional statutory penalties, viewed in conjunction with the
maximum authorized period of incarceration, are so severe that they
clearly reflect a legislative determination that the offense in
question is a "serious" one, he has a right to a jury trial, citing
Blanton v. North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103
14
L.Ed.2d 550 (1989). Appellants have identified two consequences of
their convictions that they urge this court to consider. The
first, damage to their reputations, is not statutory and not
appropriately considered. The second, a potential for Texas State
Bar disciplinary proceedings, is likewise not statutory, but
imposed by a self-regulating bar association.
We therefore hold that Appellants had no right to a jury trial
in this case.
MOTION FOR NEW TRIAL
Appellant filed a motion for new trial based on newly
discovered evidence. They discovered, after their trial was over,
that Fagan had cooperated with the FBI in the investigation of the
Fagan case and other cases. Under United States v. Bagley, 473
U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), withholding
evidence which the defendant can use to impeach the government's
witness requires reversal if there is a reasonable probability that
had the evidence been disclosed to the defense, the result would
have been different. This Circuit has articulated five factors
which must be satisfied before the granting of a motion for new
trial is appropriate. United States v. Ugalde, 861 F.2d 802, 808
(5th Cir. 1988).
First the evidence must be discovered following trial and
second, the failure to learn of the evidence must not be caused by
lack of due diligence on the part of the defendant. Although,
there is no indication that the government disclosed this
information to Appellants, Time testified at the contempt hearing
15
that Jordan had been contacted prior to the Fagan trial by the FBI,
who "had him in the U.S. Attorney's Office upstairs for a long
period of time. Somewhere in the area of 45 minutes." Since Time
was aware of the Jordan-FBI connection prior to the hearing, it is
a stretch to categorize it as newly discovered evidence, and there
is no question that Appellants could have pursued this knowledge
through cross examination of Jordan himself, or by investigating
and subpoenaing witnesses who were involved in Jordan's debriefing.
Additionally, the evidence fails to satisfy the third Ugalde
requirement that the evidence must not be merely cumulative or
impeaching. Evidence of Jordan's cooperation with the FBI does
not directly rebut his testimony, and is relevant only as to
Jordan's credibility.
The final two Ugalde factors require that the evidence be
material, and such that a new trial will probably produce an
acquittal. The trial court had the testimony of Weinberg as well
as Jordan to consider on the issue of Weinberg's guilt and Jordan's
testimony concerning Time was corroborated by Conn. Further, the
trial court heard testimony that Jordan cooperated with the
government and so was aware of his possible bias at the time of the
original hearing.
The district court's decision to deny the motions for new trial
was not an abuse of discretion. United States v. Alvarado, 898 F.2d
987, 994 (5th Cir. 1990).
CONCLUSION
16
The record persuades us that Judge Solis carefully protected
Appellants' due process rights and conducted the hearing in a
curteous and professional manner. The Judge in this exercise of
inherent power clearly demonstrated his sensitivity to the dual
role that judges must frequently assume, that is, protecting the
rights of accused persons while at the same time safeguarding the
integrity of the court and its processes.
The district court's orders as to Time and Weinberg are
AFFIRMED.
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