United States v. McMahon

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4370
SAMUEL H. MCMAHON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(MISC-96-24-3-P)
Argued: September 27, 1996
Decided: January 15, 1997
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the majority opin-
ion, in which Judge Niemeyer joined. Judge Michael wrote a dissent-
ing opinion.
_________________________________________________________________
COUNSEL
ARGUED: David Carl Cordes, BAILEY, PATTERSON, CAD-
DELL, HART & BAILEY, P.A., Charlotte, North Carolina, for
Appellant. David Alan Brown, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, Kenneth M. Smith, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Samuel H. McMahon, Jr. appeals the district court's finding that he
committed criminal contempt by willfully violating a sequestration
order. We affirm.
I.
McMahon's contempt conviction arises out of his conduct during
the criminal trial of his son, Samuel H. McMahon, III. This trial
marked one chapter of years of litigation waged by McMahon and his
son against those, including the federal government, charging them
and entities controlled by them with fraudulent business activities.1
On February 1, 1996, in anticipation of McMahon III's criminal
trial, defense counsel moved to sequester the government's witnesses
"so that they cannot hear the testimony of other witnesses." The gov-
ernment responded to this motion on the same day, stating that it did
not oppose the motion but requested the court to order "the exclusion
of all witnesses [except certain government agents] including wit-
nesses for the defendant."
On February 2, the court issued a written order, sequestering all
witnesses, save some government agents. The written order provided,
inter alia:
. . . the Government's motion to sequester the Defendant's
witnesses will be granted, and the Defendant's witnesses
will be excluded from the courtroom.
_________________________________________________________________
1 See, e.g., In re Southeast Hotel Props., No. 95-3188, 1996 WL
628263 (4th Cir. Oct. 31, 1996); In re Southeast Hotel Props., 151
F.R.D. 597 (W.D.N.C. 1993); In re Southeast Hotel Props., 796 F. Supp.
538 (J.P.M.L. 1992); Chrysler Capital Corp. v. Southeast Hotel Props.,
697 F. Supp. 794 (S.D.N.Y. 1988), aff'd, 888 F.2d 1376 (2d Cir. 1989);
Weisman v. Southeast Hotel Props., No. 91 Civ. 6232, 1992 WL 131080(S.D.N.Y. June 1, 1992).
2
Defense counsel was provided a copy of the written order when he,
McMahon, and McMahon III arrived for McMahon III's criminal trial
on February 5.
Defense counsel did not inform McMahon of the sequestration
order and so McMahon remained in the courtroom on February 5 dur-
ing the voir dire of the jury. At this time, the court reporter offered
daily trial transcripts to all interested persons. Although defense coun-
sel did not order daily transcripts of the proceedings, McMahon
ordered transcripts for himself.
Later on February 5, after voir dire was completed, but prior to
opening statements, the prosecutor asked that McMahon be excluded
from the courtroom pursuant to the sequestration order. Defense
counsel requested in open court that the court exempt McMahon from
the sequestration order because "he is the father of [McMahon III]
and I would like for him to be present." The following colloquy then
transpired:
The Court: Does the government object to that?
[Prosecutor]: We do, Your Honor, because Mr. Mc-
Mahon's Jr.'s [sic] role in this case will become, I believe,
somewhat critical. If [defense counsel] had made the same
request with respect to the Defendant's wife, we wouldn't
have an objection, but I believe Mr. McMahon Jr. should be
excluded.
The Court: I have to go with the request unless there is a
good reason for it, I will deny your motion for that. He will
have to leave the courtroom.
According to McMahon, defense counsel then "very strongly" reiter-
ated to McMahon that he would have to leave the courtroom, and
McMahon left.
The trial proceeded -- it consumed nine days in all. Eventually,
government attorneys became aware of the activities of a woman sit-
ting in the back of the courtroom. This woman would take extensive
3
notes of the proceedings and periodically exit the courtroom to make
phone calls. Upon learning that the woman in question was
McMahon's secretary, Ms. Almond, the court permitted the prosecu-
tor to examine her.
In response to the court's question as to why she was taking notes
of the proceedings, Almond testified "Mr. McMahon, Jr. asked me if
I would take notes." She produced nearly fifty pages of detailed notes,
reflecting the testimony of government witnesses, documents entered
into evidence by the government, and questions posed by the Assis-
tant U.S. Attorney. (The district judge later remarked that Almond
"took more notes than I did during the trial.") Almond also stated that
she received the daily transcripts of the proceedings, brought the tran-
scripts to McMahon's office at his request during the luncheon break,
and then copied them for McMahon. Finally, Almond testified that
she discussed the trial generally with McMahon in his office.
On the basis of this evidence, the district court initially ruled that
McMahon would not be permitted to testify at McMahon III's crimi-
nal trial. Later the court concluded that McMahon III should not be
deprived of presenting McMahon's testimony because there was
insufficient evidence that McMahon III had directed or aided any vio-
lation of the sequestration order. For this reason, the court ultimately
permitted McMahon to testify at McMahon III's trial; however, the
court allowed the government to cross-examine McMahon as to his
secretary's activities.
On February 22, 1996, subsequent to the termination of McMahon
III's criminal trial, the government moved, pursuant to 18 U.S.C. § 4012and Fed. R. Crim. P. 42, for an order to show cause why McMahon
should not be held in criminal contempt for willfully violating the
_________________________________________________________________
2 That statute provides in pertinent part:
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 --
...
Disobedience or resistance to its lawful writ, process, order, rule,
decree, or command.
4
sequestration order. The district court granted the motion and, on
April 9, held a full evidentiary hearing on the matter.
At that hearing, the court received a number of exhibits and heard
testimony from six defense witnesses, including McMahon, and one
government witness. McMahon called Almond as his first defense
witness. Although she initially attempted to distance herself from her
earlier testimony, Almond ultimately acknowledged the truth of that
testimony and supplied some additional evidence damaging to
McMahon.
She testified that McMahon "requested" that she attend court pro-
ceedings. Moreover, she conceded that during the trial's luncheon
recess she not only made copies of the daily trial transcripts at
McMahon's request, but also left the copies at McMahon's office on
her desk. When she returned to the office each day after the trial
"sometimes" the trial transcript she had left at lunch would be on her
desk and "sometimes it would not be." Moreover, although Almond
swore that she never read the trial transcripts herself before the trial
concluded, and had never seen McMahon read them, she acknowl-
edged that several pages of the transcript were"dogeared," i.e., inten-
tionally folded over to mark a place. She said that she had not folded
the pages and agreed "that people were not in the habit of removing
things that belonged to Mr. McMahon Jr. from [her] desk" in his
office. Almond also admitted that in addition to generally discussing
the trial with McMahon at his office, she telephoned him from the
courthouse one or two times each day during the nine-day trial.
After Almond's testimony, McMahon offered several character
witnesses and then testified at length on his own behalf. He began his
testimony by claiming that one of the reasons he ordered daily trial
transcripts was because his son's defense counsel told him that
defense counsel would "need" the daily transcript. This testimony
contradicted the affidavit McMahon offered from the defense counsel
in which counsel swore that he did not want daily transcripts and so
advised the court reporter, but that because McMahon himself wanted
daily transcripts, counsel ordered them. McMahon admitted that
defense counsel gave him pleadings from the proceedings against
McMahon III, including the witness lists, and McMahon acknowl-
edged that he knew he was listed as a prospective witness on both
5
witness lists. McMahon asserted, however, that he had never seen the
written sequestration order and never been told about it.
McMahon also claimed that he did not know about the oral seque-
stration order, and that he had been ordered out of the courtroom, not
by the district court, but by McMahon III's defense counsel.
McMahon had given a somewhat different account when he had testi-
fied at McMahon III's criminal trial. Then McMahon had conceded
that he had been in the courtroom, had heard the prosecutor ask that
he be excluded pursuant to the sequestration order, and had heard
defense counsel argue that he be excepted from the sequestration
order. McMahon admitted that, before he was excluded from the
courtroom, he had known that the district court"had agreed [with the
prosecutor] that I had to leave."
As for his secretary's activities, McMahon admitted asking her to
pick up the daily transcripts but he said that this was only to have a
record of the proceedings. He denied requesting that his secretary
attend the trial and claimed that she repeatedly asked him if he would
"allow her to come to the trial." He denied asking her to take notes
at the trial. He denied reading the notes. Throughout the proceedings,
he maintained that he read no more than the cover pages of the trial
transcripts. Yet, he could not explain how his copies of the transcripts
came to be "dogeared." Further, he did not"know" and was "not sure"
how he learned of, and referred to, a government witness' trial testi-
mony during his own trial testimony.
The government offered the testimony of one witness, Patty
O'Brien. That witness corroborated the trial testimony of another wit-
ness, Renee Serwin, that McMahon had asked Serwin"to go to the
bankruptcy court and lie about" McMahon III's request that they both
create false documentation on certain business records.
At the conclusion of the hearing the district court found that the
evidence demonstrated beyond a reasonable doubt that McMahon
willfully violated the court's sequestration order. Accordingly, the
court found him in criminal contempt and sentenced him to thirty
days imprisonment, but stayed that sentence pending appeal. Seven
days later, the court issued a fifteen page written order, replete with
6
numerous factual findings more fully explaining its finding of guilt.
This appeal followed.
II.
The sole issue before us is whether the district court erred in find-
ing McMahon in criminal contempt for violating the sequestration
order.
The court issued the sequestration order pursuant to Fed. R. Evid.
615, which provides in pertinent part:
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other wit-
nesses, and it may make the order of its own motion.
It has long been established that a judge may find a person who vio-
lates a sequestration order in contempt of court. See, e.g., Holder v.
United States, 150 U.S. 91 (1893).
McMahon does not claim to the contrary. Nonetheless, he poses a
two-pronged argument as to why the district court erred in finding
him in contempt. First and principally, he asserts that because the dis-
trict court failed to "instruct counsel and witnesses" specifically on
the sequestration order and "its intended scope," he should not be held
in contempt for violation of the order. Second, he maintains that the
evidence fails to establish beyond a reasonable doubt that he "will-
fully took possession of, and read, notes or transcripts of trial testi-
mony."
"To support a conviction of criminal contempt for violation of a
court order, it must be proved beyond a reasonable doubt, that a per-
son willfully, contumaciously, intentionally, with a wrongful state of
mind, violated a decree which was definite, clear, specific, and left no
doubt or uncertainty in the minds of those to whom it was addressed."
Richmond Black Police Officers Ass'n v. City of Richmond, Virginia,
548 F.2d 123, 129 (4th Cir. 1977) (internal citations omitted). A
court's legal conclusion of guilt must be supported by evidence suffi-
cient to prove guilt beyond a reasonable doubt. See, e.g., United
7
States v. Ismail, 97 F.3d 50, 55 (4th Cir. 1996); United States v. Bales,
813 F.2d 1289, 1293 (4th Cir. 1987). However, a trial court's underly-
ing factual findings must be accepted unless they are clearly errone-
ous. Bales, 813 F.2d at 1293.
With these principles in mind, we consider each of McMahon's
arguments.
A.
McMahon's chief claim is that the sequestration order was not suf-
ficiently specific to provide the basis for a finding of criminal con-
tempt. In order for a violation of a court order to constitute criminal
contempt, constitutional principles of fair notice require that the order
be "definite, clear, and specific" enough so that it leaves "no doubt or
uncertainty in the minds of those to whom it was addressed."
Richmond, 548 F.2d at 129.
However, in assessing if an order contains the requisite specificity,
we look at the defendant's "own behavior and not to some hypotheti-
cal situation." United States v. Trudell, 563 F.2d 889, 892 (8th Cir.
1977). Thus, contrary to McMahon's suggestion, whether a hypotheti-
cal witness would be on notice that he "could not read, contact, dis-
cuss, or review anything pertaining to the trial outside the courtroom"
is immaterial.3 The question we must resolve is whether the district
_________________________________________________________________
3 Furthermore, none of the authority that McMahon cites supports the
view that absent specific instruction that a witness should not "read, con-
tact, discuss, or review anything pertaining to the trial outside the court-
room, no witness should be held in contempt for engaging in such
conduct." The cases upon which McMahon relies do not even involve a
finding of criminal contempt. Rather, they concern the very different
question of whether a trial court abused its discretion in permitting a wit-
ness who arguably violated a sequestration order to testify. See United
States v. Sepulveda, 15 F.3d 1161, (1st Cir. 1993), cert. denied, 114 S.
Ct. 2714 (1994); United States v. Buchanan, 787 F.2d 477 (10th Cir.
1986), rev'd on other grounds after remand, 891 F.2d 1436 (10th Cir.
1989), cert. denied, 494 U.S. 1088 (1990); United States v. Johnston, 578
F.2d 1352 (10th Cir. 1978), cert. denied, 439 U.S. 931 (1978). In two of
these cases, after noting that any violation of the sequestration order did
8
court clearly erred in concluding that McMahon, a sophisticated busi-
nessman, who, for a number of years, had been engaged in a series
of hotly contested cases defending himself and his son from charges
of fraudulent activity in million-dollar business deals, knew that his
conduct violated the sequestration order.
Moreover, in a criminal contempt case involving a sequestration
order:
The court should consider the entire background behind the
order -- including the conduct the order was meant to
enjoin or secure, the interests that it was trying to protect,
the manner in which it was trying to protect them, and any
past violations and warnings -- in determining whether the
order is sufficiently specific.
United States v. Greyhound Corporation, 508 F.2d 529, 532 (7th Cir.
1974); accord United States v. Hodge, 894 F. Supp. 648, 651
(S.D.N.Y. 1995). Unlike the typical complex order that a defendant
attacks as insufficiently specific, the conduct enjoined here is stun-
ningly simple: prospective witnesses were barred from the courtroom.4
_________________________________________________________________
not appear to prejudice the case, the appellate court held the trial judge
did not abuse his discretion in permitting the testimony. Sepulveda, 15
F.3d at 1176-77; Johnston, 578 F.2d at 1354. Although the Tenth Circuit
in Buchanan determined that the lower court had erred in not properly
instructing the witness about the sequestration order, it nevertheless
found that the appellant had failed to prove probable prejudice sufficient
to justify excluding the testimony. Buchanan, 787 F.2d at 484-85.
4 Compare, for example, the order here with the order in the case on
which our dissenting colleague principally relies, United States v.
NYNEX Corp., 8 F.3d 52 (D.C. Cir. 1993). There,§ II (D) of the order
prohibited regional telephone companies from providing "informational
services," which were defined in § IV (J) of the order to mean "the offer-
ing of a capability for generating, acquiring, storing, transforming, pro-
cessing, retrieving, utilizing, or making available information which may
be conveyed via telecommunications." Id. at 53. However, § VIII of the
order provided that "[n]otwithstanding the provisions of section II-1.c.
(D)(2), [Regional Companies] shall be permitted to provide, but not man-
9
The interest protected was clear: "to prevent the possibility of one
witness shaping his testimony to match that given by other witnesses
at the trial." United States v. Leggett, 326 F.2d 613 (4th Cir.), cert.
denied, 377 U.S. 955 (1964). Accord, Opus 3 Ltd. v. Heritage Park,
Inc., 91 F.3d 625, 628 (4th Cir. 1996) (the sequestration rule is "de-
signed to discourage and expose fabrication, inaccuracy, and collu-
sion"). See also Fed. R. Evid. 615, advisory committee note ("The
efficacy of excluding or sequestering witnesses has long been recog-
nized as a means of discouraging and exposing fabrication, inaccu-
racy, and collusion."); United States v. Farnham, 791 F.2d 331, 334-
35 (4th Cir. 1986).
Nonetheless, McMahon testified and continues to maintain on
appeal that he never knew of the written sequestration order, never
understood that the court orally barred him from the courtroom, and
never realized that his activity, including talking with his secretary
about the trial she attended and took notes of, would violate the
court's written and oral sequestration orders. The district court con-
cluded that McMahon was "unworthy of credence," that, in fact, he
knew about the sequestration order and attempted to circumvent it so
that he "could address the harmful testimony of other witnesses" in
order to "undermine the government's case and further his son's
cause."
The court based this conclusion on numerous factual findings. The
court found "untenable" McMahon's claim that he had no knowledge
of the sequestration order because:
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ufacture, customer premises equipment." Id. "All parties agree[d]" that
"``informational services,'" which NYNEX could not provide and cus-
tomer premises equipment, "CPE," which it could provide, "substantially
overlapped." Id. at 55. Moreover, the Government was unable to "ratio-
nally differentiate" between "an information service and a CPE." Id. Fur-
thermore, the Government had advised other companies subject to the
same order that the CPE exemption permitted conduct very similar to
NYNEX's alleged contemptuous conduct. Id. at 57. Only in light of this
and other evidence of ambiguity in the complicated order did the NYNEX
court conclude that the order "lacked the necessary clarity and specificity
to support a finding of criminal contempt" by NYNEX. Id. There is, of
course, no comparable evidence of ambiguity in the short, easily under-
stood order at issue here.
10
[McMahon] admits that [defense counsel] gave him the wit-
ness lists and that he knew he was on both witness lists. He
was present in the courtroom during voir dire when both
parties described him as a potential witness. He was present
in the courtroom when the Government argued that he had
to be excluded from the courtroom because his testimony
was critical to the case. During that discussion, the Govern-
ment expressly distinguished between McMahon, Jr.-- who
had to be excluded because he was a witness -- and his wife
who did not have to be excluded -- because she was not a
witness. Likewise, McMahon, Jr.'s other son, Byron
McMahon, was also excluded from the courtroom because
he was a witness. Thus, the only family members who were
excluded from the courtroom, were those who were poten-
tial witnesses. Under these circumstances, the Defendant
could not help but know that he was excluded from the
Court because he was a witness -- the character[sic] that
separated him and Byron from other family members. In this
regard it should be noted that the Defendant is no dummy;
he is a highly successful real estate developer. He and his
son, Samuel H. McMahon III, managed limited partnerships
worth tens of millions of dollars. . . . Samuel H. McMahon,
Jr.'s claim of ignorance is also incredible for another reason:
implicitly, he asks this Court to believe that he was excluded
from the felony trial of his son, a trial attended by the whole
McMahon family and a trial he tried to attend himself before
he was excluded, but he never knew why he was excluded
and never asked for an explanation. Like other parts of Sam-
uel H. McMahon, Jr.'s story, this part just does not make
sense.
As to McMahon's contention that he did not know that reading trial
transcripts or discussing the trial with his secretary violated the seque-
stration order, the court also rejected that assertion as "untenable."
The sequestration order is a product of common sense and
its purpose is obvious; it is not a subtle legal doctrine as to
which the Defendant's plea of ignorance might have some
force. In this Court's view, an instruction that he could not
circumvent the sequestration order by reviewing trial tran-
11
scripts or receiving reports from his secretary would simply
have stated the obvious. Moreover, his contention that he
did not ask his secretary to take notes, did not discuss the
trial with her, and did not read the trial transcript belies his
contention that he did not know about the sequestration
order and did not understand its scope. If McMahon, Jr. did
not know about the sequestration order and did not know
that he could not monitor the courtroom proceedings by
reading the transcript, then why didn't he talk with his sec-
retary and why did he read just the cover-page of the daily
transcripts that he ordered and that were placed in his office
on a daily basis? The answer is obvious: The Defendant
knew about the sequestration order and understood its
scope.
We cannot conclude that the district court clearly erred in making
these findings. Although ignorance of the terms of a sequestration
order would ordinarily preclude a finding of contempt, a person "is
not permitted to maintain a studied ignorance of the terms of a decree
in order to postpone compliance and preclude a finding of contempt."
Perfect Fit Indus. v. Acme Quilting Co., 646 F.2d 800, 808 (2d Cir.
1981), aff'd after remand, 673 F.2d 53 (2nd Cir.), cert. denied, 459
U.S. 832 (1982). If McMahon truly remained ignorant of the seque-
stration order, it was indeed a "studied ignorance." By his own admis-
sion, he was in court and heard the prosecution move that he be
excluded from his son's criminal trial and defense counsel argue that
he be excepted from the sequestration order. He concededly under-
stood that the court agreed with the prosecutor that he had to be
excluded. In light of this, "[n]o concept of basic fairness is violated
by requiring [McMahon] to be more than normally careful in his
future conduct." United States v. Custer Channel Wing Corp., 247 F.
Supp. 481, 496 (D. Md. 1965) (Winter, J.), aff'd , 376 F.2d 675 (4th
Cir. 1967), cert. denied, 389 U.S. 998 (1967).
B.
McMahon's secondary argument, that the government offered
insufficient evidence to prove his guilt of criminal contempt beyond
a reasonable doubt, must also fail. Again, the district court's detailed
12
factual findings render McMahon's argument untenable. The court
found:
The evidence that tends to prove Samuel H. McMahon, Jr.'s
violation of the sequestration order also establishes his
knowledge and intent. That evidence establishes that Samuel
H. McMahon, Jr.'s secretary was paid to attend the trial of
Samuel H. McMahon, Jr.'s son and asked to take notes of
the trial proceedings. At Samuel H. McMahon, Jr.'s direc-
tion, daily transcripts were ordered and they were taken
back to Samuel H. McMahon, Jr.'s office where they were
copied by his secretary. The daily transcript was copied on
a daily basis and those transcripts were placed on her desk
in his office -- an office that people don't enter ordinarily.
Sometimes the transcripts had been moved during her
absence. The copy of the transcript left in Samuel H.
McMahon Jr.'s office was deliberately dog-eared (which is
not the hallmark of surreptitious reading), and the Defendant
has admitted that he read the cover-page of the transcript,
but he swears he read no more -- although he did not know
that further reading would be wrong. This evidence of
motive, plan, and opportunity virtually compels the conclu-
sion that Samuel H. McMahon, Jr. violated the order. When
the Court considers Samuel H. McMahon, Jr.'s lack of cred-
itability no other conclusion is possible.
We recognize that "[w]ilfullness, for the purpose of criminal con-
tempt, does not exist where there is a [g]ood faith pursuit of a plausi-
ble though mistaken alternative.'" Greyhound , 508 F.2d at 532(quoting In re Brown, 454, F.2d 999, 1007 (D.C. Cir. 1971)). Here,
however, nothing in McMahon's conduct demonstrates good faith.
Rather, the record reeks of a father's headstrong determination to aid
his son regardless of the consequences. As the district noted, "[t]his
impulse, while understandable, is nonetheless illicit."
A trial court must be permitted to retain the ability to control the
witnesses and litigants before it. Without that control, our system of
justice would suffer. Finding McMahon in criminal contempt on the
evidence in this case "falls within the ambit of permissible mainte-
nance of judicial decorum and represents a reasonable implementation
13
of the due-process mandate to preserve at all costs an atmosphere
essential to the most fundamental of all freedoms-- a fair trial."
Seymore v. United States, 373 F.2d 629, 632 (5th Cir. 1967) (internal
quotation marks omitted).
III.
The judgment of the district court is
AFFIRMED.
MICHAEL, Circuit Judge, dissenting:
I respectfully dissent. The order as written and explained did not
clearly prohibit McMahon's conduct. The order's failure to specify
anything other than exclusion from the courtroom cannot be salvaged
by evidence suggesting that McMahon believed the order to be
broader in scope. This is a criminal contempt case, and the existence
of a clear and specific order was not proved beyond a reasonable
doubt. I would therefore reverse McMahon's conviction.
I.
The written sequestration order, entered pretrial, provided that "the
Defendant's witnesses will be excluded from the courtroom." Just
before opening statements were to begin, the prosecutor noticed that
McMahon, who was listed as a defense witness, was in the courtroom.
The prosecutor, after telling the court he believed McMahon's "role
in this case will become . . . somewhat critical," asked that McMahon
be excluded. The court agreed and its oral order was simply, "He will
have to leave the courtroom." McMahon obeyed and later testified for
the defense. McMahon was convicted of criminal contempt for violat-
ing the sequestration order because he got reports of the trial proceed-
ings from his secretary and read the daily transcript.
As the majority recognizes, to convict McMahon for criminal con-
tempt the government had to prove three elements beyond a reason-
able doubt: (1) a willful (2) violation (3) of "a decree which was
definite, clear, specific, and left no doubt or uncertainty in the minds
14
of those to whom it was addressed." Richmond Black Police Officers
Ass'n v. City of Richmond, 548 F.2d 123, 129 (4th Cir. 1977). The
problem here is that the majority believes (as did the district court)
that because there was evidence to show that McMahon believed he
was guilty, he necessarily violated an order that was definite, clear
and specific. Thus, the majority conflates the specificity and willful-
ness elements with the result that specificity drops out of the picture.
The majority confirms its error when it says that to determine whether
the order has the requisite specificity, "[t]he question we must resolve
is whether the district court clearly erred in concluding that McMahon
. . . knew that his conduct violated the sequestration order." Ante at
8-9.
Because of the potency of the contempt power, I believe it is dan-
gerous to ease the government's burden of proof in such a significant
way. Moreover, there is really no precedent for it. Our Richmond
Black Police Officers case plainly requires both that the defendant act
willfully and that the order be sufficiently specific. Other cases cited
by the majority also separate these two requirements. See Perfect Fit
Industries, Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 808 (2d Cir.
1981) ("[A] person cannot be held in contempt of an order if he does
not have knowledge of the order or if the terms of the order are
unclear or ambiguous . . . .") (citations omitted), aff 'd after remand,
673 F.2d 53 (2d Cir.), cert. denied, 459 U.S. 832 (1982); United
States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir. 1974) (stating
that the court must determine "whether the order is sufficiently spe-
cific and . . . whether the defendant knew or should have known that
his conduct was wrongful"); United States v. Hodge, 894 F. Supp.
648, 651 (S.D.N.Y. 1995) ("To hold a person in criminal contempt,
the government must prove beyond a reasonable doubt that: (1) the
court entered a reasonably specific order; (2) defendant knew of that
order; (3) defendant violated that order; and (4) his violation was will-
ful.").
The district court here glossed over the specificity problem with
findings such as "[t]he sequestration order is a product of common
sense," "an instruction that [McMahon] could not circumvent the
sequestration order by reviewing trial transcripts or receiving reports
from his secretary would simply have stated the obvious," McMahon
"is no dummy," and his explanations were "unworthy of credence."
15
In other words, McMahon believed he was doing wrong, so the order
was therefore specific enough. But proving that McMahon believed
his conduct was wrongful should go to the willfulness element; it
should not be sufficient to prove specificity. By affirming the district
court's approach, the majority improperly endorses the conflation of
the willfulness and specificity elements, with willfulness counting for
both.
In using the evidence that McMahon acted willfully to confirm that
the order was clear, the majority makes the same error as the district
court in United States v. NYNEX Corp., 814 F. Supp. 133 (D.D.C.
1993). In that criminal contempt case the district court found NYNEX
to be in violation of an earlier consent decree that prohibited regional
telephone companies such as NYNEX from providing"information
services." The district court concluded that because several NYNEX
employees had feared that the company was in violation of the decree,
the decree was undoubtedly clear. See id. at 139-40. The D.C. Circuit
reversed, holding that the employees' belief of violation was "insuffi-
cient evidence to support the District Court's conclusion that the clar-
ity element was proven beyond a reasonable doubt." United States v.
NYNEX Corp., 8 F.3d 52, 55 (D.C. Cir. 1993). The court analyzed the
district court's error as follows:
From our vantage point, the heart of the problem in this case
is that the District Court apparently assumed that, because
several NYNEX officials feared that the MCI service bureau
might be a prohibited information service, the Consent
Decree was undoubtedly clear with respect to the question
at issue. . . . In other words, the District Court seemed to
think that if NYNEX officials acted willfully they necessar-
ily violated a clear order of the court. This reasoning
improperly conflates the elements of criminal contempt, and
it unacceptably alters the Government's burden of proof.
Id. at 54.*
_________________________________________________________________
*The D.C. Circuit's United States v. NYNEX is right on point, unlike
United States v. Trudell, 563 F.2d 889, 892 (8th Cir. 1977), and United
States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir. 1974), two cases
16
At bottom, the majority's approach avoids any criticial examina-
tion of the actual language of the sequestration order. I turn to that in
the next part.
II.
The district court issued its sequestration order under Fed. R. Evid.
615, which states: "At the request of a party the court shall order wit-
nesses excluded so that they cannot hear the testimony of other wit-
nesses, and it may make the order of its own motion." The text of the
rule only prohibits prospective witnesses from entering the courtroom
to hear testimony of other witnesses. See 2 Stephen A. Saltzburg,
Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence
Manual 1029 (6th ed. 1994) ("In our view, Rule 615 by its terms
applies only to the exclusion of witnesses from the courtroom.").
Despite the narrowness of the text, trial courts are free to broaden the
scope of their orders beyond courtroom exclusion. See United States
v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993) ("In sum, [Rule 615]
demarcates a compact procedural heartland, but leaves appreciable
room for judicial innovation beyond the perimeters of that which the
_________________________________________________________________
relied on by the majority for its specificity analysis. Trudell said: "In
order to successfully challenge a statute [or order] on vagueness grounds,
a litigant must make a showing that the challenged statute [or order]
lacks specificity as to his own behavior and not as to some hypothetical
situation." 563 F.2d at 892. This does not mean that behavior determines
specificity, as the majority suggests. See ante at 8. Instead, Trudell is
only making clear that an order's vagueness as applied to hypothetical
situations is irrelevant if the order clearly prohibits the defendant's
behavior. McMahon never claims that the order fails the specificity
requirement because it is vague in its hypothetical application to others
even though it might cover his own conduct. Greyhound Corp., which
involved a ten-paragraph order requiring Greyhound to cooperate with
another bus company, did indicate that the same list of factors should be
considered in determining specificity and willfulness. But Greyhound
Corp. did not focus on specificity. The question there was whether the
proof was sufficient to establish willfulness, that is, "determining
whether the defendant knew or should have known that his conduct was
wrongful." 508 F.2d at 529. In any event, I believe that United States v.
NYNEX is a better-reasoned decision.
17
rule explicitly requires."), cert. denied 114 S.Ct. 2714 (1994);
Michael Graham, Federal Practice and Procedure, Federal Rules of
Evidence § 6611, at 216-28 (interim ed. 1992) ("While Rule 615 pro-
vides solely for the exclusion of witnesses from the courtroom, the
court may take further measures of separation designed to prevent
communication between witnesses, such as ordering them to remain
physically apart, ordering them not to discuss the case with one
another or with any attorney, and ordering them not to read a tran-
script of the trial testimony of other witnesses."); 1 John William
Strong, McCormick on Evidence § 50, at 191 (4th ed. 1992) (same).
I recognize that on the "question of whether a trial court abused its
discretion in permitting [or failing to permit] a witness who arguably
violated a sequestration order to testify," ante at 8 n.3, some cases
have held that a Rule 615 sequestration order does cover more than
courtroom exclusion, even if the order only mentions exclusion. See
e.g., United States v. Greschner, 802 F.2d 373, 375 (10th Cir. 1986)
(holding that Rule 615 prohibits discussion of the case between wit-
nesses), cert. denied, 480 U.S. 908 (1987); Miller v. Universal City
Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. 1981) (holding that Rule
615 prohibits the reading of trial transcripts). However, as the major-
ity recognizes, such cases "concern [a] very different question" from
that of finding criminal contempt. In this "very different" context,
courts have still struggled over the extent to which conduct other than
courtroom attendance is barred by a simple sequestration order bar-
ring witnesses from the courtroom. See Sepulveda , 15 F.3d at 1176(holding that Rule 615 only requires that witnesses be excluded from
the courtroom proper); United States v. Scharstein, 531 F. Supp. 460,
463 (E.D. Ky. 1982) (holding that a Rule 615 order need not prohibit
witnesses from discussing the case with one another). Moreover, even
the Tenth Circuit, which construes the invocation of Rule 615 to pro-
hibit discussion between witnesses, also requires that the trial court
specify this prohibition in its order. See United States v. Buchanan,
787 F.2d 477, 484-85 (10th Cir. 1986) (holding that the trial court
erred in failing to state "clearly" in its sequestration order that wit-
nesses are not to discuss the case), rev'd on other grounds after
remand, 891 F.2d 1436 (10th Cir. 1989), cert. denied, 494 U.S. 1088(1990); United States v. Johnston, 578 F.2d 1352, 1355 (10th Cir.
1978) (admonishing trial courts to instruct sequestered witnesses that
18
they are not to discuss their testimony with other witnesses), cert.
denied, 439 U.S. 931 (1978).
This confusion about how far the scope of a bald Rule 615 order
extends for the sanction of excluding testimony underscores the
necessity of a specific order when criminal contempt is charged. In
this case, the district court's written order stayed within the narrow
text of Rule 615. The order states only that "the Government's motion
to sequester the Defendant's witnesses will be granted, and the Defen-
dant's witnesses will be excluded from the courtroom." In enforcing
the order against McMahon in open court at the beginning of trial, the
court said simply, "He will have to leave the courtroom." There is no
mention of any prohibited activity other than entering the courtroom.
In fact, even the majority recognizes that the order was "stunningly
simple: prospective witnesses were barred from the courtroom." Ante
at 9.
There is not sufficient evidence to establish that the order was clear
enough to prohibit the reading of daily transcript or receiving reports
from an observer. The text of the written order does not support an
expansion to prohibit these activities. The court's oral command to
McMahon, "He will have to leave the courtroom," actually empha-
sizes that only courtroom exclusion was required. The court did noth-
ing to communicate the existence of a broader scope to the order. To
find specificity the court could only go to McMahon's state of mind
-- McMahon had to know what the order meant because "he [was]
no dummy" and the scope of the order was "obvious." However, as
I point out in part I, McMahon's belief of guilt is not sufficient to
prove the order's clarity (the specificity element) beyond a reasonable
doubt.
In addition, the majority's acceptance of the district court's finding
that the scope of the order was "obvious" raises questions about what
other activities might be "obvious" violations. What if Mrs.
McMahon, without any prompting from McMahon, had reported on
the trial proceedings each evening at supper? What if McMahon had
read newspaper accounts of the trial? What if he had seen or heard
reports about it on television or radio? What if he had overheard
someone giving a firsthand account in a restaurant? The point is that
there is no predictable line between "obvious" and "not obvious." For
19
criminal contempt purposes, I would draw the line at the actual text
of the order, which was exclusion from the courtroom.
The majority has opened a dangerous path in criminal contempt
cases. If the government can offer evidence that allows an inference
that the defendant believes himself to be guilty, the specificity ele-
ment is no check against use of the contempt power. As the Supreme
Court recognized in International Longshoreman's Ass'n, Local 1291
v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76 (1967): "The
judicial contempt power is a potent weapon. When it is founded upon
a decree too vague to be understood, it can be a deadly one."
20