United States v. Morano, Donald V.

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1298
United States of America,
Plaintiff-Appellee,
v.
Milton M. Dowell,
Defendant.
Appeal Of:
Donald V. Morano.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 00-cr-30093-MJR--Michael J. Reagan, Judge.
Argued June 6, 2001--Decided July 17, 2001
Before Fairchild, Bauer, and Posner,
Circuit Judges.
Fairchild, Circuit Judge. One week after
the district court denied attorney Donald
V. Morano’s motion to withdraw from his
continuing representation of his client,
Morano did not appear in court for his
client’s criminal trial. As a result of
his absence, the district court found
Morano in civil contempt and ordered him
to reimburse the court for costs incurred
from his failure to appear. Morano
appeals and we affirm.
I
BACKGROUND
On May 17, 2000, a federal grand jury
returned an indictment charging Milton M.
Dowell with two counts of being a felon
in possession of a firearm in violation
of 18 U.S.C. sec. 922(g)(1). Six days
later, William L. Gavras entered his
appearance as counsel for Dowell. On July
24, 2000, Morano entered his appearance
as co-counsel. As the case progressed,
Morano filed motions on Dowell’s behalf,
participated in discovery, and attended
the pretrial conference.
On December 5, 2000, one week before
trial, Morano moved to withdraw because
Dowell could not afford to pay for an
expert witness whom Morano deemed crucial
to his defense. On December 11, 2000, the
district court denied the motion. That
same day, Judge Murphy pushed the trial
back one week until December 19, 2000.
Because the new trial date conflicted
with his schedule, Judge Murphy
reassigned the case to Judge Reagan. The
next day, the district court issued a
"Notice of Hearing" indicating the trial
date and containing "NOTE: [A]ttorneys
Gavras, Morano, and [Assistant United
States Attorney] Daly are to appear at
8:00 AM on 12/19/00." (App. at Z-3.) On
December 18, 2000, Judge Reagan conducted
a telephone conference call with Gavras
and Daly but not Morano. After the
conference, Gavras informed Morano that
the court would hold Morano in civil
contempt of court should he fail to
appear at trial the next morning.
On the morning of the 19th, Gavras and
Daly appeared in court, but Morano did
not. The district court asked Dowell
whether he wished to proceed without
Morano. Dowell responded that he wanted
Morano to be present. The district court
consequently dismissed the venire and
continued the trial until January 9,
2001.
The next day the district court issued
an "Order to Show Cause Why Donald V.
Morano Should Not be Held in Civil
Contempt of Court" and scheduled a
hearing for January 3, 2001. In the
order, the court noted that despite harsh
weather conditions, 36 prospective jurors
had appeared in court at an average cost
of $69 per person, or $2,484 total. The
district court compelled Morano
to show cause why he ought not be held in
contempt of this Court for failure to
abide by the Court’s lawful writ,
process, order, rule, decree, or command;
and (a) fined to reimburse the United
States Government for the cost of the
jurors’ service and mileage; (b)
imprisoned and fined until he complies
with the Court’s lawful writ, process,
order, rule, decree, or command (i.e., to
appear and defend his client, Milton M.
Dowell, at trial); and (c) fined to
reimburse the United States Government
for the salaries, costs, and expenses of
the United States Attorney’s office for
preparing for the cancelled trial of
December 19, 2000.
(Id. at Z-7.) Pursuant to the district
court’s request, the U.S. Attorney’s
office submitted costs totaling $79.86.
At the show-cause hearing, Morano argued
that the district court’s Notice of
Hearing was not an "order" requiring him
to appear at trial. Morano further argued
that he and Gavras had agreed that only
Gavras would appear, and that the
district court lacked authority to order
his appearance because he was merely
Dowell’s secondary counsel. Finally,
Morano contended that the district
court’s proposed sanction could be
imposed only pursuant to the court’s
criminal contempt power, which would
require a separate prosecution. The
district court rejected these arguments
and held Morano in civil contempt under
18 U.S.C. sec. 401(3). See United States
ex rel. Shell Oil Co. v. Barco Corp., 430
F.2d 998, 1000 (8th Cir. 1970) (section
401 authorizes both criminal and civil
contempt sanctions). On January 5, 2001,
the district court ordered Morano to pay
$2,563.86 to the clerk of the court
within 21 days "to reimburse the United
States Government" for its costs. (App.
at Z-15.) This total included $2,484 for
the jurors’ service and mileage, $15.36
for the government’s transportation, $5
for Dowell’s lunch, and $59.50 for
serving the show cause order. The court
also ordered Morano to represent Dowell
at trial and imposed a prospective,
conditional fine of $5,000 for every day
that he failed to appear.
Dowell’s trial commenced as scheduled on
January 9, 2001, with Morano in
attendance as co-counsel. After a three-
day trial, the jury returned a verdict of
not guilty on both counts. Because Morano
had carried out the court’s directive by
representing Dowell at trial, the court
on January 11 issued an order noting that
Morano had purged himself of contempt
because he appeared at trial.
Nevertheless, the district court iterated
that the original fine still had to be
paid by January 24, 2001. On January 19,
Morano moved to reconsider. The district
court denied the motion on January 25,
but issued an order extending the time
for Morano to pay the fine until January
23, 2002. Morano filed a notice of appeal
on February 5, 2001.
II
DISCUSSION
A. Jurisdiction
Before addressing the merits of Morano’s
appeal, we must determine whether we may
properly exercise jurisdiction over this
case. The government says "no" because
Morano’s notice of appeal states that he
is appealing the district court’s January
5 contempt order, which was later
modified twice by the district court. The
government argues that we lack
jurisdiction because the January 5 order
was not final and thus not appealable
under 28 U.S.C. sec. 1291. Because
nonfinal decisions become appealable
after a final decision in a case has been
entered, Head v. Chicago Sch. Reform Bd.
of Trs., 225 F.3d 794, 800 (7th Cir.
2000), what the government apparently
contests is the validity of Morano’s
notice of appeal, which designates the
January 5 contempt order rather than the
revised January 25 order as the order
being appealed.
The government’s argument is misguided.
First, the district court’s January 5
contempt order was immediately appealable
because nonparties to litigation such as
Morano need not wait for final judgment
in the underlying case before appealing a
civil contempt finding. See In re
Woosley, 855 F.2d 687, 688 (10th Cir.
1988); see also United States v.
Accetturo, 842 F.2d 1408, 1412 (3d Cir.
1988) (holding that attorney found in
civil contempt may appeal immediately);
In re Fish & Neave, 519 F.2d 116 (8th
Cir. 1975) (permitting counsel to appeal
civil contempt finding before final judg
ment in underlying litigation).
Moreover, even if the January 5 order
was modified before it became final and
appealable, it must have been clear to
everyone that it contains the findings
and conclusions which Morano would
challenge on appeal. He had no reason to
appeal the later orders of January 11 and
25 because they were favorable to him,
save the denial of his request for
reconsideration. To be safe, perhaps his
notice of appeal should have referred to
all three orders, but nevertheless we
conclude that Morano met the requirements
of Rule 3 of the Federal Rules of
Appellate Procedure. "Compliance with the
notice of appeal requirement of Rule 3 .
. . is a prerequisite to appellate
review." Remer v. Burlington Area Sch.
Dist., 205 F.3d 990, 994 (7th Cir. 2000).
Rule 3 requires a party to (1) specify
the party taking the appeal, (2)
designate the order appealed from, and
(3) name the court to which the appeal is
taken. Id. Rule 3’s requirements are to
be construed liberally. Smith v. Barry,
502 U.S. 244, 248 (1992). Mere
technicalities should not stand in the
way of our consideration of the merits,
and we will find a notice of appeal
sufficient if it is the functional
equivalent of what Rule 3 requires. Ortiz
v. John O. Butler Co., 94 F.3d 1121, 1125
(7th Cir. 1996) (quotations and citations
omitted). Contrary to the government’s
argument, we have repeatedly held that an
error in designating the judgment will
not result in a loss of appeal if the
intent to appeal from the contested
judgment may be inferred from the notice
and if the appellee has not been misled
by the defect. Id.; Badger Pharmacal,
Inc. v. Colgate-Palmolive Co., 1 F.3d
621, 625 (7th Cir. 1993); Cardoza v.
Commodity Futures Trading Comm’n, 768
F.2d 1542, 1546 (7th Cir. 1985). Here,
there is no ambiguity regarding the
nature of Morano’s appeal; he is clearly
attacking the January 5 finding of civil
contempt and the fine imposed. Moreover,
the government does not argue that it was
misled by the defect--indeed, it devotes
10 pages of its brief to defending the
propriety of the sanction. We conclude
that Morano has satisfied Rule 3’s
requirements, and we have subject matter
jurisdiction over his appeal.
B. The District Court’s Civil Contempt
Order
On appeal Morano challenges the civil
contempt fine imposed by the district
court. We will not reverse a district
court’s civil contempt ruling unless it
is an abuse of discretion. United States
v. Hoover, 175 F.3d 564, 570 (7th Cir.
1999). "A court’s civil contempt power
rests in its inherent limited authority
to enforce compliance with court orders
and ensure judicial proceedings are
conducted in an orderly manner." Jones v.
Lincoln Elec. Co., 188 F.3d 709, 737 (7th
Cir. 1999). For Morano to be held in
civil contempt, he must have violated an
order that sets forth in specific detail
an unequivocal command from the court.
See id. (quotations omitted).
Morano’s argument that the district
court’s Notice of Hearing is not an order
is baseless. The notice is unequivocal,
stating that "[A]ttorneys Gavras, Morano,
and Daly are to appear at 8:00 AM on
12/19/00." (App. at Z-3.) (emphasis
added). The district court did not give
Morano the option whether to appear--the
notice does not state "Morano may
appear," nor does it state "Gavras or
Morano is to appear." Moreover, the
timing and context of the notice cannot
be overlooked. See In re Betts, 927 F.2d
983, 986 (7th Cir. 1991). The court had
denied his motion to withdraw on the
previous day and Morano acknowledges that
Gavras had warned him that the district
court would cite him for civil contempt
if he failed to appear for trial.
Consequently, Morano cannot credibly
argue that the court’s notice did not
mandate his appearance.
Morano also contends that the fine
imposed by the district court was
criminal in nature and he is therefore
entitled to a separate prosecution and
full due process. "The fundamental
distinction between criminal and civil
contempts is the type of process due for
their imposition." Doe v. Maywood Hous.
Auth., 71 F.3d 1294, 1296-97 (7th Cir.
1995). Criminal penalties may not be
imposed without affording persons the
protections that the Constitution
requires of criminal proceedings. Id. at
1297 (quoting Hicks v. Feiock, 485 U.S.
624, 632 (1988)). And unlike criminal
contempt, in civil contempt the proof
need only be clear and convincing.
Stotler & Co. v. Able, 870 F.2d 1158,
1163 (7th Cir. 1989).
Though we are not bound by the court’s
designation whether a sanction is civil
or criminal, see United States v.
Lippitt, 180 F.3d 873, 877 n.6 (7th Cir.
1999), here the court got it right.
Contempt is "criminal" if its purpose is
to punish the contemnor, vindicate the
court’s authority, or deter future
conduct. Id. at 876. In contrast, civil
contempt proceedings may be classified
into two categories--coercive or
remedial. Jones, 188 F.3d at 738.
Sanctions for civil contempt are designed
either to compel the contemnor into
compliance with an existing court order
or to compensate the complainant for
losses sustained as a result of the
contumacy. Id. Coercive sanctions seek to
induce future behavior by attempting to
coerce a recalcitrant party or witness to
comply with an express court directive.
Id. "Remedial sanctions, by contrast, are
backward-looking and seek to compensate
an aggrieved party for losses sustained
as a result of the contemnor’s
disobedience." Id. "A monetary penalty
for a wrong committed in federal court is
civil in nature, if the payment is
designed to compensate for harm done." In
re Maurice, 73 F.3d 124, 127-28 (7th Cir.
1995).
Contrary to Morano’s assertion that the
sanction is punitive, the fine is
remedial and therefore civil in nature:
it compensates the court and the
government for actual losses sustained as
a result of Morano’s refusal to appear at
trial. Morano’s recalcitrance imposed
real loss; impaneling a jury costs money,
and the district court tailored its sanc
tion to compensate for these actual
costs. See S. Suburban Hous. Ctr. v.
Berry, 186 F.3d 851, 854 (7th Cir. 1999)
(stating that when the purpose of
sanctions in a civil contempt proceeding
is compensatory, fine must be based on
evidence of actual loss). And though
Morano argues that the sanction is
criminal because the court ordered
payment to the clerk of the court, he
overlooks the obvious--federal taxpayers
foot the bill for both the prosecution
and adjudication of criminal cases.
Morano’s disobedience cost the taxpayers
money, and the district court acted well
within its authority by imposing a fine
that does no more than compensate the
Treasury for its actual damages. See In
re Jaques, 761 F.2d 302, 306 (6th Cir.
1985) (attorney who failed to appear at
trial was appropriately sanctioned by
civil contempt fine directing him to
compensate government for venire costs);
see also United States v. Mottweiler, 82
F.3d 769, 772 (7th Cir. 1996) (attorney’s
negligent failure to be present when the
jury returned could support a civil order
requiring counsel to reimburse the
judicial system for expenses); United
States v. Claros, 17 F.3d 1041, 1046-47 &
n.4 (7th Cir. 1994) (court may order
counsel to pay jury costs as a sanction
for negligent failure to appear timely at
trial). Morano relies heavily on Hicks v.
Feiock, 485 U.S. 624, 632 (1988), for the
proposition that a contempt fine is
criminal when it is to be paid to the
court. But the contempt in Hicks
consisted of an individual’s failure to
pay court-ordered child support payments,
and the Court did not contemplate a
situation where the court to which the
fine was ordered to be paid was in effect
the injured complainant.
Accordingly, the judgment of the
district court is AFFIRMED.