Respondents Brief — Wolfson v. United States

| wie VUPICHIC VWUTL, U.o. F

FILED

. OCT 3 1984

No. 84-193

ALZAANDER L. STEVAS.

foie RK

In the Supreme Court of the United States

OCTOBER TERM, 1984

JOo-ANNE F. WOLFSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITON

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JoEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D. C. 20530

(202) 633-2217

~~ BEST AVAILABLE COPY ©

QUESTIONS PRESENTED

1. Whether the district court abused its discretion in

holding petitioner, an attorney, in criminal contempt for

asking an improper question on cross-examination of a

government witness in defiance of the court’s express

ruling.

2. Whether the district court properly employed the

summary contempt procedure prescribed by Fed. R. Crim.

P. 42(a).

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Dellinger, In re, 461 F.2d 389 .......020eeeees 7,8

McConnell, In re, 370 U.S. 230 ........eeeeee a

Sacher v. United States, 343 U.S. 1 .......... 6, 8

Taylor v. Hayes, 418 U.S. 488 ..........20008- 8

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United States ex rel. Robson v. Oliver,

DT ice eece tebe ceekenecscosccee 7,8

United States v. Wilson, 421 U.S. 309 .......... 5

Statutes and rule:

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cscs cp atecdobeecessncees 3-4, 6

Fed. R. Crim. P.: .

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En chee nd ner tentnges nacuve vee 4

(111)

Iu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-193

Jo-ANNE F. WOLFSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITON

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A14) is

reported at 733 F.2d 441.

JURISDICTION

The judgment of the court of appeals was entered on

April 24, 1984. A petition for rehearing was denied on May

29, 1984. The petition for a writ of certiorari was filed on

July 27, 1984. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Petitioner, who represented one of the defendants in a

criminal trial of ten Chicago policemen accused of having

protected drug dealers in Chicago, was summarily held in

criminal contempt under 18 U.S.C. 401 for misbehavior in

(1)

2

the presence of the court. She was fined $300. The court of

appeals affirmed (Pet. App. Al-A14).!

The relevant facts are set forth in the opinion of the court

of appeals (Pet. App. A4-A6) and in the contempt order of

the district court (id. at Al6-A20). Those facts show that

several of the defendants, including petitioner’s client,

owned a “clock shop” that sold clocks and other merchan-

dise (id. at A4). The drug dealers whom the defendants were

accused of protecting made frequent purchases from the

shop at grossly inflated prices that could only have been

bribes for the protection that the defendants were charged

with providing to the dealers (id. at A4-A5). In the ninth

week of trial, the government called FBI Agent William

Kunzelman as a witness (Pet. App. A17). On direct exami-

nation, Kunzelman identified photographs and sales records

relating to the shop’s sales to drug dealers (id. at AS, A17-

A18). On cross-examination, the following exchange took

place (id. at AS, A18):

BY MS. WOLFSON:

Q. Is it your experience as an FBI agent that it is a

crime for somebody who is engaged in selling mer-

chandise to sell to a person whose activities are illegal?

THE COURT: Well, I think that calls for a legal

conclusion.

MS. WOLFSON: Well, it isan FBI agent. It is a good

person to ask.

THE COU RT: The answer to which is no.

'Two weeks before petitioner was cited for contempt, the district

court held another defense lawyer in this case in contempt for asking an

improper question on cross-examination despite the court’s repeated

admonitions. See Pet. App. AZ-A4. In the decision below, the court of

appeals below also affirmed that judgment of contempt. /d. at A8-A14.

ieee

BY MS. WOLFSON:

Q. Do you know of any United States statute that you

are sworn to enforce that makes it a crime —

THE COURT: Sustained.

BY MS. WOLFSON:

Q. — for a commercial enterprise to sell to a crook?

THE COURT: Ms. Wolfson, I sustained the very

objection to tat very question.

The court then called petitioner to a side bar conference

and held her in contempt (Pet. App. A5, A18). In its subse-

quent written contempt order, the district court explained

that “(t]he contemptuous conduct of [petitioner] consisted

of asking an obviously improper question, arguing imperti-

nently with the ruling of the court and then proceeding to

ask the same 4Juestion again in defiance of another ruling of

the court” (id. at A1l9). The court stated that petitioner’s

question of Agent Kunzelman “was not intended to illicit

[sic] a fact but was purely rhetorical” and that “it was

intended to mislead the jury as to the purpose of the

government’s evidence concerning the clock shop” (ibid.).

The court further concluded that petitioner’s comment that

an FBI agent “is a good person to ask” was “insolent and

knowingly specious” (ibid.). On this basis, the court found

that petitioner’s “unprofessional conduct” was “intentional

and willful” and that “[i]t was a repetition of the same kind

of conduct about which the court had repeatedly admon-

ished her” (id. at A20). The district court further found that

“unless disciplinary action is taken against [petitioner], she

will continue to defy the rulings of the court” (ibid.).

The court of appeals affirmed (Pet. App. Al-A14). The

court held that petitioner’s conduct violated both 18 U.S.C.

401(1), which authorizes the punishment of conduct that

obstructs the administration of justice, and 18 U.S.C.

4

401(3), which authorizes punishment for contempt consist-

ing of disobedience of or resistance to the lawful order of the

court. The court of appeals explained that if defense counsel

“deliberately exceeds the proper bouads of cross-examina-

tion in an effort to obtain his client’s acquittal, he is violat-

ing the ground rules of the adversary struggle, and therefore |

obstructing the administration of justice” in violation of 18 |

U.S.C. 401(1) (Pet. App. A8). In this case, the court con- |

cluded that petitioner exceeded “by a wide margin” the |

proper bounds of questioning, “so clearly that it could be

inferred that [she was] acting willfully and therefore con-

temptuously” (ibid.). The court of appeals held that peti-

tioner also violated 18 U.S.C. 401(3) because her question-

ing disobeyed the court’s lawful orders regarding the proper

scope of cross-examination and, in addition, disobeyed the

court’s order sustaining an objection to the very question

that she asked (Pet. App. A8).

The court of appeals also held that the district court had

properly relied upon the summary contempt procedure

authorized by Fed. R. Crim. P. 42(a). The court noted that

the conditions set forth in Rule 42(a) were satisfied, since

the conduct constituting the contempt occurred in the pre-

sence of the trial court and was seen and heard by it (Pet.

App. A10). The court of appeals also explained that, in any

event, the benefits to be obtained from the fuller procedures

contemplated by Fed. R. Crim. P. 42(b) were insubstantial,

because any possibility that the relatively modest fines were

erroneously imposed was “slight” (Pet. App. Al 1) and there

was a need to act expeditiously due to the concern that

“improper questioning * * * would wreck a long trial

involving grave charges of public corruption” (id. at A12).

-—_——~“Hze,

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of another

court of appeals. Review by this Court therefore is not

warranted.

5

1. Under 18 U.S.C. 401(1), a court of the United States

has the power to punish by fine or imprisonment such

contempt of its authority as constitutes “[m]isbehavior of

any person in its presence or so near thereto as to obstruct

the administration of justice.” Petitioner contends (Pet.

22-27) that she could not be punished for contempt because

her conduct did not “obstruct the administration of justice”

within the meaning of that provision. As the court of

appeals observed, it is not even clear that such obstruction

was intended by Congress to be a necessary element of

contempt under 18 U.S.C. 401(1) where, as here, the con-

duct occurs in the presence of the court.? But assuming

arguendo that obstruction is a necessary element, petition-

er’s contention is nevertheless without merit.

This Court has held that the contempt remedy “was never

intended to be limited to situations where a witness uses

scurrilous language, or threatens or creates overt physical

disorder and thereby disrupts a trial.” United States v.

Wilson, 421 U.S. 309, 315 (1975). Rather, a citation for

contempt “provides an appropriate remedial tool to dis-

courage * * * contumacious refusals to comply with lawful

orders essential to prevent a breakdown of the proceed-

ings.” /d. at 319. Here, petitioner’s conduct consisted of

deliberately asking an improper and misleading question on

cross-examination in direct defiance of the court’s repeated

warnings following similar misconduct by petitioner and

?The court of appeals explained (Pet. App. A6) that “at least linguis-

tically, the reference in the statute to obstructing the administration of

justice qualifies only the liability of one who commits a contempt

outside the presence of the court though ‘so near thereto as to obstruct

the administration of justice’ * * *.” However, in light of decisions of

this Court indicating otherwise (see United States v. Wilson, 421 U.S.

309, 315(1975); In re McConnell, 370 U.S. 230, 234 (1962)), the court of

appeals assumed for purposes of the present case that Section 401(1)

requires proof of an obstruction of the administration of justice even

where the contempt occurs in the court’s presence. See Pet. App. A7.

6

other defense counsel earlier in the trial and of an explicit

ruling of the court regarding the specific question at issue.

Such behavior clearly qualifies as an “obstruc{tion of] the

administration of justice.” As the court of appeals noted,

the district judge, in invoking the contempt remedy, “was

concerned that if the lawyers persisted in their improper

questioning they would wreck a long trial involving grave

charges of public corruption” (Pet. App. Al1-A12).

In any event, as the court of appeals further held (Pet.

App. A8-A9), petitioner’s conduct also violated 18 U.S.C.

401(3), which permits a court to punish as contempt the

“{d]isobedience or resistance to its lawful writ, process,

order, rule, decree, or command.” There is no express

requirement in Section 401(3) that the particular court

order at issue must itself have been essential to protect the

administration of justice or that the conduct in violation of

the order actually obstructed the administration of justice.

The premise of 18 U.S.C. 401(3) is that an order of the court

is to be obeyed and challenged only through lawful proce-

dures, not simply ignored or defied because the person to

whom the order is directed believes it to be erroneous. In

this case, the court ordered that the specific question not be

asked of the FBI agent. As the court of appeals observed

(Pet. App. A8-A9), if petitioner believed that order errone-

ously limited the scope of her cross-examination, the proper

remedy was an appeal, not defiance. See Sacher v. United

States, 343 U.S. 1, 9 (1952). If misconduct such as peti-

tioner’s may not be punished by a contempt citation, then

attorneys could disregard lawful court orders with relative

impunity, and the trial could be reduced to anarchy.

Petitioner argues (Pet. 24-25), however, that the district

court could have remedied the situation short of holding her

in contempt by striking the improper question and giving an

appropriate instruction. But this argument ignores the dis-

trict court’s findings that petitioner's behavior “was a

7

repetition of the same kind of conduct about which the

court had repeatedly admonished her™ and that “unless

disciplinary action is taken against [petitioner], she will

continue to defy the rulings of the court” (Pet. App. A20).

Nor will the contempt citation in the circumstances of

this case have a “chilling effect” on legitimate advocacy.

While an attorney must be allowed sufficient iatitude to

“present[ ] his client’s case strenuously and persistently” (/n

re McConnell, 370 U.S. 230, 236 (1962)), he or she must do

so, as the court of appeals observed, “within the rules of the

game.” The court of appeals correctly concluded that peti-

tioner’s conduct in asking a witness for a legal conclusion in

order to mislead the jury into thinking that her client’s sale

of merchandise to known drug dealers was irrelevant to the

charge that the client was involved in a protection racket

— and doing so in defiance of the district court’s ruling

— exceeded the bounds of proper advocacy “by a wide

margin” (Pet. App. A8) and therefore clearly violated “the

rules of the game.”

See Tr. 1190-1194, 1239-1240, 3816-3817, 4525-4527, 5035-5036,

5854-5859, 5985, 6493-6517, 8191-8198.

‘Petitioner contends (Pet. 18-20) that the Seventh Circuit's decision

in this case conflicts with two prior decisions of that court, United

States ex rel. Robson v. Oliver, 470 F.2d 10(1972), and In re Dellinger,

461 F.2d 389 (1972). An asserted intracircuit conflict does not warrant

review by this Court. Moreover, the panel in the instant case apparently

perceived no such conflict, because it cited both Oliver and Dellinger

without suggesting any inconsi ‘ency with their holdings (Pet. App. A7,

A9). Indeed, the panel explicitly distinguished Dellinger as involving

conduct that was disrespectful but not contumacious, much like the

conduct involved in In re McConnell, 370 U.S. 230 (1962). See Pet App.

AY.

In Dellinger, which did not involve improper questioning of wit-

nesses, the court of appeals held that the action of attorneys in continu-

ing argument on motions and rulings after the court had expressly

ordered them to cease did not rise to the level of an “obstruct[ion of] the

administration of justice” under Section 401(1) where “the trial judge,

2. Petitioner also contends (Pet. 29-30) that the district

court should not have utilized summary procedure when

holding her in contempt. This claim is defeated by the plain

language of Fed. R. Crim. P. 42(a), which provides that “[a]}

criminal contempt may be punished summarily if the judge

certifies that he saw or heard the conduct constituting the

contempt and that it was committed in the actual presence

of the court.” That, of course, was precisely the situation

here. See Taylor v. Hayes, 418 U.S. 488, 497 (1974) (a trial

judge may, “for the purpose of maintaining order in the

courtroom, * * * punish summarily and without notice or

hearing contemptuous conduct committed in his presence

and observed by him”). See also Ex parte Terry, 128 U.S.

289, 307-310 (1888).

Furthermore, petitioner does not indicate what process

she believes would have been appropriate: a full-blown

evidentiary hearing, or a simple on-the-spot opportunity to

be heard. It is difficult to see what possible purpose a

full-blown evidentiary hearing could have served, since the

conduct constituting the contempt was personally observed

when ordering counsel to terminate their argument or sit down, fre-

quently added a rejoinder or coupled the order with a statement which ¢° 24

called for a response by the attorneys.” 461 4&8. at 399. In this case there /

was no comparable action by the trial judgét invited petitioner's

conduct. Moreover, in Dellinger, the court of appeals, quoting Sacher

v. United States, supra, stressed that an attorney may not defy a court

order.

In Oliver, the court of appeals overturned an adjudication of con-

tempt against a defense lawyer in a draft-evasion case where the lawyer

convulsed courtroom spectators by showing his client a photograph of

the induction station and inquiring about a nonexistent sign stating

“Abandon Ye All Hope Who Enter Here.” Although the conduct in

Oliver might have momentarily interrupted the decorum of the cour-

troom, it was not in defiance of a court order and was found to be

arguably related to a legi:imate defense strategy. 470 F.2d at 12-13.

9

by the court and duly recorded in the court reporter’s steno-

graphic transcript, the accuracy of which is not questioned.°

Moreover, as the court of appeals observed, there was a

definite need for prompt action by the court because peti-

tioner otherwise “might have persisted in [her] improper

questioning to the point where a mistrial would have had to

be declared — after more than a month of trial of ten

defendants” (Pet. App. A12).

Although this Court’s decisions impose no such require-

ment, the court of appeals did state (Pet. App. A13) that, in

hindsight, it would have been better if the district court had

adjourned the trial briefly to afford petitioner an opportun-

ity to explain her behavior before holding her in contempt.

If the court of appeals’ suggestion is heeded in the future,

the procedural issue petitioner raises should not arise.

Moreover, the court correctly concluded (id. at A13-A14)

that, even if error, the failure to afford petitioner such an

opportunity was harmless in the circumstances of this case,

because she and counsel for the co-defendant previously

had been allowed to explain why they believed the line of

questioning later held to be contemptuous was proper, and

because in light of the district court’s “very full and convinc-

ing explanation” in its written order, it was inconceivable

that any additional procedure would have affected the

outcome.

‘Petitioner argues (Pet. 30) that she might have been able to convince

the court at a hearing that its statement — “(t]he answer * * * is no”

— did not necessarily mean that she could not proceed with her ques-

tion. Clearly, however, the court’s statement could have had no other

meaning. Petitioner also argues (ibid.) that she might have convinced

the court that she did not hear it say “[s]ustained” when she nevertheless

proceeded to ask the question foliowing the court's ruling. However, the

district court noted in its order, based on its observation, that petitioner

was standing near the lectern and heard the ruling. It is highly unlikely

that anything petitioner could have said would have changed the court's

mind.

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

JoeL M. GERSHOWITZ

Attorney

OcTOBER 1984

DO})-1968+-10