In Re: Leon A. Kendall v.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4471

_____________

IN RE: THE HONORABLE LEON A. KENDALL,

Petitioner

_____________

On Writ of Certiorari to the Supreme Court

of the Virgin Islands

Supreme Court Misc. No. 2009-0025

Argued December 6, 2012

Before: SMITH, HARDIMAN, and ROTH, Circuit

Judges

(Filed: April 3, 2013)

Samuel H. Hall, Jr. [ARGUED]

Hall & Griffith

No. 91B Solberg

P.O. Box 305587

St. Thomas, VI 00803

Counsel for the People of the Virgin Islands

Howard M. Cooper [ARGUED]

Julie E. Green

Todd & Weld

28 State Street

31st Floor

Boston, MA 02109

Counsel for Leon A. Kendall

The ACLU Affiliates of New Jersey,

Pennsylvania, and Delaware

Lawrence S. Lustberg

Joshua C. Gillette

One Gateway Center

Newark, NJ 07102

Counsel for Amici Curiae in Support

of Leon A. Kendall

_____________________

OPINION

_____________________

SMITH, Circuit Judge.

As Alexander Hamilton famously explained,

courts have “no influence over either the sword or the

purse.” The Federalist No. 78 (Alexander Hamilton).

They have “neither FORCE nor WILL but merely

2

judgment.” Id. Except for the persuasiveness of their

decisions, courts can compel obedience to their orders

only through their inherent power of contempt. Int’l

Union of United Mine Workers of Am. v. Bagwell, 512

U.S. 821, 831 (1994) (describing the “inherent contempt

authority” as a power “necessary to the exercise of all

other[]” judicial powers (quoting United States v.

Hudson, 11 U.S. (7 Cranch) 32, 34 (1812))). The

contempt power, however, is limited to “those instances

where the court must vindicate its authority.” Waste

Conversion, Inc. v. Rollins Envtl. Servs., 893 F.3d 605,

612 (3d Cir. 1990). It is “not made for the protection of

judges who may be sensitive to the winds of public

opinion. Judges are supposed to be [people] of fortitude,

able to thrive in a hardy climate.” Craig v. Harney, 331

U.S. 367, 376 (1947).

After the Virgin Islands Supreme Court issued a

writ of mandamus in a criminal case presided over by

former Superior Court Judge Leon A. Kendall, he

published an opinion chastising the mandamus decision

and recusing himself from the case due to alleged

prosecutorial misconduct. The Justices cited Kendall for

criminal contempt and eventually found him guilty

because his opinion, in their view, obstructed the

administration of justice and because his recusal was

pretextual in that he sought to avoid complying with the

writ of mandamus.

3

Kendall asks us to reverse his convictions. He

argues that his judicial opinion is protected by freedom of

speech and cannot therefore serve as a basis for criminal

contempt. As to that novel question, we hold that the

First Amendment protects a sitting judge from being

criminally punished for his opinion unless that opinion

presents a clear and present danger of prejudicing

ongoing proceedings. Kendall’s opinion did not pose

such a threat. We also agree with Kendall that there is

insufficient evidence that his recusal was pretextual.

Consequently, we will reverse the Virgin Islands

Supreme Court’s judgment and vacate all of Kendall’s

contempt convictions.

I.

A. The Underlying Criminal Case

Kendall’s criminal-contempt convictions arose

from actions he took while presiding over People v.

Ford, a criminal trial of Basheem Ford and Jermaine

Paris for killing an off-duty police officer. See generally

Crim. Nos. 76/2008, 109/2008 (V.I. Super. Ct. July 7,

2009). The prosecutor, Assistant Attorney General Jesse

Bethel, Jr., initially charged Ford and Paris with

manslaughter (among other crimes) in January 2008 but

later added charges of first-degree assault and first- and

second-degree murder.

Bethel subsequently expressed “serious doubt” to

4

his supervisor about whether he could successfully

convict Ford and Paris of more than voluntary

manslaughter. Although he later admitted that his

prosecutorial duties required him not to pursue charges

about which he had “serious doubt[s],” Bethel left the

murder charges pending and began plea negotiations with

counsel for Ford and Paris.

On January 16, 2009, Bethel left a voicemail with

the defendants’ counsel that offered Ford and Paris a plea

bargain to involuntary manslaughter in exchange for

dismissal of the remaining charges—an offer they

accepted ten days later. Bethel then reversed course,

claiming that he had offered a plea deal to voluntary

manslaughter and denying that any plea deal existed for

involuntary manslaughter. People v. Ford, 52 V.I. 30

(V.I. Super. Ct. July 7, 2009) (depublished). Ford and

Paris each moved to enforce the involuntary-

manslaughter offer. During argument on the motions

before Kendall, Bethel said that even though he might

“have misspoken” or the defendant’s counsel may have

“misunderstood” the deal, he also insisted that he “made

it very clear” that “the deadline to respond [to the offer]”

was January 26, 2009, and that the defendants had not

done so. But a voicemail of Bethel’s plea offer told a

different story. That recording “unambiguously”

revealed that Bethel’s offer was for involuntary

manslaughter—not voluntary manslaughter, as Bethel

5

had later claimed—and that Bethel had never imposed

any deadline for the defendants to accept the offer.

Based on this evidence, Kendall concluded that

Bethel misrepresented his plea offer to the Court and held

that the defendants’ acceptance of Bethel’s offer had

created a binding plea agreement. Accordingly, Kendall

scheduled a change-of-plea hearing for February 2, 2009

at 4:00 p.m., cancelling jury selection and the jury trial.

Unhappy with this course of events, Bethel repeatedly

interrupted and traded jabs with Kendall, who

admonished him several times. That back-and-forth

culminated with Bethel informing Kendall that he would

not be present for the change-of-plea hearing. Kendall

responded that he did not “need to know that” and

proceeded to schedule the change-of-plea hearing

anyway.

On the morning of the hearing, Bethel appealed

Kendall’s decision to enforce the oral plea offer to the

Virgin Islands Supreme Court. And consistent with his

earlier promise, he did not show up for the change-of-

plea hearing at 4:00 p.m. that afternoon. After waiting

fifteen minutes without any sign of Bethel, Kendall

adjourned the hearing, held Bethel in contempt, and

issued a warrant for his arrest. At about 4:30 p.m.,

Bethel was arrested and remained under the control of the

Bureau of Corrections until the next morning. At the

time, Bethel told the media and the Virgin Islands

6

Supreme Court that he had been incarcerated overnight—

a statement that was later revealed to be false when

Bethel admitted that the warden had allowed him to

spend the night at home without judicial authorization

and without the $10,000 bail set by Kendall.

At a hearing the next day, Bethel apologized to

Kendall for his “tardiness” and explained that he was “in

the process of filing papers” and “looking for a parking

space.” Although Kendall concluded that these

explanations were false, he accepted an apology from

Bethel and “defer[red]” from any decision to hold him in

contempt. Kendall never revisited the issue of Bethel’s

contempt. At the end of the hearing, Kendall returned to

the issue of whether the plea offer for involuntary

manslaughter was enforceable. Kendall asked Bethel and

defense counsel to submit supplemental briefing on

Virgin Islands v. Scotland, 614 F.2d 360 (3d Cir. 1980), a

Third Circuit case holding that a prosecutor may

withdraw a plea offer at any time before the court accepts

it unless the defendant detrimentally relies on the offer

by, for example, pleading guilty. Kendall stated that “if

Scotland is dispositive, the Court will proceed to trial; if

not, the Court will enforce the plea agreement.”

Beginning that same day, the Virgin Islands Daily

News published several articles about Bethel’s arrest,

detention for contempt, and eventual release. One of the

7

articles recounted Bethel’s earlier misrepresentations at

the hearing about the oral plea offer.

On February 5, Bethel moved for reconsideration of

Kendall’s decision to enforce the plea agreement to

involuntary manslaughter, but Kendall denied that

motion. He concluded that the revelation of the plea

agreement in numerous press reports (including the Daily

News article) had tainted the jury pool and therefore

made it impossible for Ford and Paris to receive a fair

trial. Consequently, he reasoned that Ford and Paris had

detrimentally relied on the plea agreement, and so he had

to enforce it. Kendall then rescheduled the change-of-

plea hearing for March 11, 2009.

B. The Writ of Mandamus Against Judge Kendall

Following Kendall’s decision to enforce the plea

agreement for involuntary manslaughter, Bethel filed an

amended notice of appeal with the Virgin Islands

Supreme Court, indicating that there was no factual basis

for acceptance of a guilty plea to involuntary

manslaughter. Bethel simultaneously petitioned the

Virgin Islands Supreme Court for a writ of mandamus

directing Kendall not to enforce the plea agreement.

In the petition, Bethel made several

mischaracterizations and also took swipes at Kendall. He

claimed that Kendall had publicly “commented on

[People v. Ford in a manner] adverse to the People’s

8

position as reported in the Virgin Islands Daily News.”

He said that Kendall “participated in plea negotiations

directly by . . . mandating what the plea agreement

should be in its entirety.” And in reference to his

absence from the initial change-of-plea hearing, Bethel

claimed that he had told Kendall “he would not be

appearing on Monday, February 2, 2009, for the Change

of Plea, but he did not say and never intended to convey

that he would not be appearing at all.” Kendall declined

the Virgin Islands Supreme Court’s invitation to appear

in the mandamus action in response to Bethel’s petition.

The Virgin Islands Supreme Court denied Bethel’s

direct appeal because Kendall’s rulings were not yet final

but granted his petition for mandamus. According to the

Virgin Islands Supreme Court, settled United States

Supreme Court precedent establishes that the

“government may unilaterally withdraw a plea offer,

even if . . . the defendant” promises to accept the offer,

because a “plea agreement, as a unilateral contract,

cannot become binding on the parties through the

defendant’s mere promise of performance but by the

defendant’s actual performance—a change of plea to

guilty.” And although a limited exception to this rule

exists when the defendant detrimentally relies upon a

plea offer, see Scotland, 614 F.2d at 365, the Virgin

Islands Supreme Court concluded that Ford and Paris had

not detrimentally relied on the plea offer to involuntary

manslaughter at the time it was withdrawn. In the Virgin

9

Islands Supreme Court’s view, Kendall had incorrectly

and prematurely concluded that the defendants could not

get a fair trial. Rather, Kendall was required “‘at the very

least . . . [to] conduct[] an immediate voir dire inquiry to

determine if the jurors had read the [media reports] and,

if they had, whether they could nevertheless render a fair

and true verdict.’” Id. (quoting United States v. New

Jersey, 519 F.2d 1356, 1357 (3d Cir. 1975)). In addition,

Kendall had “‘an affirmative constitutional duty to

minimize the effects of [any] prejudicial pretrial

publicity.’” 2 App. 16 (quoting United States v. Scarfo,

263 F.3d 80, 90 (3d Cir. 2001)). Consequently, “even if

[Kendall] could have properly . . . found that pretrial

publicity prejudiced [Ford and Paris], [he] was still

obligated to employ less drastic curative measures, such

as a continuance or change of venue, prior to ordering the

extreme remedy of specific performance of a withdrawn

plea offer.”

In issuing its writ of mandamus on May 13, 2009,

the Virgin Islands Supreme Court reversed Kendall’s

orders enforcing the oral plea offer, vacated his order

scheduling a change-of-plea hearing for March 11, 2009,

and remanded the case “for proceedings consistent with”

its opinion. The writ did not provide any additional

instructions to Kendall.

10

C. Kendall’s Subsequent Opinion and Recusal

After the writ of mandamus issued, Ford and Paris

accepted Bethel’s offer to plead guilty to voluntary

manslaughter, and Kendall scheduled a change-of-plea

hearing. At the hearing, Bethel proffered what the

evidence would show at trial, and Kendall conducted a

plea colloquy with Ford and Paris to determine whether

they agreed with Bethel’s account. Ford and Paris,

though, stuck to their story that they were acting in self-

defense. And that story was consistent with Bethel’s

own review of the evidence: in a 2008 memorandum to

his superiors, Bethel concluded that the victim “initiated

a deadly confrontation with [Ford] by threatening and

chasing him with an ax handle which unfortunately

resulted in the death of [the victim] by gunshots from the

defendants.” Kendall concluded (and Bethel agreed) that

there was an insufficient factual basis to support the

defendants’ guilty plea to voluntary manslaughter. As a

result, Kendall had no choice but to reject the pleas and

plea agreement.

Rejecting the plea agreement left Kendall in what

he considered a difficult situation. Notwithstanding the

insufficient factual basis for voluntary manslaughter and

Bethel’s own “serious doubt,” Bethel “unequivocally”

planned to prosecute Ford and Paris for not only the

voluntary manslaughter, but also first-degree assault,

first- and second-degree murder, aiding and abetting

11

third-degree assault, and unauthorized possession of a

firearm. That decision to pursue the more-serious

charges, as Kendall noted, contradicted Bethel’s own

factual proffer on how the victim died: first-degree

assault requires “intent to murder” and murder requires

proof of “malice aforethought,” yet Bethel’s own factual

proffer showed that it was the victim who “initiated a

deadly confrontation” with the defendants. In Kendall’s

view, Bethel’s continued pursuit of these unsupported

charges would “be tantamount to perpetrating a fraud

upon the Court.”

But Kendall recognized that he had “to follow [the

Virgin Islands Supreme Court’s] directions with respect

to the disposition of this matter.” And having rejected

the plea agreement, Kendall’s “only alternative [was] to

have this matter set down for trial according to the

Supreme Court.” With those determinations made,

Kendall promised the parties that he would memorialize

his reasons for rejecting the plea agreement in a written

opinion.

On July 7, 2009, Kendall filed a thirty-one page

opinion “for publication.” As promised, the Ford

opinion recounted the background of the criminal case,

including the events that gave rise to the writ of

mandamus, and memorialized his reasons for rejecting

the plea agreement to voluntary manslaughter. But the

opinion also took two unexpected turns, both of which

12

later became the basis for Kendall’s criminal-contempt

convictions: First, the opinion offered a point-by-point

denunciation criticism of the Virgin Islands Supreme

Court’s decision to issue the writ of mandamus. The

opinion characterized the Virgin Islands Supreme Court’s

reasoning as erroneous, “improper,” having “no rational

basis,” lacking “merit,” and “making no sense.” In re

Kendall, S. Ct. Misc. No. 2009-0025, 2011 WL 4852282,

at *4 & n.6 (V.I. Oct. 12, 2011). Indeed, the opinion

went so far as to say that the writ of mandamus “was

apparently sought and issued to facilitate [Bethel’s]

blatant misconduct and perpetrate a fraud on the

[Superior] Court.” Id. at *4 n.6. Its issuance, Kendall

wrote scathingly, was therefore “contrary to law and all

notions of justice.” Id.

Second, Kendall recused himself from presiding

over further proceedings in the Ford case. Because of

Bethel’s misrepresentations concerning the oral plea

agreement and his continued pursuit of more-serious

charges that contradicted his own factual proffer, Kendall

lost the ability to believe “any of [Bethel’s] further

representations” in the Ford case. Moreover, Bethel’s

decision to press the unsupported, more serious charges

enhanced Kendall’s nagging concern that the extensive

pretrial publicity would deny the defendants’ their Sixth

Amendment rights to a fair and impartial jury. In short,

Kendall said he could no longer “be a party to [Bethel’s]

egregious misconduct.”

13

After Kendall issued this opinion, People v. Ford

was reassigned to James S. Carroll III. Judge Carroll

held a pretrial conference on July 23, 2009. The People

were not prepared to proceed to trial at that time because

certain witnesses were unavailable. So Judge Carroll

scheduled jury selection and trial for November 23, 2009.

Meanwhile, Ford and Paris petitioned the Third

Circuit for a writ of certiorari to review the Virgin

Islands Supreme Court’s writ of mandamus and its

conclusion that Bethel’s plea offer for involuntary

manslaughter was not enforceable. When November 23

arrived, the government indicated that it was not prepared

to begin trial because it was awaiting a ruling by the

Third Circuit on the defendants’ certiorari petition. In

fact, the Third Circuit had denied the petition a few days

earlier on November 17. Judge Carroll nonetheless

continued jury selection until April 12, 2010, at the

request of Paris’s counsel because two defense witnesses

either could not be located or had to be flown to the

Virgin Islands. Although Ford died before he could go to

trial, a jury ultimately acquitted Paris.

D. The Criminal-Contempt Charges Against Kendall

The Virgin Islands Supreme Court did not take

Kendall’s recalcitrance lying down. They had no

mechanism for disciplining Kendall: in an earlier

challenge by Kendall, the statute authorizing the Virgin

14

Islands Commission on Judicial Discipline to investigate

and remove Superior Court judges was struck down by

this Court as unconstitutional. See Kendall v. Russell,

572 F.3d 126, 138 (3d Cir. 2009). Nor had the Virgin

Islands Supreme Court yet issued new disciplinary rules

applicable to judges.

Believing that they had no other alternatives, the

Justices ordered Kendall to show cause why he should

not be held in criminal contempt. That show-cause order

charged Kendall with three counts of indirect 1 criminal

contempt:

1

Contempt can be either direct or indirect. See United

States v. Dixon, 509 U.S. 688, 723 n.1 (1993) (White, J.,

concurring in the judgment in part and dissenting in part)

(“The distinction between, on the one hand, direct and

summary contempt (i.e., contempt for acts occurring in

the courtroom and interfering with the orderly conduct of

business), and, on the other hand, nonsummary contempt,

possesses old roots in the [Supreme] Court’s cases.”).

Direct contempt describes “the judge’s authority to

[summarily] impose punishment, without any form of

trial, on one who engages in contumacious behavior in

the judge’s presence,” such as a party’s repeated

outbursts during a hearing or a witness’s refusal to testify

during trial. Earl C. Dudley, Jr., Getting Beyond the

Civil/Criminal Distinction, 79 Va. L. Rev. 1025, 1030

15

(1) Count 1: Obstructing the

administration of justice by issuing

the Ford opinion critical of the

Justices’ writ of mandamus;

(2) Count 2: Failing to comply with the

writ of mandamus by refusing to

schedule People v. Ford for trial,

refusing to consider a change of

venue or continuance to minimize

pretrial publicity, and recusing

himself to avoid complying with the

writ of mandamus; and

(3) Count 3: Misbehaving in his official

transactions as an officer of the court

by issuing his Ford opinion and

disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a

special prosecutor to pursue the criminal-contempt

charges and a Special Master to rule on all non-

dispositive motions, manage discovery, preside over the

trial, and recommend findings of fact and conclusions of

law. Much like the relationship between a magistrate

(1993). Indirect contempt targets acts “committed

outside the presence of the court for which some fact-

finding process is concededly necessary,” such as a

person’s refusal to obey a court order. Id.

16

judge and a district judge, see generally 28 U.S.C. § 636,

the Justices had the ultimate authority to adopt or reject

the Special Master’s recommendations.

Before trial, Kendall moved to disqualify all three

Justices of the Supreme Court because they were the

target of his opinion’s criticism. The Justices denied this

motion, and Kendall’s case proceeded to trial. After the

People rested, Kendall moved for a judgment of acquittal

based on insufficient evidence. He also moved for a

mistrial, arguing that the Justices violated his due-process

right by not personally attending the trial and observing

the witnesses’ live testimony before making findings of

fact in the case. The Special Master recommended denial

of this motion, and the Supreme Court adopted that

recommendation.

At the conclusion of the trial, the parties submitted

proposed findings of fact and conclusions of law to the

Special Master. The Special Master recommended that

Kendall be acquitted on all charges. After considering

supplemental briefs from both sides and reviewing a

video recording of a “majority” of the proceedings before

the Special Master, the Virgin Islands Supreme Court

rejected the Special Master’s ultimate recommendation

of acquittal and found Kendall guilty on all counts.

17

In sentencing Kendall, the Justices ordered him to

pay a $1,000 fine on Count 1 2 but stayed sentencing for

the remaining charges because all three charges arose

from the same conduct. The Supreme Court also

depublished Kendall’s Ford opinion.

E. This Appeal

Kendall sought review of his convictions by

petitioning this Court for a writ of certiorari.3 We

granted his petition on the following questions:

2

The Virgin Islands Supreme Court subsequently stayed

payment of the fine pending our review.

3

The Virgin Islands Supreme Court had inherent and

statutory jurisdiction over Kendall’s contempt

proceeding. See 4 V.I. Code § 243(4) (“Every court shall

have power . . . [t]o compel obedience to its judgments,

orders, and process, and to the orders of a judge out of

court, in all actions, or proceedings pending therein[.]”);

4 V.I. Code § 281(2) (“Every judicial officer shall have

power . . . [t]o compel obedience to his lawful

orders[.]”); Young v. United States, 481 U.S. 787, 793

(1987) (“[I]t is long settled that courts possess inherent

authority to initiate contempt proceedings for

disobedience to their orders . . . .”). We have certiorari

jurisdiction under 48 U.S.C. § 1613, which grants the

Third Circuit certiorari jurisdiction to review final

decisions of the Virgin Islands Supreme Court. See

18

1. Whether the First Amendment limits the

imposition of criminal contempt for

statements made in a judge’s written

opinion and if so, the scope of the

limitation and its application in this case;

2. Whether the Virgin Islands Supreme

Court erred in imposing criminal

contempt on the charges of failure to

comply with its mandamus order of May

13, 2009, in In re People of the Virgin

Islands, V.I. S. Ct. Civ. No. 2009-021;

3. Whether the Virgin Islands Supreme

Court Justices erred in not recusing

themselves from this matter; and

4. Whether [Kendall] impliedly consented,

or waived any challenge, to conducting

the show cause hearing before a special

master and, if not, the propriety of that

procedure.

Kendall v. Daily News, __ F.3d __, No. 11-4162, 2013

WL 856433 (3d Cir. Mar. 8, 2013) (holding that

Congress’s recent elimination of the Third Circuit’s

certiorari jurisdiction over decisions of the Virgin Islands

Supreme Court does not affect, at a minimum, certiorari

petitions filed before the effective date of the

jurisdiction-stripping act).

19

II.

On Count 1, Kendall was convicted of indirect

criminal contempt for obstructing the administration of

justice by publishing inflammatory remarks about the

Virgin Islands Supreme Court in his Ford opinion.

Kendall argues that the remarks in his Ford opinion are

protected by freedom of speech and therefore cannot

serve as a basis for his conviction. 4 We agree.

4

The ACLU, as amicus, argues that Kendall is shielded

from criminal contempt by absolute judicial immunity.

According to the ACLU, “if judges are immune from

civil liability from third parties even for judicial actions

done maliciously, with an improper motive, in bad faith,

or which are unfair or controversial, then . . . they ought

not face criminal liability for a mere written opinion.”

ACLU Br. at 11. We do not need to address this

argument because it is not properly before us. Judicial

immunity is outside the questions on which we granted

certiorari. See 3d Cir. LAR 112.10(a) (“If a petition for

writ of certiorari is granted, . . . the case shall proceed as

other appeals [do] . . . but with review limited to the

questions on which the writ of certiorari was granted.”);

see also Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27, 32–33 (1993) (explaining the

limited categories of “unusual circumstances,” in which

the Court would consider an issue on which certiorari

20

was not granted, such as “the possible absence of

jurisdiction” (quotation marks and citations omitted)).

What’s more, Kendall did not raise this argument before

the Virgin Islands Supreme Court or in any of his briefs

before this Court. See AT&T, Inc. v. FCC, 582 F.3d 490,

495 (3d Cir. 2009) (“An appellant waives an argument in

support of reversal if he does not raise that argument in

his opening brief.”), rev’d on other grounds, FCC v.

AT&T, Inc., 131 S. Ct. 1177 (2011).

In any event, Kendall would not be able to shoulder his

burden of showing that he is entitled to judicial immunity

from criminal contempt. Antoine v. Byers & Anderson,

Inc., 508 U.S. 429, 432 n.4 (1993). Judicial immunity is

a common-law doctrine designed to protect judicial

independence. Nixon v. Fitzgerald, 457 U.S. 731, 759

n.2 (1982) (Burger, C.J., concurring) (“[T]he

Constitution provides no hint that either judges,

prosecutors, or congressional aides should be so

protected [through absolute immunity]. Absolute

immunity for judges and prosecutors is seen to derive

from the common law and public policy . . . .”). And

while “[f]ew doctrines were more solidly established at

common law than the immunity of judges from liability

for damages for acts committed within their judicial

jurisdiction,” Cleavinger v. Saxner, 474 U.S. 193, 200

(1985) (quoting Pierson v. Ray, 386 U.S. 547, 553–54

(1967)), the same was not true for contempt or criminal

21

liability, Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991)

(recognizing that “a judge is not absolutely immune from

criminal liability”)); O’Shea v. Littleton, 414 U.S. 488,

503 (1974) (same). As the Supreme Court has

recognized, at common law, superior courts routinely

used their contempt power to hold inferior judges

accountable for violating their writs and orders. Pulliam

v. Allen, 466 U.S. 522, 532 n.19 (1984) (noting that a

judge to whom a writ of mandamus or prohibition is

issued “risks contempt for violating the writ,” and that

“although courts properly are reluctant to impose costs

against a judge for actions taken in good-faith

performance of his judicial responsibilities, a court, in its

discretion, may award costs against a respondent judge”);

see, e.g., United States v. Justices of Lauderdale Cnty.,

10 F. 460 (Cir. Ct., W.D. Tenn. 1882); Lapique v.

Superior Court of L.A. Cnty., 229 P. 1014 (Cal. Dist. Ct.

App. 1924); In re Smith, 83 P. 167 (Cal. Dist. Ct. App.

1905); Pittman v. Hagans, 91 Ga. 107 (1892);

Havemeyer v. Superior Court of City and Cnty. of S.F.,

87 Cal. 267, 275 (1890); In re Cary, 10 F. 622, 631

(S.D.N.Y. 1882); Gorham v. Luckett, 45 Ky. 638 (1846);

People v. Pearson, 4 Ill. 270 (1841); Floyd v. Barker, 77

Eng. Rep. 1305 (K.B. 1607); see also 3 William

Hawkins, A Treatise of the Pleas of the Crown ch. 8 § 74

(7th ed. 1795) (“Justices of the peace are not punishable

civilly for acts done by them in their judicial capacities,

but if they abuse the authority with which they are

22

entrusted, they may be punished criminally at the foot of

the king by way of information.”). This practice held fast

until codes of judicial conduct and judicial disciplinary

commissions were created in the mid-twentieth century.

See Jeffrey M. Sham, State Judicial Conduct

Organizations, 76 Ky. L.J. 811, 811 (1987–88)

(recounting the history of judicial discipline).

Indeed, there would be little reason to extend judicial

immunity to criminal contempt. Unlike the danger that

civil liability poses to judicial independence, any threat to

judicial independence from criminal liability is “severely

curtail[ed]” by “the limitations already imposed” by the

exceptional nature of mandamus and the constitutional

protections for criminal prosecutions (such as the right to

a trial by jury, burden of proof, and presumption of

innocence). Pulliam, 466 U.S. at 537–38 (rejecting

Justice Powell’s dissenting argument that the “specter of

contempt proceedings [against a judge who] violat[es]

. . . injunctive orders is likely to inhibit unbiased judicial

decisionmaking as much as the threat of liability for

damages”). And an inferior-court judge’s freedom to

disobey a superior court’s order is not the sort of

independent judicial decision-making that immunity is

designed to protect. Accord United States v. Claiborne,

727 F.2d 842, 847–48 (9th Cir. 1984) (rejecting a judge’s

argument that separation-of-powers concerns should

prevent executive officers from prosecuting federal

23

A. The Scope of Constitutional Protection for Judicial

Speech

The Supreme Court has yet to address the scope of

a judge’s freedom of speech as a sitting judge. See

Republican Party of Minn. v. White, 536 U.S. 765, 796

(2002) (Kennedy, J., concurring) (“This case does not

present the question whether a State may restrict the

speech of judges because they are judges—for example,

as part of a code of judicial conduct; the law here

regulates judges only when and because they are

candidates.”). Yet other federal and state courts have

repeatedly held that a “judge does not check his First

Amendment rights at the courthouse door, to be

reclaimed at the expiration of his judicial tenure.” 5 In re

judges for acts involving exercise of their judicial

power); United States v. Hastings, 681 F.2d 706, 710–11

(11th Cir. 1982) (same); United States v. Isaacs, 493 F.2d

1124, 1140–44 (7th Cir. 1974) (same). With no support

in history, law, or logic, we cannot extend judicial

immunity to criminal contempt. Cf. Dennis v. Sparks,

449 U.S. 24, 29 (1980) (rejecting an extension of

derivative judicial immunity because the petitioners had

“pointed to nothing indicating that, historically, judicial

immunity insulated from damages liability those private

persons who corruptly conspire with the judge”).

5

E.g., In re Vincent, 172 P.3d 605, 607 (N.M. 2007)

(“[W]e recognize that there are nevertheless

24

Judicial Misconduct, 632 F.3d 1289, 1289 (9th Cir. Jud.

Counc. 2001) (Kozinksi, C.J., sitting alone).

We agree. What a judge says in an opinion is

sufficiently expressive to trigger First Amendment

review. The judge “inten[ds] to convey a particularized

message” by explaining his legal analysis and

conclusions, and there is a “great” likelihood that the

opinion’s message would be understood by its

audience—no less than if the judge had published the

same analysis and commentary in a law review article.6

Texas v. Johnson, 491 U.S. 397, 404 (1989) (quotation

marks and citations omitted). Indeed, as pure speech on

constitutional limitations on the regulation of judicial

speech.”); In re Sanders, 995 P.2d 369, 375 (Wash.

1998) (“A judge does not surrender First Amendment

rights upon becoming a member of the judiciary.”).

6

We do not decide, however, whether a judge’s ultimate

rulings and judgments (as opposed to the explanations

and commentary offered in opinions) also trigger First

Amendment review. See Nev. Comm’n on Ethics v.

Carrigan, 131 S. Ct. 2343, 2351 n.5 (2011) (“A legislator

voting on a bill is not fairly analogized to one simply

discussing that bill or expressing an opinion for or

against it. The former is performing a governmental act

as a representative of his constituents; only the latter is

exercising personal First Amendment rights.” (emphasis

added) (citations omitted)).

25

public issues, a judicial opinion “occupies the highest

rung of the hierarchy of First Amendment values” and is

thus “entitled to special protection.” Snyder v. Phelps,

131 S. Ct. 1207, 1215 (2011) (quotation marks and

citations omitted). To be sure, the rationale and holdings

in an opinion often carry the force of law, but the mere

fact that an opinion has legal effect does not “somehow

deprive[] [an opinion] of its expressive component.” Doe

v. Reed, 130 S. Ct. 2811, 2818 (2010); see also Nev.

Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2351

(2011) (“It is one thing to say that an inherently

expressive act remains so despite its having

governmental effect, but it is altogether another thing to

say that a governmental act becomes expressive simply

because the governmental actor wishes it to be so. We

have never said the latter is true.”). No one contends that

Kendall’s opinion was not speech.

Having concluded that a judicial opinion qualifies

as “speech,” we must determine the scope of its

protection. Kendall argues that a judicial opinion is

criminally punishable only under the government’s

limited authority as sovereign to regulate speech that

poses a clear and present danger to the administration of

justice. By contrast, the Virgin Islands Supreme Court

relied on the government’s broader authority to discipline

attorneys for speech that is substantially likely to

prejudice ongoing proceedings and held that this broader

authority allows the government to criminally punish

26

judicial speech that poses the same threat. 7 We agree

with Kendall.

As a general matter, the First Amendment protects

freedom of expression regardless of its content or

viewpoint and “regardless of whether it is disruptive,

offensive, vulgar or insulting.” J.S. v. Blue Mountain

Sch. Dist., 650 F.3d 915, 936 (3d Cir. 2011) (en banc)

(Smith, J., concurring). Yet that rule is not absolute.

When acting as sovereign, the government is empowered

to impose time, place, and manner restrictions on speech,

see Ward v. Rock Against Racism, 491 U.S. 781, 791

7

Because this case involves a sitting judge’s speech

about one of his pending cases, we need not decide the

constitutional standard for evaluating judicial speech in

other contexts, such as a speech about a case over which

he is not presiding or about topics unrelated to any

pending case. Cf., e.g., Miss. Comm’n on Judicial

Performance v. Wilkerson, 876 So. 2d 1006, 1011–12

(Miss. 2004) (en banc) (applying strict scrutiny to a

state’s decision to discipline a judge for his extra-judicial

statements on gay rights); In re Hey, 452 S.E.2d 24, 33

(W.Va. 1994) (“A judge may not be disciplined

consistent with the First Amendment . . . for his remarks

during a radio interview in which he discussed his own

disciplinary proceedings, criticized a member of his

investigative panel, and stated his intention to take some

reactive and lawful measure against the panel member.”).

27

(1989), make reasonable, content-based decisions about

what speech is allowed on government property that is

not fully open to the public, see Ark. Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 674–75 (1998), decide

what viewpoints to espouse in its own speech or speech

that might be attributed to it, see Johanns v. Livestock

Mktg. Ass’n, 544 U.S. 550, 560 (2005), and categorically

restrict unprotected speech. 8 Sometimes, however, the

government acts in a capacity that goes beyond merely

being sovereign, and it gains additional authority to

regulate speech in those capacities. See, e.g., Garcetti v.

Ceballos, 547 U.S. 410, 419–20 (2006) (government as

public employer); Morse v. Frederick, 551 U.S. 393,

369–97 (2007) (government as K-12 educator); Gentile v.

8

Examples of categorically unprotected speech include

obscenity, see Miller v. California, 413 U.S. 15, 23

(1973), child pornography, see New York v. Ferber, 458

U.S. 747, 764–65 (1982), advocacy that imminently

incites lawless action, see Brandenburg v. Ohio, 395 U.S.

444, 447–48 (1969) (per curiam), fighting words, see

Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72

(1942), true threats, see Watts v. United States, 394 U.S.

705, 708 (1969) (per curiam), commercial speech that is

false, misleading, or proposes illegal transactions, see

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n

of N.Y., 447 U.S. 557, 562, 566–67 (1980), and some

false statements of fact, see generally United States v.

Alvarez, 132 S. Ct. 2537, 2546–47 (2012).

28

State Bar of Nev., 501 U.S. 1030, 1066, 1075 (1991)

(government as regulator of attorneys); Thornburgh v.

Abbott, 490 U.S. 401, 407 (1989) (government as prison

administrator); FCC v. Pacifica Found., 438 U.S. 726,

748–49 (1978) (government as regulator of broadcast

radio and television); Parker v. Levy, 417 U.S. 733, 758–

59 (1974) (government as military commander).

In the realm of speech about ongoing judicial

proceedings, the government’s authority as sovereign

provides only limited power to criminally punish speech

by those outside the judicial system. As the Supreme

Court made clear in a trio of cases involving members of

the press held in criminal contempt for their news stories,

speech about ongoing judicial proceedings is criminally

punishable only if it poses a clear and present danger of

obstructing or prejudicing the ongoing proceedings.

Craig, 331 U.S. at 372; Pennekamp v. Florida, 328 U.S.

331, 348 (1946); Bridges v. California, 314 U.S. 252,

260–63 (1941); see also Standing Comm. on Discipline

of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55

F.3d 1430, 1442 (9th Cir. 1995). The government has

greater authority to discipline speech about an ongoing

judicial proceeding, though, when the speaker is an

attorney involved in that proceeding. See Gentile, 501

U.S. at 1075. Because the attorney is likely to be

viewed as “especially authoritative” and his statements

are more “likely to influence the actual outcome of the

trial,” the government has an overriding interest in

29

limiting the attorney’s prejudicial comments to preserve

the litigants’ constitutional rights to an impartial jury. Id.

at 1074–75. Consequently, the attorney’s speech is

subject to discipline at a lower threshold: when it is

substantially likely to prejudice the proceedings. Id. at

1075.

That brings us to the question in this case: does the

government’s broader authority to discipline attorney

speech about ongoing proceedings also permit the

government to hold a judge in criminal contempt for his

speech about ongoing proceedings? We answer that

question with a resounding “No.” Criminal contempt is

no mere disciplinary tool. It derives, like all crimes, from

a government’s power as sovereign. See Eash v. Riggins

Trucking, Inc., 757 F.2d 557, 565–66 (3d Cir. 1985)

(“[A] court’s broad power to discipline attorneys as

officers of the court for misconduct not properly

categorized as contempt is substantially different from

the contempt power.”); Cammer v. United States, 350

U.S. 399, 408 n.7 (1956) (“‘The power to disbar an

attorney proceeds upon very different grounds’ from

those which support a court’s power to punish for

contempt.” (quoting Ex Parte Robinson, 86 U.S. (19

Wall.) 505, 512 (1873))); see also Bagwell, 512 U.S. at

826 (describing criminal contempt as “a crime in the

ordinary sense” (quoting Bloom v. Illinois, 391 U.S. 194,

201 (1968)). Because the government’s use of the

criminal-contempt power is the sine qua non of a

30

sovereign act, the government has no greater authority to

hold someone in criminal contempt for their speech about

ongoing proceedings than it would to criminally punish

any speech. The government’s additional authority to

discipline attorney speech is therefore inapposite. And

that means the speech must present a clear and present

danger—not just a substantial likelihood—of obstructing

the administration of justice. Consequently, the First

Amendment protects a judge’s opinion from criminal

punishment unless his speech poses a clear and present

danger to the administration of justice. 9

9

The Supreme Court has not yet been asked to resolve

whether or how Garcetti’s government-employer

rationale extends to disciplinary restrictions on a judge’s

on-the-job speech. See White, 536 U.S. at 796 (Kennedy,

J., concurring) (“Whether the rationale of [our public-

employee-speech cases] could be extended to allow a

general speech restriction on sitting judges—regardless

of whether they are campaigning—in order to promote

the efficient administration of justice, is not an issue

raised here.”); see also In re Vincent, 172 P.3d at 608

(“[E]valuating the constitutionality of restrictions on the

political speech of a judge does not fit neatly into the

existing analytical framework for First Amendment

analysis. Selecting the appropriate framework for

analysis has become even more difficult since White.”)

31

The People, however, argue that Kendall’s opinion

should receive no constitutional protection from criminal

punishment. See People’s Br. at 15–16. The People

analogize the Virgin Islands Supreme Court’s authority

to punish lower-court judges’ speech to the government’s

broad authority as public employer to discipline an

employee for speech made pursuant to his official duties,

see Garcetti, 547 U.S. at 421, and to the government’s

broad authority as military commander to punish an

officer’s insubordinate speech towards his superiors, see

United States v. Howe, 37 C.M.R. 429 (1967).

These analogies fall flat. As we have already

explained, contempt is not discipline: the Virgin Islands

Supreme Court acted as sovereign, not as public

employer, by criminally punishing Kendall’s speech.

And the Virgin Islands Supreme Court’s supervisory

capacity over lower-court judges is hardly similar to the

government’s capacity as military commander. The

Supreme Court has long differentiated military-speech

restrictions from those in the civilian community based

on considerations unique to the military. See, e.g.,

Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“Our

review of military regulations challenged on First

Amendment grounds is far more deferential than

constitutional review of similar laws or regulations

Since that question is not implicated here, we leave it for

another day.

32

designed for civilian society. The military need not

encourage debate or tolerate protest to the extent that

such tolerance is required of the civilian state by the First

Amendment[.]”); Parker v. Levy, 417 U.S. 733, 758–59

(1974) (“The armed forces depend on a command

structure that at times must commit men to combat, not

only hazarding their lives but ultimately involving the

security of the Nation itself. Speech that is protected in

the civil population may nonetheless undermine the

effectiveness of response to command. If it does, it is

constitutionally unprotected.” (citations omitted)). Those

same considerations have no force in a civilian court

system: Superior courts do not depend on an instinctive

obedience to command structure that is critical to

executing split-second battlefield orders. Nor do court

systems have a similar need to restrict the role of

dissent—unlike the military, the judicial mission depends

on courts being deliberative bodies. Cf. United States v.

Grimley, 137 U.S. 147, 153 (1890) (“An army is not a

deliberative body. It is the executive arm. Its law is that

of obedience. No question can be left open as to the right

to command in the officer, or the duty of obedience in the

soldier.”).

In summary, the First Amendment prevents the

government from criminally punishing a sitting judge’s

speech about one of his pending cases unless it poses a

clear and present danger to the administration of

33

justice.10 Cf. Citizens United v. FEC, 130 S. Ct. 876, 904

(2010) (“If the First Amendment has any force, it

prohibits Congress from fining or jailing citizens, or

associations of citizens, for simply engaging in political

10

The Virgin Islands Supreme Court did not base

Kendall’s conviction on a conclusion that his words were

defamatory. See Standing Comm. on Discipline of U.S.

Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d

1430, 1438 (9th Cir. 1995) (“It follows that statements

impugning the integrity of a judge may not be punished

unless they are capable of being proved true or false

. . . .”) And no such conclusion would be possible here.

Contrary to the Virgin Islands Supreme Court’s

characterization, Kendall’s remarks cannot be reasonably

interpreted as “blatantly accus[ing], without proof, the

Justices . . . of gross dereliction of their sworn duties and

of committing illegal acts.” Kendall’s statements were

nothing more than “rhetorical hyperbole” using language

in a “loose, figurative sense” and therefore cannot be

interpreted as asserting actual facts about the Justices.

Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264,

284–85 (1974); see also id. at 286 (holding that a union

newsletter’s description of a “scab” as a “traitor” could

not be construed as a factual assertion); Greenbelt Coop.

Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (holding

that a description of a public figure’s negotiating position

as “blackmail” could not be construed as charging the

plaintiff with committing a crime).

34

speech.”).

B. Whether Kendall’s Opinion Crossed the

Constitutional Line

We must vacate Kendall’s conviction because his

opinion did not pose a clear and present danger of

prejudicing the ongoing Ford proceedings. In the usual

course of reviewing the sufficiency of evidence, we

“review the record in the light most favorable to the

prosecution to determine whether any rational trier of

fact could have found proof of guilt beyond a reasonable

doubt based on the available evidence.” United States v.

Wolfe, 245 F.3d 257, 261 (3d Cir. 2001) (citing Jackson

v. Virginia, 443 U.S. 307 (1979)). But “in cases raising

First Amendment issues,” we have an “obligation to

‘make an independent examination of the whole record’

in order to make sure that ‘the judgment does not

constitute a forbidden intrusion on the field of free

expression.’” Gentile, 501 U.S. at 1038 (quoting Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

499 (1984)). Consequently, we are “compelled to

examine for [ourselves] the statements in issue and the

circumstances under which they were made to see

whether or not they do carry” the requisite threat to the

administration of justice. Id. (quoting Pennekamp, 328

U.S. at 335); see also United States v. Cutler, 58 F.3d

825, 834 (2d Cir. 1995) (“Suffice it to say that in First

Amendment cases, we must scrutinize carefully the lower

35

court’s application of the relevant standards to the facts

at hand.”).

As we have explained, obstruction of the

administration of justice contemplates interference with

“the pendency of some sort of judicial proceeding.”

United States v. Walasek, 527 F.2d 676, 678 (3d Cir.

1975). But obstruction of the administration of justice

should “not be confused with obstruction of justice.

Justice may be obstructed by mere inaction, but

obstruction of the administration of justice requires

something more—some act that will interrupt the orderly

process of the administration of justice, or thwart the

judicial process.” United States v. Warlick, 742 F.2d

113, 115–16 (4th Cir. 1984) (citing Ex parte Hudgings,

249 U.S. 378, 383 (1919)); compare In re Michael, 326

U.S. 224, 228 (1945) (“[P]erjury alone does not

constitute an ‘obstruction’ [of the administration of

justice] . . . [and] there ‘must be added to the essential

elements of perjury under the general law the further

element of obstruction to the Court in the performance of

its duty.’” (quoting Ex parte Hudgings, 249 U.S. at 384)),

with Clark v. United States, 289 U.S. 1, 11 (1933)

(concluding that a prospective juror who committed

perjury had also obstructed the administration of justice

because she had falsely testified to qualify for the jury

even though she was biased and would acquit the

defendant no matter what the evidence showed). And to

transgress the threshold of clear and present danger, the

36

speech must “constitute an imminent, not merely a likely,

threat to the administration of justice. The danger must

not be remote or even probable; it must immediately

imperil.” Craig, 331 U.S. at 376.

The Virgin Islands Supreme Court relied on two

theories in concluding that Kendall’s opinion was a clear

and present danger to the fairness of the Ford case.

Neither passes muster.

According to the Virgin Islands Supreme Court,

Kendall’s opinion was punishable because it “called the

very integrity of [its mandamus] decision into question”

by “blatantly accus[ing], without proof, the Justices . . .

of gross dereliction of their sworn duties and of

committing illegal acts.” Yet Kendall’s criticism of the

decision to issue mandamus—even if it unfairly

impugned the Justices’ motives—is simply not enough.

His after-the-fact critique “could not affect [the Justices’]

ability to [fairly] decide” how to rule on the petition for a

writ of mandamus. Pennekamp, 328 U.S. at 348 (holding

that “criticism of judicial action already taken,” even

though “the cases were still pending on other points or

might be revived by rehearings,” was not enough to

satisfy the clear-and-present-danger standard). And the

Virgin Islands Supreme Court’s interests in “protecting

the reputation of its judges” and “maintaining [its]

institutional integrity” are insufficient “to justify the

subsequent [criminal] punishment of speech.” Landmark

37

Commc’ns, Inc. v. Virginia, 435 U.S. 829, 841–42

(1978).

Nor, as the Virgin Islands Supreme Court

intimated, did Kendall’s opinion delay or otherwise

prejudice the criminal case against Ford and Paris.

According to the Virgin Islands Supreme Court,

Kendall’s opinion delayed the Ford trial by prompting

the defendants to petition this Court for a writ of

certiorari to review the mandamus decision.

The evidence unequivocally contradicts that

account. The defendants’ mere filing of a petition for

certiorari in this Court did not and could not have stayed

their trial. See Brewer v. Quarterman, 474 F.3d 207, 210

(5th Cir. 2006) (en banc) (Dennis, J., dissenting from the

majority’s exercise of jurisdiction) (explaining that while

the granting of a petition for certiorari stays a case in the

lower court, the filing of a petition for certiorari does not

do so). Although the government moved to continue the

Ford trial on November 23, 2009, to await a ruling on the

defendants’ petition, this Court had already denied the

defendants’ petition several days earlier on November

17, 2009. Judge Carroll (who ultimately presided over

the Ford trial) nevertheless continued the trial at the

defendants’ request because some key defense witnesses

either could not be located or were off-island.

Furthermore, even if there were some evidence that the

defendants’ petition delayed the trial, the Virgin Islands

38

Supreme Court did not identify any evidence that

Kendall’s opinion caused the defendants to seek review

of the mandamus decision by petitioning for certiorari.

The record simply contains no support for the conclusion

that Kendall’s opinion delayed the Ford trial. Accord

Scarfo, 263 F.3d at 95 (reversing a gag order on an

attorney’s speech about an ongoing case because there

was no “evidence that [his] statements to the press

jeopardized the fairness of the trial or in any way

materially impaired or prejudiced the judicial power of

the court”).

The People offer an additional argument about

how Kendall’s opinion prejudiced the Ford case.

According to the People, Kendall “deliberately

contaminated the jury pool” by “publicly argu[ing] that

the People lacked sufficient evidence to convict the Ford

defendants,” directly resulting in Paris’s acquittal.

People’s Br. at 19. This is pure conjecture, and as

conjecture it is belied by the fact that Judge Carroll was

ultimately able to select an impartial jury for Ford’s trial.

More importantly, the Virgin Islands Supreme Court did

not rely on this theory in convicting Kendall. Nor can

we. Turner v. Louisiana, 379 U.S. 466, 472–73 (1965)

(holding that the Sixth Amendment’s guarantee of a trial

by jury requires the jury to base its verdict only on the

evidence presented at trial); TXO Prod. Corp. v. Alliance

Res. Corp., 509 U.S. 443, 468 (1993) (Kennedy, J.,

concurring) (“Unlike a legislature, whose judgments may

39

be predicated on educated guesses and need not

necessarily be grounded in facts adduced in a hearing, a

jury is bound to consider only the evidence presented to

it in arriving at a judgment.” (internal citations omitted)).

On the whole, Kendall’s opinion contained “strong

language, intemperate language, and, we assume, an

unfair criticism. But a judge may not hold in contempt

one ‘who ventures to publish anything that tends to make

him unpopular or belittle him.’” Craig, 331 U.S. at 376

(quoting Craig v. Hecht, 263 U.S. 255, 281 (1923)

(Holmes, J., dissenting)); see also In re Little, 404 U.S.

553, 556 (1972) (overturning lawyers’ contempt

convictions where “[t]heir convictions rest[ed] on

nothing whatever except allegations [they] made in

motions for change of venue and disqualification of [the

judge] because of [his] alleged bias,” and noting that the

lawyers had not “disobeyed any valid court order, talked

loudly, acted boisterously, or attempted to prevent the

judge or any other officer of the court from carrying on

his court duties” (internal quotation marks and citations

omitted)). Consequently, Kendall’s controversial

remarks in the Ford opinion were protected by the First

Amendment and cannot sustain his conviction on Count

1.

40

III.

On Count 2, Kendall was charged and convicted of

indirect criminal contempt for failing to comply with the

writ of mandamus. This conviction fails, however,

because it is not supported by sufficient evidence.

Like any crime, a conviction for criminal contempt

requires proof beyond a reasonable doubt. Young v.

United States, 481 U.S. 787, 798 (1987). And like any

criminal prosecution, we review the sufficiency of the

evidence de novo. United States v. Flores, 454 F.3d 149,

154 (3d Cir. 2006) (citing United States v. Brodie, 403

F.3d 123, 133 (3d Cir. 2005)). In doing so, we

“‘examine the totality of the evidence, both direct and

circumstantial,’ and ‘interpret the evidence in the light

most favorable to the government as the verdict winner.’”

United States v. Starnes, 583 F.3d 196, 206 (3d Cir.

2009) (quoting United States v. Miller, 527 F.3d 54, 60,

62 (3d Cir. 2008)). If “all the pieces of evidence, taken

together, make a strong enough case to let a jury find [the

defendant] guilty beyond a reasonable doubt,” then we

must uphold the jury’s verdict. Brodie, 403 F.2d at 134

(quoting United States v. Coleman, 811 F.2d 804, 807

(3d Cir. 1987)).

Criminal contempt generally requires the existence

of a valid court order that the defendant knew of and

willfully disobeyed. Doral Produce Corp. v. Paul

41

Steinberg Assoc., Inc., 347 F.3d 36, 38 (2d Cir. 2003);

see also FTC v. Lane Labs-USA, Inc., 624 F.3d 575, 582

(3d Cir. 2010) (discussing civil contempt). This

willfulness requirement distinguishes civil contempt from

criminal contempt and requires “a specific intent to

consciously disregard an order of the court or where the

defendant knows or should reasonably be aware” that he

is disregarding the order. Doral Produce Corp., 347 F.3d

at 38 (citations and internal quotation marks omitted);

Waste Conversion, 893 F.2d at 610. Because of this

willfulness requirement, good-faith compliance is a

defense to criminal contempt but not civil contempt: “if

the defendant’s alleged disobedience is consistent with a

reasonable interpretation of the court’s order . . . and

there is no other evidence of willfulness, we would be

unable to affirm the conviction.” Doral Produce Corp.,

347 F.3d at 38–39.

The Virgin Islands Supreme Court charged

Kendall with disobeying the writ of mandamus in two

ways: (1) by refusing to consider a change of venue or a

continuance to minimize pretrial publicity; (2) by

refusing to schedule the Ford case for trial and recusing

himself instead of proceeding to trial (in the absence of a

valid plea agreement). These two grounds, however,

suffer from a similar defect: the writ of mandamus did

not require Kendall to take any action with respect to

these issues. Consequently, there is insufficient evidence

42

that Kendall disobeyed any unambiguous term of the writ

of mandamus.

A. Refusal to Consider Alternatives to Minimize

Pretrial Publicity

As the Virgin Islands Supreme Court

acknowledged, the writ of mandamus “did not itself

direct Kendall to consider a postponement or change of

venue.” The Virgin Islands Supreme Court nonetheless

determined that the writ “precluded Kendall from

concluding” that the Ford defendants could not obtain a

fair trial “without first considering a change of venue or a

postponement.” Id.

Kendall did not, however, ignore the writ’s

requirement that he consider ways to minimize pretrial

publicity as part of any ruling on pretrial publicity

because he never ruled on this issue. Rather, Kendall left

this question open for his successor to decide. To be

sure, his opinion describes his continued belief that

“widespread publicity” disclosing the defendants’ earlier

willingness to plead guilty “virtually foreclosed the

selection of [a fair and impartial] jury in [the territory’s]

very small population.” But his opinion does so only to

explain some of the concerns motivating his recusal—not

as part of any ruling on whether the pretrial publicity had

violated the defendants’ right to a fair trial.

43

Consequently, Kendall’s discussion of pretrial publicity

did not violate the writ.

B. Recusal Instead of Proceeding to Trial

Likewise, the Virgin Islands Supreme Court

conceded that the writ of mandamus did not “state that

Kendall was forbidden from recusing himself and was

required to immediately proceed to trial.” Kendall

therefore cannot be held in contempt for recusing himself

rather than proceeding to trial.

The Virgin Islands Supreme Court convicted him

on Count 2 anyway. It concluded that Kendall was guilty

because his recusal was a pretext to avoid complying

with the writ, even though pretextual recusal would not

violate the writ. 11 The Special Master concluded that the

11

Count 2 charged Kendall with violating the writ of

mandamus by recusing himself, but the Virgin Islands

Supreme Court ultimately convicted him of pretextually

recusing himself even though his recusal did not violate

the writ. This shift in theories raises a serious question as

to whether Kendall was unconstitutionally convicted of a

crime with which he was not charged. See United States

v. Vosburgh, 602 F.3d 512, 532 (3d Cir. 2010) (“Because

of [the Fifth Amendment], ‘a court cannot permit a

defendant to be tried on charges that are not made in the

indictment against him.’” (quoting Stirone v. United

States, 361 U.S. 212, 216 (1960))); United States v.

44

evidence was at least “equally consistent with the

premise that Kendall recused himself because he believed

Bethel had engaged in prosecutorial misconduct and [that

he] ‘could not, and ethically should not, render decisions

in the case.’” V.I. S. Ct. Op. at 24. The Virgin Islands

Supreme Court rejected the Special Master’s assessment

for one reason: the timing of Kendall’s recusal.

According to the Virgin Islands Supreme Court, all of

Kendall’s reasons for recusal arose by March 9, 2009, yet

Kendall “continued to issue rulings” in People v. Ford

after that date, and waited until after the writ issued

months later to recuse himself. Id. at 26. So the Virgin

Islands Supreme Court concluded that the timing of

Kendall’s decision revealed the real reason for his

recusal: his disagreement with the writ of mandamus. Id.

That theory fails on its own terms. Its premise—

that all of Kendall’s reasons for recusal arose before the

writ was issued—is contradicted by the evidence. While

Bethel made several misrepresentations to Kendall before

the writ of mandamus was issued, the last straw came

after the writ issued: Bethel proffered evidence in support

Daraio, 445 F.3d 253, 260 (3d Cir. 2006) (“‘The key

inquiry is whether the defendant was convicted of the

same conduct for which he was indicted.’” (quoting

United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th

Cir. 1998))). Nevertheless, we do not consider this issue

because Kendall has not raised it.

45

of the plea agreement for voluntary manslaughter that

tended to exculpate the defendants and confirm their self-

defense theory. Even though Bethel’s factual basis was

insufficient to support the plea agreement for voluntary

manslaughter, Bethel forged ahead toward trial on more

serious charges requiring proof of intent—an element

contradicted by Bethel’s own previous account of the

evidence. And he pressed forward despite his “serious

doubt” about the evidentiary support for those more

serious charges. This post-writ conduct led Kendall to

conclude that Bethel was unethically trying to “win a

conviction rather than seeing that justice is done” and

that he was no longer able “to accord much credence to

[Bethel’s] further representations” in the Ford case. As a

result, there is not “substantial evidence that, when

viewed in the light most favorable to the [People], would

allow a rational trier of fact” to conclude that Kendall’s

recusal was pretextual. 12 United States v. Wright, 665

12

Kendall also argues that the Virgin Islands Supreme

Court lacked authority to hold him in criminal contempt

for pretextual recusal where his recusal did not violate

any court order. Because we conclude that Kendall’s

conviction on Count 2 was not supported by sufficient

evidence, we need not consider whether the Virgin

Islands Supreme Court was “inescapably wrong” about

the scope of its contempt power. Defoe v. Phillip, 702

F.3d 735, 744 (3d Cir. 2012) (explaining that our limited

oversight over the Virgin Islands Supreme Court

46

F.3d 560, 567 (3d Cir. 2012) (internal quotation marks

and citations omitted).

Because none of the Virgin Islands Supreme

Court’s grounds are sufficient to demonstrate Kendall’s

willful non-compliance with the writ of mandamus, we

must vacate his conviction on Count 2.

IV.

On Count 3, the Virgin Islands Supreme Court

convicted Kendall of indirect criminal contempt for

misbehaving in his official transactions based on the

conduct underlying Counts 1 and 2. As the Virgin

Islands Supreme Court explained, “the disposition of the

obstruction of administration of justice and failure to

comply charges also dictates the disposition of

misbehaving in official transactions charge.” V.I. S. Ct.

Op. at 28. Consequently, our reversal of Kendall’s

convictions on Counts 1 and 2 requires us to reverse his

conviction on Count 3.

“requires us to affirm [its] decisions . . . that are based on

territorial law unless those decisions are inescapably

wrong”). Nevertheless, we note that, so far as we can

find, no court has ever used its limited contempt

authority to punish a judge’s pretextual recusal absent the

violation of a court order.

47

V.

Lastly, Kendall argues that the Justices violated his

right to due process in two ways: First, the Justices did

not recuse themselves from presiding over his contempt

charges. Second, the Justices, acting as the ultimate fact-

finders in his case, convicted him without personally

attending his trial and observing the witnesses while they

testified. Because Kendall’s convictions were

unconstitutional and based on insufficient evidence, we

need not reach his due-process arguments.

* * * * *

We take no issue with the Virgin Islands Supreme

Court’s well-intentioned desire to promote respect for the

judiciary. Nowhere is such respect more important than

among judges, who “have a common interest, as

members of the judiciary, in getting the law right,” and

who, “as a result, . . . are willing to listen, persuade, and

be persuaded, all in an atmosphere of civility and

respect.” Harry T. Edwards, The Effects of Collegiality

on Judicial Decision Making, 151 U. Pa. L. Rev. 1639,

1645 (2003). Whatever its substantive merit, Kendall’s

Ford opinion gratuitously undermined the collegial

judicial atmosphere “that helps to create the conditions

for principled agreement, by allowing all points of view

to be aired and considered.” Id. But as Justice Black

explained:

48

The assumption that respect for the judiciary

can be won by shielding judges from

published criticism wrongly appraises the

character of American public opinion. For it

is a prized American privilege to speak

one’s mind, although not always with

perfect good taste, on all public institutions.

And an enforced silence, however limited,

solely in the name of preserving the dignity

of the bench, would probably engender

resentment, suspicion, and contempt much

more than it would enhance respect.

Bridges, 314 U.S. at 270–71; see also Landmark

Commc’ns, Inc., 435 U.S. at 839 (“[T]he law gives

‘[j]udges as persons, or courts as institutions . . . no

greater immunity from criticism than other persons or

institutions.’” (quoting Bridges, 314 U.S. at 289

(Frankfurter, J., dissenting))). We will reverse the

judgment of the Virgin Islands Supreme Court and vacate

all of Kendall’s convictions.

49

In re: KENDALL

No. 11-4471

ROTH, Circuit Judge, concurring:

I join this Court’s judgment reversing the criminal

contempt conviction against Judge Kendall. I write

separately, however, to express my view that the contempt

conviction should be reversed on the grounds of absolute

judicial immunity. 1 It is well-established that absolute

judicial immunity protects judges from civil suit for judicial

actions within their jurisdiction. See, e.g., Mireles v. Waco,

502 U.S. 9, 9 (1991); Stump v. Sparkman, 435 U.S. 349, 357-

62 (1978). I believe that, absent corruption or bribery, such

protection should also reach criminal liability for judicial

actions within the judge’s jurisdiction. 2

1

Because I believe that the issue of judicial immunity falls

within the scope of the second issue on which we granted

certiorari—whether the Virgin Islands Supreme Court erred

in imposing criminal contempt on the charges of failure to

comply with its mandamus order—and because it is an issue

of great importance, I address the issue in this concurrence.

2

To be sure, to the extent that offenses like corruption and

bribery are not judicial acts within a judge’s jurisdiction, they

do not fall within this proposed extension of the doctrine of

judicial immunity. See Braatelien v. United States, 147 F.2d

888, 895 (8th Cir. 1945) (noting that a judge “may be held

criminally responsible when he acts fraudulently or

“As early as 1872, the [Supreme] Court recognized

that it was ‘a general principle of the highest importance to

the proper administration of justice that a judicial officer, in

exercising the authority vested in him, [should] be free to act

upon his own convictions, without apprehensions of personal

consequences to himself.’” Stump, 435 U.S. at 355 (quoting

Bradley v. Fisher, 80 U.S. 335, 347 (1871)). Rooted in

English common law, the doctrine of judicial immunity is

aimed primarily at preserving judicial independence. See

Forrester v. White, 484 U.S. 219, 225 (1988) (citing Bradley,

80 U.S. at 348) (noting that judicial immunity historically was

also a device for discouraging collateral attacks and

protecting the finality of judgments); Pierson v. Ray, 386 U.S.

547, 554 (1967) (“This immunity . . . ‘is not for the protection

or benefit of a malicious or corrupt judge, but for the benefit

of the public, whose interest it is that judges should be at

liberty to exercise their functions with independence and

without fear of consequences.’”) (quoting Scott v. Stansfield,

L.R. 3, Ex. 220, 223 (1868), quoted in Bradley, 80 U.S. at

349); United States v. Chaplin, 54 F. Supp. 926, 933 (S.D.

Cal. 1944) (“The immunity which has clothed judges for a

century and a half in our country found its genesis in the

English common law simultaneously with the independence

of the judiciary.”).

corruptly”); McFarland v. Nebraska, 109 N.W.2d 397, 403

(Neb. 1961) (“[A]ny judicial officer who acts fraudulently or

corruptly is responsible criminally, whether he acts under the

law or without the law.”) (internal quotation marks and

citation omitted). I include the qualifier of “absent corruption

or bribery,” however, to ensure that such criminal acts by

judges will not be covered by judicial immunity.

2

In the civil context, “[a] long line of th[e] Court’s

precedents acknowledge that, generally, a judge is immune

from a suit for money damages.” Mireles, 502 U.S. at 9.

There are only two circumstances in which the doctrine of

judicial immunity does not apply to civil suits for money

damages: (1) “a judge is not immune from liability for

nonjudicial actions, i.e., actions not taken in the judge’s

judicial capacity” and (2) “a judge is not immune for action,

though judicial in nature, taken in the complete absence of all

jurisdiction.” Id. at 11.

While the application of absolute judicial immunity in

civil proceedings is well-established, the Supreme Court has

noted in dicta that it has not recognized absolute judicial

immunity from criminal liability. See Mireles, 502 U.S. at 9

n.1 (“The Court, however, has recognized that a judge is not

absolutely immune from criminal liability . . . .”); O’Shea v.

Littleton, 414 U.S. 488, 503 (1974) (“[W]e have never held

that the performance of the duties of judicial, legislative, or

executive officers, requires or contemplates the immunization

of otherwise criminal deprivation of constitutional rights. . . .

On the contrary, the judicially fashioned doctrine of official

immunity does not reach so far as to immunize criminal

conduct proscribed by an Act of Congress. . . .”) (internal

quotation marks and citations omitted). 3, 4

3

To the extent that I propose that judges not be exempt from

prosecution for the offenses of bribery or corruption, my

position is consistent with that of the Supreme Court.

4

In Ex Parte Virginia, 100 U.S. 339 (1878), the Supreme

Court did deny judicial immunity to a judge indicted for

excluding black citizens from jury lists in violation of the

3

Still, some federal district courts and state courts have

found judges to be judicially immune from criminal charges

relating to the performance of judicial duties. See Chaplin,

54 F. Supp. at 934-35 (sustaining a judge’s plea at bar that he

should be immune from indictment and prosecution for

depriving a citizen of civil rights “under the color of any law”

in judicial proceedings in his court); In re Petition of Dwyer,

406 A.2d 1355, 1360 (Pa. 1979) (finding “that the petitioners

are quasi-judicial and/or quasi-prosecutorial officers . . . [and]

in the absence of allegations of bad faith or corruption, the

petitioners, in granting the extensions and variance, are

insulated from criminal prosecution for the consequences of

their actions”); Commonwealth v. Tartar, 239 S.W.2d 265,

266-67 (Ky. App. 1951) (holding that the circuit court

properly sustained a demurrer to the indictment of a judge for

misfeasance in office because “judges acting in their official

capacities should be protected from harassment by either civil

suits or criminal prosecutions”); In re McNair, 187 A. 498,

502 (Pa. 1936) (finding that magistrate judges “cannot be

subjected to liability, civil or criminal, for any of their judicial

acts, no matter how erroneous, so long as they act in good

faith”).

I believe that, absent bribery or corruption, the

importance of judicial independence warrants application of

the doctrine of absolute judicial immunity to criminal liability

for judicial acts performed within a judge’s jurisdiction.

Exposing judges to criminal liability for judicial acts

performed within their jurisdiction poses the same type of

Civil Rights Act of 1875. However, the Court did so on the

grounds that the act in question was ministerial, not judicial.

Id. at 348.

4

threat to judicial independence as does exposing them to civil

suit for money damages. As the courts that have found

judges immune from criminal prosecution have noted, fear of

criminal prosecution for judicial acts, like fear of civil suits

by disgruntled litigants, could affect the ability of judges to

act on their own convictions in fulfilling their judicial duties.

See, e.g., Chaplin, 54 F. Supp. at 934 (“If judges are protected

against civil actions for judicial acts, the reasons are more

weighty that they should be protected against criminal

actions.”); Dwyer, 406 A.2d at 1361 (“Judges made timid

because of fear of criminal prosecutions for errors in their

decisions make poor public servants.”); Tartar, 239 S.W.2d at

266 (“[O]therwise judges might be unduly burdened

defending charges instigated by other governmental officers

or aggrieved members of the public.”).

Moreover, as courts have noted with respect to judicial

immunity from civil suits, there are other means of

disciplining judges that do not pose such a threat to the

independence of the judiciary. Judges are subject to removal.

See U.S. Const. art. II, § 4; V.I.S.CT.R. 209.6; Bradley, 80

U.S. at 354 (“But for malice or corruption in their action

whilst exercising their judicial functions within the general

scope of their jurisdiction, judges of these courts can only be

reached by public prosecution in the form of impeachment, or

in such other form as may be specially prescribed.”). Judges

also are subject to disciplinary controls: all states now have

judicial commissions to review complaints of judicial

misconduct, and there are procedures within the federal courts

for such review as well. 5 See John O. Haley, The Civil,

5

The majority notes that “superior courts routinely used their

contempt power to hold inferior judges accountable for

5

Criminal and Disciplinary Liability of Judges, 54 AM. J.

COMP. L. 281, 288-89 (2006). The Virgin Islands also has a

judicial commission, the Commission on Judicial Conduct.

V.I.S.CT.R. 209. 6

The majority asserts, however, that there is “no

support in history, law, or logic” for extending judicial

immunity to criminal contempt. Ante at 24 n.4. The majority

cites to Pulliam v. Allen, 466 U.S. 522 (1984) for support.

Ante at 23 n.4. However, in Pulliam, the Supreme Court held

violating their writs and orders . . . .” Ante at 22 n.4.

However, the majority cites only to cases from the late

nineteenth and early twentieth centuries and recognizes that

this practice was common only until the mid-twentieth

century when codes of judicial conduct and judicial

disciplinary commissions were created. Ante at 22-23 n.4.

6

Complaints arising out of other cases had been filed against

Judge Kendall with the Commission on Judicial Conduct’s

predecessor, the Commission on Judicial Disabilities. The

Commission on Judicial Disabilities was nullified by this

Court’s decision in Kendall v. Russell, 572 F.3d 126 (3d Cir.

2009), in which we found that the provisions of the

legislature’s act allowing the Commission to remove judges

violated the separation of powers principle in the Revised

Organic Act that served as the Constitution of the Virgin

Islands. This decision was published on July 13, 2009. On

December 10, 2009, the Supreme Court of the Virgin Islands

adopted Supreme Court Rule 209, which created the new

judicial disciplinary body, the Commission of Judicial

Conduct. V.I.S.CT.R. 209; V.I.S.CT., Promulgation No.

2009-01 (Dec. 10, 2009).

6

only that judicial immunity “is not a bar to prospective

injunctive relief against a judicial officer acting in her judicial

capacity” or to an award of attorney’s fees under 42 U.S.C. §

1988. 7 466 U.S. at 541-42. The Court did not directly

address whether judicial immunity should bar criminal

contempt proceedings against a judge. Nevertheless, Justice

Powell, in dissent, voiced concern that “[t]he specter of

contempt proceedings for alleged violations of injunctive

orders is likely to inhibit unbiased judicial decisionmaking as

much as the threat of liability for damages.” 8 Id. at 555

7

It is noteworthy that after the Supreme Court’s decision in

Pulliam, Congress passed the Federal Courts Improvement

Act of 1996, which amended 42 U.S.C. § 1983 to bar

injunctive relief against a judicial officer “unless a

declaratory decree was violated or declaratory relief was

unavailable” and 42 U.S.C. § 1988 to bar an award of costs,

including attorney’s fees, against a judicial officer in any

action “for an act or omission taken in such officer’s judicial

capacity . . . , unless such action was clearly in excess of such

officer’s jurisdiction.” Pub. L. No. 104-317, 110 Stat. 3847

(codified at 42 U.S.C. §§ 1983, 1988).

8

The majority asserts that the Pulliam Court rejected Justice

Powell’s dissenting argument about the danger that the threat

of contempt proceedings poses to judicial independence.

Ante at 23 n.4. I believe that this is an overstatement of the

Court’s position: the Court noted that a judge “risks

contempt for violating the writ [of mandamus]” but did not

directly respond to Justice Powell’s argument about the effect

that the threat of contempt proceedings could have on judicial

independence. Pulliam, 466 U.S. at 538 n.19.

7

(Powell, J., dissenting). I echo Justice Powell’s concern and

believe that there is a strong basis in common law and logic

for extending judicial immunity to criminal contempt. 9

Here, Judge Kendall should be judicially immune from

the criminal contempt charges. In writing the July 7, 2009,

Opinion recusing himself from the Ford matter, Judge

Kendall was exercising his judgment as to whether he could

preside over this case in an impartial and fair manner and

performing a quintessential judicial function by explaining his

reasoning in a judicial opinion. Because this was a judicial

act within his jurisdiction, he would be immune from civil

suit arising from the same action. Just as exposing Judge

Kendall to civil liability for such an action would threaten his

ability to act upon his own convictions in performing his

judicial duties, charging him with criminal contempt for this

action would also undermine his judicial independence. 10

9

The majority also cites to United States v. Claiborne, 727

F.2d 842 (9th Cir. 1984), United States v. Hastings, 681 F.2d

706 (11th Cir. 1982), and United States v. Isaacs, 493 F.2d

1124 (7th Cir. 1974). Ante at 23-24 n.4. These cases all

involve the prosecution of judges for corruption or bribery,

which are precisely the types of criminal acts that I believe

should not be covered by judicial immunity. In Hastings, the

Eleventh Circuit noted “this is not a case in which a judge is

prosecuted for acts in his official capacity undertaken in good

faith. In such a case, there may exist a common law

immunity from criminal prosecution.” 681 F.2d at 711 n.12.

10

Arguably, if Judge Kendall had recused himself from the

Ford trial without writing an opinion, he might have been

held in criminal contempt without a First Amendment

8

For the foregoing reasons, I believe that the criminal

contempt conviction here should be reversed on grounds of

absolute judicial immunity.

defense, in which case the issue of judicial immunity could be

dispositive.

9