Petition — In re Allis

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM - 1975

wo. 25-181]

IN RE NICHOLAS R. ALLIS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nicholas R. Allis, Esq.

Rm 707, U. S. Courthouse

312 N. Spring Street

Los Angeles, CA 90012

(213) 688-4796

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM - 1975

IN RE NICHOLAS R. ALLIS

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nicholas R. Allis, Esq.

Rm 707, U. S. Courthouse

312 N. Spring Street

Los Angeles, CA 90012

(213) 688-4796

INDEX

Page

Order Below 2

Jurisdiction

Questions Presented 3

Constitutional provision, statute

and rule involved 4

Statement of the Case 6

Reasons for Granting the Writ 14

Conclusion 29

Appendix A

Appendix B

Citations

Bloom v. Illinois, 391 US 194, 201 14

Mayberry v. Pennsylvania,400 US 455 14

United States v. Alter,482 F.2d 1016,

1023 (9th Cir. 1973) 15

United States v. Robinson,449 F.2d

925 (9th Cir. 1971)" 21,22

Constitutional Provision:

Constitution of the United States,

Fifth Amendment 4

Miscellaneous:

Federal Rules of Criminal Procedure,

Rule 42(b) 4

(1)

Petitioner respectfully prays that a

writ of certiorari issue to review the

judgment and order of the United States

Court of Appeals for the Ninth Circuit,

entered in the above-entitled cause on

March 10, 1976 and on May 17, 1976.

ORDER BELOW

The orders of the Court of Appeals for

the Ninth Circuit, not yet reported, appear

in Appendix A and B, attached hereto.

JURISDICTION

The judgment of the Court of Appeals

for the Ninth Circuit was entered March 10,

1976. Petition for rehearing with sugges-

tion for rehearing en banc was denied on

May 17, 1976. The jurisdiction of this

court is invoked pursuant to 62 Stat. 928,

28 U.S.C., Section 1254(1).

UESTIONS PRESENTED

1. Whether in a criminal contempt

proceeding, the requirements of due

process as guaranteed by the Fifth

Amendment, United States Constitution

and Rule 42(b) of the Federal Ples

of Criminal Procedure are fulfilled

when petitioner is given ten minutes

to consult with counsel and prepare a

defense, is not given notice of speci-

fic dates of prior tardiness, and is

not notified that he is being charged

with “deliberate and intentional"

breach of his duties.

2. Whether evidence was sufficient to

support finding of contempt when no

evidentiary hearing was held, and

record did not support finding of

deliberate and intentional breach of

or reckless disregard of duties.

3

CONSTITUTIONAL, STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Constitution of the United States, Fifth

Amendment:

No person .. . shall be compeiled in

any criminal case to be a witness

against himself, nor be deprived of

life, liberty, or property, without

due process of law... .

Rule 42(b), Federal Rules of Criminal

Procedure:

Disposition Upon Notice and Hearii j.

A criminal contempt except as provided

in subdivision (a) of this mle shall

be prosecuted on notice. The notice

shall state the time and place of

hearing, allowing a reasonable time

for the preparation of the defense,

and shall state the essential facts

constituting the criminal contempt

charged and describe it as such. The

notice shall be given orally by the

judge in open court in the presence

of the defendant or, on application

of the United States attorney or of an

attorney appointed by the court for

that purpose, by an order to show cause

or an order of arrest. The defendant

is entitled to a trial by jury in any

case in which an act of Congress so

provides. He is entitled to admission

to bail as provided in these rules.

If the contempt charged involves dis-

respect to or criticism of a judge,

that judge is disqualified from pre-

siding at the trial or hearing except

with the defendant's consent. Upon a

verdict or finding of guilt the court

shall enter an order fixing the

punishment.

I.

STATEMENT OF THE CASE

Petitioner, a deputy federal public

defender for the Central District of

California, [hereinafter petitimer or the

attorney] was held in contempt for being

twenty (20) minutes late to a sentencing

on March 6, 1974. After the attorney

arrived in the courtroom, the court

advised him that he was "in imminent

likelihood of being found in contempt"

of court and gave him ten minutes to

consult with his supervisor, another

attorney.

At the conclusion of the recess

the court noted that the attorney had

not been on time on more than one pre-

vious occasion in that courtroom.

During his two years as a deputy federal

public defender, Sqeenmees on two

instances, occurring during the week

of July 17, 1973, did not appear at the

time scheduled. He was admonished on

one of the two occasions. Between the

week of July 17, 1973 and the March 6th,

1974, incident, defendant had appeared

sixteen times in the courtroom. Proper

and timely appearances were made on all

these occasions and on all occasions prior

to the week of July 17, 1973. When

called upon to tell the court what excuse

he had, the attorney stated that he did

not have an excuse, that the tardiness

was his fault. He had marked it on his

Calendar on March 4, and had taken the

file to his secretary on the morning of

March 6 and asked her to remind him of

1/

the appearance. [R.T. 4, 5] However, he

_1/R. T. refers to the transcript of the

March 6th proceeding attached by the

court of appeals tg its opinion.

had begun a retrial of a case in another

courtroom of the United States District

Court that morning, had spent the noon

hour preparing for witnesses and in his

preoccupation with the trial, forgot about

the sentencing and went to the courtroom

where the trial was being held at approxi-

mately 1:15. [R.T. 5,6; C.T. 7] _

The attorney's supervisor then was

asked if he had anything to say. He stated

that he was appearing almost as a “charcte”"

witness" and that the attorney "has made

a truly conscientious effort to make court

appearances and try to administer his

calendar and not cause the inconvenience I

think he knows he has caused the court

today. .. .

2/C.T. refers to Clerk's Transcript

on Appeal.

8

/

"So I think that as to his intention, I

know Clearly it was not an intentional

situation. It was a mistake, and a bad

one. .. ." [R.T. 6-7]

Immediately thereafter the court found

the attorney in "direct contempt of this

court" and fined him $100.00. [F.T. 8]

Subsequently the court issued an

“Order Holding Counsel in Contempt of

Court". [C.T. 1] In that Order, the court

concluded that "Said failure to appear was

without any justification or good cause and

was a deliberate and intentional breach of

said Nicholas Allis' obligations to the

Court and constituted contempt of court."

Subsequently, on March 15, 1974,

defendant filed a Motion to Vacate Order

Holding Counsel in Contempt of Court. [C.T.

3} In an attached affidavit, petitioner

reviewed his record of appearances in the

9

courtroom involved in this case. He

recounted in detail his substantial efforts

after the unfortunate week of July 17,

1973, to revamp his calendar system and his

system of notifying courts.

He began to arrive at the office on

Monday mornings one hour earlier than he

had previously. During that hour, he re-

viewed every case in his file in order to

check all appearances for that week. He

also began to note each appearance in his

own separate calendar in addition to the

calendar kept by his personal secretary

and the calendar kept for the entire

office staff. In addition, he began to

make it a practice to notify the court

clerks personally of all conflicting

court appearances instead of relying solely

on his secretary to notify them. He also

stated that on the day in question he had

10

taken the file to his secretary in the

early morning and told her to note the

appearance on her calendar, saying "Don't

let me forget this". During the morning he

started a jury trial in the courtroom of

another judge of the United States District

Court. That trial was a retrial of a bank

robbery, and petitioner was deeply concerned

and preoccupied with the trial. He spent

the noon hour reviewing statements of

witnesses with a law student. Because of

his preoccupation with and concentration

on this jury trial, he forgot about the

sentencing and was not reminded of it by

anyone. At approximately 1:15 p.m., he

proceeded to the courtroom where the trial

was taking place and was seated at counsel

table talking to the accused when a

secretary in his office entered the court-

room. He immediately remembered the

ll

appearance in the other courtroom am

proceeded directly to that courtroom

arriving there at 1:35p.m.

Petitioner's affidavit concluded with

the statement that his tardiness "was the

result of lapse of memory and } “eoccupa-

tion with another case. It was not in any

manner willful; I meant no disrespect what-

soever to the court and regret any in-

convenience or difficulty I may have caused

by my conduct." [C.T. 8]

The court denied petitimer's motion to

vacate its order and also denied petit prers

motion to stay payment of the $100.00 fine.

Notice of Appeal was filed March 15, 1974.

On March 10, 1976, a panel of the

United States Court of Appeals for the

Ninth Circuit with one judge dissenting,

affirmed the order holding defense counsel

in contempt of court. The majority found

12

that the trial court had erred in

denominating the procedure a direct

contempt of court punishable summarily

pursuant to Rule 42(a) of the Federal

Rules of Criminal Procedure. Nevertheless,

the majority held that the court's

comments and the ten minute recess satis-

fied the procedural requirements of

Rule 42(b). Petition for rehearing

with suggestio for rehearing en banc

was denied on May 17, 1976.

13

REASONS FOR GRANTING THE WRIT

la. This case presents an important

question regarding the sufficiency of

due process in a criminal contempt pro-

ceeding as guaranteed by the Fifth

Amendment to the United States Constitution

and Rule 42(b) of the Federal Rules of

Criminal Procedure.

A finding of contempt constitutes

a criminal conviction. Bloom v. Illinois,

391 U.S. 194, 201 (1968). The seriousness

of a contempt conviction with its lifelong

consequences, particularly in the case of

an attorney, requires that procedural safe-

guards be strictly observed. See Mayberry

v. Pennsylvania, 400 U.S. 455 (1971).

The dissenting opinion to the Court

of Appeals opinion rightly states,

"The time given within which to

14

prepare a defense was patently

inadequate. A ten minute

recess and a quick consultation with

another lawyer is insufficient

to permit a defense to be made

to a charge that Mr. Allis was

habitually late or, at least

had been late without

justifiable excuse on other

occasions. (See, e.g. United

States v. Alter (9th Cir. 1973)

482 F.2d 1016, 1023)."App. 24-25.

Petitioner was unable in ten minutes

within which to research the law of

contempt, to determine the requisite

elements and possible defenses, to

secure counsel and to prepare his

defense.

That he had a defense which he could

have presented if given a reasonable

15

opportunity is established by the

affidavit petitioner submitted a few days

later as part of his motion to vacate the

order holding him in contempt. [C.T. 3]

His lack of willful or reckless disregard

of the court's order could have been

established through the presentation of

records and witnesses showing that he was

engaged in the retrial of a bank robbery

in another courtroom and was preoccupied

with that case, that he worked on that case

through the lunch hour with a law student

and proceeded with the student to the

other courtroom at approximately 1:15, that

he appeared shocked and surprised when a

secretary entered the courtroom to remind

him of the appearance, that he had notified

his secretary that morning of the appearance

and asked her to remind him of it but she

did —

id not do so 16

With reasonable time to prepare a

defense, petitioner also could have estab-

lished his perfect record of attendance in

the courtroom during the one year four months

he had worked as a public defender prior to

the week of July 17, 1973 and his perfect

record of attendance during the seven and

a half months between the week of July 17,

1973, and March 6, 1974, when this incident

took place.

Moreover, he could have presented

witnesses and records to establish the

reasons he had been tardy during the week

of July 17, 1973, and the unusual efforts

he had made to revamp his calendar ee

/

subsequent to the week of July 17, 1973.

_37 He could also have established that

he had not been admonished on more than one

occasion, contrary to the finding of the

district court in its oral and written

orders holding defendant in contempt.

17

All of this material was relevant and

crucial to establishing that petitioner

failure to appear did not constitute

“deliberate and intentional" conduct as

found by the district court or "reckless

disregard of his responsibilities as an

attorney" as found by the court of appeals.

However,petitioner was not able to

present this evidence because he was given

4 /

only ten minutes time for preparation. |

4/ The length of time petition was granted

was particularly inadequate, when the likely

state of mind of petition@ is considered:

petitione had just been informed he was about

to be convicted of contempt,this coming dur-

ing a recess in a jury trial in another

courtroom. The likelihood of calm,reasoned

judgment during a ten minute recess in these

circumstances is small,as best illustrated

l)by the fact that petitioner after reflec-

tion and research,was able to submit a

motion vacating the order,which outlined a

substantial defense 2)by the fact that dur-

ing the "hearing" petitioner admitted the

sentencing had been set at his “special

request" when in fact it had not been. [See

March 4th transcript at 3].

18

Petitioner was not represented by counsel,

contrary to the opinion of the majority.

During the ten minutes, he conferred with

his supervising attorney, but the super-

visor did not represent him. The district

court stated it would recognize the super-

visor who stated he was ennencion “almost

as a character witness".

The effect of what the dissenting

Opinion characterizes as a “patently in-

adequate" time to prepare a defense was to

make it impossible for petitioner to secure

an attorney, review the law of contempt,

construct the defense that he, in fact,

possessed, and indeed to do anything other

than make the brief “statement”, for which

preparation the district court had stated

it was calling the ten minute recess.

19

l(b) Rule 42(b) requires that the

notice shall “state the essential

facts constituting the criminal

contempt charged and describe it as

such." The Fifth Amendment requires

as much.

The dissenting opinion

correctly observes that,

"Although the ‘simple notice’

required by Rule 42(b) is to

be judged with less strictness

than a formal indictment

ras

J s/f

20

[citations ommitted], due

process as well as the rule

require that it contain

enough to inform [the alleged

contemnor] of the nature

and particulars of the contempt

charged." (United States v.

Robinson, 9th Cir. 1971 449

F.2d 925). The informal

statement from the bench did

not meet the requirement of

particularity. The district

court noted that Mr. Allis was

[20] minutes late on this

occasion and that on some

other occasions he had also

been late. The "notice"

specified no dates of the

prior tardiness. Yet, the

conduct on prior occasions

21

was necessarily in issue.

The informal notice thus did

not meet the simple standards

of Rule 42(b). (United States

v. Robinson, supra.)"

Appendix A-23-24.

It was not until after petitimer had

been held in contempt that he was able to

reflect on and to research his record of

appearances in the courtroom. Hjs motion

to vacate the order holding him in

contempt filed nine days later shows that

in analyzing his record of appearances,

as well as the law of contempt, he was able

to establish that he had a defense to the

charge of contempt, the outlines of which

are set forth as part of his motim The

lack of notice as to the essential facts

underlying the charge, particularly when

combined with the inadequate recess of ten

22

minutes, made it virtually impossible for

petitioner first, to determine whether he

had a defense and second, to present the

defense.

Moreover, petitioner never was nc ified

that he was charged with a "deliberate and

intentional breach" of his obligations to

the court, as the court later stated in

its written order. The circumstances of

this case, including the fact that petitioner

was granted only a ten minute recess to

prepare a defense, required the court to at

least notify the petitioner that the offense

of contempt required a finding that

defendant acted wiilfully or recklessly.

Only with such information could petitioner

even begin to prepare a defense.

2(a) The evidence was insufficient to

support a finding of contempt. First, the

informal exchange between court and counsel

23

cannot be deemed evidence of an admission. not be sustained based

The dissenting opinion properly notes only on evidence that a

forgetful lawyer was [20]

that,

“The district court did not minutes later for a court

purport to rely on Rule 42(b), appearance. The lawyer

and the record fails to support would be negligent, but

the decision that the procedure his conduct could not be

followed complied with Rule | deemed a reckless dis-

42(b). No evidentiary hearing regard of his responsibi-

was held, no witness was sworn, | lities as a lawyer nor a

and no testimony was received. | wilful disobedience of a

The evidence consisted solely court order. The majority

of the facts that the time ) concludes that Mr. Allis's

set for Allis's appearance unsworn statement that he

was March 6, 1974, at 1:15 p.m., | had been late on some

and he did not appear until other unspecified occasion

1:35 p.m. on that date. or occasions bridged the

The majority correctly evidentiary gap. I do not

assumes that a finding of think that the informal

@ntempt under Rule 42(b) could exchange between the

24 | 25

district court and Mr.

Allis can be deemed

evidence or even an

admission in this Rule

42(b) context." App. 21-23.

The formalities of accepting legal

evidence from witnesses placed under

oath as well as other procedural rights

cannot be dispensed with merely because

the petitiona is an attorney and the crime

is contempt, or because, as the court of

appeals suggests, the end in view is the

salutary one of focusing the attention of

the attorney on being prompt. The

conviction of petitioner of this crime

carries with it consequences, particularly

those affecting defendant's reputation and

standing as a member of the bar, just as

serious as the consequences suffered by

many criminal defendants, and he should be

26

accorded traditional procedural rights.

2(b) Second, the information before the

court was insufficient to sustain

a conviction for contempt.

Even if petiticrer's statement of

previous tardiness was an adequate sub-

stitute for formal admissions or testimony,

evidence was lacking of reckless behavior

or intentional disregard of his responsi-

bilities. Petitioner recounted his involve-

ment and preoccupation with a jury trial

which had begun that morning and his

consciencious efforts to remember the

appearance, including asking his secretary

that morning to remind him of it. The

only specific mention of "intent" from

either the court or the defense came from

defendant's supervisor, Mr. Van de Kamp,

who stated, "I know clearly it was not an

intentional situation. .. ." The infor-

mation before the court was insufficient

27

to sustain a conviction for reckless

disregard of an attorney's obligations.

2(c) Third, the district court in its

written order holding petitioner in contempt

found that petitioner's tardiness of twenty

minutes was a “deliberate and intentional

breach" of his "obligations to the

court". The district court did not charge

and did not find pettioner guilty of

reckless behavior. However, the majority

of the court of appeals holds that the

information “warrant[s] a finding of reck-

less disregard of his responsibilities as

an attorney."

Since the district court found the

petitioner guilty of willful and deliberate

conduct, the court of appeals could not

sustain the conviction upon its finding of

reckless conduct. The failure of the

evidence to sustain the district court's

28

finding of willful conduct warranted

reversal of the conviction.

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that the petition

for a writ of certiorari should be

granted.

Nichole AAU.

NICHOLAS R. ALLIS

Deputy Federal Public Defender

29

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE NICHOLAS R. ALLIS, ) NO. 74-1695

)

Appellant. )OPINION

)

)

On Appeal from the United States

District Court for the Central District

of California.

Before: HUFSTEDLER and SNEED, Circuit

Judges, and THOMPSON*, District

Judge

THOMPSON, District Judge:

This is an appeal from an order holdirg

defense counsel in contempt of court for

tardiness. Annexed to this opinion is a

transcript of the proceedings which states

with precision exactly what occurred.

* Hon. Bruce R. Thompson, United States

District Judge, District of Nevada,

sitting by designation.

APPENDIX A

“«

The court's oral adjudication was

followed by a written order filed March 6,

1974, which parroted the oral findings in

all material respects. The written order

contains the following preface:

“After notifying Nicholas Allis,

Esq., of the nature of the pro-

ceeding and after affording him

an opportunity to consult with

counsel and an opportunity for

himself and counsel to be heard,

the court finds said Nicholas

Allis, Esq., to have been in

direct contempt of court and certi-

fies that the court saw and heard

the conduct constituting the contempt

and that it was committed in the

actual presence of the court.”

Thereafter, Allis filed a motion to

vacate the contempt order and the motion

was denied. This appeal followed.

It is probably too late for an

effective argument that tardiness of

counsel is punishable summarily under

Rule 42(a), Federal Rules of Criminal

Procedure, as conduct committed in the

A-2

actual presence of the court. Persuasive

appellate court opinions have sustained

the view that it is not counsel's ab-

sence from the courtroom at the appointed

hour which constitutes the contempt, if

any. Sykes v. United States, 444 F.2d 928

(D. C. Cir. 1971); In Re Lamson, 468 F.2d

551 (lst Cir. 1972); United States v.

Willett, 432 F.2d 202 (4th Cir. 1970);

United States v. Delahanty, 488 F.2d 396

(6th Cir. 1973). The import of these cases

is that the contempt consists not in the

absence from the courtroom but in the

reasons for the attorney's presence else-

where, and the presence elsewhere was, of

course, not in the actual presence of the

court, a requirement for summary disposi-

tion under Rule 42(a), Federal Rules of

Criminal Procedure. The absence-presence

contention has its fascinating aspects.

A-3

We, nevertheless, agree with the con-

clusion reached in the Delahanty case,

supra:

“we find that this matter should

not have been dealt with summarily.

While the absence of Appellants

was obvious to the court, the

reasons for their absence were not.

The court did provide an opportunity

for an explanation of their absence,

but only after the court had found

Appellants to be in contempt. As

the Supreme Court has stated,

summary disposition of @ ntempt

under Rule 42(a) is ‘"“for exceptional

circumstances" * * * such as acts

threatening the judge or dis-

rupting a hearing or obstructing

court proceedings.’ Harris v.

United States, 282 U.S. 162, 164,

86 S.Ct. 352, 354, 15 L.Ed.2d 240

(1965). We find no exceptional

circumstances in this case justi-

fying summary disposition.”

Delahanty, supra, at 498.

The Government relies primarily on

In Re Gates, 478 F.2d 998 @.¢. Cis 1973),

and In Re Niblack, 476 F.2d 930 (D.C. Cir.

1973), which reject the Sykes and Willett,

supra, ratimale and proclaim tardiness of

A-4

counsel to be summarily punishable as

direct contempt in the actual presence of

the court. With this conclusion we

respectfully disagree.

Absence (tardiness) alone is not

contempt. The reasons for the default are

important. A contempt is a wilful disre-

gard or disobedience of public authority

and the requisite wrongful intent may be

inferred from an attorney's reckless dis-

regard of his obligations to the court.

Sykes, supra, at 930; Delahanty, supra, at

398. If an explanation fur tardiness is

made which is inconsistent with wilful

disobedience, a hearing must be held, if

the facts are disputed, or, if the ex-

pl ination is accepted there is no contempt.

So, to the extent the district court

relied upon Rule 42(a) for summa ry

adjudication of Seoentant in the actual

-s

presence of the court, we believe it was

in error. But the district court did not

rely solely upon Rue 42(a). It notified

Allis of the charges and afforded him the

opportunity to consult with counsel and an

opportunity for himself and counsel to be

heard. The issue is whether this procedure

was consonant with the requirements of

Rule 42(b), Federal Rules of Criminal

Procedure, which provides:

"“(b) Disposition Upon Notice and

Hearing. A criminal contempt except

as provided in subdivision (a) of

this rule shall be prosecuted on

notice. The notice shall state the

time and place of hearing, allowing

a reasonable time for the prepara-

tion of the defense, and shall state

the essential facts constituting the

criminal contempt charged and de-

scribe it as such. The notice shall

be given orally by the judge in

open court in the presence of the

defendant or, on application of the

United States attorney or of an

attorney appointed by the court for

that purpose, by an order to show

cause or an order of arrest. The

defendant is entitled to a trial by

A-6

jury in any case in which an

act of Congress so provides. He

is entitled to admission to bail

as provided in these rules. If

the contempt charged involves dis-

respect to or criticism of a judge,

that judge is disqualified from

presiding at the trial or hearing

except with the defendant's

consent. Upon a verdict or

finding of gui the court shall

enter an order fixing the

punishment."

A “reasonable time for the prepara~

tion of the defense" varies with the cir-

cumstances. Presumably, no one would

contend that a witness who fails to res~

pond to a subpoena, or a juror who fails

to respond to a summons, would not be

entitled to more than ten minutes’ notice

of the charges to prepare a defense. But

here we are dealing with an attorney at

law, an officer of the court. We are

concerned with the efficient administra-

tion of the court's business, which is a

responsibility oe bs attorney as well as

of the judge. Here, the court, at the out-

set, notified Allis that there was imminert

likelihood that he would be held in

contempt. He told him that the sentencing

of Spencer had been set for 1:15 o'clock

p.m. at Allis' special request. Allis

agreed. He told him that Allis had been

tardy on previous occasions and had been

strictly admonished. Allis agreed. A

recess was then taken for ten minutes and

Allis conferred with counsel, who appeared

with him at the subsequent hearing. When

the court asked him what his excuse was

for failure to meet the commitment at a

time set at “your own instance and for

your own convenience," Allis replied: "I

don't really have an excuse * * *. It was

my fault * * *, I did forget it."

This was sufficient to warrant a

finding of reckless disregard of his res-

A~-8

ponsibilities as an attorney and to

justify the adjudication for contempt. The

procedures were in conformity with the

requirements of Rule 42(b). No extension

of time to prepare a defense was warranted

in these circumstances and none was

requested by Allis or his counsel. The

facts were clear and undisputed. At no

time was an indication given of the avail-

ability of other witnesses or evidence to

support a defense of justification or

excuse.

On the facts, the instant case is

similar to In Re Niblack, 476 F.2d 930

(D.c. Cir. 1973), in which the lawyer's

tardiness, which was not an isolated

instance, was held summarily punishable as

a direct contempt in the actual presence

of the court. While we have disapproved

the analysis by the Niblack Court, we do

A-9

approve the result. We discern no justifi-

cation under the circumstances disclosed by

this record and the Niblack opinion for

requiring an elaborate proceeding when the

only end in view is to get the attorney,as

an officer of the court, to focus some

attention on the importance of being prompt

and of devising a system which will avoid

tardiness and complicating delays in the

administration of the business of the court

Affirmed.

LOS ANGELES, CALIFORNIA, WEDNESDAY, MARCH

6, 1974, 1:15 P.M.

THE COURT: Good afternoon, gentlemen.

THE CLERK: Criminal Case 74-295-IH,

United States of America vs. James Edwin

Spencer.

Will counsel please make their

appearance.

MR. VON DER AHE: Good afternoon,

your Honor. Vincent Von Der Ahe appearing

on behalf of the Government.

THE COURT: I see Mr. Spencer is here.

Where is Mr. Allis, your counsel? Do you

know?

DEFENDANT SPENCER: No, I don't, sir.

THE COURT: Has anyone heard from

him? Mr. Clerk, have you?

THE CLERK: No, your Honor.

THE COURT: How about you, Mr. Von

Der Ahe?

MR. VON DER = No, I have not,

A-1l

your Honor.

THE COURT: Let the record show that

it is now 1:22. The case was set for 1:15.

My secretary called his office at 1:15 and

was told that he was on his way down here.

I have no alternative but to recess

until the gentleman appears. We will give

him a minute or two.

Go ahead and sit down, Mr. Spencer.

It is 1:25. We will be in recess.

(Recess).

THE COURT: For the second time call

the case.

THE CLERK: Criminal Case 74-295-IH,

United States of America vs. James Edwin

Spencer.

Counsel, please make your appearances.

MR. VON DER AHE: Good afternoon, your

Honor. Vincent Von Der Ahe appearing for

the Government.

A-12

MR. ALLIS: Good afternoon, your

Honor. Nicholas Allis for Mr. Spencer.

I apologize for being late.

THE COURT: We will discuss that later,

Mr. Allis. The court has been out once.

The matter was set for 1:15 at your special

request, as I remember it.

MR. ALLIS: Yes, it was, your Honor.

THE COURT: And the clerk indicates

that you failed to arrive until 1:35.

Now, first, let's proceed to the

matter at hand.

**e x***t

THE COURT: Now, Mr. Allis, I

correctly stated the facts, have I not?

MR. ALLIS: Yes, you have, your

Honor.

THE COURT: Mr. Allis, one other fact

needs to be placed in the record, namely,

as I recall it, that you had not been on

A -13

time more than once heretofore in this

court, and on at least one, if not all of

those prior occasions, were admonished in

the most strict terms that scrupulous

promptness was a lawyer's obligation.

Is that not a fair statement of the

history?

MR. ALLIS: Yes, it is.

THE COURT: I therefore must tell you

that you now stand in imminent likelihood

of being found in contempt of this court.

I will hear whatever you wish to say. If

you wish to consult with another counsel,

I will allow a reasonable time for that.

I see Mr. Van De Kamp has just entered

the courtroom. If you desire a recess

before making any statement, I will, of

course, afford you that now that you are

on notice as to the scope and possible

outcome of this proceeding.

A-14

MR. ALLIS: Yes. I desire a recess,

your Honor.

THE COURT: Ten minutes.

(Short recess)

THE COURT: Mr. Allis, come forward.

I will be happy to recognize Mr.

Van De Kamp to speak on your behalf, or in

any other capacity that he wishes to be

heard, if he wishes to be heard.

Will you be good enough, first of all,

to tell me what if any excuse you have for

your failure to meet this commitment today

at a time set at your own instance and

for your own convenience.

MR. ALLIS: Well, I don't really have

an excuse, your Honor. It was my fault.

I did forget it. I had it marked on my

calendar. I went in with the file this

morning to my secretary. I asked her to

remind me of it. I spent the whole lunch

A-15

hour up in my office preparing for the

case in Judge Ferguson's court. I didn't

think of this case during the noon hour

like I thought of it when I came into the

office this morning.

And I left to go down to Judge

Ferguson's court about 1:17, and I have

been there sitting at the defense counsel

table preparing that case since then.

THE COURT: Mr. Van De Kamp, do you

desire to be heard in any respect?

MR. VAN DE KAMP: Only to say this,

your Honor -- maybe I appear almost as a

cha racter witness. I know Mr. Allis had a

prior experience in this court.

THE COURT: More than one.

MR. VAN DE KAMP: I recall that

experience as a number of months ago. That,

to my knowledge, was the last, I think,

severe problem that he has had with the

A-16

court. And I think he has made a truly

conscientious effort to make court appear-

ances and try to administer his calendar

and not cause the inconvenience I think he

knows he has caused the court today.

THE COURT: This is more than in-

convenience, Mr. Van De Kamp. The cost to

the public treasury is immense. I can go

through the list of people who were sitting

here waiting his appearance for the better

part of half an hour, but it is not

necessary. The marshal, the prosecutor,

the probation officer, the reporter, the

clerk, the bailiff, and the court in

chambers, unable to put his mind to any-

thing else because he anticipated being

able to handle this case.

MR. VAN DE KAMP: I understand that,

your Honor; and I think Mr. Allis does

probably more than he might indicate today.

A-17

First, I don't think it was

intentional. I think Mr. Allis has stated

his case honestly to the court. The last

thing in the world he needs at this point

is to get into this kind of difficulty

again. And I think he is very conscious

his status with the court is severely

jeopardized when he didn't make these

appearances. And he has a boss to be con-

cerned with in the office.

So I think that as to his intention,

I know clearly it was no an intentional

situation. It was a mistake, and a bad

one, but --

THE COURT: Well, --

MR. VAN DE KAMP: I would ask the

court to be --

THE COURT: I don't think we can run

a system of justice without from the lawyes

at least the recognition, and a proper

A-18

recognition, of their responsibilities to

the court. I don't think that we can serve

the public and the public treasury without

making it crystal clear to lawyers, who are

officers of the court and are guilty of

serious breaches of their obligations to

the court, that they must be prepared to

take the traditional consequences of those

serious breaches.

This is not the first time. It if

were, I would not be inclined to hold this

counsel in contempt, because I would have

felt that a stern warning ought to be

applied in the interest of compassion. But

that stern warning, Mr. Van De Kamp, has

been given to this lawyer more than once,

and in the strongest terms I could manage.

And if that has not had an effectiveness,

I must either abdicate the job I hold or

do something else in the tradition of the

A-19

profession. And I do not intend to

‘ ; In Re Nicholas R. Allis, No. 74-1695

abdicate the job I hold or the standards

to which I think members of a profession,

HUFSTEDLER, Circuit Judge (concurring

of which I am proud to be a member, are and dissenting) :

required to adhere. ! I agree with the majority

So, Mr. Allis, I find you in direct : opinion's holding that Mr. Allis's

contempt of this court. I fine you the tardiness could not be summarily

sum of $100. And that fine shall be paid punished under Rule 42(a) of the Federal

within one week from this date. Rules of Criminal Procedure. I dissent

et

Court is adjourned. from the majority's conclusion that the

contempt order can be upheld under Rule

ere 42 (b).

The district court did aot

purport to rely on Rule 42(b), and the

| record fails to support the decision

| that the procedure followed complied

with Rule 42(b). No evidentiary

hearing was held, no witness was sworn,

‘ and no testimony was received. The

A~21

evidence consisted solely of the facts

that the time set for Allis's appearance

was March 6, 1974, at 1:15 p.m., and he

did not appear until 1:35 p-m. on that

date.

The majority correctly assumes

that a finding of contempt under Rule

42(b) could not be sustained based only

on evidence that a forgetful lawyer was

30 minutes late for a court appearance.

The lawyer would be negligent, but his

conduct could not be deemed a reckless

disregard of his responsibilities as a

lawyer nor a wilful disobedience of a

court order. The majority concludes

that Mr. Allis's unsworn statement

that he had been late on some other

unspecified occasion or occasions

bridged the evidentiary gap. I do not

A-22

eto pe

PO rete ae

think that the informal exchange

between the district court and Mr.

Allis can be deemed evidence or even

an admission in this Rule 42(b) con-

text.

However, even if I thought

that Mr. Allis's statement of previous

tardiness was an adequate substitute

for formal admissions or testimony,

I cannot find that the procedural

requisites of Rule 42(b) were met.

"Although the ‘simple notice’ required

by Rule 42(b) is to be judged with less

strictness than a formal indictment

[citations omitted], due process as well

as the rule require that it contain

enough to inform [the alleged contemnor]

of the nature and particulars of the

A-23

contempt charged." (United States

be made to a charge that Mr. Allis was

v. Robinson (9th Cir. 1971) 449 F.24

habitually late or, at least had been

925.) The informal statement from

late without justifiable excuse on

the bench did not meet the requirement

other occasions. (See, e.g., United

of particularity. The district court a ———

States v. Alter (9th Cir. 1973) 482

noted that Mr. Allis was 30 minutes

F.2d 1016, 1023.)

late on this occasion and that on some

I am fully aware of the

other occasions he had also been late.

serious imposition upon the court, the

The "notice" specified no dates of the |

litigants, and other participants in

prior tardiness. Yet, the conduct on

the judicial process that is caused by

eee

prior occasions was necessarily in

tardy lawyers. Concern about the

issue. The informal notice thus did

problem and empathy for the exaspera-

not meet the simple standards of Rule

tion of the court imposed upon must

42(b). (United States v. Robinson,

not blind us to violation of the Rules

supra.) |

of Criminal Procedure. I cannot join

The time given within which

in a memorandum properly rejecting the

to prepare a defense was patentl

— P Y use of summary contempt under Rule 42 (a)

inadequate. A ten-minute recess and a

and approving procedures equally

uick consultation with another lawyer

. - summary under Rule 42(b). The effect is

is insufficient, tg,permit a defense to A-25

to reduce the nonsummary procedures

of criminal contempt prescribed by

Rule 42(b) to levels acceptable

only under Rule 42(a).

I would vacate the contempt

and remand the cause to the district

court.

A -26

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE NICHOLAS R. ALLIS, ) No. 74-1695

llant. )

rotiuantuatts ) ORDER

Before: HUFSTEDLER and SNEED, Circuit

Judges, and THOMPSON? District

Judge.

The panel as constituted in the above

case has voted to deny the petition for re

hearing and to reject the suggestion for a

rehearing in banc.

The full court has been advised of

the suggestion for in banc rehearing, and

rm judge of the court has requested a vote

on the suggestion for rehearing in banc.

Fed. R. App. 35(b).

The petition for rehearing is denied

and the suggestion for a rehearing in banc

is rejected.

si pated: April 21, 1976

* The Honorable Bruce R. Thompson, United

States District Judge, District of

Nevada, sitting by designation.

APPENDIX B