# Respondents Brief — Wolfson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 932

## Text

| 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
BE SPU ED Seve ccccccccccccss 8
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.

10

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2576%3A2. Public record. Not legal advice.