In Re Russell Wilson Chaplain, Sr , 621 F.2d 1272 ( 1980 )

K. K. HALL, Circuit Judge:

Russell Wilson Chaplain, Sr., appeals his conviction of criminal contempt summarily adjudicated by a district judge in the course of IRS subpoena enforcement proceedings against Chaplain and his daughter. We have carefully reviewed the record, have considered the controlling law relevant thereto, and affirm the conviction.

I.

Chaplain and his daughter, Suzanne Goldsticker, appeared pro se in the United States District Court for the Eastern District of Virginia on May 11,1978, as defendants in a proceeding brought by the United States seeking enforcement against them of an Internal Revenue Service subpoena.¹ During the hearing several disturbing and distracting factors and developments emerged. At the outset the district judge found it necessary to order a stenographer privately employed by Chaplain away from a position taken, at Chaplain’s direction, alongside the official court reporter.² Throughout the approximately two hours of proceedings that followed, Chaplain’s conduct posed incredibly difficult problems of control upon the district judge. While never engaging in acts of physical obstruction or directing any overt threats, insults or calumny at the judge, Chaplain continually interrupted him and other participants in the proceeding, refused to sit down when directed to do so by the judge, badgered witnesses, evaded questions from the bench, and generally refused to observe even minimal requirements of common civility, much less the decorum traditionally expected of participants in judicial proceedings.³ His daughter’s conduct, though more moderate, was of a like kind, and while not directly involved in this contempt appeal, clearly contributed to the climate in which the critical courtroom events led to the contempt convictions. After several ineffective attempts by the trial judge to bring Chaplain into order, the judge explicitly warned him that further interruptions of the judge or uncalled for remarks directed at witnesses would result in Chaplain’s confinement. This had no discernible effect on Chaplain, who continued the course of querulous, argumentative interruptions and commentary. When these developments somewhat exhausted the patience of the judge, the first summary conviction took place during the course of Chaplain’s cross-examination of a Government witness.

Chaplain had asked the witness a question and then prevented his answering it, whereupon the following exchange occurred.

MR. CHAPLAIN: Judge, Your Honor, I don’t want a lot of talk.

THE COURT: Mr. Chaplain, you asked the question he’s answering.

MR. CHAPLAIN: Yeah, but he’s answering a whole lot of strange phrases, and everything.

THE WITNESS: No. I’m just—

MR. CHAPLAIN: I just want to know: What did you all-—

THE WITNESS: I’m just telling you—

THE COURT: Wait a minute. Hold it; hold it. Mr. Chaplain, let him finish answering the question.

MR. CHAPLAIN: All right, go ahead I have all day.

THE WITNESS: Anyway, Mr. Sheffer—

THE COURT: Mr. Chaplain, you’re fined fifty dollars.

MR. CHAPLAIN: What for?

THE COURT: For contempt of court for a smart remark.

Moments later, the second conviction took place. When Chaplain temporarily stopped his questioning of the witness, the following occurred. We quote at some length, not because of the particular importance of the remainder of the exchange but because it is illustrative of the day’s proceedings.

THE COURT: All right. You through?

MR. CHAPLAIN: No.

THE COURT: All right.

MR. CHAPLAIN: He set up there and stuttered and stammered, that other man.

I’m trying to think—

THE COURT: That’s another fifty dollars.

MR. CHAPLAIN: I got — I got some more—

THE COURT: That’s another fifty dollars Mr. Chaplain. That’s a hundred dollars you owe.

MR. CHAPLAIN: Judge, just — Judge, just — just continue — just do whatever you’re going to do.

MRS. GOLDSTICKER: Now I’m—

MR. CHAPLAIN: I just think this is unfair.

MRS. GOLDSTICKER: Daddy— It’s my turn now?

THE COURT: Well, he’s — I don’t know whether he’s through or not.

MRS. GOLDSTICKER: Oh, excuse me. MR. CHAPLAIN: Every time I say— what did I say then that was—

THE COURT: Every time you make a smart remark, it’s going to be another fifty dollars.

You’re here — up here to ask—

MR. CHAPLAIN: What—

THE COURT: —questions of this witness and not to comment on them, not to comment—

MR. CHAPLAIN: What did I say then that was a smart remark?

I mean, is this, what I’m saying now, smart?

I’m just asking: what did I say?

THE COURT: Go ahead. Ask the question, if you have any more questions.

Upon completion of the evidentiary portion of the proceedings, the district judge from the bench ordered enforcement of the subpoena, then turned to the contempt matter. Placing Chaplain in the Marshal’s custody, he directed that Chaplain be taken to the Clerk’s office to pay the fines, failing which he was to be confined until he made payment. Chaplain then paid the fine. Thereafter the judge entered a written order adjudging contempt in conformity with Fed.R.Crim.P. 42(a). This appeal followed.

II.

The power summarily to convict and punish for contempt of court is a general and universal attribute of judicial authority. Ex parte Robinson, 86 U.S. (19 Wall.) 505, 509, 22 L.Ed. 205 (1874). Inherent in federal judicial power, its current use is regulated by statute and rule. Atwell v. United States, 162 F. 97, 102 (4th Cir. 1908).⁴ The power rests on the proposition that a hearing to determine guilt of contempt is not necessary when contumacious conduct occurs in the actual presence of a judge who observes it, and when immediate action is required to preserve order in the proceedings and appropriate respect for the tribunal. If either of these conditions is not present, the use of summary contempt power may be inappropriate. See Dobbs, Contempt of Court: A Survey, 56 Cornell L. J. 183, 229 (1971).

III.

Chaplain first contends that we should reverse his conviction outright because, as a matter of law, the conduct for which he was specifically convicted and punished did not constitute contempt. He then says that in any event we should conclude as a matter of law that he could not have had the criminal intent requisite to convict him for the conduct charged. We reject both of these contentions on the basis that neither is established as a matter of law on the facts of record.

Consideration of these two issues requires that the conduct properly to be assessed as criminal contempt be first established. Relying upon Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974) (per curiam), Chaplain contends that the conduct chargeable to him is narrowly and specifically that identified by the district judge as the basis of his adjudication of contempt, and that this consisted only of the two statements: (1) “I have all day”; and (2) “he [the witness] set up there and stuttered and stammered, that, other man.”⁵ We do not believe that Eaton requires so narrow a range of inquiry into the conduct properly to be considered here. In Eaton, the question was whether in addition to a single street vulgarism specifically cited by a state trial judge as contumacious conduct, account could be taken by a state reviewing court of follow-up conduct by the contemnor that was not specifically cited.⁶ The court held, over a vigorous dissent, that under the circumstances, allowing consideration of the uncited follow-up conduct would unconstitutionally deny due process by sustaining conviction on a charge not made. Id. at 699, 94 S.Ct. at 1230. A critically distinguishing factor in Eaton was that, even on the widest view, the contumacious conduct properly chargeable to the contemnor was limited to a fairly discrete episode that occurred suddenly and not as the culmination of a continued pattern of conduct.⁷ The decision cannot therefore fairly be applied as Chaplain would have it applied to the altogether different pattern of conduct in this case. The distinguishing feature here is a course of conduct in which a series of acts of interference and disruption marks the record.

The summary contempt power must be able constitutionally to respond to this sort of “nibble-to-death” obstruction as well as to the sufficiently obstructive single episode. See, e. g., In re DuBoyce, 241 F.2d 855 (3d Cir. 1957) (per curiam); United States v. Green, 176 F.2d 169 (2d Cir. 1949). Applying it, however, to this pattern while protecting the contemnor’s due process rights poses problems for the trial judge and for reviewing courts. Both must be concerned that fair advance warning shall have been given to a possibly unaware contemnor that a contempt conviction may ultimately result from a “last-straw” repetition of identified conduct. See United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965); United States v. Green, 176 F.2d 169 (2d Cir. 1949). Both must be concerned with the responsibility of the trial judge as he tries without resorting to the contempt sanction to bring matters under control by “moral authority,” Sacher v. United States, 343 U.S. 1, 38, 72 S.Ct. 451, 469, 96 L.Ed. 717 (1952) (Frankfurter, J., dissenting), or by less drastic coercive alternatives to contempt. See Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). One of the problems of accommodation involves that one under discussion here: the form in which cumulative conduct is to be specified by the judge convicting upon what he considers a last-straw occurrence. Both the controlling rule, Fed.R.Crim.P. 42(a),⁸ and constitutional due process, see Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974) (per curiam), enjoin upon him a fair degree of specificity in charging direct criminal contempt, even though the very nature of the summary procedure contemplates that citation, conviction and, ordinarily, punishment, will be accomplished in one fell swoop. This specificity requirement can and must be accommodated to “pattern of conduct” contempt convictions in a way adequately protective both of the inherent judicial power and individual rights. We hold that where the record reveals a pattern of potentially disruptive conduct preceding a summary conviction, the specification of a single episode adequately charges as well the entire course of like antecedent conduct from the time when it was fairly identified to the contemnor as potentially contumacious. This we think will satisfy every interest in first instance fair notice that the summary contempt power can be thought to permit, as well as fair opportunity for appellate review of the conduct upon which conviction is demonstrably based. Cf. Eaton v. City of Tulsa, 415 U.S. at 699, 94 S.Ct. at 1230.⁹

Applying this rule to the instant case, we conclude that the conduct for which Chaplain was convicted is properly considered to be the entire course of his conduct from the time that the district judge warned him, App. 30, that further interruptions of the judge or unwarranted remarks to witnesses would result in his confinement. It is accordingly this range of conduct that we now assess in considering Chaplain’s legal contentions.

Direct contempt justifying summary disposition is confined to exceptional circumstances involving acts “threatening the judge or disrupting a hearing or obstructing court proceedings.” Harris v. United States, 382 U.S. 162, 164, 86 S.Ct. 352, 354, 15 L.Ed.2d 240 (1965). But it is also clear that acts having no element of violence, physical force, or vituperation may be adjudged disruptive or obstructive within this principle. See, e. g., In re DuBoyce, 241 F.2d 855 (3d Cir. 1957) (per curiam); United States v. Green, 176 F.2d 169 (2d Cir. 1949). And, as we have earlier indicated, disruption or obstruction may be found in the cumulative impact of actions no one of which standing alone could be so found. It is only necessary that a contumacious act be “ ‘a volitional [one] done by one who knows or should reasonably be aware that his conduct is wrongful.’ ” United States v. Marx, 553 F.2d 874, 876 (4th Cir. 1977) (quoting United States v. Seale, 461 F.2d 345, 368 (7th Cir. 1972)).

Upon the record we find that Chaplain’s conduct and actions were disruptive and obstructive and clearly manifested the requisite criminal intent to sustain his summary contempt conviction. In the administration of justice the judiciary must have and exercise authority and power over the control and conduct of judicial proceedings. Our laws of contempt have their roots in early English history. 4 Blackstone’s Commentaries 284, 285. The Judiciary Act of 1789 manifested the early concern of the Congress that the courts should have and exercise this authority and power. More recently, through enactment of our current contempt statute, 18 U.S.C. § 401, and the promulgation of Rule 42, Federal Rules of Criminal Procedure, has this continued concern been manifest. Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958); Gordon v. United States, 592 F.2d 1215 (1st Cir. 1979). The record in the district court, as now before us for review, amply supports the contempt conviction and the judgment is affirmed.

AFFIRMED.

1 . The subpoena sought production of the records of several Chaplain family corporations.

2 . For the purpose, according to Chaplain, of ensuring an accurate record of the proceedings.

3 . The district judge accurately described the course of conduct in his order filed pursuant to Fed.R.Crim.P. 42(a) in essentially these terms and with supporting references to the transcript.

4 . 18 U.S.C. § 401(1) provides:

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;

Fed.R.Crim.P. 42(a) provides

ta) Summary Disposition. 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.

5 . The district judge’s Rule 42(a) order did specifically identify these particular utterances as the exact contumacious conduct being adjudged. But the order also carefully recited the antecedent like conduct and the prior warning given by the judge that its continuation would result in punishment. App. 1-2.

6 . This consisted of disrespectful comments to the judge by the contemnor when the judge cited him for the vulgarism. The vulgarism itself was not spoken to or about the judge but about a person not involved in the trial.

7 . While the Court in Eaton was bothered by the lack of a record of the contempt hearing itself, it had a transcript showing the cited conduct at the trial. This revealed it as a discrete episode as here described.

8 . The rule requires the judge to “recite the facts” in the post hoc certification that confirms and records for appellate review his summary adjudication. See note 4 supra.

9 . The practical consequence of a rigid “pleading” rule of the type urged by Chaplain would likely be the classic response of pleaders through time: broadside uninformative dragnets, perhaps citing to the whole record, or minute recitation of every separate episode in the course of conduct. Neither is desirable or needed to protect the interests involved.