Amicus Curiae Brief — Young v. United States Ex Rel. Vuitton Et Fils SA
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Colma A Youn, Gn CARISTE,
Sor N. KLAYMINC AND NATHAN HELFAND, PETITIONERS |
mie * N ; ; E. V.
ee = i tai 1 OF AMERICA EX REL.
Vurrrox cr Fus S.A. A Louis Vurrron S.A.
>
BARRY DEAN KLASYMINC, PETITIONER
| : if v. *
Untirep STATES OF AMERICA EX RM.
pes. er 222 S.A. aND Louis Vurrrox S. A.
Ls FOR THE SECOND CIRCUIT
w 4 7. . : i
7 ais, BRIEF FOR THE UNITED STATES
a | AS AMICUS CURIAE
* . ’ ‘
8 ‘ ' 1
o 4 nt r TO THE UNITED STATES
ea Sete Genera
Ae 7 A iatant Att ; G J
. g _. WILLIAM C. BRYSON
“age 7 Deputy Solicitor General
* EDWIN S. KNEEDLER
Be! : Goria C. PHARES
5 2 Attorney.
. Department of Justice
1 | | , Washington, D.C. 20580.
. ol eos) 683-2217
as | | Assistant to the Solicitor General
QUESTION PRESENTED
The United States will address the following question:
Whether this Court, in the exercise of its supervisory
authority over the conduct of contempt proceedings in
federal district courts, should adopt a rule barring the
appointment of counsel for an interested private party
to prosecute charges of criminal contempt based on the
alleged violation of an injunction entered in a civil case.
(1)
TABLE OF CONTENTS
Interest of the United States
Z
e !
Argument:
An attorney who represents an interested private
party in civil litigation should not be appointed to
prosecute charges of criminal contempt arising out
of that litigation 1
A. Before appointing a private attorney to prose-
cute a criminal contempt, the court should first
formally refer the matter to the United States
A oc
B. If the United States Attorney declines to prose-
cute, a private attorney appointed to prosecute
serious contempt charges should be disinter-
ested in the same manner as the United States
PAE SOY LE a
EE ²˙—⁰ T ee eR
TABLE OF AUTHORITIES
Cases:
Allen v. Wright, 468 U.S. 777
10
11
19
21
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 12, 18, 23
Argersinger v. Hamlin, 407 U.S. 2222 24
Ashwander v. TVA, 297 U.S. 28889 25
Baldwin v. New York, 399 U.S. 6 16
Bartone v. United States, 375 U.S. 5ů2 21
Berger v. United States, 295 U.S. 7898982 16
Bloom v. Illinois, 391 U.S. 194 12, 15, 16, 24, 28
Bowsher v. Synar, No. 85-1877 (July 7, 1986) 18
Brady v. Maryland, 373 U.S. 8838GOQ2ꝰt 6
Brotherhood of Locomotive Firemen and Engine-
men v. United States, 411 F.2d 312 13
()
Cases—Continued : Page
Buckley v. Valeo, 424 U. 8. 17, 18
Cheff v. Schnackenberg, 384 U.S. 378822 22
Confiscation Cases, 74 U.S. (7 Wall.) 454. 18
Cooke v. United States, 267 U.S. 517 aia m= 24
Cupp v. Naughten, 414 U.S. 141 8 21
Cuyler v. Sullivan, 446 U.S. 338 21
Debs, In re, 158 U.S. 564 = 18
Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
inci e ͤͤ A iinlibicanicbacintileiediadthainaion 24-25
Durant v. Washington County, 8 F. Cas. 128 13
Frank v. United States, 384 F.2d 276, aff’d, 395
rr 14
Garland, Ex parte, 71 U.S. (4 Wall.) 33388. 22
Gompers v. Bucks Stove & Range Co., 221 U.S.
— d . ˙ 0% 19, 24
Green v. United States, 356 U.S. 16666 12, 26
Griffin v. Thompson, 43 U.S. (2 How.) 244 23
Marshall v. Jerrico, Inc., 446 U.S. 238 ................ 16, 23, 25
McCann v. New York Stock Exchange, 80 F.2d 211,
cert. denied, 299 U.S. 603 “ 7, 26, 27, 28
McNabb v. United States, 318 U.S. 332 21
Moe v. Confederated Salish & Kootenai Tribes,
OR EF Oe , 2 28
Musidor, B. V. v. Great American Screen, 658 F.2d
60, cert. denied, 455 U.S. 94444. 7, 26, 27
Nilva v. United States, 352 U.S. 38 28
Nye v. United States, 313 U.S. 338 26
Offutt v. United States, 348 U.S. 11 22
Polk County v. Dodson, 454 U.S. 312 22
Polo Fashions, Inc. v. Stock Buyers International,
Inc., 760 F.2d 698, petition for cert. pending,
r AA eee 11, 13, 14
Ponzi v. Fessenden, 258 U.S. 25 18
Robinson, Ex parte, 86 U.S. (19 Wall.) 505 ...... 18, 21, 22
Rose v. Clark, No. 84-1974 (July 2, 1986) 29
Ss He ls Te i ic cleniscteemesemeen 26
Scott v. Illinois, 440 U.S. 367 2.20... eee 24
Shillitani v. United States, 384 U.S. 364 12
Siebold, Ex parte, 100 U.S. 371 17
Strickland v. Washington, 466 U.S. 668 .................. 29
v
Cases—Continued :
Taylor v. Hayes, 418 U.S. 488
Terry, Ez parte, 128 U.S. 289
Thomas v. Arn, No. 84-5630 (Dec. 4, 198555
Tumey v. Ohio, 273 U.S. 510 ........................-
United States v. Agosto, 675 F. 2d 965, cert. denied,
11.18 eee —
United States v. Armstrong, 781 F. 2d 700
United States v. Barnett, 376 U.S. 681 -...................
United States v. Cox, 342 F.2d 167, cert. denied,
r PLES EEE ee
United States v. Dinitz, 424 U.S. 6000
United States v. Dolan, 570 F.2d 1177
United States v. Hasting, 461 U.S. 499029
United States v. Hudson, 11 U.S. (7 Cranch) 32....
United States v. McKenzie, 735 F.2d 90ù7ʒ 7
United States v. Mechanik, No. 84-1640 (Feb. 25,
.
United States v. Nixon, 418 U.S. 688
United States v. Payner, 447 U.S. 7277
United States v. Russell, 411 U.S. 423 -..................
United States v. Sells Engineering, Inc., 463 U.S.
enen epee os
United States v. Shipp, 203 U.S. 5683888
United States v. Solomon, 216 F. Supp. 8365 ......... ;
United States v. Squartino, 778 F.2d 7344
United States v. United Mine Workers, 330 U.S.
United States v. Williams, 622 F.2d 830, cert. de-
| 3
United States v. Wilson, 421 U.S. 30999
Vuitton et Fils S.A., In re, 606 F.2d!
Vuitton et Fils S.A. v. J. Young Enterprises, Inc.,
EE ...
Yates v. United States, 356 U.S. 363
Constitution, statutes, rules and regulation:
U.S. Const. :
Art. II, § 2, cl. 2
(Appointments Clause) ............................
21, 26
25
v
Constitution, statutes, rules and
regulation Continued: Page
Act of March 2, 1831, ch. 99, § 1, 4 Stat. 488 26
Act of March 3, 1863, ch. 93, § 2, 12 Stat. 768 19
Act of November 21, 1941, ch. 492, 55 Stat. 779. 26
Judiciary Act of 1789, ch. 20, § 17, 1 Stat. 88 18, 21-22
r thnesndenidlaniiledaieaidanes 2
E 2
. 7
rr 22
r A ce iat 20, 23
Zee 6, 7
, rd.. 23
i A d 7
t, 16, 24
ZZ 15
D RR ae —— 6
r ß ( 16, 23
r . dal 1, 16
r x err os 2
, . —. PT 1, 16
r xx 14
.. ae Coa eT. 19
EE ea ee ae ae 1, 16, 22
Eee ae ee eee an ae ee 19
ETE wae ae EE»? 22
TIES a Se a ee 22
Fed. R. Crim. P.:
A IR Ee eC aa 14
EE TS SR er ab 14
e Re on ROR es passim
Rule 44(c) and advisory committee note (18
il AC LE Rs el 22
...... 14
r ccosnessiesililibiceniionns 20
. —— — — 20
E ee 20
VII
Miscellaneous: Page
ABA Formal Ops. (1974):
EE a 13
Z 4, 13
ABA Code of Professional Responsibility (1979). 13, 20
ABA Model Rules of Professional Conduct (1983) .. 20
Beale, Reconsidering Supervisory Power in Crim-
inal Cases: Constitutional and Statutory Limits
on the Authority of the Federal Courts, 84 Colum.
Fr, ATR vere egnenaa 21, 22
FBI Undercover Activities, Authorization, and H.R.
8232: Oversight Hearings Before the Subcomm.
on Civil and Constitutional Rights of the House
Comm. on the Judiciary, 98th Cong., 1st Sess.
r trate we 13
Note, Private Prosecutors in Criminal Contempt
Actions Under Rule 42(b) of the Federal Rules
of Criminal Procedure, 54 Ford. L. Rev. 1141
r a em etn OO 15, 25
S. Rapalje, A Treatise on Contempt (1884) ............ 13
United States Attorneys’ Manual (1983-2rꝛ 15
In the Supreme Court of the United States
OCTOBER TERM, 1986
No. 85-1329
GERALD J. YOUNG, GEORGE CARISTE,
SoL N. KLAYMINC AND NATHAN HELFAND, PETITIONERS
V.
UNITED STATES OF AMERICA EX REL.
VUITTON ET FS S.A. AND LOUIS VUITTON S.A.
No. 85-6207
BARRY DEAN KLAYMINC, PETITIONER
V.
UNITED STATES OF AMERICA EX REL.
VUITTON ET FILS S.A. AND LOUIS VUITTON S.A.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
The appointment of private counsel to prosecute charges
of criminal contempt in federal court implicates impor-
tant interests of the United States, because federal crimi-
nal prosecutions ordinarily are conducted under the su-
pervision of the Attorney General. 28 U.S.C. 515, 519,
547(1). The United States believes that departures from
this practice must be carefully circumscribed and should
be permitted only on the basis of substantial justification
and only in conformity with principles of fairness, sound
(1)
judicial administration, and the disinterested exercise of
federal prosecutorial responsibility.’
STATEMENT
1. The relators in these prosecutions for criminal con-
tempt—Vuitton et Fils S.A. and Louis Vuitton S.A.
(“Vuitton”)—sell luggage, handbags, and accessories
under Vuitton’s registered trademark. Vuitton et Fils
S.A. v. J. Young Enterprises, Inc., 644 F.2d 769, 772
(9th Cir. 1981) C. A. App. 488A, 455 A. On December 6,
1978, Vuitton fixed an action in the United States District
Court for the Southern District of New York, »-eking
damages and injunctive relief for alleged acts of trade-
mark infringement and unfair competition in violation
of 15 U.S.C. 1114 and 1125 and state law (C.A. App.
426A-432A).? On December 12, 1978, with the consent
of the defendants, the court entered a preliminary injunc-
tion barring petitioner Sol Klaymine and two family-
owned businesses from infringing Vuitton’s trademark.
Klaymine’s wife, his son (petitioner Barry Klayminc),
1 The respondent in each of these cases is the United States,
albeit on the relation of private entities, and the United States is
the proper opposing party in any prosecution for criminal contempt.
See note 15, infra. This case therefore would appear to fall
within the scope of 23 U.S.C. 518(a), which provides that unless
“the Attorney General in a particular case directs otherwise,” the
Solicitor General is to condret and argue all cases in this Court “in
which the United States is interested.” However, in order to assure
that the Court may have the benefit of the arguments in support
of the appointment of interested private counsel in a case such as
this, the Solicitor General has authorized the counsel who were
appointed by the district court to appear on behalf of the respondent
in this Court as well. Accordingly, the Solicitor General files this
brief on behalf of the United States as amicus curiae to express the
distinct views of the Executive Branch.
2“C.A. App.” refers to the joint appendix and the supplemental
appendix of appellee filed in the court of appeals. “Pet. App.”
refers to the appendix to the petition for a writ of certiorari in No.
85-1329.
8 As of 1984, Vuitton had brought more than 80 such actions to
protect its trademark and profits. Pet. App. 116A; In re Vuitton
et Fils S.A., 606 F.2d 1, 2 (2d Cir. 1979).
and another family-owned business subsequently were
joined as defendants. Pet. App. 5A, 116A-117A.
On July 8, 1981, the district court, upon Vuitton’s ap-
plication, issued an order directing Sol Klaymine and
others to show cause why they should not be held in
criminal contempt for violating the preliminary injunc-
tion. The court appointed Vuitton’s counsel, J. Joseph
Bainton, to prosecute the criminal contempt on behalf of
the United States. Pet. App. 117A-118A; C.A. App.
473 A-476A. The charges were referred to a magistrate,
who convicted Sol Klaymine and two family-owned busi-
nesses of contempt. Thereafter, on July 30, 1982, a con-
sent judgment was entered in the underlying civil action.
The consent judgment required the Klaymincs and per-
sons acting in concert with them to refrain from manu-
facturing, distributing, or simulating goods in violation
of Vuitton’s trademarks. Sol and Barry Klaymine and
other defendants also agreed to pay Vuitton $100,000.
Pet. App. 6A, 118A-119A, 193A-204A. When the magis-
trate was informed of this settlement, he suspended Sol
Klayminc's sentence on the criminal contempt conviction
and placed him on one year’s probation. C.A. App. 595A;
Pet. App. 10A n.1, 118A-119 A.
2. In early 1983, a private investigating firm in Flor-
ida proposed to Vuitton and other owners of fashion
trademarks that they share the expenses of a “sting”
operation to identify persons who were infringing their
trademarks. Under the arrangement, employees of the
Florida firm posed as persons interested in buying and
selling counterfeit merchandise on a large scale. Pet.
App. 6A-7A, 119A-120A. The principal investigator was
Melvin Weinberg, who had participated in the “Abscam”
investigation (id. at 120A).
Early in the investigation, Weinberg met with peti-
tioners Helfand and Sol Klaymine and discussed the
prospects for selling counterfeit Vuitton wares and locat-
ing investors to finance a factory Klaymine was operat-
ing in Haiti. Klaymine stated that his son, Barry, had a
25% interest in the Haitian operation and that counter-
feit Vuitton merchandise could be obtained from a man
—— * * _ a = x. . 4 *
—— „
4
in New Jersey named “George,” a reference to petitioner
Cariste. Pet. App. 8A-9A, 121A; C.A. App. 612A-615A,
644A-645A, 656A-657A, 1898A-1900A.
3. Three days later Bainton, the attorney for Vuitton,
informed the district court of these events (J.A. 18-26;
C.A. App. 606A-618A). Bainton and his law partner,
Robert P. Devlin, sought to be appointed “to continue the
investigation and, in due course, the prosecution of what
appears to be a massive international conspiracy to vio-
late this Court’s permanent injunction” (J.A. 25; C.A.
App. 615A-616A; Pet. App. 9A, 121A-122A). In addi-
tion, Bainton advised the court that Weinberg planned to
videotape a meeting on April 5, 1983, with petitioners
Sol and Barry Klayminc, to which Sol Klaymine had been
instructed to bring 25 of his better counterfeit Vuitton
purses. Pet. App. 11A, 122A-123A; J.A. 25-26; C.A.
App. 616A-617A.‘ In an order issued under seal on
March 31, 1983, the district court appointed Bainton and
Devlin “to represent the United States of America in
connection with the further investigation” and “the ulti-
mate prosecution” of the apparent contempt (J.A. 27;
C.A. App. 605A). The court also approved the investiga-
tion Bainton outlined in his affidavit (ibid.). Pet. App.
10A, 11A, 123A-124A; C. A. App. 604A-605A.
At the conclusion of a brief ex parte hearing on April
6, 1983, Judge Brieant asked Bainton to inform the
United States Attorney's office about the investigation
(J. A. 62-63; C. A. App. 661A-662A).° Bainton did so by
a letter written that same day to the Chief of the Crimi-
nal Division of that office. Bainton enclosed the order
4 Bainton’s application noted that although a government prosecu-
tor is not so limited, it is considered unethical for an attorney in a
civil case to participate in the surreptitious recording of a conver-
sation. See C.A. App. 617A, citing ABA Formal Op. 387 (1974).
5 Judge Brieant had been absent on March 31, when Bainton filed
his motion for appointment. Judge Lasker granted the motion but
ordered Bainton and Devlin to notify Judge Brieant of the order
at the earliest opportunity. Pet. App. 10A, 12A, 124A n.1; C.A.
App. 659A.
5
‘appointing him to prosecute the contempt and his sup-
porting affidavit (J.A. 64; C.A. App. 664A). The United
States Attorney’s Office took no action in response to
Bainton’s letter.“ The United States Attorney’s Office was
again contacted on the eve of trial, but it did not enter
the case. Pet. App. 12A-13A, 125A; C. A. App. 18014,
2041A-2043A.
4. Bainton’s investigation continued into May 1983.
In the course of the investigation, more than 100 audio
and video tapes were made of telephone calls and meet-
ings with petitioners and others. The recorded conversa-
tions established that each of the petitioners was aware
that Sol Klaymine's counterfeiting activities were un-
lawful (see C.A. App. 611A-612A, 1097A, 1145A-
1147A, 1556A-1558A, 1560A-1564A, 1635A-1636A, 1647A-
1651A).
On April 5, Klaymine met with Weinberg, as planned.
He brought with him 25 counterfeit Vuitton bags, which
he said had been made by petitioner Cariste. Weinberg
paid Klaymine $625 for the bars. C.A. App. 704A, 709A,
2062A. In addition, Weinberg pretended to be interested
in buying 50 percent of Klayminc's operation in Haiti
(id. at 709A, 736A, 741A-742A, 767A-768A, 864A-870A,
1545A-1546A). Klayminc told Weinberg that an injunc-
tion prevented him from making such goods, and when
he stated that he could not take the chance of actually
handling counterfeit bags in the United States, Weinberg
suggested that Klaymine ship them to other countries
(id. at 717A, 908A-906A, 908A).
On several occasions, Sol Klayminc told Weinberg that
petitioner Young could provide fabric for the Haitian op-
eration (C.A. App. A287). Weinberg then met with
Young, who agreed to supply 5000 yards of fabric, which
he could ship “any place you want” (id. at 1077A,
¢ Bainton also had occasion to consult with the District Attorney’s
Office in Los Angeles. To ensure that electronic recordings would
not violate California law, it was agreed that any investigation con-
ducted in Los Angeles would be under the direction of the District
Attorney. Pet. App. 12A n.2, 45A; J.A. 88-89; C.A. App. 665A-666A.
6
1586A). Barry Klaymine subsequently told Weinberg
that Cariste had begun cutting bags and had sent them
to Sol Klaymine in Haiti for assembly (id. at A367-A368;
see also id. at 1709A, 2027A, 2871A). At a meeting with
Barry Klaymine and Cariste, Weinberg said he would
need 1500 handbags by May 2, and Cariste agreed to
deliver them (id. at 2025A-2026A).
5. On April 26, Bainton applied for an order under
Fed. R. Crim. P. 42(b) requiring petitioners and others
to show cause why they should not be held in criminal
contempt for violating the 1982 injunction (Pet. App.
14A; J.A. 99-102; C.A. App. 667A-673A). The district
court issued the show cause order the same day (C.A.
App. 673A) .?
Petitioners challenged the order to show cause, the ap-
pointment of Bainton and Devlin as prosecutors, and the
conduct of the investigation (Pet. App. 14A), but the
district court rejected those challenges (id. at 114A-
192A).* In the trial before Judge Brieant and a jury,
Bainton introduced 28 of the recorded conversations; in
addition, Weinberg and David Rochman, who was charged
TIn July 1988, prior to petitioners’ trial, Sol Klaymine and his
wife filed a petition in bankruptcy (C.A. App. 681A). Vuitton filed
objections to the discharge in bankruptcy of the $80,000 the
Klaymincs still owed under the 1982 settlement of the civil action
(id. at 682A-688A). Vuitton contended that the Klaymincs’ princi-
pal source of income was from their manufacture of counterfeit
Vuitton merchandise and that they never intended to pay the
$100,000, concealed their assets, and made false assertions to the
bankruptcy court (id. at 685A-692A). See J.A. 108-117. Ata De-
cember 1983 hearing in the bankruptcy proceedings, five tape
recordings made by Weinberg were admitted into evidence in sup-
port of Vuitton’s objections (C.A. App. A56-A84). In an order
dated January 13, 1984, the bankruptcy court granted Vuitton’s
motion in part and denied it in part (id. at 694A-700A).
® To prevent any prejudice to petitioners that could have resulted
from the conflict between Bainton’s privileged relation with Vuitton
and the requirements of Brady v. Maryland, 373 U.S. 83 (1963), and
the Jencks Act, 18 U.S.C. 3500, the district court ruled that by
authorizing Bainton to pursue the criminal contempt, Vuitton had
waived any privilege it might have regarding such information.
Pet. App. 161A-162A.
7
in the show cause order, testified for the prosecution at
trial. At the conclusion of the trial, Sol Klaymine was
convicted of criminal contempt, in violation of 18 U.S. C.
401 (3), and the other petitioners were convieted of aid-
ing and abetting that contempt, in violation of 18 U.S.C.
401 (3) and 2. Petitioners were sentenced to the follow-
ing terms of imprisonment: Sol Klaymine, 5 years;
Young, 2%4 years; Barry Klayminc, 9 months; Cariste,
9 months; and Helfand, 6 months.
6. A divided panel of the court of appeals affirmed
the convictions (Pet. App. 1A-48A). On the authority of
prior Second Circuit precedent, the court rejected peti-
tioners’ claim that the appointment of Bainton to prose-
cute the contempt charges under Fed. R. Crim. P. 42(b)
violated their due process right to a disinterested prose-
cutor. Pet. App. 17A-22A, citing Musidor, B. V. v. Great
American Screen, 658 F.2d 60 (2d Cir. 1981), cert.
denied, 455 U.S. 944 (1982), and McCann v. New York
Stock Exchange, 80 F.2d 211 (2d Cir. 1935), cert. de-
nied, 299 U.S. 603 (1936). The court concluded that a
defendant’s right to a distinterested prosecutor “is not
absolute,” because a prosecutor’s preconceived belief in a
defendant’s guilt is not a ground for disqualification, as
it would be for a judge or juror (Pet. App. 18A-20A).
Moreover the court noted that attorneys appointed pur-
suant to Rule 42(b) are subject to judicial control, par-
ticularly because the judge decides whether to prosecute
(Pet. App. 20A-21A). Finally, the court noted that coun-
o Pursuant to an agreement with Bainton, Rochman pleaded
guilty to petty violation of 18 U.S.C. 401, in return for his testi-
mony for the prosecution. Concurrently with the plea agreement,
Bainton, as counsel for Vuitton and others, represented to Rochman’s
attorney that if Rochman performed as provided in the plea agree-
ment, a civil suit filed by Vuitton against Rochman and others would
be dismissed with prejudice. J.A. 103-107; C.A. App. A85-A89,
2345A-2348A.
Following the trial of the other defendants, Robert G. Pariseault,
who also was charged in the show cause order, pleaded guilty to a
misdemeanor violation of 18 U.S.C. 401. See 9/11/84 Tr. 3-4.
Vuitton also simultaneously settled its civil litigation against
Pariseault.
— ii
8
sel for the plaintiff in the underlying civil action are most
familiar with the case and therefore can prosecute the
criminal contempt most efficiently (id. at 17A-18A).
The court of appeals likewise rejected petitioners’ argu-
ment that Rule 42(b) does not permit the specially ap-
pointed private counsel to conduct a wide-ranging investi-
gation. The court held that the power to prosecute
encompasses the power to investigate and to gather evi-
dence by means of a “sting” operation (Pet. App. 24A).
Because Bainton’s investigation was undertaken with the
approval of the district court, the court of appeals held,
it was not unethical (id. at 24A-25A).
Judge Oakes dissented (Pet. App. 34A-48A). He did
not question the authority of the district court to appoint
counsel for an interested private party to prosecute the
contempt charges (id. at 36A). But Judge Oakes con-
cluded that the convictions should be reversed because, in
his view, there was an insufficient showing of need for
Bainton’s investigatory techniques and inadequate provi-
sion for supervising them (id. at 37A-48A). Judge Oakes
took the position that, in light of the possibility that
animosities in the related civil litigation could improperly
influence the investigation, a court should permit a pri-
vate attorney appointed under Rule 42(b) to conduct a
“sting” operation in these circumstances only on the basis
of “a strong showing that a court order has been violated
and where there is no other way of catching the con-
temners” (Pet. App. 36A). In this case, although coun-
sel’s application for appointment indicated that petition-
ers already had violated the injunction, Judge Oakes con-
cluded that petitioners “had probably not violated the
earlier order at that time and * * * the investigation may
have been the proximate cause of the violation” (id. at
47A-48A).
SUMMARY OF ARGUMENT
A. The Executive Branch, like the Judicial Branch,
has legitimate interests in the prosecution of criminal
contempts, because those prosecutions protect the general
public order as well as the courts’ need to enforce judicial
9
authority. The interests of both Branches will be vindi-
cated if the United States Attorney brings a prosecution.
That course would render it unnecessary for the court
to assert the contempt power, which is always to be exer-
cised with self-restraint.
Accordingly, before a district court appoints a private
attorney to prosecute a criminal contempt under Rule
42(b), it should first refer the matter to the United
States Attorney. If the United States Attorney concludes
after any necessary grand jury or other investigation
that prosecution is warranted, he may file an indictment
or information or apply for an order to show cause
under Rule 42(b). Even if the United States Attorney
concludes that contempt charges should not be brought,
referring the case to the United States Attorney for his
consideration is still a useful measure, since the United
States Attorney’s detached review might prevent an im-
prudent exercise of the contempt power by the court.
Referral is especially appropriate where the violation of
an injunction also violates a federal criminal statute.
The United States Attorney can then evaluate the evi-
dence in light of prosecutorial standards under the sub-
stantive statute, taking into account the need to vindicate
the court’s authority.
If the United States Attorney declines to prosecute the
contempt, the court is not barred from appointing a pri-
vate attorney to do so. The Appointments Clause of the
Constitution expressly permits Congress to vest appoint-
ing authority in the courts. Similarly, although separa-
tion of powers principles require that ordinary criminal
cases be prosecuted exclusively by Executive Branch offi-
cials, those principles do not bar a court from appointing
a private attorney where the court itself initiates the
proceedings in the exercise of its special power to punish
contempts.
B. If the United States Attorney chooses not to prose-
cute the contempt in a case such as this one, the court
should not appoint the attorney who represents an in-
terested private party in the underlying civil litigation to
do so. If a Justice Department attorney who represented
10
that private party also brought a related criminal prose-
cution on behalf of the United States, he would violate
the criminal conflict-of-interest laws, departmental regula-
tions, and ethical standards. This Court should exercise
its supervisory authority to require that a district court
adhere to similar standards of disinterested prosecution
if it appoints a private attorney to prosecute the contempt
charges. The Court may adopt such a supervisory rule,
because it relates to the internal operations of the Judi-
cial Branch and the courts’ recognized authority to regu-
late the conduct of attorneys as officers of the court.
A rule barring the appointment of counsel for an in-
terested private party to prosecute a serious criminal
contempt under Rule 42(b) would constitute a sound
exercise of supervisory power. It would conform such
appointments to the federal tradition of public prosecu-
tions; it would respect conflict-of-interest standards en-
acted by Congress; and it would avoid the risk that pri-
vate financial interests could taint the decisionmaking
process in serious criminal cases. Employing the super-
visory power is also appropriate because it would avoid
the need to resolve more sweeping claims under the Due
Process Clause, and it would preserve the flexibility that
is needed to address the complex questions involved in the
wide variety of contempt cases that arise from violations
of court orders in civil litigation.
ARGUMENT
AN ATTORNEY WHO REPRESENTS AN INTER-
ESTED PRIVATE PARTY IN CIVIL LITIGATION
SHOULD NOT BE APPOINTED T) PROSECUTE
CHARGES OF CRIMINAL CONTEMP ARISING OUT
OF THAT LITIGATION
Petitioners contend that the appointment of Vuitton’s
attorneys to prosecute the charges of criminal contempt
violated due process by depriving them of their asserted
right to a disinterested prosecutor. In our view, there
is no need for the Court to decide that constitutional
question, because the Court may properly find the ap-
pointment to have been improper in the exercise of this
11
Court’s special supervisory authority over the punishment
of contempts in the federal courts.
The Sixth Circuit recently held, in the exercise of its
supervisory power, that a district court may not ap-
point the attorney for an interested private litigant to
prosecute related charges of criminal contempt. Polo
Fashions, Inc. v. Stock Buyers International, Inc., 760
F.2d 698 (1985), petition for cert. pending, No. 85-455."
In response to this Court’s invitation, the Solicitor Gen-
eral filed an amicus curiae brief on behalf of the United
States in Polo Fashions, in which we argued (U.S. Br.
7-15) that the Sixth Circuit did not exceed its super-
visory authority by establishing a general rule barring
the appointment of counsel for an interested private party
to prosecute charges of criminal contempt in that circuit.
We now urge this Court to take a similar approach by
exercising its supervisory power to bar such appointments
in the federal courts generally.
Before considering whether the Court should exercise
its supervisory power in this manner, the Court must ad-
dress the threshold question whether a district court may
ever appoint a private attorney to prosecute contempts
under Rule 42(b). We submit that private counsel should
not be appointed under Rule 42(b) to prosecute charges
of criminal contempt unless the allegations have first been
referred to the United States Attorney and he has de-
clined prosecution.
A. Before Appointing A Private Attorney To Prosecute A
Criminal Contempt, The Court Should First Formally
Refer The Matter To The United States Attorney
1. Contempt proceedings differ from ordinary criminal
cases, because they serve not only the general interests of
public order, but also the particular interest of the courts
in vindicating judicial authority. For that reason, both
the Executive Branch and the Judicial Branch have
10 The Sixth Circuit expressly declined to hold that such an
appointment “constitutes a per se due process violation” (760
F.2d at 704).
12
legitimate interests in the prosecution of criminal con-
tempts in appropriate circumstances. The need to ac-
commodate the interests of both Branches is especially
strong where, as here, the alleged contempt is based on
the violation of an injunction designed to regulate the
conduct of private parties out of the presence of the
court. In that setting, the interest of the court ir ensur-
ing the integrity of judicial proceedings is presented with
less immediacy than in the case of contempts that are
committed in the presence of the court and are properly
punished by summary procedures. United States v. Wil-
son, 421 U.S. 309, 315-319 (1975); Taylor v. Hayes, 418
U.S. 488, 497-500 (1974). By the same token, the viola-
tion of such an injunction may closely resemble an ordi-
nary criminal offense that is based directly on the viola-
tion of a federal statute. Compare Bloom v. Illinois, 391
U.S. 194, 201 (1968); Green v. United States, 356 U.S.
165, 218-219 (1958) (Black, J., dissenting). Such of-
fenses are deemed to injure the public generally and are
properly within the domain of the public prosecutor, the
Attorney General.
These considerations suggest that private counsel should
not be appointed to prosecute criminal contempts unless
it is clear that important interests of the Judicial Branch
will not be adequately protected by the Executive Branch’s
performance of its constitutionally assigned functions.
Such deference by the courts to the usual procedures for
enforcing the criminal law when possible not only ac-
cords respect to the United States Attorney, as the rep-
resentative of a coordinate Branch with the responsibility
for invoking the judicial power; it also comports with this
Court’s self-imposed limitation on the unilateral asser-
tion of the judicial power in contempt proceedings, which
requires that “a court must exercise It] he least possible
power adequate to the end proposed.“ Shillitani v.
United States, 384 U.S. 364, 371 (1966), quoting Ander-
son v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821). See
also United States v. Wilson, 421 U.S. at 319.
Accordingly, we urge the Court to provide that allega-
tions of criminal contempt that occur outside of the pres-
13
ence of the court should first be formally referred by the
court to the United States Attorney. Only if the United
States Attorney declines to proceed should the court con-
sider whether to appoint a private attorney to assist the
court in the adjudication of the charges. This is the
approach suggested by the Sixth Circuit in Polo Fashions.
See 760 F.2d at 705 (“If the United States Attorney
should decline to prosecute upon request, then the district
court may appoint one or more disinterested attorneys to
do so.”). See also United States v. McKenzie, 735 F.2d
907, 909-910 (5th Cir. 1984); Brotherhood of Locomo-
tive Firemen and Enginemen v. United States, 411 F.2d
312, 319-820 (5th Cir. 1969); S. Rapalje, A Treatise on
Contempt § 127, at 175 (1884), citing Durant v. Wash-
ington County, 8 F. Cas. 128, 129 (C.C. D. Iowa 1869)
(No. 4,191) (Miller, Circuit Justice).
If the district court makes such a referral, the United
States Attorney mzy conduct any additional investigation
that may be necessary, either by presenting the matter
to the grand jury or by using other investigative re-
sources available to the government." If the United
11 Such an investigation would be conducted under governmental
supervision and established Justice Department guidelines. For
example, the Attorney General has approved detailed substantive
and procedural guidelines for the conduct of undercover investiga-
tions. See C.A. App. A899-A418; FBI Undercover Activities, Aw
thorization, and H.R. $282: Oversight Hearings Before the Sub-
comm. on Civil and Constitutional Rights of the House Comm. on the
Judiciary, 98th Cong., Ist Sess. 264-374 (1983). Reliance on that
investigative authority would eliminate the concerns raised in this
case about the propriety and scope of an investigation conducted
by private counsel appointed pursuant to Rule 42(b). These concerns
are heightened where the attorney appointed pursuant to Rule
42(b) represents a party who has an interest in the matter, because
of the possibility that the contempt might actually be prompted by
undercover techniques that were pursued in part to advance the
interests of the lawyer’s private client (see notes 7, 9, supra) or
resulted from animosities that developed in the civil litigation. See
Pet. Br. 27-29, 33-84, 40-41; Pet. App. 34A-48A (Oakes, J.,
dissenting); cf. ABA Code of Professional Responsibility, DR
1-102 (A) (4) (1979); ABA Formal Ops. 336, 337 (1974). Al-
though we would hesitate to say that a court is without power to
14
States Attorney concludes that prosecution is warranted,
judicial proceedings can be commenced by the filing of an
information or indictment in accordance with the proce
dures governing federal criminal prosecutions generally.
Fed. R. Crim. P. 7(a). See, e. g., United States v. Arm-
strong, 781 F.2d 700, 703-704 (9th Cir. 1986); United
States v. Squartino, 778 F.2d 734 (11th Cir. 1985);
United States v. Williams, 622 F.2d 830, 837-838 (5th
Cir. 1980) (en banc), cert. denied, 449 U.S. 1127
(1981) ; ef. United States v. Shipp, 203 U.S. 563 (1906)
(criminal contempt proceedings initiated in this Court
by Attorney General’s filing of an information). Alter-
natively, the United States Attorney can present charges
of criminal contempt to the district court by filing an
application for an order to show cause, a mode of pro-
ceeding that is expressly contemplated by Rule 42(b).
See United States v. Barnett, 376 U.S. 681, 686 (1964) ;
Frank v. United States, 384 F.2d 276, 278 (10th Cir.
1967), aff’d on other grounds, 395 U.S. 147 (1969).
Referring allegations of criminal contempt to the
United States Attorney is appropriate for a number of
reasons. The public prosecutor’s judgment that contempt
charges should not be brought is ordinarily entitled to
respect by the court, because it reflects a disinterested
assessment of the appropriateness of seeking criminal
sanctions for particular conduct, with due regard for the
authorize a private attorney appointed under Rule 42(b) to employ
undercover techniques under any circumstances, such investigations
ordinarily should be undertaken by the arm of government with the
constitutional and statutory responsibility, as well as the necessary
experience, “to detect and prosecute crimes against the United
States” (28 U.S.C. 583(1)).
Contrary to petitioners’ suggestion (Pet. Br. 40-41), however, a
private attorney appointed by a court pursuant to Rule 42 (b) would
in no event have authority to appear before the grand jury and
present evidence to it. That is the sole responsibility of “[a]ttorneys
for the government” (Fed. R. Crim. P. 6(d)), a term that is
specifically limited to the Attorney General, United States At-
torneys, and their authorized assistants (Fed. R. Crim. P. 54(c)).
See United States v. Sells Engineering, Inc., 463 U.S. 418, 426,
428 (1983).
15
importance of preserving the integrity of the court’s
processes. See United States v. McKenzie, 735 F. 2d
at 910; Note, Private Prosecutors in Criminal Contempt
Actions Under Rule 42 (b) of the Federal Rules of Crimi-
nal Procedure, 54 Ford. L. Rev. 1141, 1168 & n.121
(1986). This review by the disinterested public prosecu-
tor can serve as an important independent check against
the potential for arbitrary exercise of the contempt power
that might occasionally result from conduct that “often
strikes at the most vulnerable and human qualities of a
judge’s temperament.” Bloom v. Illinois, 391 U.S. at 202.
The referral process is particularly appropriate when
the contemnor’s conduct in violation of an injunction aiso
contravenes a federal criminal statute, as would now be
true with respect to petitioners’ conduct by virtue of a
federal statute enacted in 1984 that prohibits trademark
infringement. 18 U.S.C. (Supp. II) 2320. The United
States Attorney may then evaluate the evidence in light
of the general prosecutorial standards that the Depart-
ment of Justice applies in enforcing federal criminal
laws, to determine whether the particular conduct war-
rants prosecution. Amorg the factors bearing on that
determination, of course, is the fact that the particular
conduct also violates a court order. If the United States
Attorney decides to prosecute the contemnor for the sub-
stantive offense, the interest underlying the contempt
power—enforcing compliance with judicial orders would
also be vindicated.
The statutory provisions relating to eriminal contempt
also suggest that ordinarily such contempts should be
prosecuted by the United States Attorney. Congress has
12 See United States Attorney’s Manual § 9-39.318 (1984) :
In the great majority of cases the dedication of the executiv>
branch to the preservation of respect for judicial authority
makes the acceptance by the U.S. Attorney of the court’s
request to prosecute a mere formality; however, there may be
sound reasons in a given case for the U.S. Attorney to decline
participation in the proceedings and for the prosecution to be
conducted on behalf of the court by private counsel appointed
by the court fox this purpose.
—
16
provided that any person whose actions in violation of a
court order also constitute a criminal offense under fed-
eral or state law “shall be prosecuted for such contempt
as provided in [18 U.S.C. 3691].” 18 U.S.C. 402. Section
3691 in turn provides that the accused “shall be entitled
to trial by a jury, which shall conform as near as may be
to the practice in other criminal cases. The usual “prac-
tice in other criminal cases” arising under federal law of
course is that the prosecution is brought by the United
States Attorney, under the supervision of the Attorney
General. 28 U.S.C. 515, 519, 549(1). Referring the
allegations of contempt to the United States Attorney in
the first instance would enable the district court to con-
form as near as may be“ to that practice.
That legislative judgment is relevant to this case be-
cause the right to a jury trial, although not statutorily
guaranteed by 18 U.S.C. 402 and 3691, was constitu-
tionally protected for the four petitioners who received
sentences in excess of 6 months. See Bloom v. Illinois,
supra; Baldwin v. New York, 399 U.S. 66 (1970) ; Taylor
v. Hayes, 418 U.S. at 495-496. The decision in Bloom
extending the jury trial right to criminal contempts rested
in large part on the Court’s conclusions that [el riminal
- contempt is a crime in the ordinary sense” (391 U.S. at
201) and that “[iJn modern times, procedures in crim-
inal contempt cases have come to mirror those used in
ordinary criminal cases” (id. at 207; see id. at 202-206).
Because Congress regarded a jury trial as the hallmark
of a criminal prosecution when it enacted 18 U.S.C. 402
and 3691 (see Bloom, 391 U.S. at 204 n.6), and because
in modern times the prosecutors in jury trials in federal
criminal cases are “public officials” who must “serve the
public interest” (Marshall v. Jerrico, Inc., 446 U.S. 238,
249 (1980), citing Berger v. United States, 295 U.S. 78,
88 (1935)), a district court should endeavor to conform
to the custom of public prosecution under the supervision
of the Attorney General whenever the constitutional right
to a jury trial is implicated.”
18 The district court in this case was sensitive to these concerns,
because it directed Bainton to inform the United States Attorney’s
17
2. If the United States Attorney declines prosecution,
but the district court nevertheless concludes that the cir-
cumstances are sufficiently compelling to justify contempt
sanctions, it is our view that the court may exercise the
authority conferred by Rule 42(b) to appoint an attorney
from outside the Executive Branch to prosecute the
charges. We therefore do not endorse petitioners’ conten-
tion (Pet. Br. 42-44) that the constitutional doctrine of
separation of powers absolutely prohibits a court from
appointing private counsel to assist it in adjudicating
charges of criminal contempt, even where the court has
been unable to enlist the aid of the Executive.
The Appointments Clause of the Constitution (Art. II,
§ 2, Cl. 2) permits Congress to vest the appointment of
“inferior Officers” of the United States not only in the
President and the Heads of Departments, but also in the
“Courts of Law.” Accordingly, even assuming that an
attorney specially appointed by the court under Fed. R.
Crim. P. 42 (b) to present and prosecute charges of crim-
inal contempt is an officer“ rather than an “employee”
of the government (see Buckley v. Valeo, 424 US. 1,
126 n.162 (1976)), the appointment would satisfy the
Appointments Clause. See Ex parte Siebold, 100 US.
371, 397-398 (1879). Petitioners’ reliance on Buckley v.
Valeo, which enforced the principles of separation of
powers that are specifically embodied in the Appointments
Clause, therefore is without merit as well.
Office of the contempt allegations and the results of his investiga-
tion. See pages 4-5, supra. By that time, however, Bainton already
had been appointed to continue the investigation and prosecute the
contempt, and it is understandable that the United States Attorney
did not attempt to intervene. In our view, the referral to the
United States Attorney ordinarily should occur at an earlier stage,
prior to any appointment of private counsel to investigate or prose-
cute. Moreover, where the district court contemplates that it will
institute proceedings under Rule 42(b) if the United States
Attorney declines prosecution, the referral should make the court’s
intentions clear and reflect an actual request by the court itself
that the United States Attorney assume responsibility for the
matter, not merely a notification of that Office as a matter of
courtesy.
18
Of course, the mere fact that a person is appointed in
accordance with constitutional requirements does not in-
sulate his performance from scrutiny under the doctrine
of separation of powers. Bowsher v. Synar, No. 85-1377
(July 7, 1986), slip op. 6-11. Moreover, the actual prose-
cution of federal crimes is uniquely the responsibility of
the Executive Branch and cannot be usurped by the Judi-
ciary. Buckley v. Valeo, 424 U.S. at 138; United States
v. Nixon, 418 U.S. 683, 693 (1974); Ponzi v. Fessenden,
258 U.S. 254, 262 (1922); Confiscation Cases, 74 US.
(7 Wall.) 454, 458-459 (1868); United States v. Cox,
342 F.2d 167, 193 (5th Cir.), cert. denied, 381 U.S. 935
(1965). For this reason, when a prosecution for con-
tempt is initiated by indictment or information signed by
the attorney for the government, that prosecution must
remain under the control of the Attorney General.
However, Rule 42(b) contemplates that punishment for
criminal contempt may also be imposed in proceedings
initiated by the court itself. This power was recognized
by Congress in Section 17 of the Judiciary Act of 1789,
ch. 20, 1 Stat. 83, and it has been recognized by this
Court ever since as an integral attribute of the federal
courts that is essential to their ability to enforce their
authority. See, e.g., United States v. Hudson, 11 US.
(7 Cranch) 32, 34 (1812); Anderson v. Dunn, 19 USS.
(6 Wheat.) at 207; Ex parte Robinson, 86 U.S. (19
Wall.) 505, 510 (1873); Ex parte Terry, 128 U.S. 289,
302-804 (1888); In re Debs, 158. U.S. 564, 594-595
(1895). The existence of this power of self-protection,
when exercised in accordance with the limitations pre-
scribed by the Constitution, Congress, and this Court, is
not inconsistent with the separation of powers among the
Branches, and indeed it-promotes a certain balance among
those powers. In light of the firmly rooted nature of the
courts’ power to punish contempts, we do not believe that
either the Appointments Clause or the more general doc-
trine of separation of powers bars a court from appoint-
ing an attorney from outside the Executive Branch to
assist it in the exercise of that power —at least where
the United States Attorney has declined prosecution and
19
the contempt by a private party does not arise out of
litigation to which the United States or an agency or
officer thereof is a party.“
B. If The United States Attorney Declines To Prosecute,
A Private Attorney Appointed To Prosecute Serious
Contempt Charges Should Be Disinterested In The
Same Manner As The United States Attorney
If the district court chooses to proceed with the ad-
judication of the contempt charges in a case such as this,
despite the United States Attorney’s decision not to do
so, the attorney appointed by the court to present and
prosecute those charges should not be the attorney for a
party in the related private civil litigation. In our view,
this Court has ample supervisory authority to bar such
appointments in the federal courts and to require instead
that private attorneys appointed to prosecute serious
criminal contempt charges on behalf of the United States
under Rule 42(b)” must satisfy the same standards as if
they had been appointed by the Attorney General to pros-
ecute the charges.
14 The departure from the exclusive authority of the Attorney
General to prosecute federal crimes in these limited settings is
similar to two other situations in which Congress has authorized
judicial appointment of officials to bring federal criminal prosecu-
tions in narrowly defined circumstances. For example, under 28
U.S.C. 546 (first enacted in the Act of March 3, 1863, ch. 93, § 2,
12 Stat. 768), when there is a vacancy in the office of United States
Attorney, the district court may appoint a United States Attorney
to serve until the vacancy is filled. See United States v. Solomon,
216 F. Supp. 835, 841, 842-843 (S.D.N.Y. 1963). Similarly, under
28 U.S.C. 598, a special court, on the motion of the Attorney Gen-
eral, may appoint an independent counsel to investigate and
prosecute crimes involving certain high-ranking government officials.
15 Criminal contempt proceedings arising out of civil litigation
“are between the public and the defendant, and are not a part of the
original cause“ (Gompers v. Bucks Stove & Range Co., 221 USS.
418, 445 (1911)). An attorney appointed to prosecute the contempt
charges therefore represents the United States, not a private client
who has an interest in the matter. The district court in this case
expressly appointed Bainton and Devlin “to represent the United
States” (C. A. App. 473A).
——
20
The appointment in this case did not satisfy those
standards. If a Justice Department attorney who repre-
sented an interested private party in civil litigation
brought a related federal criminal prosecution on behalf |
of the United States, he would commit a felony under the
governing conflict-of-interest statute, 18 U.S.C. 208 (a).
In addition, the attorney’s participation despite the differ-
ing interests of his two clients (the private party and
the United States) would violate the ABA Code of Pro-
fessional Responsibility (1979),’* which is binding upon
attorneys employed by the Department of Justice (see
28 C.F.R. 45.735-1(b)) and which has been adopted by
the District Court for the Southern District of New York
to govern the conduct of attorneys appearing before it.“
At least in the case of serious charges of criminal con-
tempt, the mere fact that the attorney representing the
United States is appointed by the court rather than the
Attorney General does not warrant a departure from the
generally applicable standards of conduct prescribed by
Congress, the Attorney General, the legal profession, and
the courts.”
1. This Court recently reaffirmed that the courts of
appeals have the power “to mandate ‘procedures dee ned
desirable from the viewpoint of sound judicial practice
16 See DR 5-105, EC 5-1, EC 5-2, EC 5-14, EC 5-15, EC 5-18.
See also ABA Model Rules of Professional Conduct, Rules 1.7, 1.9
(1983) ; Cuyler v. Sullivan, 446 U.S. 335, 346-347 & n.11 (1980).
17 See Rule 4(f) of the General Rules of the United States Dis-
trict Courts for the Southern and Eastern Districts of New York.
18 By contrast, a Justice Department attorney who participated
on behalf of the government in civil litigation brought against a
private party would not be barred from participating on behalf of
the government in criminal contempt proceedings based on the pri-
vate party’s violation of an injunction entered in the civil litigation.
In that situation, 18 U.S.C. 208(a) is inapplicable because the
attorney has no private interest resulting from his involvement in
the civil litigation, and there is no conflict of interest under depart-
mental regulations and prevailing ethical standards because the
attorney is vindicating the interests of the same client in each
proceeding.
— — — —
21
although in nowise commanded by statute or by the Con-
stitution.’” Thomas v. Arn, No. 84-5630 (Dec. 4, 1985),
slip op. 6, quoting Cupp v. Naughten, 414 U.S. 141, 146
(1973). See also Cuyler v. Sullivan, 446 U.S. 335, 346
n.10 (1980). This Court, too, has that power. Bartone
v. United States, 375 U.S. 52, 54 (1963); McNabb v.
United States, 318 U.S. 332, 341 (1943). The super-
visory power does not extend to the suppression of evi-
dence for violations of the rights of a “third party not
before the court” (United States v. Payner, 447 USS.
727, 735 (1980) ), or to the regulation of the conduct of
members of a coordinate Branch outside of the context
of judicial proceedings. Id. at 733-735; United States v.
Hasting, 461 U.S. 499, 505-507 (1983). But the super-
visory power “rests on the firmest ground when used to
establish rules of judicial procedure” (Thomas v. Arn,
slip op. 6 n.5, citing Beale, Reconsidering Supervisory
Power in Criminal Cases: Constitutional and Statutory
Limits on the Authority of the Federal Courts, 84 Colum.
L. Rev. 1433, 1465 (1984) )—.e., to establish rules gov-
erning “technical details and policies intrinsic to the
litigation process, not the regulation of primary behavior
and policies extrinsic to the litigation process” (Beale,
84 Colum. L. Rev. at 1465). This distinction rests on the
separation of powers under the Constitution, for it con-
centrates the courts’ supervisory authority in aid of the
exercise of the “judicial power” conferred on them by
Article III. Id. at 1467-1468, 1508-1513. Compare Allen
v. Wright, 468 U.S. 737, 750-751, 759-761 (1984);
United States v. Russell, 411 U.S. 423, 485 (1973).
Fashioning a general rule barring the appointment of
counsel for an interested private party would be con-
sistent with these limitations. The power to punish for
contempts “is essential to the preservation of order in
judicial proceedings, and to the enforcement of the judg-
ments, orders, and writs of the courts, and consequently
to the due administration of justice.” Ex parte Robinson,
86 U.S. (19 Wall.) at 510. That power was recognized
by Congress to reside in the federal courts when they
were called into existence (id. at 510, 512): Section 17
22
of the Judiciary Act of 1789—the same Section that con-
ferred on the federal courts the power to make “all nec-
essary rules for the orderly conducting [of] business in
the said courts” (compare 28 U.S.C. 2071)—provided that
the courts “shall have power to punish * all
contempts of authority in any cause or hearing before
the same” (1 Stat. 83). A subject matter so closely asso-
ciated with the performance of the judicial function is
properly subject to judicial control, not only by the trial
courts in the first instance, but by the reviewing courts
from a more detached perspective. And this Court in
fact has regarded the exercise of the contempt power by
the lower federal courts as especially suited to regulation
and review under its supervisory power. See Cheff v.
Schnackenberg, 384 U.S. 373, 380 (1966) (no sentences
in excess of 6 months without right to jury trial); Yates
v. United States, 356 U.S. 368, 366-367 (1958) (revising
sentence) ; Offutt v. United States, 348 U.S. 11, 18, 17-18
(1954) (reversal of conviction where judge became em-
broiled in conflict with contemnor); see also Beale, 84
Colum. L. Rev. at 1449 & n.102, 1468-1469.
The adoption of the rule we propose also may be
viewed as an aspect of the recognized power of the fed-
eral courts to regulate the conduct of attorneys as officers
of the court (cf. 28 U.S.C. 1654), to the extent such mat-
ters are not separately addressed by federal law (e. g.,
18 U.S.C. 208) or within the domain of another Branch
(e.g., 28 U.S.C. 547(1)). See, e.g., Ex parte Robinson,
86 U.S. (19 Wall.) at 512; United States v. Dinitz, 424
U.S. 600, 612 (1976) (Burger, C.J., concurring) ; United
States v. Agosto, 675 F.2d 965, 976-977 (8th Cir.), cert.
denied, 459 U.S. 834 (1982); United States v. Dolan, 570
F.2d 1177 (3d Cir. 1978); Fed. R. Crim. P. 44(c) and
advisory committee note, 18 U.S.C. at p. 650. The attor-
neys here appear not merely on behalf of private clients
(compare Polk County v. Dodson, 454 U.S. 312, 318-319
(1981); Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-
379 (1866) ); they have been appointed to assist the court
in the performance of an essential judicial function, which
renders their selection uniquely a matter of judicial con-
cern. Cf. 18 U.S.C. 401(2); Griffin v. Thompson, 43
U.S. (2 How.) 244, 257 (1844).
2. We also believe that the rule we propose would con-
stitute a sound exercise of the Court’s authority. What-
ever may be the practice of private prosecutions in some
states, the prevailing rule in the federal system is that
those who prosecute crimes are “public officials” who
“must serve the pyblic interest.” Marshall v. Jerrico,
Inc., 446 U.S. at 249; see also Berger v. United States,
295 U.S. 78, 88 (1935). Accordingly, when the United
States Attorney has declined to prosecute what the court
regards as a serious charge of criminal contempt, the
court’s adherence to the principles of disinterested prose-
cution is warranted by two factors that justified the
formal referral to the United States Attorney in the first
place: the requirement in 18 U.S.C. 3691 that the trial
of contempts to which that statute applies “shall con-
form as near as may be to the practice in other criminal
cases,” and the established principle of self-restraint that
the court’s invocation of its contempt authority must be
“the least possible power adequate to the end proposed.”
Anderson v. Dunn, 19 U.S. (6 Wheat.) at 231. In addi-
tion, the appointing court cannot ignore Congress’s judg-
ment that the avoidance of a financial interest on the
part of the Executive Branch counterparts of attorneys
appointed under Rule 42(b) is of sufficient importance
to warrant felony sanctions. See 18 U.S.C. 208(a). It
likewise cannot ignore this Court’s concern that “[a]
scheme injecting a personal interest, financial or other-
wise, into the enforcement process may bring irrelevant
or impermissible factors into the prosecutorial decision
and in some contexts raise serious constitutional ques-
tions.” Marshall v. Jerrico, Inc., 446 U.S. at 249-250.
Of course, a proceeding for the adjudication of crim-
inal contempt charges is not in all respects identical to
other proceedings in which conflicts of interests could
arise. Where such a proceeding is initiated by the court
under Rule 42(b), the actual “prosecutorial decision” is
i
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ly
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uff
45
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the legitimate interest the affected private
have in the outcome (see 18 U.S.C. 402
ordered paid to the injured party) )—also
the Constitution might tolerate a greater role
attorney for an interested private party in
tempt proceedings than would be permitted in the
cution or other crimes. Cf. Polo Fashions, 760
704, 705 (attorney for interested party may U
States Attorney or disinterested a ted counsel). Such
a role might be considered, for example, where the pun-
ishment is not imprisonment (cf. Scott v. Illinois, 440
U.S. 367 (1979); Argersinger v. Hamlin, 407 U.S. 25
(1972) ), or where the nature of the contempt does not
require a full-blown jury trial, with all the formalities
that such a trial implies. The fact remains, however, that
contempt is “a crime in the ordinary sense” (Bloom v.
Illinois, 391 U.S. at 201), and the Court accordingly has
extended to contempt proceedings most of the constitu-
tional rights typically associated with the prosecution of
ordinary crimes. See id. at 205-206; Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 444 (1911); Cooke v.
HH
aide
i
prosecutor in cases of serious contempt.
Such a rule, coupled with a requirement that the
charges first be referred to the United States Attorney,
would constitute an important initial step in addressing
the most immediate of the varied and difficult problems
associated with the exercise of the contempt power in re-
sponse to violations of court orders entered in private
litigation. At the same time, it would be an appropri-
ately cautious step, leaving to future cases (or to rule-
making by this Court, see Douglas Oil Co. v. Petrol Stops
Northwest, 441 U.S. 211, 231 (1979)) the development
of principles for the adjudication of contempts that result
in lesser punishments. A disposition based on the Court’s
supervisory power also would avoid premature pronounce-
ments regarding the reach of the Due Process Clause in
this setting (see Ashwander v. TVA, 297 U.S. 288, 346-
848 (1936) (Brandeis, J., concurring)). Basing a rul-
ing in this case on due process grounds could lead to
(1) a rigidity in the exercise of a power that historically
has been administered in a flexible manner in light of
experience and evolving standards of fairness, and (2) a
questioning of the constitutionality of statutory provi-
sions still extant in states that permit the private
prosecution of crimes. See generally Note, supra, 54
Ford. L. Rev. at 1151-1155.“
Nor is there reason to believe that adherence to stand-
ards of disinterested prosecution would frustrate the
ability of the courts to vindicate their authority with
respect to those serious contempts that require a full-
biown trial and the presence of an attorney to prosecute
the charges before the court. As we have explained, re-
ferral of the matter to the United States Attorney for
possible prosecution is an important source of protection.
But if the United States Attorney declines prosecution
and the court nevertheless concludes that the circum-
stances are sufficiently compelling to warrant punishment,
we believe the court will have no difficulty in finding a
disinterested member of the bar who can assume respon-
sibility for presenting and prosecuting the charges. We
have been informed by the General Counsel of the Admin-
istrative Office for the United States Courts that it has
19 The Court recently reiterated the view that the “rigid require-
ments” of impartiality applicabie to judicial officers under Tumey
V Ohio, 273 U.S. 510 (1927), “are not applicable to those acting in
a prosecutorial or plaintiff-like capacity,” and that “a state legisla-
ture ‘may, and often ought to, stimulate prosecutions for crime by
offering to those who shall initiate and carry on such prosecutions
rewards for thus acting in the interest of the State and the people.“
Marshall v. Jerrico, Inc., 446 U.S. at 248-249, quoting 273 U.S.
at 535.
\
construed the statutes appropriating funds for the opera-
tion of the federal courts to permit the payment of legal
fees to attorneys appointed under Pile 42 (b).“
8. Of course, the supervisory power cannot be exer-
cised in a manner that conflicts with the Constitution or
an Act of Congress. Thomas v. Arn, slip op. 7-8. But
there is no such conflict here. The Constitution surely
does not mandate that counsel for an interested private
party be appointed by a court to prosecute serious charges
of criminal contempt or prohibit this Court from deeming
such an attorney to be disqualified. There likewise is no
inconsistency with any statutory provision. Section 17 of
the Judiciary Act of 1789 did not “prescribe any special
procedure for determining a matter of contempt”; it
instead left the mode of proceeding “to be determined
according to such established rules and principles of the
common law as were applicable to our situation.” In re
Savin, 131 U.S. 267, 275-276 (1889). Although the
reach of the contempt power was curtailed by the Act
of March 2, 1831 (ch. 99, §1, 4 Stat. 488), Congress
once again did not prescribe detailed procedures. See
Nye v. United States, 313 U.S. 33, 45-48 (1941); Green
v. United States, 356 U.S. at 169-173. See also Act of
November 21, 1941, ch. 492, 55 Stat. 779.
The supervisory rule we propose also does not con-
flict with Fed. R. Crim. P. 42(b). The Second Circuit has
relied on Rule 42(b) in support of the practice it sanc-
tioned in this case, on the ground that the advisory com-
mittee note cites McCann v. New York Stock Exchange,
80 F.2d 211 (2d 1935), cert. denied, 299 U.S. 603
(1936), which contemplated such appointments. See
We have been further informed by the General Counsel of the
Administrative Office that such payments have been approved on
two occasions and that the attorneys were paid at the $75 hourly
rate at which private attorneys employed by the Department of
Justice are compensated. The Second Circuit therefore was mis-
taken in its belief, expressed in Musidor (658 F.2d at 65), that the
appointment of counsel for an interested private party is justified
on the practical ground that there is no other source of funds to
pay attorneys appointed under Rule 42(b).
27
Musidor, 658 F.2d at 64-65. However, the propriety of the
appointment of interested private counsel was not di-
rectly presented in McCann. That case primarily ad-
dressed the problem of ascertaining when a particular
contempt arising out of private civil litigation should be
regarded as criminal rather than civil. The court recog-
nized that when the United States Attorney initiates the
proceedings, the criminal nature of the action will be
clear. 80 F.2d at 214. The court also stated that in some
instances, the judge may seek the assistance of the attor-
ney for a private party, “who will indeed ordinarily be
his only means of information when the contempt is not
in his presence” (ibid.). But because the character of
the proceeding may be more equivocal in such instances,
the McCann court concluded that the district judge should
resolve any doubts on that score by “enter[ing] an order
in limine, directing the attorney to prosecute the respond-
ent criminally on behalf of the court” (id. at 215).
Rule 42(b) was promulgated in 1944, after the deci-
sion in McCann. The second sentence of the Rule pre-
scribes the form of notice required in a non-summary
contempt, which must include a statement of “the essen-
tial facts constituting the criminal contempt charged.”
The third sentence then provides that the notice may be
given orally by the judge in open court “or, on applica-
tion 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 advisory committee note states that “to obviate
the frequent confusion between criminal and civil con-
tempt proceedings,” the “requirement in the second sen-
tence that the notice shall describe the criminal contempt
as such! follows the suggestion made in McCann”
(emphasis added). See United States v. United Mine
Workers, 330 U.S. 258, 298 n.66 (1947) (“[t]he rule in
this respect follows the suggestion made in McCann’).
However, the advisory committee note says nothing about
the source of the reference in the third sentence of Rule
42(b) to appointed counsel, and it does not in any way
28
endorse the statement in McCann that the attorney rep-
resenting a private party in related civil litigation may
be designated to prosecute the contempt. In fact, the
third sentence of the Rule does not go so far as to au-
thorize even a disinterested private attorney appointed
by the court to play a role in the contempt proceedings
beyond filing the application for an order to show cause.
Although we do not read that omission to preclude the
court from appointing a private attorney to prosecute
the charges, we likewise do not read the Rule or the
advisory committee’s note to foreclose this Court from
exercising its supervisory power on this issue.“
4. If the Court determines that the appointment of an
interested private attorney to prosecute the contempt
charges was inappropriate, the question will arise whether
petitioners are entitled to any relief. As a general mat-
ter, reversal of a conviction does not automatically follow
21 Even if the reference to McCann had clearly approved the
practice referred to in that case, we do not believe it would bar this
Court from invoking its supervisory authority in the very different
setting presented here. In McCann itself, the only sanction, im-
posed without a jury trial, was a $250 fine—a punishment of a
wholly different order than the terms of imprisonment ranging
between 6 months and 5 years in this case. Moreover, Justice
Goldberg stated in his dissenting opinion in United States v.
Barnett, 376 U.S. 681 (1964), that his research had disclosed only
two instances of imprisonment for criminal contempt in excess
of six months that had been brought to this Court’s attention
between the founding of the Republic and 1957 (id. at 752 n.35),
and in each of those cases, the contempt arose in proceedings
brought by the United States. The majority in Barnett did not
dispute Justice Goldberg’s research, and it in fact acknowledged
that the severity of punishments for contempt had increased since
1957. 376 U.S. at 694-695. In light of these changed circumstances
and the evolution of the law of contempt during the 40 years since
Rule 42 (b) was promulgated (see Bloom v. Illinois), the advisory
committee note’s reference to McCann does not foreclose this Court
from barring the appointment of counsel for an interested party to
prosecute a contempt in circumstances wholly different from those
presented in McCann. Cf. Nilva v. United States, 352 U.S. 385,
895-896 (1957); Moe v. Confederated Salish & Kootenai Tribes,
425 U.S. 468, 479 (1976).
29
from the fact that an error occurred in a criminal trial.
Depending upon the nature of the right involved, the
usual rule is that the defendant must establish that he
was prejudiced, unless prejudice is so inherent, or suffi-
ciently likely yet incapable of proof, as to require auto-
matic reversal. See, e. g., Rose v. Clark, No. 84-1974
(July 2, 1986); United States v. Mechanik, No. 84-1640
(Feb. 25, 1986); Strickland v. Washington, 466 U.S.
668, 693-697 (1984).
This case presents the two-fold question whether the
error of appointing the attorney for an interested party
as the prosecutor is inherently prejudicial or, if not,
whether petitioners were sufficiently prejudiced by the
error in some way that requires that their convictions be
reversed. Those questions present difficult issues that
may require close familiarity with the record to resolve.
Accordingly, we submit that the Court may wish to leave
the matter of remedy to the court of appeals on remand.
CONCLUSION
The judgment of the district court should be reversed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
EDWIN S. KNEEDLER
Assistant to the Solicitor General
GLORIA C. PHARES
Attorney
OCTOBER 1986
N . 8. GOVERNMENT Printine orrice; 1986 491507 20324
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