In Re Darwin Charles Brown

TAMM, Circuit Judge

(dissenting):

Appraisal of conduct alleged to constitute criminal contempt of court is always difficult because of the dearth of judicial definition of the elements constituting the prohibited conduct. The District Judge in our present case acted in initiating these contempt proceedings under the authority of Rule 42(b) of the Federal Rules of Criminal Procedure, but that rule is authoritative and procedural rather than definitive of prohibited conduct. The statutory definition of contempt in the federal courts appears in Title 18 of the United States Code, section 401. 1 This provision serves basically as a limitation upon the area in which a judge may punish for contempt of his authority. Green v. United States, 356 U.S. 165 , 78 S.Ct. 632 , 2 L.Ed.2d 672 (1958), adequately recounts the historical perspective of this statute and makes understandable the trepidation widely held regarding the danger of continuing too broad an authority arbitrarily to punish summarily for contempt in the hands of judges.

In general terms, then, criminal contempt consists of the doing of acts which *1010 evidence disrespect of the court, its processes or its rules and which “obstruct the administration of justice, or tend to bring the court into disrespect.” Black’s Law Dictionary 390 (4th ed. 1957). It embraces conduct which is prosecuted “to preserve the power and vindicate the dignity of the courts, and to punish for disobedience of their orders”; the power “punitive in [its] nature, and the government, the courts, and the people are interested in [its] prosecution.” In re Nevitt, 117 F. 448, 458 (8th Cir. 1902). “A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little if any interest in the proceedings for its punishment.” {Id. at 459.)

The fear that the frightening historic power to punish for contempt will be abused has, as indicated heretofore, resulted in Congressional restraint upon the exercise of this authority, since section 401 of Title 18 confines the power to punish to the three enumerated factual situations “and none other.” As a result judges must limit their punitive action to that permitted by Congress; but in exercising this curtailed authority courts act in an area where their inherent power derives not

from the acts of congress . . . , but from the grant to them of all the judicial power of the nation by section 1 of article 3 of the constitution, which declares that “[t]he judicial power of the United States shall be vested in one supreme court and in such inferior courts as the congress may from time to time ordain and establish.” The grant of the judicial power of the United States to these courts ex vi termini vested them with authority to enforce obedience to their orders and to punish disobedience and contempt of their authority by fine and imprisonment, because this authority is an attribute of judicial power as inherent and indispensable as a judge.

In re Nevitt, supra, 117 F. at 455 . The Supreme Court long ago described the nature of the contempt power as follows:

The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.

Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510 , 22 L.Ed. 205 (1873). See also Watson v. Williams, 36 Miss. 331, 341 (1858):

The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments, or decrees against the re-cusant parties before it, would be a disgrace to the legislation, and a stigma upon the age which invented it. *1011 [n]o person who is not a member of the Bar of the United States District Court for the District of Columbia shall engage in the general practice of law in the District of Columbia, or shall represent or hold himself or herself out directly or indirectly as being entitled or authorized to engage in the general practice of law in the District of Columbia. This rule shall not apply to practice before other federal courts or executive departments, government boards, commissions, or agencies, or to the holding out of the right to practice before such other federal courts or executive departments or government boards, commissions, or agencies. 3

*1010 Congress has placed the exclusive responsibility for admission to the practice of law in this jurisdiction in the United States District Court for the District of Columbia. 11 D.C.Code § 2101 (1967). 2 In exercise of that responsibility, the District Court had promulgated and published its local Rule 96, which provided at the time of the incidents herein described that

*1011 The latter part of the quoted rule was required because in this jurisdiction there are numerous “specialized bars” whose members practice either before various administrative agencies, (e. g., the “Communications Bar” practicing before the Federal Communications Commission) or before government departments (e. g., the “Patent Bar” practicing only before the Patent Office and Court of Customs and Patent Appeals), in addition to those specialist lawyers who practice only before the several other courts located in the District of Columbia (e. g., Court of Claims, Tax Court, Court of Military Appeals, etc.). There is naturally considerable confusion in the public mind as to just what is embraced in the generic term “lawyer,” and the administrative problems confronting the District Court in its efforts to prevent the public from being misled as to the exact status of many persons who are for specialized purposes “lawyers,” but who are not admitted to practice “general law,” are complex and susceptible to no easy or final solution. In its efforts, then, properly to discharge its statutory responsibilities and simultaneously to recognize and tolerate a most incongruous situation resulting from the regrettable fact that many Washington “lawyers” are not members of the local bar, the District Court must remain acutely alert to the great potential for public misunderstanding of the exact status of individual practitioners. While the condition has received the patina of time, and while this vast majority of the members of the specialized bars meticulously avoid any misrepresentation as to their status and conscientiously refuse to accept cases beyond their areas of authority and competence, there still exists the danger that in isolated cases a non-member of the District Bar will accept professional employment in a field of the law in which his skill has not been tested and certified by admission to the local bar. There can be no proper abnegation of the District Court’s responsibility to the public, the bar, and the judiciary to prevent such unfortunate occurrences. Although it would seem that by having authority to prescribe the rules for admission to the bar the District Court would have a powerful hand in alleviating the opportunities for illegal practice of law, experience has taught that control of the reins and control of the horse are two different things. The District Court, then, must constantly deal with the problems of the real situation while recognizing the public’s ignorance of the apparent. “It is not enough that the doors of the temple of justice are open; it is essential that the ways of approach be kept clean.” Hatfield v. King, 184 U.S. 162, 168 , 22 S.Ct. 477, 479 , 46 L.Ed. 481 (1902).

The District Court, like its predecessor, is not inexperienced in dealing with the multifold problems arising in its efforts to keep “the ways of approach” to its facilities “clean,” and its authorized bar’s practice strictly in accord with established professional standards. See Morgan v. United States, 114 U.S.App. D.C. 13, 309 F.2d 234 (1962), cert, denied, 380 U.S. 984 , 85 S.Ct. 1353 , 14 L. Ed.2d 276 (1965); United States v. Henson, D.C., 179 F.Supp. 474 (1959); Offutt v. United States, 98 U.S.App.D.C. 69 , 232 F.2d 69 (1956); Jones v. United States, 80 U.S.App.D.C. 109 , 151 F.2d 289 *1012 (1945); Klein v. United States, 80 U.S. App.D.C. 106, 151 F.2d 286 (1945); Laughlin v. United States, 80 U.S.App. D.C. 101, 151 F.2d 281 , cert, denied, 326 U.S. 777 , 66 S.Ct. 265 , 90 L.Ed. 470 , (1945); Laughlin v. Eicher, 79 U.S.App. D.C. 266, 145 F.2d 700 (1944), cert. denied, 325 U.S. 866 , 65 S.Ct. 1403 , 89 L.Ed. 1985 (1945); In re Fletcher, 71 App.D.C. 108 , 107 F.2d 666 (1939), cert. denied, 309 U.S. 664 , 60 S.Ct. 593 , 84 L.Ed. 1011 (1940); Bowles v. Laws, 59 App.D.C. 399 , 45 F.2d 669 (1930), cert. denied, 283 U.S. 841 , 51 S.Ct. 488 , 75 L.Ed. 1452 (1931); Brown v. Miller, 52 App.D.C. 330 , 286 F. 994 (1923).

The District Judge’s decision here constituted another attempt to achieve these salutary goals, and I believe it was a valid one. To begin with, I agree with his conclusion that an attorney’s appearance in court knowing he has no authority to appear is “ [m] isbehavior [committed in the court’s] presence or so near thereto as to obstruct the administration of justice.” 18 U.S.C. § 401 (1). In my opinion, the eases cited by the majority do not compel a different conclusion. Ex parte Hudgings, 249 U.S. 378 , 39 S.Ct. 337 , 63 L.Ed. 656 (1919) and In re Michael, 326 U.S. 224 , 66 S.Ct. 78 , 90 L.Ed. 30 (1945) were based primarily on grounds which are not at all relevant to our present case. The allegedly contumacious conduct involved in these cases was a witness’ giving of perjured testimony. In holding that this conduct did not constitute contempt when there was no physical obstruction of the administration of justice, 4 the Supreme Court was clearly motivated by an apprehension that witnesses would be intimidated if the opposite result were reached. Thus, in Hudgings , the Court said:

If the conception were true, it would follow that when a court entertained the opinion that a witness was testifying untruthfully the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in a court would be gravely imperiled.

. . . Indeed, when the provision of the commitment directing that the punishment should continue to be enforced until the contempt, that is, the perjury, was purged, the impression necessarily arises that it was assumed that the power existed to hold the witness in confinement under the punishment until he consented to give a character of testimony which in the opinion of the court would not be perjured.

( 249 U.S. at 384 , 39 S.Ct. at 340 .) In Michael the Court noted that rather than being tried for contempt summarily, the petitioner “could have been indicted for [perjury], in which event a jury would have been the proper tribunal to say whether he or other witnesses told the truth.” ( 326 U.S. at 226-227 , 66 S.Ct. at 79 .) It then went on to say the following:

True, the Act of 1831 carries upon its face the purpose to leave the courts ample power to protect the administration of justice against immediate interruption of its business. But the references to that Act’s history in the Nye case, supra, reveal a Congressional intent to safeguard constitutional procedures by limiting courts, as congress is limited in contempt cases, to “the least possible power adequate to the end proposed.” Anderson v. Dunn, 6 Wheat. 204, 231 . The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their na *1013 ture, and leave determination of guilt to a judge rather than a jury. It is in this Constitutional setting that we must resolve the issues here raised.

( 326 U.S. at 227 , 66 S.Ct. at 79, 80 .) Reading these two quotations from Michael together, it seems clear the Court felt that trial by jury following indictment was “adequate” to punish perjury when there was no physical obstruction of justice and that Congress therefore must not have intended to grant the courts an unnecessary and even dangerous power to punish this same conduct as contempt. See also Clark v. United States, 289 U.S. 1, 11-12 , 53 S.Ct. 465 , 77 L.Ed. 993 (1933). The substantial possibility that detrimental effects would result if the summary contempt power were used to punish perjury was thus the paramount consideration in both Hudgings and Michael , and for this reason I do not believe these decisions cast any light on the case before us.

I also feel that In re McConnell, 370 U.S. 230 , 82 S.Ct. 1288 , 8 L.Ed.2d 434 (1961), on which the majority seems to place the greatest reliance, is not controlling here. The allegedly contumacious conduct involved in McConnell was a remark made by an attorney to the effect that he would continue asking questions which the judge had ruled were improper. A short recess was called after this remark was made, and the lawyer did not carry out his threat when the trial resumed. On these facts the Supreme Court reversed the attorney’s contempt conviction, holding that an actual obstruction of justice was required before a person could be held in contempt under section 401(1).

Although the language of the opinion appears to set forth a general rule, I do not believe the Court meant to say that a physical obstruction of the administration of justice must be shown in every case to bring section 401(1) into operation. See In re McConnell, supra, 370 U.S. at 237 , 82 S.Ct. 1288 (Harlan, J., dissenting). One reason why I reach this conclusion is that such a rule would be unworkable in some circumstances. McConnell’s conduct allegedly obstructed the trial, and it was, of course, possible to determine at trial whether this conduct was in fact obstructive. Where an attorney has defended an alleged criminal without authority to do so, however, his deception may go undiscovered at trial, yet form the basis for an inadequate representation of counsel claim which can be raised on a motion for post-conviction or habeas corpus relief long after the trial has been held. The example I give is not precisely our case, because the appellant here appeared in the District Court only to argue a motion for release of his client on bail pending appeal, and this issue is now moot. I believe the example does nonetheless demonstrate that the rule laid down in McConnell was not meant to apply where the allegedly contumacious conduct is such that it cannot be determined at trial whether the administration of justice will be obstructed, and this is certainly true in our case.

My example also leads me into the second ground for distinguishing McConnell . In McConnell the alleged con-temnor, by not following through on his threat to continue asking forbidden questions, determined whether a physical obstruction of justice occurred. In our case and in the example discussed in the preceding paragraph, however, it is only the vagaries of the system which determine whether justice is physically obstructed. Assume, for example, that in our case the District Court judge had discovered during the course of the hearing before him that appellant was not a member of the bar of the court. The judge might well have discontinued the hearing until a properly admitted lawyer was appointed to argue the case, and there would thus have been an actual, physical obstruction of justice which was actionable under section 401(1). This being the case, I find it extremely difficult to say that identical conduct should go unpunished merely because the District Court judge was not aware of it at the time it occurred.

The third and final basis for distinguishing McConnell relates to the defi *1014 nition of the phrase “ [m] isbehavior . obstruct [ing] the administration of justice.” I read this phrase as encompassing conduct which, while it may not physically obstruct a trial or appeal, nonetheless threatens the judicial system as a whole. The conduct involved in McConnell does not pose such a threat, but I believe a lawyer’s appearance in court in complete disregard of that court’s rules regarding admission does, and thus should be held contumacious under section 401(1). Support for this belief is found in several federal cases. In Bowles v. United States, 50 F.2d 848 (4th Cir. 1929), the Fourth Circuit held it was contempt for an individual disbarred in the District of Columbia to obtain a federal court’s permission to represent a criminal defendant by falsely stating that he was a member of the bar of the District. Significantly, the “lawyer’s” conduct did not obstruct the administration of justice in the narrow sense in which this term is used by the majority. Bowles is not an aberration in the law, for in Clark v. Allen, supra, Justice Cardozo cited it for the general proposition that “[djeceit by an attorney may be punished as a contempt if the deceit is an abuse of the functions of his office.” (Id., 289 U.S. at 12 , 53 S.Ct. at 468 .) United States v. Temple, 349 F.2d 116 (4th Cir. 1965) likewise held that lying by an attorney constitutes contempt. Finally, in United States v. Henson, 179 F.Supp. 474 (D.D.C.1959), our District Court held that a lawyer committed contempt where he did not disclose to the court his knowledge that a juror had learned the facts of the case. As in Bowles and Temple , the court did so even though there had been no “technical” obstruction of justice; it apparently felt the conduct “cuts so deeply into the heart’s core of our judicial sys-tern” that in- a more profound sense it obstructed the administration of justice. (Id. at 476.)

In summary, then I believe that the conduct which appellant is charged with poses a serious danger of disruption of the judicial process and is also so inherently detrimental to the judicial system that it obstructs the administration of justice without regard to whether such a disruption occurred. Accordingly, I believe the District Judge correctly concluded that such conduct is actionable under section 401(1). 5

I also agree with the District Judge’s holding that the conduct at issue here evidenced a contumacious intent. This appellant, knowing that he was not a member of the bar of the District Court and that he had no authority to appear there other than that conceivably provided by this court’s order, nevertheless undertook to act as a lawyer in the District Court. While his appearance in this capacity without first informing the District Court of his exact status may not be contempt per se, I believe the trier of fact was entitled to infer from this action that appellant knowingly appeared without authority. The majority reaches the opposite result because it feels appellant might well have been innocently mistaken as to the effect of his appointment by this court. In support of its position, the majority sets forth a rather ingenious legal theory which appellant could have relied upon in assuming his appointment gave him authority to appear in the District Court. However, it strains credibility to suppose that appellant would propound this legal theory rather than simply inquiring as to whether he was authorized to appear and argue the motion. More importantly, the evidence does not support the conclusion that he believed his appear- *1015 anee in the District Court was authorized in any way. In his letter to the clerk of this court, appellant said that he “would have to be specially admitted to accept an appointment,” thereby indicating that he correctly believed an appointment to represent an indigent did not itself convey authority to appear in court. The letter he subsequently received from the clerk’s office contained an order appointing him to represent one Daniel Porter, and this order stated that appellant was “a member of the bar of this court.” (J.A. 8, 10) (Emphasis added.) Appellant was thus on notice that the court appointed him on the erroneous assumption that he was already a member of its bar. In view of this glaring mistake appearing in the order appointing appellant, it is difficult for me to understand how this order could have altered appellant’s original belief that special admission was required. Consequently, I believe it can easily be inferred that appellant entered his appearance in the District Court knowing full well he did not have authority to do so. The fact that appellant signed his pleadings as “Counsel for Appellant Appointed by United States Court of Appeals for the District of Columbia Circuit” in no way convinces me that his conduct was innocent. Viewed in context, this action was, I believe, the perpetration of a large falsehood by the selection of a small truth.

Since I believe the conduct which appellant is charged with is actionable under the contempt statute and that the evidence is sufficient to establish that he willfully engaged in the forbidden conduct, I am inclined to affirm his conviction. To fully explain my ground for affirmance, however, it is necessary for me to discuss two issues which the majority does not find it necessary to decide.

II.

The contempt, says appellant, was “so entangled with the judge’s personal feelings” against him as to require the judge as “an actor in the involved events” to have the proceedings assigned for disposition by another judge. (Brief for the Appellant at 22.) While I basically believe that in proceedings against attorneys for contempt committed in the presence of the court the better practice is to have a non-participant judge hold the adjudication hearing, I am not prepared to hold that this is an absolute rule which must be followed in all cases. I accept the mandate of Cooke v. United States, 267 U.S. 517 , 45 S.Ct. 390 , 69 L. Ed. 767 (1925), not only because it is binding upon me, but also because I recognize its inherent wisdom and fairness. The Cooke doctrine holds that “where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge, called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place.” ( 267 U.S. at 539 , 45 S.Ct. at 396 ; emphasis added.) This rule was relied upon by the Suupreme Court in its more recent cases of Offutt v. United States, 348 U.S. 11 , 75 S.Ct. 11 , 99 L.Ed. 11 (1954) and Mayberry v. Pennsylvania, 400 U.S. 455 , 91 S.Ct. 499 , 27 L.Ed.2d 532 (1971). Obviously the Supreme Court in its rulings in this area has been impelled to seek a balance between the need to protect the process of orderly trial and the need to assure the fairness of contempt proceedings against attorneys from any bias or prejudice potentially rooted in a judge’s personal feeling of grievance against that counsel. Fundamentally, the purpose is to avoid the situation which confronted de Seze on December 11, 1792, when he appeared before the French legislative assembly, which had declared itself a court as well as a legislature, as appointed counsel to his king, and told the convention: “I look everywhere for judges but find only accusers.”

*1016 III.

Finally, appellant pleads that the sentence imposed upon him is grossly excessive. I face in this challenge to the trial court’s action what is for me the most difficult aspect of this case. Convinced from the record that appellant’s criminal contempt was willful, I am, nevertheless, unhappily cognizant of the basic fact that clerical error within our court set in motion the entire series of events resulting in the present appeal to us. I must, then, openly admit that I feel substantially restricted in disposing of this case. In the abstract, appellant’s failure to make at least some affirmative inquiry of us as to his status, or as to whether a mistake had been made in the light of his own earlier statement that if appointed he would have to be “specially admitted” (J.A. 4), justifies a conclusion that our error was dwarfed into insignificance by appellant’s conduct. Unfortunately, abstractions refuse to remain abstract but rather turn automatically into images, and we are then confronted with the image of this appellant serving a jail sentence brought about, at least initially, by erroneous conduct within our own official family. I cannot ignore our culpability in this situation and, like parricide in the Athenian law, pass it over in silence. I am conscious of my responsibilities to maintain the integrity of established juridical procedures and anxious to fulfill them, but I recognize also that “justice must satisfy the appearance of justice.” Offutt v. United States, supra, 348 U.S. at 14 , 75 S.Ct. at 13 .

Because of our part in the facts leading up to appellant’s conviction and because I feel that forty-five days in durance vile is in any event too severe a punishment for the conduct appellant engaged in, I would affirm his conviction but suspend execution of the sentence imposed on him. 28 U.S.C. § 2106 (1964); see Green v. United States, supra, 356 U.S. at 188 , 78 S.Ct. 632 , 2 L.Ed. 2d 672 .

. 18 U.S.C. § 401 (1964) :

A court of the United States shall have power to jiunisli by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as — •

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

(2) Misbehavior of any of its officers in their official transactions ;

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

. 11 D.C.Code § 2101 (1967) :

The United States District Court for the District of Columbia may make such rules as it deems proper respecting the examination, qualification, and admission of persons to membership in its bar, and their censure, suspension, and expulsion. .

. Local Rule 96 was replaced by the present Rule 93(j) on March 11, 1969.

. There was no obstruction of the administration of justice because in each case the judge concluded that the testimony in question was false before rendering his • decision on the merits of the case.

. An attorney’s appearance in the District Court in violation of Rule 96 may also be actionable under section 401(3) which defines as contempt any “[(Disobedience or resistance to [the court’s] lawful writ, process, order, rule, deci'ee, or command.” See Seymour v. United States, 373 F.2d 629 (5th Cir. 1967). However, since I feel this conduct qualifies as contempt under section 401(1), it is unnecessary for me to decide this question.