In Re Thomas W. Farquhar , 492 F.2d 561 ( 1973 )

WISDOM, Circuit Judge:

Thomas W. Farquhar, appellant, was convicted of criminal contempt under 18 U.S.C. § 401(1), (3)¹ and F.R.Cr.P. 42(a).² On appeal, he contends that the certificate of contempt should have been dismissed because it failed to establish the crime of contempt; that the trial judge should have issued an order to show cause under F.R.Cr.P. 42(b) before holding the appellant in contempt; that the record fails to show the requisite criminal intent; and, that a simultaneous appearance before another judge is a complete defense. We conclude that the record fails to show that the appellant had the requisite criminal intent to commit the crime of contempt. We therefore reverse the conviction.

I.

On December 14, 1971, Thomas Far-quhar commenced trial as counsel for Charles Crawley whom he was appointed to defend under the Criminal Justice Act. On December 15, just before the midday recess, Farquhar asked Judge George L. Hart, Jr., the trial judge, to permit him to go “next door” to inform Judge Oliver Gasch that he would be unable to be in Judge Gaseh’s courtroom at 1:45 p. m. to conclude a bond hearing which had been continued three times. Judge Hart, at 12:30 p. m., declared a recess until 1:45 p. m. The last words on the record before the recess are the court’s: “If counsel is one second late he will be fined. I will also see counsel at 1:35 in chambers.” The court refused him this permission but stated that Farquhar should go there before 1:45 and tell Judge Gasch that he would be unable to attend the bond hearing.

At 1:35 Farquhar arrived on schedule at the trial judge’s chambers. When he concluded their meeting at 1:39 he asked if he could go to the second judge’s chambers. He was told that he could but that he must return by 1:45 p. m.

The trial was reconvened at 1:45 but Farquhar did not arrive until 1:53 p. m., eight minutes late. The Court called him to the bench and explained that he had kept waiting “fourteen jurors, a reporter, a marshall, a clerk, a United States attorney, another defense attorney and several witnesses and the court. .” Farquhar apologized but explained that when he arrived at Judge Gaseh’s courtroom that judge’s clerk told him not to leave because the hearing would be called first. He explained to the trial judge: “I said I would leave if they didn’t take the matter promptly. I would not have stayed in [Judge Gaseh’s] court if [he] would let me go. I would have had to walk out on him and I am reluctant to do that.” The trial court immediately found Farquhar in contempt under F.R.Cr.P. 42(a) and fined him $150.

On appeal, the appellant states that when he arrived at the second judge’s courtroom, he was told that the judge would be taking the bench immediately and his case would be called first. All other parties necessary for the bond hearing were present including government counsel and the defendant. Perhaps two minutes later the judge took the bench and called a preliminary matter. As Farquhar stood up to leave the clerk called the bond hearing. The appellant explained that he was in trial in another court, but Judge Gasch assured him that the hearing would be handled expeditiously. The hearing lasted ten minutes.

H.

At the outset the appellant contends that, even if his actions constituted contempt, they were not "committed in the actual presence of the court”. If committed outside the presence of the court, the court may not act summarily under F.R.Cr.P. 42(a) to punish the offender but is required under part (b) to notify the defendant of the essential facts constituting the contempt, schedule a hearing with prior notice to the defendant, and allow the defendant a reasonable time for preparation of a defense.

After the parties filed their briefs in this action, we concluded in In re Ni-black, 156 U.S.App.D.C. 20, 476 F.2d 930 (1973) and in In re Gates, 156 U.S.App.D.C. 88, 478 F.2d 998 (1973) that tardiness of counsel, after counsel is ordered to appear in court at a specified hour, is an act occurring in the presence of the court “or so near thereto as to obstruct the administration of justice”. 18 U.S.C. § 401(1). This Court in Niblack distinguished Klein v. United States, 80 U.S.App.D.C. 106, 151 F.2d 286 (1945) and Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928 (1971), which the appellant argues are controlling here. Both because of our recent decisions and because the trial judge here was aware of the essential facts, we conclude there was no error of procedure. We consider it appropriate to note, however, that in Gates, decided after Niblack, the court itself raised, but did not answer, the issue whether the “spirit of Rule 42(a) does not call upon the judge, when he apprehends that the issue^of contempt for tardiness involves, by way of excuse, matters outside the presence of the court, to proceed by reference of the matter to another judge, and invocation of Rule 42(b)”. Gates, 156 U.S.App.D.C. at 90, 478 F.2d at 1000.

III.

The appellant also contends that his conviction is invalid because he did not possess the criminal intent to commit a contempt. Criminal contempt requires both a contemptuous act and a wrongful state of mind. In Sykes v. United States, 144 U.S.App.D.C. 53, 444 F.2d 928, 930, (1971) we stated:

An essential element of [criminal contempt] is an intent, either specific or general, to commit it. [citations omitted]. By definition, contempt is a ‘wilful disregard or disobedience of a public authority.’ [citations omitted], The requisite intent may be inferred if a lawyer’s conduct discloses a reckless disregard for his professional duty. In the appellant’s case however, there was no evidence that he deliberately or recklessly disregarded his obligation to the court, or that he intended any disrespect for the court. On the contrary it is clear from his unchallenged explanation that his failure to appear was not by design but resulted from a lapse of memory, preoccupation with another case, and confusion as to dates. . . . The specter of a default because of forgetfulness or confusion haunts the dreams of every busy trial lawyer. Nor was there any suggestion that the appellant’s lapse was anything but an isolated aberration.

In contrast to Sykes is Niblack where the attorney was an hour and fifty minutes late after he had been warned “time and time again about being on time”. The district judge in Niblack noted that the attorney’s taridness had “happened many times in the past”. The court there concluded that the evidence “met the test of criminal intent applied in Sykes v. United States” and affirmed a fifty dollar fine. Similarly in Gates, where the attorney was fifty minutes late, the Court concluded that there was sufficient evidence of intent, but reduced the fine to fifty dollars.

Here we review a fine of one hundred and fifty dollars for eight minutes tardiness where there is no evidence that Farquhar was repeatedly unpunctual. The trial judge gave Farquhar express permission to go to the other courtroom. The judge presiding over the bond hearing, as well as the trial judge, knew of Farquhar’s predicament and completed the hearing within ten minutes.

Had the appellant abruptly left the hearing to literally comply with Judge Hart’s order not to be a second late, he would have risked insult, disrespect, or even contempt of Judge Gasch. Moreover, he would perhaps have obstructed “the administration of justice” by causing a fourth continuance of the bond hearing.

Though the appellant is not blameless for the creation of this conflict and might have judiciously foreseen the potential for an impasse, his conduct was not “contumacious”, Gates, 478 F.2d 998; or in “reckless and wilful disregard of the court’s order,” Niblack, 476 F.2d 930; nor did it disclose “[a reckless] disregard for his professional duty” or that “he intended any disrespect for the court”. Sykes, 444 F.2d at 930. We admire and respect Judge Hart’s acknowledged sense of judicial propriety, but because the record discloses no criminal intent on the part of the appellant, we feel compelled to reverse the conviction for contempt. Our conclusion on this issue makes it unnecessary to discuss appellant’s other points of error.

Reversed and remanded.

1 . 18 U.S.C. § 401 reads:

A court of the United States shall have power to punish by fine or imprisonment," at its discretion, such contempt of its authority, and no other as—

(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice,

(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

2 . F.R.Cr.P. 42(a) provides for summary disposition of criminal contempt committed “in the actual presence of the court”. 42(b) provides for disposition upon notice and hearing of a criminal contempt not committed in the presence of the court.