United States v. Eugene Forte ( 2018 )

NOT FOR PUBLICATION FILED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.
3